IN THE COUNTY COURT OF VICTORIA	Revised
Not Restricted
Suitable for Publication	
AT MELBOURNE
CRIMINAL JURISDICTION

CR-24-00038

DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		
		
SEAN LINDNER		

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JUDGE:	HIS HONOUR JUDGE MAIDMENT	
WHERE HELD:	Melbourne	
DATE OF HEARING:	17 September 2024	
DATE OF SENTENCE:	10 October 2024	
CASE MAY BE CITED AS:	DPP v Lindner	
MEDIUM NEUTRAL CITATION:	[2024] VCC 1580	

REASONS FOR SENTENCE
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Subject:		Plea - sentencing
Catchwords:		Handle stolen goods - possess drug of dependence - handle stolen cash - commit indictable offence whilst on bail - fail to comply with direction to provide information or assistance 
Legislation Cited:	
Cases Cited:	
Sentence:		40 months' imprisonment, non-parole period 25 months 
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APPEARANCES:
	Counsel	Solicitors	
For the Director of Public Prosecutions	Ms C. Duckett	Office of Public Prosecutions	
			
For the Accused	Mr G. Chisholm	Stephen Peterson Lawyers	

HIS HONOUR:
1	Sean Lindner, you have pleaded to guilty to 10 charges on the indictment. Nine charges, several of which are rolled-up charges, are for offences of handling stolen goods, for which the maximum penalty is imprisonment for 15 years, and one charge is for possessing a drug of dependence, namely methylamphetamine, for which the maximum term of imprisonment is five years.  
2	You have also pleaded guilty to and asked me to take into account four related summary offences: an offence of handling stolen cash in a little over $38,000, and although the maximum term of imprisonment for dishonest handling is 15 years the Magistrates' Court limit would be two years for that offence; an offence of committing an indictable offence whilst on bail, for which the maximum penalty is three months' imprisonment; and two offences of failing to comply with a direction to provide information or assistance in relation to your electronic devices, for which the maximum penalty is imprisonment for two years.  
3	You have also admitted the prior criminal history for which in 2014 you were given a community correction order for offences of burglary, theft and criminal damage with intent; otherwise your criminal history does not appear to me to be particularly relevant.  The last offence was at the Latrobe Valley Magistrates' Court in May 2019 for recklessly causing injury for which you received a fine of $750.  
4	The prosecution tendered and relied upon a summary of prosecution opening for the plea dated 16 September 2024.  The matter was heard in the County Court Koori Court with two elders present who played no part in the determination of the appropriate sentence, but contributed to the hearing by participating in the conversation with you which enabled you to identify and explain matters that are relevant to sentencing including your background, your current relationship and your recognition of your need to control your drug abuse in order to avoid further offending, coupled with the efforts that you have already made to address that serious problem.
5	The plea was heard on the same day as the conversation with the Koori Court elders and the matter was adjourned to today for further plea and sentence.  No other matters have been put today which bear upon the sentencing discretion.  
6	The offending all took place in early 2023.  The first series of Charges 1 to 7 on the indictment occurred on 1 February 2023.  At that time you were 28 years of age.  You are now 30 years of age.  On that occasion you were living at an address in Newborough with your current partner who was then 24 years of age.
7	On 1 February 2023, the Victoria Police Vehicle Crime Squad executed a search warrant at your home address and other storage facilities on the basis of their suspicion that you were someone acting as a point of disposal for stolen vehicles and rebirthing those vehicles for profit. 
8	When the police arrived at the premises they found various vehicles in or about your home, parts of vehicles and other items associated with the disguise of vehicles, registration plates belonging to other vehicles, evidence of you having stripped parts of vehicles and evidence of you disguising the vehicles by disguising the true identification features of the vehicle.  In one of the vehicles, the subject of Charge 6 on the indictment (a Holden sedan which bore false plates in the name of your partner), the vehicle's identification number had been altered.  That vehicle had been stolen between the 17th and 18 January 2023 from the Park Royal Hotel in Clayton.
9	In the centre console of that vehicle was $25,050 in cash.  That forms part of the related summary offence of handling a total of over $38,000 in cash found both in that vehicle and at various other places by police on that day.
10	In the shed at the premises there were various car parts and registration plates which are particularised in the indictment.  Next to the garage police found gear boxes from stolen vehicles which were identified and associated with Charges 2, 4 and 7.  Further cash was found in your bedroom at the house along with a mobile phone.  
11	A storage unit in Yarragon which had been rented by you and your partner was also searched, and various other items associated with the business of rebirthing and disguising vehicles were found at that location.  
12	You were arrested on that date, charged and bailed to appear at the Latrobe Valley Magistrates' Court.  In interview with the police you claimed that you owned all of the vehicles at the property and that you had purchased them from online classified website Gumtree for between $2,000 and $3,000 each.  You claimed that you knew the vehicles were cheap.  You claimed ownership of all the property seized from the garage and the storage sheds.
13	You failed to provide an accurate personal identification number to unlock your mobile phone.  That is the subject of Charge 30 of the related summary offences.
