Director of Public Prosecutions v Alexiou

[2024] VCC 819

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-24-00080

DIRECTOR OF PUBLIC PROSECUTIONS

v

THEODORE ALEXIOU

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:	28 May 2024
DATE OF SENTENCE:	4 June 2024
CASE MAY BE CITED AS:	DPP v Alexiou
MEDIUM NEUTRAL CITATION:	[2024] VCC 819

REASONS FOR SENTENCE

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Subject:	CRIMINAL LAW
Catchwords:	Burglary – Criminal Damage – Aggravated burglary (person present) – Offending occurred in context of Family Violence – Complaints were nieces – Long criminal history – Multiple psychological disorders – Extensive history of adverse childhood experiences – Substance abuse – Bugmy principles enlivened – Early plea of guilt  - Parole necessary mechanism to reduce risk of re-offending.
Legislation Cited:	Sentencing Act 1991
Cases Cited:	Bugmy v R (2013) 302 ALR 192
Sentence:	26 months’ imprisonment, 16 months’ non-parole.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr F. Cameron	Office of Public Prosecutions
For the Accused	Ms C. Benson	Slades & Parsons

HER HONOUR:

1Theodore Alexiou, you have pleaded guilty before me to one charge of burglary, two charges of criminal damage and one charge of aggravated burglary (person present).  The facts underlying your offending are as follows.  The victims of your offending were your two nieces, Melissa Alexiou and Stephanie Antonellos who were aged 26 and 31 respectively at the time of this offending.  They lived together in a house at Bermond Court in Endeavour Hills.  There was an ongoing dispute between you and Ms Alexiou relating to her sale of a car to you which you had purchased for your daughter. 

2On 9 October 2023, you went to the Endeavour Hills address, arriving on foot.  Neither Melissa nor Stephanie were present at the time.  You went to the front door and kicked it, causing damage, which is part of Charge 2 on the indictment, criminal damage.  You were then able to gain access inside the house and your actions in entering the house underlie Charge 1 on the indictment, burglary.  Once inside, you ripped a phone cord from the wall and threw a shelving unit on the ground, damaging those items, then walked into the front yard and used a metal chair to smash the front window.  Those actions are also part of charge 2, criminal damage. 

3Ms Antonellos observed damage to the house later in the afternoon and called police.  CCTV footage of the incident identified you as offender.  Two days later, on 11 October 2023, Ms Antonellos was present inside her home with Andrew Yalda, a man conducting renovations at the house, who was unknown to you.  At about 2.26 pm, you went to the house and damaged Ms Alexiou's car, a black Mitsubishi Lancer, which was parked in the driveway.  Using a metal chair, you struck the Lancer, causing large dents into the driver's door and shattering the driver's side window.  Those actions underlie Charge 4 on the indictment, criminal damage.

4You then forced your way in through the locked front door, confronting
Ms Antonellos and Mr Yalda, who were both standing in the bathroom area.  Your actions in entering the house in this way underlie charge 3 on the indictment, aggravated burglary.  You yelled at Ms Antonellos, screaming 'Youse have fucked me up, your brother fucked me up' and asking where her mother was.  You said to Mr Yalda 'If you know what's good for you, you better not call police' and told him to leave you and Ms Antonellos alone.  You began pacing around, screaming and yelling before walking out the front door.

5Mr Yalda followed you and saw you walking down the driveway.  You were later seen on CCTV footage walking around Mr Yalda's car and tool trailer. Large scratches to the passenger side doors of his Toyota Hilux were later discovered, there having been no such damage previously.  Large scratches were also discovered on the front bumper of Ms Antonellos' car, a 2008 Commodore, which was parked in the front street.  Again, there had been no such damage prior to your attending the house.  These matters are the subject of uncharged acts.

