IN THE COUNTY COURT OF VICTORIA
AT WARRNAMBOOL
CRIMINAL DIVISION	Revised
Not Restricted
Suitable for Publication	
Case No. CR-22-02007 & CR-23-00465

DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		
		
BENJAMIN MICHAEL PERKINS  

and 

LUKE JOHN HEALEY		

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JUDGE:	HIS HONOUR JUDGE CAHILL	
WHERE HELD:	Warrnambool	
DATE OF HEARING:	30 August 2024 (Verdict); 17 September 2024 (Plea)	
DATE OF SENTENCE:	25 October 2024	
CASE MAY BE CITED AS:	DPP v Perkins & Healey	
MEDIUM NEUTRAL CITATION:	[2024] VCC 1724		

REASONS FOR SENTENCE
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Subject: 	Burglary and theft of firearms
Catchwords: 	Guilty verdict – in possession for sale – single episode – more than three times the commercial quantity – below mid-range offending – early guilty plea – relevant criminal record
Legislation Cited:	Sentencing Act 1991 (Vic). 
Cases Cited:	DPP v Graoroski [2018] VSCA 332; Powell v the Queen [2015] VSCA 93;  DPP v Basic [2017] VSCA 376; TPP v Elton Corbitt (a pseudonym) [2023] VCC 2416; R v Mangelen (2009) 23 VR 692; Piacentino (2007) 15 VR 501; Nov v the Queen [2020] VSCA 11; R v Rich (No 2) (2002) 4 VR 155; R v Stares (2002) 4 VR 314.
Sentence:	Perkins –  Total Effective Sentence: 3 years and 8 months. Non parole period: 2 years and 3 months. 
	Healey -    Total Effective Sentence: 3 years. Non parole period: 2 years.

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APPEARANCES:
	Counsel	Solicitors	
For the DPP	Mr R Pirrie	Office of the Director of Public Prosecutions	
			
For Perkins

For Healey	Mr G Davis                           

Mr G Mylonas	Bert Hilton-Wood

Robyn Greensill & Associates	

HIS HONOUR:

