Director of Public Prosecutions v Almendarez
[2014] VCC 1651
•1 October 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-14-01123
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DOMINIC ALMENDAREZ |
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JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 August 2014 | |
DATE OF SENTENCE: | 1 October 2014 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Almendarez | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1651 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – theft (3 charges) – obtaining property by deception (6 charges) – aggravated burglary (one charge) – recklessly causing serious injury (one charge) – assault police (two charges)
Legislation Cited: Crimes Act 1958; Sentencing Act 1991
Cases Cited:R v Almendarez [2008] VCC 0149; Ashdown v R (2011) 37 VR 341; Nash v R [2013] VSCA 172; R v Berry & Ors [2013] VSC 735; DPP v Lehmann [2005] VSCA 9
Sentence: Total Effective Sentence 5 years’ imprisonment with 3 years and 3 months’ imprisonment non-parole period – 176 days pre-sentence detention declared – s.6AAA Sentencing Act 1991 declaration
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms A Bhai | Craig Hyland Solicitor for Office of Public Prosecutions |
| For the Accused | Ms Z Broughton | Victoria Legal Aid |
HER HONOUR:
1 Dominic Almendarez, you have pleaded guilty to three charges of theft, six charges of obtaining property by deception, one charge of aggravated burglary and one charge of recklessly causing serious injury. You have also pleaded guilty to two summary charges uplifted to this Court of assaulting police.
2 The maximum penalty for aggravated burglary is 25 years’ imprisonment; for recklessly causing serious injury, 15 years’ imprisonment; for theft and obtaining property by deception, ten years’ imprisonment; and assault police, six months’ imprisonment.
3 There is also a licence disqualification requirement attached to the theft of a motor vehicle charge.
4 Your offending was opened by the learned prosecutor as follows:
5 At the time of the offending you were 26-years-old. You are now 27.
6 On Wednesday, 2 April 2014, between 7.30 and 8.30 pm, you smashed a window of one of two cars parked in the driveway of the first victim’s home in Albion. Having gained access to the car, you stole the first victim’s mobile telephone, sunglasses, wallet, which contained credit cards, a GPS video player and keys for the second car. This gives rise to Charge 1. You then used the keys to steal the second car, giving rise to Charge 2.
7 Later that night, you used one of the first victim’s credit cards to purchase the following items:
(a) Three packets of cigarettes and Telstra pre-paid credit, valued at $89.45, from Coles Express in St Albans. This is the basis for Charge 3;
(b) Three packets of cigarettes and Optus pre-paid credit, valued at $91.97, from a 7-Eleven in St Albans. This is the basis for Charge 4;
(c) Optus pre-paid credit, valued at $50, from the Caltex Service Station in St Albans which is the basis for Charge 5;
(d) A further Optus pre-paid credit, valued at $50, from the Caltex Service Station in St Albans which is the basis for Charge 6.
8 The basis for Charges 7 to 9 are as follows:
9 At about 7:15 am on Tuesday, 8 April 2014, you drove the stolen car to an address in Woolley Street, Essendon. Your girlfriend, Bianca Hahne, who was aged 18, was with you.
10 You parked the car in Woolley Street and entered a house through an unlocked rear door. In the house at the time was an entire family, being Robert Di Sipio, his wife Linda, and their three children, David, Marcus and Giulia. This gives rise to Charge 7, aggravated burglary.
11 You were in the kitchen of the house when Mrs Di Sipio heard you and called out that there was someone in the house. You ran from the premises, taking with you Mrs Di Sipio’s handbag, which contained her purse with credit cards and cash. This gives rise to Charge 8.
12 After leaving the house, you jumped over a fence into the backyard of a neighbouring property. You dropped the car keys to the stolen vehicle which you had parked in Woolley Street.
13 You then jumped over another fence and onto the street. At this stage, you had met up with your girlfriend. Both of you then walked to the stolen car.
14 A passing motorist, Sandra Moylan, saw you and Ms Hahne jump over the fence and into the street before walking towards the car. She then stopped her car outside the Di Sipio’s home.
