Director of Public Prosecutions v Bakomihalis

[2016] VCC 754

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-16-00805

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANGELO BAKOMIHALIS

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	2 June 2016
DATE OF SENTENCE:	2 June 2016
CASE MAY BE CITED AS:	DPP v Bakomihalis
MEDIUM NEUTRAL CITATION:	[2016] VCC 754

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms M. Casey
For the Accused	Mr P. McClure

HIS HONOUR:

1Angelo Bakomihalis, on this day you pleaded guilty to the following charges:

2Charge 1, aggravated burglary on 23 January 2016 at 25 Redan Street in St Kilda.  This has a maximum penalty of 25 years' imprisonment. 

3Charge 2, theft.  This has a maximum penalty of ten years' imprisonment.

CIRCUMSTANCES OF OFFENDING

4On 23 January 2016, you and your co-accused, Nick Tozo, attended at Redan Apartments at 25 Redan Street at St Kilda.  On that day, the victims in this case, Tsubasa Orii, Riku Sato and Ayako Ishikawa were sharing a studio apartment within the complex.  Ms Ishikawa had left the apartment and gone to the city, taking the only key to their apartment with her.  The two men, Mr Orii and Mr Sato, remained in apartment.

5At approximately 9.45am on that day, you and your co-accused Tozo drove to St Kilda in a white Toyota Yaris, registered No.1BQ4QH and parked nearby.  You then walked to the Redan Apartments and attempted to enter the building via the front door, but found it was locked.  The manager, Kejun Wang arrived shortly after and had a short conversation with yourself and Mr Tozo outside the building, before he entered the building and went to work.  You and Mr Tozo then walked away towards the car park gate and attempted to gain entry to the car park gates by entering random numbers into the keypad.

6When you were unable to access the car park, you then returned to the front door of the building with Mr Tozo.  Mr Tozo knocked on the front door and attempted to gain someone's attention.  You then walked back to the car park gate, leaving Mr Tozo at the front entrance of the building.  You then took advantage of a white van, which was leaving the car park and you entered into the car park yourself.  Mr Tozo continued knocking on the front door until another resident came down the stairs, opened the door and let him in.  Mr Tozo then wedged the door open in order to let you know that he had gained entry.  Your various attempts to gain entry had been captured on CCTV.

7Mr Tozo then walked up the stairs, followed by yourself.  You were approached by the manager, Mr Wang, who asked you what you were doing.  You told him that you were there to see a friend, providing him with a false name before continuing up the stairs.  Upstairs, the two of you were seen by a witness, knocking on several doors and entering several rooms as you made your way down the corridor.

8Ultimately, the two of you entered through the unlocked door of that apartment.  At the time, the room was occupied by Mr Sato and Mr Orii.  Mr Sato was asleep in bed and Mr Orii was up sitting at his table eating breakfast.  Mr Sato woke up when you and Tozo entered the apartment.  You and Mr Tozo walked in and have said "Hi."  Mr Tozo has then walked over to the bedside table and taken Mr Sato's two mobile phones.  Mr Sato attempted to take his phones back, but noticed that Mr Tozo was holding a box cutter.  Mr Tozo then took Mr Sato's red satchel bag from the kitchen area and put the mobile phones into that bag.  He also picked up Mr Sato's laptop from the floor by the bedside and added that to the bag.  Mr Tozo told the victims, Mr Sato and Mr Ori, not to raise their voices and not to call police and took another mobile phone, which was sitting on the floor.  He kept asking Mr Sato where his wallet was.  Mr Sato told him that you had already grabbed it.

9At the same time, you were also holding a box cutter, and were standing at the end of the bed, packing other items belonging to the victims into a separate bag.  Mr Tozo asked the victim Sato if he had any ‘ice’, before going through Mr Sato's suitcase on the floor in the kitchen.  He took a second wallet containing Mr Sato's Japanese driver's licence and a Medicare card, as well as Mr Sato and Mr Orii's Japanese passports. 