1	Benjamin Perkins and Luke Healey, on 30 August 2024, a jury found you guilty of: 
(a)	one count of burglary;
(b)	11 counts of theft of a firearm; and
(c)	one count of theft of jewellery, money, power tools, ammunition, and ammunition belt, a pressure washer and petrol log splitter.
Circumstances of Offending
2	By their verdicts, the jury was satisfied, on 13 April 2021, the two of you, together, broke into a house on a rural property at Paschendale, near Hamilton (charge one – burglary), where you:
(i)	removed a gun safe, containing 11 rifles and shotguns, which was bolted to a wall in a gun room inside the house (charges two – seven and nine – 13 – theft of firearm);
(ii)	stole 1500 rounds of ammunition and an ammunition belt from a secure cabinet in the gun room (part of charge 14 charge – theft);
(iii)	ransacked a bedroom where you stole jewellery and cash, about $200 (part of charge 14 – theft); and
(iv)	stole power tools, pressure washer and a mobile wood splitter from the property(part of charge 14 – theft).
3	On the evidence, you had driven together, in Perkins’ vehicle, from the Mildura area, where you both lived, some five or six hours, to Paschendale, where you broke into the property around 8 AM and, after stealing the firearms, ammunition and other items, you drove back to the Mildura area where you both lived. 
4	Police later recovered one of Mr Rose’s rifles, his ammunition belt and a small amount ammunition in the Mildura area. 
5	10 of the stolen firearms and a substantial amount of stolen ammunition have not been recovered.
6	When you broke into the property, the owners of the stolen items, John and Fiona Rose, were away on holiday. 
7	They were both competitive sporting shooters.
8	Healey, your mother, Natasha Richter, knew John Rose through the shearing industry. 
9	In September 2020, Healey, with your mother, you stayed overnight at Rose’s property where you shot clay targets with him and afterwards helped him clean the firearms and put them away into the gun safe. So, you knew Mr and Mrs Rose had firearms and ammunition and you knew where they kept them.
10	Although there was some dispute between Mr Rose and Ms Richter about a conversation between them, shortly before the burglary, when Mr Rose was driving, with his wife, to their holiday destination, I find it is likely you, Healey, knew Rose and his wife were away when you decided to break into his property.
Objective seriousness
11	The maximum penalty for burglary is 15 years imprisonment. 
12	The maximum penalty for theft of a firearm is 15 years imprisonment.
13	The maximum penalty for theft is 10 years imprisonment.
14	Theft of firearms is very serious. Possession of them creates an obvious risk of causing serious injury or death. 
15	The larger the number of firearm stolen, the greater seriousness of the offending.
16	You stole 11 firearms. Ten of them have not been recovered. At law, a trafficable quantity of firearms is two.
17	Your further theft of a substantial quantity of ammunition, which also largely has not been recovered, elevates the seriousness of your offending. 
18	There was a degree of planning to your crimes. You used a utility, with large carrying capacity, for transport. The return trip from the Mildura area took around 14 to 15 hours.
19	Overall, I assess the objective seriousness of your offending to be mid-range.
Chronology of proceedings
20	Perkins, police arrested you in relation to the index offending on 4 November 2021. When you were charged, you were admitted to bail. However, when you failed appear on 9 May 2024, for a trial directions hearing, Your bail was revoked and, on 20 June 2024, you were apprehended and remanded in custody. 
21	You have 115 days of presentence detention available to you. 
22	Healey, police arrested you on 9 September 2021 in relation to the index offending. You were charged on summons. 
23	On 9 July 2022, police arrested you again and charged you with unrelated offences.  You were remanded in custody where you have remained.  On 8 December 2023, a judge of this court sentenced you to a term of imprisonment. Your time in custody has been spent serving that sentence. 
24	 Accordingly, you have no presentence detention available to you in respect of the index offending.
Criminal History
25	Perkins, you have a limited criminal history.
26	You have a number of summary convictions for driving, drug and violence offences in New South Wales. For the most part, you were fined for that offending.
27	You have subsequent convictions in Victoria.
28	On 20 March 2024 a Magistrate, at Mildura, released you on a 15-month community corrections order, for dangerous driving while pursued by police and other offending. 
29	You breached the order. On 4 July 2024, the magistrate re-sentenced you to 14 days imprisonment.
30	Healey, you also have admitted a criminal history. 
31	You have a number of summary convictions for driving and drug offences for which you were fined.
32	You had served a term of imprisonment prior to the index offending. 
33	On 6 August 2020, at Port Pirie Magistrates’ Court, you were sentenced to 9 months and three days imprisonment, to be released after serving three months, for driving dangerously in a police pursuit and other offences.
34	You also have subsequent convictions in Victoria. 
35	On 16 August 2021, a Magistrate, at Mildura, sentenced you to five months imprisonment for violent offending. 
36	On 18 November 2022, a Magistrate, again at Mildura, sentenced you nine months imprisonment for possession of a firearm, assault and theft. 
37	On 8 December 2023, in this court, at Mildura, you were sentenced to 5 years and 11 months imprisonment with a non-parole period of three years and five months for domestic violence offending and home invasion.
Firearms offending
38	Any history of firearm offending by either of you would be a relevant consideration. 
39	Neither of you has a prior conviction for a firearms offence. However, for completeness, I note:
(a)	Mr Perkins, when you were resentenced on 4 July 2024, in respect of an offence of carrying a firearm related item, you were convicted and discharged; and
(b)	Mr Healy, as I have noted, you have a subsequent conviction for possession of a firearm  for which a prison term was imposed. 
Personal Circumstances
Mr Perkins
40	You were born in October 1979 at Broken Hill. You were 42 years old when you offended. You are now 45.
41	You are the oldest of four children. Your father was a naval officer. When you were young, the family moved to Frankston, near his Navy base. Your father was often on duty overseas and largely absent from the family.
42	When you were a teenager, your parents separated, and your mother moved your siblings and you back to Broken Hill. 
43	You were a talented footballer and cricketer. In 2000, you played for an AFL reserves team but got homesick and returned home.
44	You worked for a drilling company and married. You also were a paid footballer in a local league.
45	You have two children, a son, born in 2005 and a daughter, born in 2008.
46	When your marriage broke down you started using methylamphetamine.
47	You have had two short unsuccessful stints in residential drug rehabilitation, at Orange and Wagga. 
48	You have been with your current partner for eight years. She has two children, aged 14 and 10.
49	In 2020 you moved to Yelta, near Mildura, to be closer to your children. For a time, you saw them regularly. You were working as a gardener and a labourer, and you also played local cricket. Unfortunately, you relapsed into methylamphetamine use. I was told it was in this context that you committed the index crimes.
50	In 2023, with your partner and her children you moved to Quorn in South Australia to be closer to her ill father. Your move breached your bail conditions. However, it distanced you from antisocial companions and you lived healthily until your arrest and remand. You have been in enforced drug remission in prison. Your resolve is to remain drug free in the future.
51	Your partner and children are struggling, emotionally and financially, in your absence.