15 I was told that when the Di Sipio children heard their mother call out, Marcus and David ran downstairs, as did Robert Di Sipio. The three males then ran to your stolen car. By this time you and your girlfriend were in the car and the Di Sipios tried to open the door but it was locked. Mr Di Sipio pulled at the right passenger-side mirror and David Di Sipio banged on the driver’s side window.
16 The men were angry and were screaming “You’re not going anywhere; who do you think you are?”. Giulia Di Sipio tried to calm her father down.
17 The males then let down the tyres of the car. You had a box cutter knife. David Di Sipio yelled that you had a knife and you then got out of the car. You were waving your arms around, holding the box cutter. Robert and David Di Sipio then yelled to run.
18 The Di Sipios then ran towards their home and you ran after them. You yelled out “You don’t know who you’re messing with”. Mr Robert Di Sipio Senior turned around and saw you holding the weapon, getting closer to him. You swung at his face with the box cutter, causing a deep laceration to his forehead. In fact, he had suffered a 15 to 20-centimetre diagonal laceration on the left side of his forehead, which was of full thickness down to the periosteum of the skull. The laceration required 26 stiches and Mr Di Sipio underwent plastic surgery, remaining in hospital for two days. As a result of the laceration, he suffered some nerve damage to the left side of his forehead and muscle weakness and pain across the left eyebrow, with associated eye discomfort. I have seen photos of this injury. They make for most unpleasant viewing. Infliction of this serious injury gives rise to Charge 9, recklessly cause serious injury.
19 After he was injured by you, Robert Di Sipio continued running until he reached his house. Whilst he and his sons were in the front yard, you were in the driveway, waving the box cutter in the air, screaming “I’ll fix you up, I’ll fix you up”.
20 The Di Sipios closed the driveway gates to stop you from entering the property while you continued to yell at them.
21 Ms Moylan was afraid and returned to her car, locking the doors. You then walked back to the stolen car and the Di Sipios opened the gate, with Marcus and David Di Sipio attempting to go back towards you. Their father was calling to them to come back, and Ms Moylan stood in front of them, telling them that the police would deal with the matter. Police arrived shortly thereafter.
22 You and Ms Hahne walked away, then went to a 7-Eleven store in Ascot Vale, where you used Mrs Di Sipio’s stolen credit card to purchase four packets of cigarettes valued at $89.96, giving rise to Charge 10. You also purchased another packet of cigarettes valued at $22.49, which gives rise to Charge 11.
23 At about 8:45 am, police approached you at the 7-Eleven store. You were agitated and becoming aggressive when spoken to by the police.
24 As one of the police officers placed you under arrest, you thrashed your right arm at the officer. A number of police then handcuffed you and as they were restraining you, you struggled, yelling “Dogs, fucken cunt dogs. If I see you in the street, you’re fucked. Come into the cell without your gun and I’ll kick the fuck out of you.”
25 You then spat at Leading Senior Constable Mavropoulos, which connected with his clothing. This gives rise to Summary Charge 11.
26 About half-an-hour later, a divisional van arrived at the service station to take you to the Moonee Ponds Police Station. You were asked to sit on the edge of the van pod and slide back into the pod so that the door could be closed. You were yelling at the police, telling them to “Get fucked” and to “loosen the handcuffs”.
27 Two police officers lifted your legs into the van so that you could slide back. As they did this you began kicking and police pushed you back into the van. You kicked Constable Fincher in the chest, near his right shoulder, and upper right arm. This gives rise to Summary Charge 10.
28 You were interviewed at the Police Station and admitted the offending.
29 You said:
“I needed a car pretty much otherwise I was sleeping in the street.”
I was on straight release. I started using methamphetamine occasionally. My mum found the pipe in my room. She’s made a big deal of it and we’ve had a massive argument and I left.
I needed 600 bucks for our own place. Like a dickhead I thought I’d go and try and make it. And I made a mistake and now there’s some bloke with his face injured.