14	Having been released on bail, police attended your premises and executed a further search warrant on 1 March 2023.  It is apparent that you had not learnt anything from the prior visit of police a month earlier and police located in the front yard a Holden sedan bearing registration plates belonging to a Kia Sorento.  The vehicle was eventually identified as a 2004 Holden Commodore and the vehicle was stolen from its owner the day prior, that is on 28 February 2023, from Berwick Railway Station.  That is the subject of Charge 8.
15	Also seized from the garage of the property was a 2015 black Holden Sandman station wagon which had been stolen from Jeff Wignall Ford in Frankston on 14 February 2023.  The vehicle's identity had been altered with different registration and VIN plates.
16	Seized from the lounge room was a further $1,200 in cash which forms part of the related summary offence 20 of handling stolen cash.  There was another iPhone belonging to you for which you again refused to provide the passcode.  That is the subject of the charge of failing to comply with a direction to provide information or assistance in that regard related summary offence Charge 31.  Police also found a combined total of 14 grams of methylamphetamine.
17	On that same date they searched a storage shed at Maverick Storage in Yarragon, across the road from the previous storage shed that they had raided on 28 February.  They found service books for other vehicles which had been stolen and form part of the material relevant to Charge 7 and Charge 5 on the indictment.  These charges are rolled up charges.  
18	You were arrested on that date and interviewed.  You claimed ownership of the vehicles found at your premises although you were unable to recall when you had obtained one of the vehicles and you were vague about when you obtained the other vehicle.
19	You claimed that the cash found in your wallet - $1,200 that had been seized during the execution of the search warrant on that date - came from mowing lawns.
20	The storage unit that the police searched on that date had been rented, you claimed, just after the first search warrant had been executed. 
21	Insurance companies paid out on a number of the stolen and altered vehicles in a total sum of just under $218,000.  
22	The vehicle the subject of Charge 4 belonging to Mr Walton (who has provided a victim impact statement) was a 2015 silver Holden Commodore.  According to Mr Walton, it was a collector's item.  It was a VF HSV GTS Holden and was one of Holden's last cars.  It had been purchased by him in 2018 for $69,990.  When he got the vehicle back after it had been returned to him as a result of the police action, it was a shell.  He has been quoted $86,361.30 for parts that he would require to repair the vehicle.  His ambition had been to bring the vehicle up to a standard where he could sell it for in the order of $120,000.  He is severely out of pocket because that vehicle was uninsured.  
23	As I have indicated, at the plea hearing a victim impact statement was tendered on behalf of Mr Walton.  I have taken its content into account.
24	Turning to matters personal to you, your counsel provided me with an outline of plea submissions dated 16 September 2024 together with a report from clinical psychologist Carla Lechner dated 17 June 2024 (about which I will say more in a moment), a letter from your partner describing your relationship and identifying the fact that you have one child together and that she was pregnant and due I think early next year, and speaking of the quality of your relationship and wanting nothing more than to be a family.  She speaks of the need for you to continue your rehabilitation.  
25	There were various reports from the Court Integrated Service Program at the Magistrates' Court speaking of your progress since the offending, and there was a letter of engagement with Arrow Health dated 29 August 2023, and a previous letter from Arrow Health dated 9 January 2024 along with an alcohol and drug comprehensive assessment dated 12 September 2024 which contains a case summary which describes you having used illicit substances since the age of 16 where you experimented with cannabis and alcohol.  At the age of 17 you started using methylamphetamine or ice and you had continued to use it since then. 
26	The case summary goes on to say:
Although the client [meaning you] didn't talk about any positives to come out of [your use of methamphetamine], Mr Lindner informed the clinician he often used by himself and resorted to criminal behaviour to maintain his drug use and for the excitement.  Mr Lindner also states his drug use has been problematic in his relationship, affecting the connection between him and his partner and not being available for his children whilst in custody.  Mr Lindner reported he is a plasterer by trade and operates vehicles and stated he is often under the influence of methamphetamines when driving, which poses a risk not only to himself, but to the public and his family.  Mr Lindner is aware of his risky behaviour which is why he wants to attend a drug and alcohol facility to address his issues and triggers, and to become a better father.
27	The next paragraph reads:
Mr Lindner states he has been diagnosed with depression, but claims he is currently not taking medication for it now.  Sean also claims he may have Huntington's disease, a genetic disease his father suffers from and states that it may be the reason why he is feeling depressed and the need for methamphetamines.
28	I will not read the rest of the summary but those matters are picked up in the report of Ms Lechner, who gives a summary of your early life and education and the feelings you have about not being wanted by your mother.  She describes your relationship history, your children and your work history, which included your estimate that you had been in employment 80 per cent of the time during your working life.  She refers to the fact that in 2022 you broke your elbow and went onto WorkCover.  You suggested to her that your resort to criminal behavior giving rise to these charges was at least in part due to your need to find money for your young family to supplement payments from your WorkCover.