Mr Healey
52	You were born in September 1994 at Dubbo New South Wales. You were 26 years old when you offended. You are now 30. 
53	Your father is a truck driver; your mother a shearer. 
54	You have two siblings. Your sister is podiatrist and lives in Queensland. Your brother is shearer and lives in New South Wales. 
55	Your father was a heavy drinker and violent. Your mother abused drugs. your parents separated when you were five years old. You then lived with your father and his new partner until you were 17. His relationship with her was also violent.
56	When you were 18 you returned to your mother and got work shearing. You also began smoking methylamphetamine.
57	You had been a talented rugby player. You had the chance to play with a major New South Wales team, but your escalating drug use denied that. 
58	You have two children, aged eight and nine. They live with their mother in New Zealand. 
59	In 2021, you were living at Mildura with a woman who had two young children. 
60	I was told, it was in the context of methylamphetamine abuse, that you committed these crimes.
61	In August 2021, you were jailed for five months for assaulting your partner. 
62	On 9 July 2022, police arrested you again, in relation to two episodes of offending: 
(a)	Firstly, between May and early July 2022, when you assaulted your partner five times, punching and choking her on occasion; and
(b)	Secondly, on 4 July 2022, when, with two others, you broke into the home of a man who owed one of the elders money, where, in company, you assaulted that man and stole his car.
63	You were remanded in custody and have been serving a prison term for that offending.
64	In prison you have completed a drug program and several vocational and programs.
65	You speak to your children and their mother weekly. She has spoken about returning to Australia and reconciling with you when you are released from prison.
66	Your brother has offered you shearing work on your release. 
67	On 25 April 2023, another prisoner stabbed you. You suffered chest and back injuries which required treatment at hospital. The episode left you with post-traumatic stress disorder symptoms, which you appear to be managing reasonably well.
68	You have no other psychological conditions.

