Director of Public Prosecutions v Alecsa

[2019] VCC 163

IN THE COUNTY COURT OF VICTORIA      Revised
 Not Restricted
     Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01972

DIRECTOR OF PUBLIC PROSECUTIONS

v

ROGER ALECSA

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JUDGE:	HIS HONOUR JUDGE GRANT
WHERE HELD:	Melbourne
DATE OF HEARING:	6 February 2019
DATE OF SENTENCE:	15 February 2019
CASE MAY BE CITED AS:	DPP v Alecsa
MEDIUM NEUTRAL CITATION:	[2019] VCC 163

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms L Andrews Ms T. Schultz (for sentence)	OPP
For the Accused	Mr A. Purcell	Dean Cole & Associates

HIS HONOUR: 

1Roger Alecsa, you have pleaded guilty to one charge of home invasion, one charge of intentionally cause injury and one related summary offence of dealing with property, suspected of being the proceeds of crime. 

2The maximum penalty for these offences are - home invasion, 25 years' imprisonment; intentionally cause injury, ten years' imprisonment; and the related summary offence, two years' imprisonment.  In addition, the offence of home invasion is a Category 2 offence under the Sentencing Act of 1991.  Section 52H of that Act, requires a term of imprisonment to be imposed for that offence, unless the circumstances set out in paragraphs (a) to (e) of that sub-section exist.

3At about 6.45 pm on 5 July 2018, you attended the victim's home with another man who remains unidentified.  You maintain that you did so because you were unhappy with the victim's failure to repay a debt of $500.  You were armed with a baseball bat.  The victim heard a noise at his front door and as he left his bedroom, he saw you and the other man enter through the front door.  You had no permission to enter the house and you did so with the intent to assault the victim.  You moved towards him and pushed him with the baseball bat.  He tried to grab the bat but it was taken by the other male.  You put the victim in a chokehold and punched him to the head several times.  The other male hit his legs with the bat. 

4The victim bit your finger and managed to free himself from the chokehold.  You still held the victim by the singlet and the other male kept hitting his legs with the bat.  A tenant who resided with the victim came out of her room and saw what was happening.  She called 000.  The victim slipped out of his singlet and ran from the property.  He ran to another home in the area and asked for help before slumping to the ground.  Police attended the scene and spoke to the victim.  He immediately identified you as one of the offenders. 

5You were arrested the next day.  A search warrant was executed on your girlfriend's residence and a Yamaha dirt bike was located.  It had no identifying number.  You were interviewed by the police and then remanded in custody.

6This is serious offending.  It was planned.  You attended the victim's home with the intention of confronting him.  You were armed with the baseball bat.  You were in the company of another man, whose identity is unknown.  You opened the front door of the house and entered without permission.  You and your accomplice assaulted the victim in his own home. 

7The Court of Appeal in Victoria has made it very clear that this type of offence is, by its very nature, particularly serious.  It offends against the basic notions of civilised and decent society, undermining as it does a person's entitlement to feel safe and secure in their own home.  Although no impact statement has been provided, I have no doubt that this would have been a terrifying experience for the victim.  The tenant who witnessed the assault would also have been terrified.  Fortunately, the physical injuries suffered by the victim were relatively modest.  He sustained bruising to his face, right shoulder and legs, as well as a bump on his head and grazes on his lip and inside his mouth.

8With this offending general deterrence, that is the need to dissuade others from behaving in the way that you did, is a central and paramount sentencing consideration.  Denunciation is also highly relevant.  You do have a criminal history.  Although it predominantly involves motor vehicle and dishonesty offences, there is an appearance in April 2013 for offences of assault with a weapon, unlawful assault and criminal damage.  You have generally been dealt with in the past by way of fines, although there is one community corrections order.  Your history means that specific deterrence and community protection are also relevant sentencing considerations.

