Director of Public Prosecutions v Andrei
[2022] VCC 1372
•19 August 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-22-00290
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NICOLAE PARIS ANDREI |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 August 2022 | |
DATE OF SENTENCE: | 19 August 2022 | |
CASE MAY BE CITED AS: | DPP v Andrei | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1372 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – Sentence
Catchwords: Armed robbery – intentionally cause injury – possess a drug of dependence – breaching a family violence intervention order – possess prohibited weapon – commit an indictable offence whilst on bail - vicious gratuitous act of violence – limb 5 of Verdins
Legislation: Criminal Procedure Act 2009, s145; Crimes Act 1958, s465; Sentencing Act 1991, s5(2G), s5(2H), s16(3C)
Cases cited: Worboyes v The Queen [2021] VSCA 169
Sentence: Convicted and sentenced to six years’ and two months’ imprisonment with a non-parole period of four years’ and six months’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M. Roper (To Plead) Ms L. Pham (Sentence) | The Office of the Director of Public Prosecutions |
| For the Accused | Mr J. Desmond | Giorgianni & Liang Lawyers |
HIS HONOUR:
1 Nicolae Andrei, on 15 August 2022 you pleaded guilty to the following charges on Indictment M11521756:
· Charge 1, armed robbery of John Windsor. This charge has a maximum penalty of 25 years' imprisonment.
· Charge 2, intentionally cause injury to John Windsor. This charge has a maximum penalty of 10 years' imprisonment.
· Charge 3, is possession of a drug of dependence, which was cannabis L. The maximum penalty relevant to the circumstances of your offending was 30 penalty units.
2 Pursuant to the provisions of s145 of the Criminal Procedure Act you consented to the following related summary charges being heard by this Court at your plea hearing. You pleaded guilty to the following summary charges:
· Summary Charge 10, committing an indictable offence whilst on bail. This charge has a maximum penalty of three months' imprisonment.
· Summary Charge 11, breaching a family violence intervention order. This charge has a maximum penalty of two years' imprisonment.
· Summary Charge 13, possession of a prohibited weapon, which was knuckledusters. This charge has a maximum penalty of two years' imprisonment.
3 You admitted your prior criminal history.
Circumstances of your offending
4 The prosecutor filed a summary of prosecution opening on plea dated 12 July 2022. It was Exhibit “A”. The background to the offending is that you sold a 2008 Holden Astra, registered number 1RS 1PR, to John Windsor in or about March of 2021. You were paid $5,000 in five instalments of $1,000 each. There was no formal contract for the sale of the vehicle. You provided Windsor with a roadworthy certificate.
5 On Friday 16 July 2021, the Astra vehicle was returned to Mr Windsor from the mechanic with a current roadworthy certificate. Mr Windsor parked the vehicle in the underground car park directly outside his unit. Around midday Mr Windsor was in the car park with his friend Paul Mills standing near the Astra. You, who was wearing a blue-coloured duffel coat and jeans, approached Mr Windsor and Mr Mills whilst carrying a silver-coloured knife with a blade of about 5 inches long. You got within a metre of Mr Windsor and held the knife at waist height, pointed towards Mr Windsor's midsection. You demanded the keys to the Astra stating, 'Give me the keys'.
6 Mr Windsor then entered his unit and was followed by you, whilst Mr Mills waited outside. Mr Windsor got the single key to the Astra from a coffee table and handed it to you. You then stated, 'If I see police at my door then I'll kill you'. You then cut Mr Windsor's face with the knife without provocation. This caused a 6-centimetre laceration from his nose to ear on the left side of his face. You further stated as follows, 'That's a dog scar I've given you', and that was the basis for Charge 2, the intentionally cause injury.
7 You then left the unit and took possession of the Astra and drove away. That is Charge 1, the armed robbery.
8 Mr Windsor attended to the wound and left his unit to seek medical attention. Whilst Mr Windsor was outside his unit he noticed that you were walking towards him again. Mr Windsor attempted to re-enter his unit. However, you stopped the door being closed and forced your way into his unit and demanded the transfer papers for the car. You took the transfer papers and then left the unit.
9 Some of your movements throughout the incident were captured on CCTV at the Raglan Street address. Mr Windsor attended at South Melbourne RealCare Health Clinic and was treated for the injury. Although hospital treatment was recommended, the general practitioner glued the wound shut at the request of Mr Windsor. Mr Windsor had then attended at the South Melbourne police station and completed a statement, and had his injuries photographed before Constable Gray. Mr Windsor had also authorised a medical release.