6You were arrested by police on the evening of 11 October 2023, when you were seen by the Police Air Wing, driving a car in an erratic manner in the Dandenong area.  You were seen to have left the car on foot and were located by police hiding in a vegetable garden in the backyard area of a property nearby.  You were uncooperative during your arrest and had to be sprayed with OC spray.  It should be noted that you suffered fractured ribs during the arrest and were ultimately conveyed to hospital and I was informed by your counsel that that in part contributed to your lack of co-operation at the time.

7Because of your behaviour, you were assessed as unfit to be interviewed by the forensic medical officer.  On 12 October 2023, a family violence intervention order was served on you, and you have remained in custody since your arrest.  The matter was resolved at a second committal case conference stage which is accepted by the prosecution as a plea made at the earliest opportunity.  The maximum penalty for burglary is 10 years' imprisonment.  The maximum penalty for aggravated burglary is 25 years' imprisonment and the maximum penalty for criminal damage is 10 years' imprisonment.  No victim impact statements were filed. 

8I now turn to your personal circumstances.  You are 54 years of age and were born in Greece to your parents, who left you there when you were five months old to be raised by your maternal grandmother until you were two.  At that age, you were reunited with your parents, taken to Australia and grew up in the Oakleigh area.  You told psychologist, Gina Cidoni, whose report dated 5 March 2024 was tendered on the plea, that you had always enjoyed a close and supportive relationship with your mother but had a very difficult relationship with your father. 

9He was a violent alcoholic who was physically abusive to you throughout your childhood, and you described many periods when your mother took you and your siblings to seek refuge with other family members due to that violence.  Your father eventually died in 2016 of cancer and your counsel told me that you had managed to reconcile with him to some extent before his death.  You have an order brother and a younger sister, have minimal contact with your brother but remain close to your sister who speaks to you daily in prison.  She is a stay-at-home mother with five children. 

10You attended Clayton North primary school before briefly attending Oakleigh High School for a few months in Year 7 when you were expelled due to frequent fighting and behavioural issues.  You told Ms Cidoni you were often disciplined with a belt across your hand in the principal's office, that your academic performance was poor and that you often skipped school.  You never returned to school but began working with an uncle assisting in carrying boxes and were then sent to Greece for two years where you worked in carpentry in your village.  This was followed by an apprenticeship in cabinet making.

11You began smoking cannabis on a daily basis from about the age of 14 and this was in fact a reason why you were ultimately expelled from your apprenticeship.  From the age of 17 to 19, amphetamines became a daily habit together with prescription medications such as Xanax and Valium.  In your teens, you were introduced to heroin, and you have been addicted to this drug throughout your life.  You began using methamphetamine in 2020, using it daily for about
11 months, reducing your usage but still engaging in it up until your arrest.

12Over the years you have worked in a number of roles.  You worked for McKay Rubber for 18 years, mostly on a casual basis, but this did include three years of fulltime work, working with radiator hoses for cars.  You helped a friend as a mechanic and worked as a courier for a brief period before returning to gaol.  When you were 23, you formed a relationship with a partner for seven years and a son was born of that relationship in 1993.  That relationship went through many difficulties due to your drug addiction and you were in gaol for three years of that relationship. 

13Thereafter, you had fortnightly contact with your son who is now a qualified electrician, but who your counsel tells me has his own substance abuse issues and is currently serving a term of imprisonment.  In 2001, you formed another relationship, as a result of which a daughter was born in 2002.  She has been raised by her maternal grandmother, is now herself a new mother and is studying social work.  You have never seen your granddaughter who is eight months old, but have good contact with your daughter. 

14You have a long and concerning prior criminal history.  It begins in January 1989 and continues almost on a yearly basis thereafter with numerous appearances in the Magistrates' Court for burglaries, theft, hindering police, damaging property, possessing cannabis, false imprisonment, receiving stolen goods, going equipped to steal, possession and use of heroin, drive whilst disqualified, unlicensed driving, shoplifting, theft from motor vehicle, theft of motor vehicle, dealing with property suspected of being the proceeds of crime, going equipped to steal, careless driving, possessing a controlled weapon without excuse, trespass, resisting police and aggravated burglary.