I snuck into a person’s house and grabbed all I could and left. And then I got out the front, got in a car and three or four guys come out and went bang, bashing me window, trying to break it, to get me out obviously. I couldn’t find the key to the car so I couldn’t exactly drive off. I jumped out of the car with the knife and they ran.”
30 You went on to say:
“I was surrounded. I remember the son punching the window trying to break it. They were saying ‘You’re stuffed. You picked the wrong house, mate. You’re dead.’
I had the box cutter on the floor in front of me, and I’ve grabbed it straightaway just in case they got through.
I couldn’t find the keys. I got out and ripped out the knife. It was more of a threat just to get them away from us. And it worked except the victim didn’t want to give up. I don’t blame him. I probably would have done the same thing.
I had to get out. I couldn’t just stay there, and what if they ended breaking the window? My concern was trying to get my girl away from the situation. I don’t care about myself but I’m not going to let my girlfriend get hurt.
It could have been a fact that I didn’t want to get caught.”
31 You said your intention was just to scare the people so that you could go, and you did not mean to get the victim with the box cutter. You said that you “Just swung 'cos he wouldn’t leave me alone”, and that you felt bad, that you were not a violent person. You said that you had not used ice on that day or the previous night.
32 The victim impact statements were tendered and the contents of these were read aloud. Your conduct has devastated an entire family who were entitled to feel safe in their own home. Each of the victims spoke of the distress that they suffered, and continue to suffer, as a result of your dreadful offending. In particular, Robert Di Sipio has a permanent reminder of this as he has a scar going diagonally across his forehead, not to mention the ongoing symptoms associated with the injury. Not only is Mr Di Sipio struggling with the impact of what you have done, but his entire family also continues to struggle with it. I note that one of the family members was also alarmed by the reaction of her father and brothers to the situation.
33 In regard to the assault police charges, I regard your conduct in respect of each of these as despicable.
34 Overall your offending, in respect of the matters before me, is serious and deserving of strong punishment in all of the circumstances. Your conduct must also be denounced and strong weight must attach to general deterrence in a bid to deter others from behaving as you have.
35 You have a most concerning criminal history as follows:
(a) On 13 January 2005, you were convicted of theft and sentenced to six months’ detention in a youth training centre.
I understand that there are a number of matters before this time from the Children’s Court which are not alleged against you because of their longevity. I refer to this aspect to place the youth training centre disposition in its proper context. I was told by Ms Broughton, on your behalf, that you had been dealt with by a whole range of rehabilitative dispositions in the Children’s Court before the Melbourne Magistrates’ Court matter to which I have just referred.
(b) On 1 February 2005, in the Melbourne Magistrates’ Court, you were convicted of two charges of aggravated burglary, on the basis of a person being present, and were sentenced to a total effective term of twelve months’ imprisonment.
(c) On 27 August 2005, you received a total effective sentence of twelve months’ youth training centre for armed robbery and recklessly causing injury.
(d) On 28 June 2005, you were sentenced to a total effective term of one-month youth training centre for shoplifting, handling stolen goods, attempted theft from a motor vehicle and theft from a motor vehicle.
(e) On 24 May 2006, at the Melbourne Magistrates’ Court, you were sentenced to a total effective term of six months’ imprisonment for aggravated burglary, on the basis of a person present, burglary, two charges of theft and one charge of unlawful assault.
(f) On 6 September 2006, you were sentenced to seven days’ imprisonment for possessing a controlled weapon without excuse, whilst being convicted, and discharged for possessing and using cannabis.
(g) On 15 February 2008, in this Court,[1] you were convicted and sentenced for eleven charges of aggravated burglary on the basis of a person being present, nine charges of burglary, attempted burglary, 26 charges of theft, one charge of handling stolen goods, one charge of dealing with property suspected of being proceeds of crime, unlicensed driving, two charges of possessing amphetamine and one charge of possessing cannabis. In respect of all matters, save the last four mentioned, you were convicted and sentenced to a total effective term of four years’ imprisonment with a non-parole period of two years. You were convicted and fined in respect of the last four mentioned matters.