29	She identifies the symptoms that you have leading to her diagnosis of major depressive disorder.  She notes that you have not been tested to see whether you carry the gene for Huntington's disease but that is at least in part due to your anxiety about that matter.  I was provided also with a letter dated 9 September 2024 from the Calvary Health Care Bethlehem, Kooyong precinct referring to your father's condition as a sufferer from that disease.
30	Mr Chisholm did not argue that Verdins principles applied to reduce your moral culpability.  Rather, he submitted that your major depressive illness and other matters, including the provisional diagnosis also of Ms Lechner of you having an adult attention deficit hyperactivity disorder, would, coupled with other matters arising from your separation from your wife and children and your inability to support your partner during the pregnancy with her second child, impact upon your time in custody and make it harder for you to cope with your sentence.
31	It is not suggested that the report of Ms Lechner provides a basis for concluding that your mental health is at risk of serious deterioration during your time in custody, thereby engaging that component of the Verdins principles.  Whilst the matters relating to your childhood upbringing show that there were many deprivations and poverty associated with your childhood, family violence, parental alcoholism and family separation, it is not suggested that they engage the Bugmy principles.  But they are part of the background which I take into account as a basis for determining the appropriate sentence.
32	Various certificates of achievement show that during your period of incarceration prior to you being granted bail you engaged in rehabilitative programs, which supports the proposition that you have reasonable prospects of rehabilitation.
33	During the conversation with the elders and with my occasional intervention I was able to glean that there are many positives about your personality.  Your capacity for work and your capacity for rehabilitation are apparent and I have no doubt that you are now remorseful for your conduct.  It was hard to reconcile the question of remorse with your further offending on 1 March 2023 so shortly after you had been raided by police the previous month.  Nevertheless, I am persuaded that you are remorseful and that you are concerned to rehabilitate yourself when given the opportunity to do so.
34	That you engaged in drug rehabilitation for 30 days following your previous period on remand shows that you are not just willing but capable of sustaining a period of drug rehabilitation and that you are capable of getting on top of your drug abuse which, although quite longstanding and substantial, is possible to overcome with hard work on your part and assistance.  You have the incentives now to pursue that aim and to fulfil your wish of becoming a better father as a result.
35	I conclude that you do have reasonable prospects of rehabilitation.  It was submitted on your behalf that I should have you assessed for a community correction order that would involve perhaps the participation of Wulgunggo Ngalu Learning Place to assist you with your rehabilitation.
36	Whilst there may have been significant benefits in that proposal for you, and indeed for the community, it seemed to me that your offending, particularly the second series of offences occurring so soon after the first when you had had ample opportunity that month before 1 March to consider the risks that you were taking in pursuing a professional and well-ordered illicit business in car rebirthing for profit, was too serious to have you assessed for a community correction order with a view to a combined sentence.
37	It was conceded that a term of imprisonment was required for this offending and, although I recognise the importance for the community as well as yourself in promoting your rehabilitation, the offending is too serious to contemplate a combined sentence.  
38	It is necessary for me to punish you adequately for your offending, to denounce your conduct, to give proper weight to the need to deter others from engaging in that kind of conduct and to deter you from further participation and offending of that kind.  All of that needs to be balanced against the importance not just in terms of benefit to you but in terms of benefit for community and protection of the public in promoting your rehabilitation.  
39	Trying to marry all of those sentencing considerations and taking into account the effects on your victims, particularly Mr Walton who provided the victim impact statement, I sentence you as follows.
40	On Charge 1 of handling stolen goods you are convicted and sentenced to imprisonment for 12 months.  
41	On Charge 2 of handling stolen goods you are convicted and sentenced to imprisonment for 12 months.  
42	On Charge 3 of handling stolen goods you are convicted and sentenced to imprisonment for 12 months.  
43	On Charge 4 of handling stolen goods that involves the vehicle that belongs to Mr Walton who has lost so much as a result of your offending, you are convicted and sentenced to imprisonment for 14 months.
44	On Charge 5 of handling stolen goods you are convicted and sentenced to imprisonment for a period of 12 months. 
45	On Charge 6 of handling stolen goods you are convicted and sentenced to imprisonment for 12 months.
46	On Charge 7 of handling stolen goods you are convicted and sentenced to imprisonment for 12 months.
47	That deals with the offending that occurred on 1 February 2023.  Then moving to the offending that occurred on 1 March 2023.
48	On Charge 8 of handling stolen goods you are convicted and sentenced to imprisonment for 18 months.
49	On Charge 9 of handling stolen goods you are convicted and sentenced to imprisonment for 18 months.
50	On Charge 10 of possession of a drug of dependence namely methylamphetamine you are convicted and sentenced to imprisonment for three months. 	