9I now move to matters relevant to your background and those matters raised in mitigation.  You are 30 years old.  Your parents are Romanian but you were born in Australia.  They separated when you were about two years old.  They both formed new relationships.  I was told that you have been estranged from your father, but been well supported by your mother and extended family.  You were educated to Year 10 at Fountain Gate Secondary College.  Once you left school, you commenced working as a rigger on building sites.  You have a good work history.  You are in a relationship and you have a young daughter.

10Your counsel told me that you battled alcoholism from the age of 18.  He referred me to your appearance at the Dandenong Magistrates' Court in 2013 for various offences, including dangerous driving and driving under the influence.  On the later charge, you were released on a CCO with drug and alcohol treatment conditions.  That order did not stop you from abusing those substances.  The abuse of alcohol has been accompanied by the abuse of cocaine and methamphetamine.  I was told that you were under the influence of drugs and alcohol when you committed the current offences. 

11Given this information, I have no doubt that your life and the lives of those close to you, have been profoundly affected by your drug and alcohol abuse.  Unless you acknowledge the extent of your drug and alcohol problems, you will continue to offend. The prosecutor referred in her submissions, to the comments in the Gateway report dated 19 October 2018 and I quote, "The case manager has further recommended to continue to engage Mr Alecsa in resolving his ambivalence towards the impact his alcohol consumption may have on those around him, as well as himself".

12Your past history of drug and alcohol abuse and the serious nature of your current offending explains why I am guarded about your prospects for rehabilitation.  Your counsel told me of the strong support you have had from your mother and her family and the stability of the relationship with your partner.  He placed great weight on your work ethic.  These are generally protective factors in most people's lives.  However, in your case they did nothing to check this very serious escalation in your criminal offending.  When you committed the current offences, you were in employment, you had strong family support and your baby daughter had been born.  Notwithstanding these positive influences, the offending occurred.

13There is not a great deal that can be said in mitigation.  In assessing the level of your culpability, I acknowledge that you entered the property through an unlocked door, you were not wearing a disguise and more through good fortune than anything else, you did not cause serious injuries to the victim.  Your early plea of guilty is an important matter in your favour.  It is an acceptance of responsibility and indicative of remorse.  It has saved the victim from the trauma of giving evidence and saved the community the cost and expense associated with a criminal trial.  You will be given credit for all these matters.

14Your counsel said that it was to your credit that you are now drug and alcohol free.  With respect, that is exactly how it should be whilst you are in prison.  I accept that you have used your time in custody constructively, completing various courses and undertaking counselling.  However, it does seem that you are still finding it difficult to comprehend the extent of your alcohol problem and its impact upon your life and your family.  Your counsel submitted that an appropriate order in this case would be a combined sentence.  I disagree.  The offending is far too serious to permit the making of such an order.

15I do take into account in fixing sentence in your case, that this will be your first sentence of imprisonment.  Will you please stand?

16You are convicted and sentenced to the following periods of imprisonment.

17Home invasion, four years.

18Intentionally cause injury, nine months.

19The related summary offence, three months.

20I order three months of the sentence on Charge 2, be served cumulatively upon the sentence imposed on Charge 1.  This makes a total effective sentence of four years and three months. 

21I fix a minimum term of two years and six months before you will be eligible for release on parole.  I declare 224 days pre-sentence detention. 

22If you had pleaded not guilty and been found guilty after trial, I would have sentenced you to a total effective sentence of six years with a minimum term of four years and three months.

23I make the forfeiture order sought by the prosecution.  Pursuant to 464ZF of the Crimes Act, I order that you undergo a forensic procedure for the taking of a scraping from your mouth.  If you fail to cooperate in the taking of the sample, authorities may use reasonable force to obtain it and the sample may be a blood sample.  I make this order because of the seriousness of the offending, your prior criminal history, the order is not imposed and it is in the public interest.  Is there anything else, Ms Schultz?

24MS SCHULTZ:  No, Your Honour.

25HIS HONOUR:  Mr Purcell?

26MR PURCELL:  No, Your Honour.

27HIS HONOUR:  Yes.  The prisoner can be removed, thank you.

28(At this stage the accused left the court.)

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