10 On 21 July 2021, the police attended at the residence of Kasha McIver in Binalong Street in Chadstone and arrested you.
11 On 27 March 2017, a family violence intervention order had been made at the Melbourne Magistrates' Court against you by the affected family member, Kasha McIver and your daughter. That order was in place and active until 16 December 2026. The prohibited behaviour in the intervention order included contacting the affected family member by any means, approaching or remaining with the protected person by any means and approaching or remaining within 200 metres of where they lived, namely Binalong Street in Chadstone. That is the basis for Summary Charge 11 which is a contravention of the family violence intervention order. I note, the silver Holden Astra was seized from outside that address.
12 At the time of committing the armed robbery you were on bail for offences of possession of cannabis and possession of a prohibited weapon, which allegedly were committed on 16 February 2021. You had been bailed to appear at the Melbourne Magistrates' Court on 6 September 2021. That is the basis for Summary Charge 10, committing an indictable offence whilst on bail.
13 After you had been arrested you stated to police that you had been suffering from an epileptic fit. The police pulled over and arranged for the ambulance to attend. Paramedics attended and transported you to the Alfred Hospital with the police. A navy duffel coat was seized from you and this is seen on the CCTV when you were at Raglan Street. The police later executed a search warrant, pursuant to s465 of the Crimes Act, at your home address of 45C Raglan Street, and seized a silver knuckleduster. That is Summary Charge 13, possessing a prohibited weapon.
14 A snap-lock bag containing a small quantity of cannabis of approximately 7.6 grams was also found. That is the basis for Charge 3 on the indictment, possession of cannabis.
15 You were cleared and released from the Alfred Hospital after you had been transported there by police and then taken to the St Kilda police station. At the St Kilda police station you denied the victim's allegations. You stated that Mr Windsor agreed to purchase the Astra from you for $5,000, but never paid you any money for the vehicle, nor transferred the registration. You said Mr Windsor told you that associates were using the Astra for criminal activity. You said you went to the parked Astra in Raglan Street on that day, 16 July 2021, and attempted to remove the registration plates.
16 You confronted Mr Windsor about the Astra outside the Raglan Street property and was invited inside. You then had an argument which led to a physical fight where the pair, that is the two of you, struck each other and threw items. You said you are unaware of how Mr Windsor was injured and you suspect it may have been from the physical fight. You said that you then took the Astra as Mr Windsor had not paid any money to you.
Victim Impact Statement
17 There is a victim impact statement which has been filed in this case by Mr John Windsor and he read it out in court. The filed victim impact statement was Exhibit “C”. Exhibit “B” were photographs of the injury to Mr Windsor's left cheek. The physical injuries to Mr Windsor's face is a nasty and prominent scar on the left side of his face. Mr Windsor stated that he had the cut surgically repaired. He stated he has to use scar cream and that the scar itself often becomes infected. Mr Windsor says he no longer has any happy greetings due to the scar on his face. People just look away from him. He said he does not want to go outside as he feels unsafe. He said his friends and family do not feel safe visiting him at his address. I quote him as saying as follows:
'Instead of having friends and family over for my 50th, I celebrated my first anniversary of feeling cold steel slice through my cheek. Cheers.'
18 The injury to Mr Windsor by slicing his cheek after you had the keys to his car was completely unnecessary and was a vicious gratuitous act of violence, with the intention of permanently marking him. Your comment, 'That's a dog scar I've given you', sums up your motive and attitude completely. For Mr Windsor it is a lifelong legacy of your criminal cowardice.
Your Personal Circumstances
19 At the time of the offending you were 43 years old. You turn 45 at the end of this year. You have an extensive criminal history dating back to February 1996 when you would have been 18 to 19 years of age. You have 26 prior court appearances covering drug offences, dishonesty offences, violence offences, property damage offences and weapons offences. In cricket terms you have 'shots all round the wicket' as far as your range of criminal offending is concerned.
20 Relevantly, in respect of the violent offending, you admit the following prior offending:
· These two dates relate to the same set of offending: 14 April 2016 and 26 February 2014 at the Melbourne Magistrates' Court for affray. You were put on a Community Corrections Order (“CCO”) for 12 months.
· On 12 November 2015 at the Melbourne Magistrates' Court you were dealt with for reckless endanger, serious injury and possession of a firearm. On that occasion you were given a combination sentence of 17 months' imprisonment and an 18 month CCO.