15You have twice been placed on a drug treatment order, first in 2004 and then in 2015.  At the time of this offending, you had just been released from prison.  You had been sentenced to 270 days' imprisonment in combination with a community correction order on charges of burglary, intentionally damaging property, going equipped to steal, resisting an emergency worker on duty, possessing a controlled weapon without excuse, criminal damage, unlawful assault and theft.  You were on the community correction order at the time you committed the offences before this court.

16Over the years you have served numerous sentences.  In 2005,  2006, 2008, 2009, 2011, 2012, and in 2021, together with periods such as
14 days in other years.  You told Ms Cidoni most of your offending was due to your drug addiction, particularly heroin.  At the time of this offending, you were living in emergency accommodation organised by ACSO and had relapsed into drug use.  You told Ms Cidoni that you purchased a car from your sister-in-law and niece Melissa, which you were informed had been repaired, but on inspection you discovered not to be the case.

17You were angry about this prior to entering prison on the last occasion and it is clear it was to the forefront of your mind on your release some eight or nine months later.  Ms Cidoni administered a number of tests in assessing you,  that testing revealed severe difficulties in verbal comprehension, difficulties in processing and expressing verbal information and impairments to your immediate and delayed memory to the extent that she believed there was a potential risk of an acquired brain injury and recommended more examination.  However, your counsel informed me no such condition was found on further testing. 

18Ms Cidoni diagnosed a number of psychological disorders suffered by you, including a major depressive disorder, an anxiety disorder, symptoms of attention deficit hyperactivity disorder, as well as borderline personality disorder and post-traumatic stress disorder.  She noted the borderline personality disorder indicated significant emotional regulation identity and inter-personal relationship challenges, whilst the PTS symptoms were ‘severe encompassing re-experiencing, avoidance, negative cognition and mood alteration and hyperarousal'. She also found you suffered a substance abuse disorder with accompanying drug-induced psychosis symptoms.

19It was her opinion that the PTSD was likely in your case primarily due to what she described as your 'extensive history of adverse childhood experiences including abuse and family instability and further traumatic events in adulthood'.  I should have added that you were an excellent sports person, but then suffered an injury in two particularly significant incidents.  The first was when you jumped into the Clayton swimming pool and injured both legs.  You now have trouble walking.  Your chaotic lifestyle, dominated by your drug use, meant that you have been inattentive to this injury, so that you are now, your counsel informs me, having severe difficulties with your hips, both of which need to be replaced.  This was diagnosed by a specialist several years ago, but you have never followed up.

20You were also involved in a motor vehicle accident where you broke your collarbone, you decamped from hospital as police were looking for you at the time and have never had this properly attended to and this continues to cause you physical difficulties.  Ms Cidoni opined:

'Mr Alexiou's substance abuse, particularly methamphetamine, had a significant impact on his offending.  Substances can impair judgment, increase impulsivity and reduce the ability to foresee the consequences.  Methamphetamine use in particular can lead to increased aggression and paranoia, which may have exacerbated any existing disputes or feeling of animosity towards his nieces.  The drug induced psychosis, including auditory and visual hallucinations, reported in his history could further distort his perception of reality leading to actions that he might not have undertaken under sober conditions'.

21As I have said, at the time of this offending, you were being housed in motel accommodation by ACSO, but had relapsed into drug use.  Your counsel however informed me that notwithstanding the very brief time you were in fact om the community correction order, that is, about a week, you had reached out to them on an almost daily basis.  Mr Smith, on your behalf, told me it was your intention to speak to your niece about the issues relating to the car which you had purchased for your daughter, a problem you had apparently been ruminating over for some months.  You planned to simply speak to her about this, but became angry, your emotions overcame you and led you to act in the way that you did.

22It would appear this rumination continued for the next two days, leading you to again visit those same premises and burst in and confront your other niece and Mr Yalda.  MS Cidoni found that your risk of re-offending according to testing she administered was medium:

'with the potential for escalation due to factors such as substance use and the associated psychosis.  The assessment is significantly influenced by his chronic and severe substance abuse issues, which exacerbate mental health symptom and cognitive impairments.  The presence of drug induced psychosis can further distort his perception of reality, leading to increased impulsivity and poor judgment'.