51	On related summary Charge 20 of handling stolen cash in the sum of a little over $38,000 you are convicted and sentenced to imprisonment for nine months.
52	On related summary Charge 29 of committing an indictable offence whilst on bail you are convicted and sentenced to imprisonment for one month.
53	On each of related summary Charges 30 and 31 of failing to comply with a direction to provide information or assistance in connection with your mobile phones you are convicted and sentenced to imprisonment for a period of four months.
54	For the purposes of making orders relating to cumulation of those sentences the sentence on Charge 8 of 18 months is the base sentence.  I order that two months of the sentence on Charge 1, two months of the sentence on Charge 2, one month of the sentence on Charge 3, four months of the sentence on Charge 4, two months of the sentence on Charge 5, one month of the sentence on Charge 6, one month of the sentence on Charge 7, four months of the sentence on Charge 9, one month of the sentence on Charge 10 and two months on each of related summary offences 20 and 30 be served cumulatively upon the sentence of 18 months on Charge 8 and upon each other, making a total effective sentence of three years and four months' imprisonment.
55	I fix a non-parole period of two years and one month.
56	I declare 276 days pre-sentence detention as time to be reckoned as served and I note that in addition to that there is approximately 30 days of what is known as Akoka time to be considered in determining the appropriate sentence.
57	I make the forfeiture and disposal orders in accordance with the drafts with which I have been provided.
58	But for your pleas of guilty I would have sentenced you to imprisonment for a period of five years with a non‑parole period of three years and two months.
59	Are there any other matters, counsel?
60	COUNSEL:  No, Your Honour.
61	HIS HONOUR:  Thank you.
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