· On 27 August 2010 at the Melbourne Magistrates' Court again, you were dealt with for intentionally cause injury, threat to kill and urging a dog to attack. You were sentenced to 180 days, some of it partially suspended.
· On 10 March 2010 at the Melbourne Magistrates' Court there is a charge of unlawful assault and you were placed on a community corrections order.
· On 4 November 2005 at Melbourne County Court and Melbourne Magistrates' Court it is a charge of assault police. There was an appeal. Assault police, possessing weapons and harassing a witness, you were sentenced to six months' imprisonment.
· On 26 April 2005, at the Melbourne County Court, there was charges of recklessly cause serious injury and recklessly cause injury. You were sentenced to 32 months imprisonment with a non-parole period of 18 months.
· On 6 February 2003, these offences date back, but at Dandenong Magistrates’ Court charges of unlawful assault, intentionally damage property, you received two months' imprisonment.
· On 20 November 2002, Dandenong Magistrates' Court, aggravated burglary person present. You were given nine months' imprisonment.
· On 26 June 2001 at Dandenong Magistrates' Court again aggravated burglary and weapons charges, and you were given six months' imprisonment.
21 You also have offences pursuant to the Bail Act and other weapons offences. Your earlier offending was predominantly drug offences, including trafficking of drugs.
22 Your elderly parents are pensioners and live in Endeavour Hills. You have one younger brother who is now aged 43 who lives with them. Your younger brother was injured whilst he was a pedestrian in a motor accident when he was 13 years of age and suffered permanent serious impairments that has required constant assistance throughout his life. You have always thought the injury to your younger brother was your fault as you were with your brother when he was injured. Initially your parents held you responsible for the injury to your younger brother. At a young age you were 'kicked out of' the family home because of the perception the injury to your brother was your fault.
23 You also have a younger sister, 36 years of age, who is bringing up her own children. Neither of your siblings have any contact with the criminal justice system. You are fortunate that despite your conflict, as it was, within the family you enjoy a good relationship with both your siblings.
24 Your parents came to Australia from Romania when you were very young. You have grown up in Australia. Your parents were strict in your early upbringing, with resort to corporal punishment being a regular experience for you.
25 Your education finished at Year 7 level. Subsequently, you have achieved a qualification of OH and S certificate, which is referred to as the white card, and a forklift licence. Your employment history is limited to casual labouring jobs and some forklift driving in a factory.
26 You have two children. The eldest son, Rhys, is the child of a brief relationship and he is now 21 years of age. Rhys reconnected with you when he was about 14 or 15 and maintains a relationship with you when you are not in prison. More recently you have a 10-year old daughter, who is Anna-Maria. She was the young child at the place where you were arrested by police in this case. Your daughter lives with Ms McIver with whom you maintained a relationship for 15 years. You have never lived together. Ms McIver and your daughter were the AFMs in the family violence intervention order which was the basis of Summary Charge 11. You have Family Court orders for the access to your daughter on a three days a week basis.
27 You have a long-term drug dependency problem. Initially it was heroin from the age of 19 to your mid-20s. You then started abuse of prescription medications, including Valium, Serepax, Xanax and Temazepam. Cannabis L and alcohol also feature in your drug use. Your addiction and abuse of drugs is the underlying feature of your criminal history.
28 You have been assessed by Mr Jeffrey Cummins, a forensic psychologist, for the purpose of this proceeding. Mr Cummins' report dated 12 July 2022 is Exhibit 2. Mr Cummins' opinion was that your current risk for committing a further offence of violence was high and your level of protective factors for violence risk as low to moderate. You acknowledged to Mr Cummins you have an anger management problem.
29 Mr Cummins' opinion was that you reported symptoms indicative of a diagnosis of major depressive disorder which developed in your early teens, and has been associated with anxious distress and traumatisation of moderate severity of a recurrent type. Your brother's accident and the sequelae to that is the basis for this condition. This diagnosis is the basis for the application of limb 5 of Verdins case. I accept that this applies in your case.
30 I note that you have spent 394 days pre-sentence detention prior to this date and not including this date.
Sentencing Considerations
31 The basic purpose for which a court may impose a sentence are: just punishment, deterrence, both specific and general, rehabilitation and denunciation of your actions, and the protection of the community. In sentencing you I must have regard to a range of factors such as the seriousness of your offending, your culpability for it and your personal circumstances. I am also required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure, as far as possible, that you as an offender are rehabilitated and reintegrated into society.