[1][2008] VCC 0149
(h) On 4 November 2010, at the Sunshine Magistrates’ Court, you were convicted in relation to three charges of aggravated burglary with a person present, three charges of attempted aggravated burglary, two charges of burglary, one charge of attempted burglary, four charges of theft and a charge of theft of a motor vehicle, as well as possession of heroin. You were sentenced to a total effective term of eighteen months’ imprisonment in relation to all matters, save for possession of heroin, for which you were convicted and discharged.
(i) On 29 August 2012, at the Sunshine Magistrates’ Court, you were convicted of aggravated burglary, on the basis of a person being present, two charges of theft, two charges of obtaining property by deception where the value exceeded $100,000, one charge of obtaining property by deception, one charge of obtaining a financial advantage by deception and one charge of possession of amphetamine. You received an aggregate term of six months’ imprisonment.
36 Mr Almendarez, your criminal history is appalling and gives me grave cause for concern in respect of your prospects of rehabilitation.
37 In assessing the objective seriousness of the aggravated burglary for which I now sentence you, I factor in that it does not appear your offending was too premeditated or that you entered the premises with intention to assault the occupants. You had the decency to flee when you were discovered, although you entered the premises in complete reckless regard as to whether people would be present, in circumstances where you may well have expected this to be the case, being fairly early in the morning and in view of the back door being open. In assessing the objective seriousness of the recklessly cause serious injury, I have factored in that a short time before you inflicted the injury, you had been besieged by members of the victim’s family who were aggressive toward you. However, this in no way justified your reaction, especially in view of the fact that Mr Di Sipio was walking away from you when you slashed his forehead. It seems that you had no apparent regard for the victims’ property or the sanctity of their home; nor for the victims’ wellbeing when you invaded their home.
38 I have taken into account the two reports of Warren Simmons, psychologist. The first is dated 28 October 2010 and the second is dated 24 August 2012. Unfortunately, I do not have more recent material in relation to you but it is clear that your offending is very much tied up with your abuse of substances. I was told that on the occasion of the offending before me, you were affected by Rivotril and Valium. Mr Simmons has maintained his diagnosis of substance dependence. You have abused various types of drugs over a lengthy period of time, commencing drug use in your early teens. Your drug use escalated fairly swiftly from cannabis to heroin and other illicit substances, as well as prescription drugs. However, it would appear that heroin had been predominantly your drug of choice for some time, although in more recent times you have abused benzodiazepines. I take into account the contents of each of Mr Simmons’ reports but note that there is nothing in them which would reduce your moral culpability or reduce the weight which would otherwise attach to specific and general deterrence or other sentencing factors. However, I am of the view that Mr Simmons’ remarks at p.6 of his 2012 report, to which your counsel referred me today, that is, in respect of the need for you to attend a residential drug rehabilitation program upon your release from gaol would be in everyone’s best interests, and I am of the view that it would be in no one’s best interests for you to be released into the community without being supervised on parole. Ultimately, such a matter is not up to me but up to you and the view of the Parole Board, but your ability to cease offending is so tied up with your ability to cease drug use, that it is imperative that you address this problem once and for all. I would have thought that the surest way to do this would be for such a residential program to be undertaken whilst supervised on parole.
39 I take into account your background, which has been somewhat dysfunctional and deprived unfortunately. You are an only child and grew up in a household where your mother was subjected to domestic violence at the hands of your father. Your parents separated when you were ten years’ old and you attended various primary schools. In your report to Mr Simmons, you indicated that you did well at school and enjoyed sport. It appears that your behaviour was somewhat disruptive; however, you stayed on at school until Year 8. I understood your Counsel to say that you had some issues when you were at primary school but this seems to be at variance with what you said to Mr Simmons. You also told Mr Simmons that you left school after Year 10, which is also at odds with what I was told by Ms Broughton. I make no criticism in this regard; it just seems to be a little in conflict. In any event, you did not complete your education, although it appears that you have enjoyed your studies at various stages. You have attempted a number of TAFE courses on several occasions but have never completed these. I can see from your letter to me that you are articulate and have the capacity to make something of yourself should you break free of the drug/crime cycle you are caught up in.