10As both you and Mr Tozo were packing the victim's belongings, you repeatedly told the victims to be quiet.  Once you and Mr Tozo finished filling the bags, you waited by the front door for Tozo, telling him to hurry up.  Mr Tozo grabbed Mr Sato's black chrome backpack, containing personal travel documents.  The both of you, were in the apartment for approximately ten minutes in total.  When you left, you ran out with the victim's property, ran down the stairs and left the building.  You then ran back to your car and drove off.

11Both you and Mr Tozo have clearly planned to go to these premises and commit these offences.  The two of you coordinated your entrance to this secure apartment complex.  You entered the premises, armed with a box cutter as a weapon.  You went there to steal, so as to finance your drug habit.  In the process of your crime, you and your co-accused stole the following property from your victims:

12The property belonging to Mr Sato is as follows: a black Sony Xperia mobile phone, a white Samsung Galaxy phone, a black Sony VAIO laptop, a brown Prada wallet containing Mr Sato's personal cards, AUD $200, personal paperwork and photographs, a Japanese passport belonging to Mr Sato, a Sony MP3 player, a Casio ex-word data plus (dictionary), a red satchel bag and a black Chrome backpack.

13The property belonging to Mr Orii is as follows: a black wallet containing Mr Ori's personal cards, AUD $10, a Japanese passport belonging to Mr Orii, an iPad charger, a Wi-Fi charger, a Kodak power bank (portable battery), an Opal necklace on a gold coloured chain.

14The property belonging to Ms Ishikawa is as follows: a National Australia Bank card holder containing a Japanese credit card, a large black bag, inflatable bed, four make-up bags, two containing feminine hygiene products and make-up, a portable battery and battery cord, an Apple iPhone 6s and AUD $350.  Some of the property was recovered from you at the time of your arrest by police and returned to the victims.

ARREST AND INTERVIEW

15At or about 3:00am on 24 January 2016, that is, the next morning, you were found asleep in the white Toyota Yaris near Yarra Boulevard and the CityLink exit in Richmond.  You had parked in the middle of the road of the inbound lane and CityLink staff had surrounded your vehicle with witches hats.  No doubt they contacted the police.  The police woke you and conducted a search of you and your car.  Inside the car, police located the box cutter, as well as a red bag and the black Chrome backpack containing items belonging to all the three victims.

16Senior Constable Laidlaw asked you about the property and you said “I can’t really remember, I just remember finding them and I was guna hand em in" and indicated that you thought you had found them a few days earlier. 

17You were then arrested and taken for interview at the Richmond police station.  In relation to the property found in your car and other matters you made no comment, which of course is your right. 

18You were charged and remanded in custody.  You were later charged with aggravated burglary and theft and the matter proceeded by way of a filing hearing.  You were offered the opportunity to be interviewed in relation to these charges, but declined through your solicitor.  At the time of the offending you were on bail for other offences.  These offences also breach a Community Corrections Order which had been imposed on you at the Melbourne Magistrates' Court.

19I will return to your criminal history and your personal circumstances as part of this plea.  You have served a total of 130 days pre-sentence detention to this date, but not including this day.

IMPACT ON VICTIMS

20In terms of the impact on your victims, it was described as follows.  Mr Sato was very scared and thought you and your co-accused, were going to stab them, as they had knives and they had no way of calling the police, as his phone had been taken. 

21Mr Orii was extremely scared.  As they could not get to reception areas as both males, meaning you and your co-accused, had knives.  They waited for some time after you had left the premises, before going to reception to report the incident, as they were afraid that you might still be outside their apartment, or in the area.  I find that these offences would have been a very frightening and disturbing experience for Mr Sato and Mr Orii.

PERSONAL CIRCUMSTANCES

22You are 43 years old.  You were born in Australia to Greek parents. You have a twin brother and older sister.  You had a stable and loving upbringing in your family home at Oakleigh.  You successfully completed Year 12 at Oakleigh High School.  You have described yourself as a popular student and a good athlete.  In particular, you were an excellent soccer player and played for many years at Kingston Soccer Club.

23You met your future wife Christine when you were 17 years old.  You married her approximately six years later.  You have two children:  aged 13 and 11 years old.  Due to your drug use and irresponsible lifestyle, your marriage to Christine broke down and you separated in 2012.  You are now divorced.  You have been single since that time.