32 I am also required to take into account current sentencing practices in fixing your sentence. That enquiry is directed particularly, but not exhaustively, to the kind of sentences imposed in comparable cases and the statistics for those sentences in those cases. I have considered the statistics and current sentencing practices, mindful that each case must be considered in the light of its own particular circumstances and many of the cases would be distinguishable from your case, as indeed they are from one another. Of course current sentencing practices is but one of the considerations I am required to take into account when determining a just sentence for your offending.
33 You conducted a contested committal hearing where your victim Mr Windsor was cross‑examined. Subsequently the charges were resolved and you have pleaded guilty to the charges before the court. Your plea does have the utilitarian value of allowing for the orderly and effective administration of justice. There is also a certainty of outcome and the resolution of the substantive issues raised by your offending. Your plea also allows for the preservation of court and police resources to deal with other matters and your plea vindicates the public confidence in the legal system set up to protect the community.
34 Your plea is also a clear acknowledgement by you that you accept the responsibility for your criminal behaviour on this occasion. Your plea also recognises you are willing to facilitate the course of justice in the community and I accept that your plea to these charges indicates and demonstrates some remorse on your part.
35 The Court of Appeal in the case of Worboyes v The Queen [2021] VSCA 169, at paragraph 39 of that decision recently made a statement about what is relevant to the sentencing process of a plea of guilty during the COVID-19 pandemic. The court said as follows:
'For these reasons we consider that, all other things being equal, a plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not affected by the pandemic's effects. A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time. Although a sentencing judge need not quantify the extent of any "discount", he or she must ensure that the plea of guilty results in a perceptible amelioration of sentence.'
36 This is known as the Worboyes discount and sentencing law.
37 Your offending is serious. Charges 1 and 2 on the indictment occur within a small period of time, but are completely two separate sets of criminality. Charge 1, the armed robbery offence, was completed. In effect, on the way out of Mr Windsor's premises you gratuitously slashed his face with the knife you carried and made the remarks set out in the prosecution opening. The indicators of the level of seriousness of the overall offending are as follows:
(1) you knew your victim prior to the offending;
(2) you overpowered Mr Windsor in order to gain possession of his car;
(3) you attended at Mr Windsor's premises to commit the armed robbery and you were armed with a knife;
(4) you exercised some clumsy planning to commit the armed robbery by taking the knife to his premises where the car was located;
(5) you used the knife in a threatening manner to overbear Mr Windsor to go into his premises to retrieve the keys to the car;
(6) whilst in the premises of Mr Windsor, and after you had possession of the keys, without warning, provocation or excuse you gratuitously slashed the left cheek of his face with your knife;
(7) after you slashed Mr Windsor's face you added insult to injury by stating, 'That's a dog scar I've given you'. This statement is proof of the malevolence behind your criminal act in Charge 2; and
(8) you were on bail at the time of the offending.
38 The accumulation I order for the sentences in Charges 1 and 2 is to reflect the separate nature of each offence, whilst at the same time not to breach the principle of totality imposing a crushing sentence upon you for the overall offending in those two charges. Charge 3 is the possession of a small quantity of cannabis and the appropriate penalty in the circumstances of this case is a fine.
39 In respect of Summary Charges 10 and 13, you have prior convictions for each of those charges. A small degree of cumulation for those sentences is appropriate to reflect your additional criminal behaviour. In respect of Summary Charge 11, I have imposed a custodial sentence, but made it wholly concurrent, as the victims of your breach of the family violence intervention order obviously allowed you to stay at the protected premises on that occasion.
40 I take into account your personal circumstances, your criminal history and your long-term drug abuse problem, in assessing your prospects of rehabilitation. I assess your prospects of rehabilitation as guarded. I use the term 'guarded' because if you successfully address your drug abuse problem then your chances of re-entering society as a law abiding citizen will improve given the incentive of re-establishing a relationship with your son Rhys and your daughter Anna-Maria.
41 Your counsel properly conceded that there are no special reasons that exist in your case and the mandatory provisions of s5(2G) and s5(2H) of the Sentencing Act apply to your case.
42 I accept Mr Cummins' opinion that you suffer from symptoms of major depressive disorder. Dr Baron, which his report was Exhibit 4, had prescribed you antidepressant medication prior to this offending. The diagnosis enlivens limb 5 of Verdins case which means your diagnosed mental health condition means that your time in custody will be more burdensome than if you were a prisoner of normal mental health.