Defence Submissions
Mr Perkins 
69	This is your first time in prison.
70	On your behalf, Mr Davis submitted I should moderate your sentence to take into account:
(a)	your limited criminal record; and
(b)	the hardship of your separation from your family. 
71	He submitted, considering your limited criminal history, your period of voluntary drug abstinence in the community, your enforced remission in prison and your family support, I should have some confidence about your prospects of rehabilitation. 
72	I accept the force of these submissions
Mr Healey
73	On your behalf, Mr Mylonas submitted, because your childhood was marred by domestic violence, your moral culpability is reduced. He provided no direct material to support the proposition. However, I accept, generally, your sentence should be moderated to a modest degree because of your disruptive upbringing.
74	He submitted your progress in prison, your relatively early age, your potential for work and family support are protective factors for your rehabilitation. I accept the force of that submission.
75	He submitted, because there offending occurred in a single transaction, I should order a large measure of concurrency of sentences.
76	He also submitted, because you are serving another prison term, for offending which occurred in mid-2022, the totality principle has additional application. 
77	I accept the force of these submissions. 
Prosecution submissions
78	Mr Pirrie, who appeared for the prosecution submitted, yours are relatively serious examples of the crimes for which you are to be sentenced.
79	He characterised your offending as a “mission”, where you made a lengthy road trip, through the night, to Passchendale where you knew Mr Rose and his wife kept a significant cachet of firearms and ammunition.
80	In relation to you, Mr Healey, he submitted, and I accept, that you had breached Mr Rose’s trust, after he had allowed you to stay as his guest, with your mother, at his home and, to use their firearms, elevates the seriousness of your offending. 
81	He submitted, and I also accept, considering the demand of criminal groups for illicit firearms, it was concerning that police have been able to recover only one stolen firearm and a small amount of the stolen ammunition.
82	He submitted, overall, because of the seriousness of your offending, a prison term with a non-parole period fixed, is the appropriate sentence for each of you.
83	Neither of your counsel argued otherwise.
Parity
84	I have no material before me as to your respective roles in the offending other than that you acted together to drive from the Mildura region to Paschendale, where you broke into Mr and Mrs Rose’s home and stole firearms and other valuable items. 
85	I was told only that each of you were abusing drugs at the time. 
86	The two of you appear to have been equally complicit in the commission of these crimes.
87	Considering you stole a large number of firearms and a large amount of ammunition together with jewellery, cash and farm tools, I conclude your mutual motivation was the prospect of financial gain.
88	Neither of your Counsel sought to differentiate between your respective blameworthiness and personal circumstances. Neither argued for a different sentence for either of you. 
89	While there are some differences in your personal circumstances, among them, that you, Perkins, are older and you, Healey, had previously served a term of imprisonment, I conclude they are not so material as to justify a different head sentence for each of you. And while, Mr Healey, your breach of Mr Rose’s trust elevates your moral culpability, considering you are serving another prison sentence, which Judge Moglia imposed, I have moderated what would have been a longer sentence for you.
90	In accordance with the principles of proportionality and parsimony, I will ensure the sentence I impose is proportionate to the gravity of your offending and is no more severe than is necessary to achieve the purposes of sentencing.
91	Because you are to be sentenced for multiple offences, totality is an important sentencing consideration in the case of each of you.
92	All the offences were part of a single transaction, committed at the same time, at the same location and with the same end in mind. 
93	The burglary was a precursor to the theft of the firearms and other items. I will order the burglary sentence be served concurrently with all other sentences.
94	The 11 firearms were secured in a single gun safe. I will make very modest orders for the cumulation of the theft of firearm offences. 
95	The theft of the ammunition, jewellery, cash, power tools, pressure washer and log splitter denotes additional criminality which will be reflected in a modest order for cumulation.
96	Mr Perkins and Mr Healy, by the sentence I impose I must denounce your conduct, punish you, and deter you and others from committing crimes of the same or similar kind. I must also look to your rehabilitation.
97	Considering the circumstances of your offending, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you, I sentence you both as follows:
(a)	on each of charges two, three, four, five, six, seven, nine, 10, 11, 12 and 13 – theft of a firearm, you are sentenced to 2 years and 6 months imprisonment;
(b)	on charge one – burglary – you are sentenced to 2 years imprisonment;
(c)	on charge 14 – theft – you are sentenced to 2 years imprisonment; 
(d)	the sentence I have imposed on charge 2, namely two years and 6 months imprisonment, is your base sentence; and
(e)	I direct one month of each of the sentences I have imposed on charges three, four, five, six, seven, nine, 10, 11, 12 and 13 and four months of the sentence I have imposed on charge 14 he served cumulatively on your base sentence and each other.
98	Your total effective sentence is three years and eight months imprisonment. 
99	Mr Perkins, in your case, I fix a minimum none parole period two years and three months
100	I declare you have served 115 days of your sentence by way of presentence detention. 
101	Mr Healy, because you are serving a prison sentence Judge Moglia imposed on 8 December 2023, additional totality considerations apply in your case. 
102	You have been in custody since July 2022. The time you have been in custody is “time doubly warranted” for which I cannot declare PSD because you are undergoing another sentence. Accordingly, I have moderated the degree of cumulation of the sentence, which I have imposed, upon Judge Moglia’s sentence. 
103	It will also be necessary for me to set a new single non-parole period in respect of the sentence you are currently serving and this sentence. 
104	I order three years of your total effective sentence of three years and eight months be accumulated on Judge Moglia’s total effective sentence of five years and 11 months, making a total head sentence of eight years and 11 months. 
105	I fix a new single non-parole period of five years and five months commencing from 8 December 2023, which is the commencement date of Judge Moglia’s non-parole period.
106	it is my intention, by my orders, to add three years to your existing head sentence and two years to your existing non-parole period. 
107	If my orders do not have that effect, I reserve liberty to apply to the parties to relist the matter to apply for these orders to be amended.
108	I note I cannot declare as presentence detention the presentence detention previously declared by a Judge Moglia on 8 December 2023. However, that time will also be deducted from the new single non-parole period I have fixed. 
109	I make an order for disposal of ammunition and a gel blaster magazine which police found at Mr Perkins home when they arrested him on 4 November 2021. 

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