23It was her view, unsurprisingly, that your rehabilitation required 'an intensive approach focusing on substance abuse treatment and supported by a stable network of family, friends or community groups'.  She believed secure housing and employment opportunities were crucial for your successful societal re-entry and 'that psychological therapy and substance abuse programs were required to bring about relapse prevention and coping skills'.  It was Mis Cidoni's view that imprisonment posed significant challenges for you, as while it enforced abstinence and provided some stability initially, prison itself is not equipped to fully address your presenting psychological symptoms which would be potentially exacerbated due to inadequate support and treatment options. 

24She also believed that the high stress environment of prison could trigger or worsen your mental health symptoms which, combined with the absence of appropriate mental health and substance abuse treatment, increased the risk of substance abuse as a coping mechanism 'raising concerns about his vulnerability to relapse upon release'.  On your last release from prison, you had daily contact with your sister, going to her home to shower, you having decided however you were not in a fit state to live with her because of her children.  As I said, you continue to enjoy her support.

25I am certainly satisfied that the distressing and traumatic experiences of your childhood bring you within the realm of Bugmy principles such that lesser moral culpability can be attached to your continual re-offending.  At the same time, however, your inability to cease drug use and the adoption of methamphetamine in recent years, which your counsel told me occurred after you ceased using heroin, means that the issue of protection of the community must remain live.  I accept that your lifelong psychological conditions arising from your traumatic childhood, which have then led you to drug use as a form of emotional pain release, have all played into the current offending. 

26At first, I was concerned that you held a general grudge against members of your extended family but am satisfied that the animosity you displayed on this occasion was related to a particular issue.  I note that you expressed remorse to Ms Cidoni for your actions and am satisfied that this, together with your very early plea of guilty, are indicative of genuine remorse.  It is however clear that your prospects of rehabilitation are dependent on extended therapeutic support, both in relation to drugs and to your psychological state.  These have not been forthcoming, nor have you shown a capacity to seek them out. 

27You have been unsuccessful in completing two intensive therapies offered by the courts, that is by way of a drug treatment order.  It must be said that your prospects of rehabilitation can only be regarded as guarded at best.  Of particular to concern to this court was the information that you have never been granted parole in relation to any terms of imprisonment you have served.  This is of concern because of the therapeutic nature of parole.  It is entirely unsatisfactory that someone suffering the host of personal difficulties that you do, which lead directly to your offending, is not granted the opportunity for therapeutic supervision in the community by way of parole. 

28Parole is not a mechanism which is merely aimed at leniency towards a prisoner.  It is also a very important form of protection for the community in relation to prisoners' release from custody.  It requires careful planning for about a year before the release date with accommodation and therapeutic structures being put in place in preparation for that prisoner's release into the community.  That you and the community have been continuously denied this protection is to be deplored.  In my view, it is entirely clear from Ms Cidoni's report that you have significant trauma-based psychological difficulties, leading directly to your drug use, which in turn leads directly to your offending. 

29Parole must have an important part to play in breaking this cycle which has essentially enveloped your life.  Notwithstanding your very long offending history, it is to be hoped that prison authorities employ parole as a means of much required relapse prevention in relation to this sentence.  I should add that it is becoming a matter of concern to this court that parole numbers seem to be declining in historical terms despite the general increase in the prison population.  Careful planning and support for prisoners being released from custody is an essential component of community protection in order to ensure as far as possible the risk of re-offending is reduced. 

30These sentencing remarks together with the psychological report will be forwarded to prison authorities and it is to be hoped that parole will be granted in your case for the reasons I have outlined.  Without appropriate intervention and support, it must be said the likelihood of you re-offending remains high.  Your counsel did not submit that anything other than a term of imprisonment to be immediately served comprising a maximum and minimum term was appropriate in your case.  During the plea, you expressed to me the view that you are 'done' with drugs and offending. 