40 It has been made clear to you on at least one past occasion that your offending, insofar as property matters are concerned, is inextricably tied up with drug use. His Honour Judge Strong made this clear to you in his sentencing remarks on 15 February 2008. Therefore I regard it as an aggravating feature of the aggravated burglary on the occasion before me that you were affected by particular drugs. However, I have also factored in that clear decision making and foresight of the implications of taking drugs probably deprived you of much in the way of sensible thought and decision making when you committed this offence. Drug use has interfered with your progression in life and is definitely connected with all offences before me. You are on notice that if you continue to take drugs and commit offences in this context, including offences of violence, then your decision to take these will aggravate any offending in the future, including offences of violence.
41 I was told that after your parents separated your mother abused alcohol and you were subjected to most undesirable living conditions when you were still quite young. These included living in a household where your mother would have gatherings where people would stay over and fights would break out. Often you would be ready to attend school but your mother was in no condition to take you. I understand that in more recent times your mother has suffered from stomach cancer, undergoing treatment for this from 2011 to 2012. Your mother is in Court today to support you and I understand your father has visited you whilst you have been in gaol. They are supports to whom you can look to in the future upon your release from gaol. I also factor in your deprived background and entrenched drug use from an early age. Such a background continues to impact upon you and I factor that in, in terms of the weight I give to the aggravating feature of having taken drugs on the occasion before me, as well as generally in sentencing you.
42 As your counsel pointed out, you received your first sentence in a youth justice centre in 2004 and about two years later you received your first sentence of imprisonment in adult custody for offences including aggravated burglary. I accept that most of the aggravated burglaries which you have committed in the past were dealt with in the Magistrates’ Court and were committed on the basis of an intent to steal rather than an intent to assault. When you committed the offences for which I now sentence you, you had been released from custody on a 'straight sentence' only four months before, having been sentenced on 29 August 2012.
43 I take into account your plea of guilty and the fact that it was entered at the earliest stage, which entitles you to a significant discount in sentence. Indeed, in your record of interview you made extensive admissions and you said that you would not take matters to trial. In pleading guilty so early you have saved the witnesses, especially the victims, the time and trauma of giving evidence at committal and at trial, and you have saved the community the time and expense of contested proceedings.
44 Moreover, although parts of your record of interview were somewhat disingenuous, insofar as the circumstances of recklessly causing serious injury were concerned, you were frank and cooperative with the police in other respects and you expressed remorse in the course of your record of interview. Whilst you were and are able to express appropriate insight into your offending on this occasion, and have written an eloquent letter to the Court in this regard, I must say it rings somewhat hollow in view of your appalling criminal history, where you have continually entered people’s homes intending to steal items, whilst they have been present. In light of the features of some of this offending, to which the learned prosecutor referred today, I factor in these matters and your early plea of guilty however on the question of remorse. As I have already said, your repeat offending is somewhat inconsistent with such expressions of remorse. However, in the end I allow for some remorse.
45 In light of your offending on this occasion, your criminal history and your struggles with substance abuse, I am afraid that I can only regard your prospects of rehabilitation as rather grim. However, you are still a relatively young man and you have some capacity in terms of your intellectual capacity to make a go of things, should you choose to. I have borne this in mind when sentencing you so as to give you some hope in the future of living a crime-free and productive life in the community. You are not hampered by intellectual deficits and I understand that in the past, you have shown some interest in study. You have completed a number of courses in gaol and, as I have indicated, you write very well. You would be well advised to pursue some study and qualifications in order to avoid further periods of incarceration in the future. Of course, tied in with this is a need for you to address your substance abuse problems once and for all. In this regard, I understand that you are currently on a methadone program.