43 I also take into account that the time in custody that you served during the COVID-19 pandemic is more difficult for prisoners such as yourself due to the loss of personal face-to-face visits, in your case your mother and/or your daughter, if she was going to come, lockdowns and limited access to programs and courses to rehabilitate you.
44 Further, I note that you are, and expect to be, in protective custody for your sentence due to some internal prison issues arising from your previous time in custody. I take all these matters into account when fixing your overall sentence.
45 The provisions of s16(3C) of the Sentencing Act require all sentences for offences committed on bail to be served cumulatively unless otherwise directed by the court. For the removal of any doubt I direct that the only cumulation of sentences in this case are those I announce in a moment. If all the sentences were simply accumulated it would result in an unjust and disproportionate sentence which would offend the sentencing principles of totality.
46 The sentencing principles of general and specific deterrence, just punishment, denunciation of your actions and the protection of the community, dictate that the only appropriate sentence in this case is a substantial term of imprisonment with a non-parole period fixed.
47 I sentence you as follows:
· In respect of Charge 1, the armed robbery charge, you are convicted and sentenced to four years' imprisonment. That is the base sentence.
· In respect of Charge 2, intentionally cause serious injury, you are convicted and sentenced to two years and nine months' imprisonment.
· In respect of Charge 3, possession of a drug of dependence, you are convicted and fined $500.
· In related Summary Charge 10 you are convicted and sentenced to two months' imprisonment.
· In respect of Summary Charge 11 you are convicted and sentenced to three months' imprisonment.
· In respect of Charge 13 you are convicted and sentenced to two months' imprisonment.
48 I direct accumulation as follows:
· The base sentence is Charge 1 which is four years.
· In respect of Charge 2 two years of that sentence is to be cumulated on the base sentence.
· In respect of Summary Charge 10 one month of that sentence is to be cumulated on the base sentence and the sentence in Charge 2.
· In respect of Charge 13 one month of that sentence is to be cumulated upon the sentences in Summary Charge 10 and the Indictment Charges 2 and 1.
49 That is a total effective sentence on my calculation of six years and two months. I fix a non-parole period of four years and six months.
50 Pursuant to s6AAA but for your plea of guilty I would have sentenced you to eight years with six years minimum.
51 I declare your pre-sentence detention of 394 days and I have signed the disposal and forfeiture order.
52 Counsel, can I just ask that you check the arithmetic, please. So the armed robbery is four years. That's the base sentence. Then I've added two years to that for the intentionally cause injury. And then for the committing offence on bail I've cumulated a further month of that two-month sentence. In respect of the prohibited weapon I've cumulated one month in respect of the two‑month sentence there.
53 MR DESMOND: The accumulation there's the four as the base. Then he gets two years cumulation. It takes it up to the six.
54 HIS HONOUR: Yes, and then a month for Summary Charge 10. I'm just talking about just accumulation now.
55 MR DESMOND: Yes.
56 HIS HONOUR: Yes, thanks. Charge 10, which is commit an offence on bail, and 13, which was the prohibited weapon one month as well.
57 MR DESMOND: Yes.
58 HIS HONOUR: Yes.
59 MR DESMOND: I mean, that's the accumulation but it was - - -
60 HIS HONOUR: Yes.
61 MR DESMOND: Sorry, I - - -
62 HIS HONOUR: You're right.
63 MR DESMOND: I had the - I was thinking it was four years, nine months. That was the mistake. It was two years, nine months.
64 HIS HONOUR: Yes, that's correct.
65 MR DESMOND: So, yes, the total effective sentence is correct.
66 HIS HONOUR: Yes, thank you. So just to clarify, it's - two years and nine months is the sentence for Charge 2, yes.
67 MR DESMOND: Two, yes. Thank you.
68 HIS HONOUR: Are you right there, Ms Pham? You agree that the accumulation is right?
69 MS PHAM: Yes, Your Honour.
70 HIS HONOUR: Thank you. I've signed the forfeiture and disposal orders that were sought by the prosecution. Mr Desmond, did you want an opportunity to speak to your client - - -
71 MR DESMOND: If I could just have a couple of minutes, Your Honour.
72 HIS HONOUR: Yes.
73 HIS HONOUR: Thanks very much, Madam Prosecutor. If you wouldn't mind leaving the room we'll just leave Mr Andrei and Mr Desmond and my tipstaff in here so that he can speak with his client about what's just happened.
74 MS PHAM: Yes, Your Honour.
75 MR DESMOND: Thank you, sir.
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