31You are currently on a buprenorphine regime by way of depot injection which is helpful, and this has assisted you in giving up heroin and hopefully will assist you in achieving drug use abstinence altogether.  You remain close to your mother who however suffers a terminal illness and is currently in palliative care and you have the ongoing support of your sister.  The motivation to be involved in the lives of your daughter and granddaughter is also a positive factor in your favour.  It was specifically conceded very fairly by the prosecutor on the plea that the aggravated burglary was not pressed as a serious example of its kind. 

32In an ideal world, a secure facility, offering you the therapeutic assistance you require, both psychologically and in relation to substance abuse issues, existed to which this court could order your attendance.  That would be in my view the best way of ensuring that both your best chance of ceasing drug use and ceasing offending and the best means by which protection could be afforded to the community.  No such facility of course exists or ever has existed.  Cases such as yours, Mr Alexiou, involving severe childhood trauma, leading to entrenched drug use and continual offending are entirely common to this court and the mere repeated imposition of terms of imprisonment in which you are denied parole do nothing to break this cycle.

33Taking into account the mitigatory matters I have referred to, I therefore sentence you as follows. 

34Charge 1, 12 months. 

35Charge 2, six months. 

36Charge 3, 16 months. 

37Charge 4, 10 months. 

38The base sentence will be the sentence imposed on Charge 3.  I order that four months of the sentence imposed on Charge 1, two months of the sentence imposed on Charge 2 and four months of the sentence imposed on Charge 4 be served cumulatively to the sentence imposed on Charge 3, giving a total effective sentence of 26 months.  I order that you served 16 months before becoming eligible for parole.

39What is the PSD please?

40MS BENSON:  It is agreed it is 237 days not including days.

41HER HONOUR:  I declare that 237 days of this sentence have been served by way of pre-sentence detention.  Pursuant to s6AAA, I declare that had you not pleaded guilty, I would have sentenced you to a term of imprisonment of three and a half years and order you serve a minimum term of two and a half years.  Now, Mr Alexiou I was talking in very legal language then which I am supposed to do.  Do you understand what you have got? 

42OFFENDER:  Yes, I understand.

43HER HONOUR:  You have got 2 years 2 months and you have got 16 months on the bottom and you have done 270 days.  Now I know we had a chat during the plea, but as I said you need to get yourself organised, all right.  Get yourself to NA.  See what you can do about organising proper housing for yourself in gaol.

44OFFENDER:  Yes, I have already put in for housing and to do a drug course.

45HER HONOUR:  Yes, good on you and go and join up NA, all right.

46OFFENDER:  Yes.

47HER HONOUR:  Because if you set up good relations with people in NA, that will be waiting for you out in the community, all right. 

48OFFENDER:  All right.

49HER HONOUR:  Like I said, obviously you have been inside so many times, you know your way around a gaol.

50OFFENDER:  Yeah, yeah.

51HER HONOUR:  You do what you can to set up things for yourself.  Okay.  I know that you do not want to keep living like this.  I know you want to give it away.

52OFFENDER:  No.

53HER HONOUR:  The hardest time is when you come out of gaol because it is much easier to stay off drugs, as you know, in gaol than out of gaol.

54OFFENDER:  Yeah, yeah, it is.

55HER HONOUR:  You need to get yourself ready for that time when you are out and that time when you're going to be most shaky.  All right.  Thank you,
Mr Alexiou.

56OFFENDER:  Thank you.

57HER HONOUR:  Is there anything else I need to attend to?

58MR CAMERON:  No, thank you, Your Honour, that's all fine from our end.

59MS BENSON:  No, Your Honour.

60HER HONOUR:  Thank you.  Mr Cameron, in particular, I thank you.  You have been really helpful on this plea.  I appreciate it very much in particular and I thank you.

61MR CAMERON:  You're most welcome, Your Honour.

62HER HONOUR:  All right, yes, thank you, we will stand down until 10.15.    

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