46 I must give significant weight to specific deterrence and the need to protect the community, in your case in light of your offending on this occasion and your serious criminal history.
47 Your counsel referred me to the decision of R v Ashdown (2011) 37 VR 341. I was also referred to the table of cases set out in that case. However, these were bereft of the criminal histories of the offenders involved and much in the way of detail. Your counsel sought to address me further in relation to this aspect and she has now done so. In that regard I was provided with a further table today which has been of some assistance, as were your counsel’s submissions in this regard. I was also provided with some cases today which I have considered in respect of your situation.
48 In sentencing you for the aggravated burglary, I have factored in that the circumstance of aggravation did not relate to the carrying of a weapon. However, your preparedness to enter premises of a house where you had a reckless state of mind as to whether people were home is a most serious circumstance, especially where you have numerous antecedents for the same offence. In saying this I make it clear that I have not treated this as a circumstance of aggravation over and above the commission of the aggravated burglary itself.
49 In relation to recklessly cause serious injury, I have taken into account all of the circumstances of that offence, having had regard to the list of factors in R v Nash [2013] VSCA 172, (and accepted by the Learned President as also applying to cases of recklessly causing serious injury in R v Berry & Ors [2013] VSC 735), although I did not understand the Learned President to be prescribing an exhaustive list. However, I have factored in that you used a box cutter which heightened the probability of serious injury, but the recklessly cause serious injury was not premeditated, was of short duration and occurred in the context of a fluid situation in which the victim and others had gone after you. As I have indicated their upset was understandable but when assessing the vulnerability of the victim and the circumstances of the recklessly cause serious injury, these are relevant matters. I have also factored in the seriousness of the injury and that it was not a sustained attack.
50 As has been pointed out in the table of cases to which I have been referred, there have been far more serious and sustained instances of recklessly causing serious injury.
51 I have also factored in the circumstances giving rise to the aggravated burglary, being mindful of matters such as those expressed in DPP v Lehmann [2005] VSCA 9, and I have had regard to current sentencing practice in respect of each of the offences you have committed, bearing in mind that your individual situation and circumstances of your offending differ, no doubt, to other cases. I have also borne in mind the principle of totality and the need not to impose a crushing sentence.
52 Further, I have taken into account in a general sense, your present state of anxiety for which you have received medication whilst in prison.
53 Would you please stand up Mr Almendarez?
54 You are convicted of all offences.
55 I make orders for forfeiture and disposal as set out in the draft documents with which I have provided. Such orders are not opposed by you.
56 You are sentenced to the following terms of imprisonment:
57 In respect of the charges on the indictment:
58 Charge 1- 10 months;
59 Charge 2- 12 months and I order that all drivers licenses are cancelled and you are disqualified from obtaining a drivers licence for three years;
60 Charge 3- 2 months;
61 Charge 4- 2 months;
62 Charge 5- 1 month;
63 Charge 6- 1 month;
64 Charge 7- 3 years 6 months, which will be the base sentence;
65 Charge 8- 10 months;
66 Charge 9- 3 years;
67 Charge 10- 2 months;
68 Charge 11- 1 month;
69 Summary Charges 10 and 11: 3 months for each of these offences.
70 I direct that one month from the sentence on Charge 1, 4 months from the sentence on Charge 2, 12 months from the sentence on Charge 9 and one month from the sentence on Charge 11 be served cumulatively with each other and with the base sentence, producing a total effective sentence of 5 years imprisonment and I direct that you serve 3 years, 3 months before becoming eligible for parole.
71 If not for your pleas of guilty I would have sentenced you to a total effective sentence of 6 and a half years’ imprisonment with a non-parole period of 4 years and 4 months’ impriosnment before becoming eligible for parole.
72 I declare that you have already served 176 days by way of pre-sentence detention which will be reckoned as already served. Just take a seat for a moment. Is there anything arising from that?
73 MS BROUGHTON: No, Your Honour.
74 MS BHAI: No, Your Honour.
75 HER HONOUR: Thank you. Remove Mr Almendarez, thank you.
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