24You had worked for the Herald Sun for seven years in the advertising department, after you left school.  You then moved your employment to Money Saver, again in an advertising role.  Your final employment was running a business with your then wife, called Hospital Promotion Victoria.  Your ex-wife continues to successfully run that business.  You have not worked since your departure from that business, as part of the matrimonial property settlement with your ex-wife.  You have been in receipt of Centrelink benefits for the past four years.

25Since July 2012, you have established a significant criminal history.  There have been five separate court appearances.  Significantly, you have been convicted of aggravated burglary at the Dandenong Magistrates' Court on 11 November 2014 and you were sentenced to six months' imprisonment.  That was an aggregate sentence in respect of that and other matters.  At the time of these offences, you were serving a Community Corrections Order, which had been imposed on 18 August 2015.  At the same time, you were on bail for other offences which, as I understand it, are yet to be finalised.  The two entries in your criminal history that I have just referred to are aggravating features when considering an appropriate sentence for the current offences, as is the fact that you offended whilst on bail. 

26The balance of your criminality is around drug offences and dishonesty offences.  You have been sentenced to imprisonment for dishonesty offences in the past.

27It was submitted that you commenced using drugs in 2011, the year before your separation from your wife.  That history coincides with your commencement in the criminal courts and quickly mounting up to a significant criminal record.  The submission on your drug taking was that you used Ice, up to three and a half grams a day, cocaine and GHB.  Your “drug of choice”, as it was described in submissions, was Ice.  Prior to your drug use, you were binge drinking whiskey on the weekends.

SENTENCING CONSIDERATIONS

28The basic purpose for which a court may impose a sentence of imprisonment is just punishment, deterrence; both specific and general, rehabilitation, 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 offences, your culpability for them and your personal circumstances and those of your victims.  I am 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, you, as an offender are rehabilitated and reintegrated into society.

29You have pleaded guilty at an early stage in these proceedings.  The plea was indicated at committal stage.  Your plea has the utilitarian value of allowing the orderly and effective administration of justice.  There is a certainty of outcome and a 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.  Your plea vindicates public confidence in the legal process set up to protect the community.

30You have, by your plea, relieved the victims: Mr Orii, Mr Sato and Ms Ishikawa, from giving evidence against you.  It facilitates some closure for them as victims of your offending.  Your plea is also a clear acknowledgment by you that you accept the responsibility for your criminal behaviour in this case. 

31Your plea also recognises that you are willing to facilitate the course of justice in the community and I accept that your plea of guilty to these charges indicates and demonstrates remorse on your part.

32The offending in this case by you is intrinsically serious.  The aggravated burglary charge occurs in a setting where you have planned the offending.  You have gone armed with a weapon of a box cutter.  You have, with your co-accused, engaged in a confrontational aggravated burglary where one of your victims was asleep in his bed and the other having his breakfast.

33In your criminal background, you have a prior conviction for aggravated burglary, which is noted as being person present, for which you were sentenced to an aggregate sentence of six months' imprisonment on 11 November 2014.  You have committed these offences approximately one year after your release from prison for that offence.

34That criminal history, in particular, is an aggravating feature when considering an appropriate sentence for these charges.  Further, at the time of these offences, you were serving a Community Corrections Order for possessing a controlled weapon and dishonesty charges, which was imposed upon you on 18 August 2015, just some five months before these offences.  This is an aggravating factor when considering an appropriate sentence for you.

35Further, you were on bail for other offences at the time of this offending.  You have had a rash of criminal offending, spanning 2012 to the time of your arrest for these offences.  That period of time coincides with your history of drug abuse.  Your prospects of rehabilitation are closely linked to your ability to conquer your drug habit.  You have expressed to Carla Lechner a desire to attend at an inpatient facility at the Malvern Private Hospital, to address your drug addiction.  That, at least, shows some insight by you into the extent and depth of your problem.

36Taking into account the length of time of your rampant drug use, it is approximately four years, or given the latest report I have received, it is actually five years and the extent of your use, that is, up to three and a half grams of Ice per day and the breadth of your drug use, that is, Ice, cocaine and GHB, I regard your prospects of rehabilitation as fair.  It will be a very hard road for you to recover.

37Your counsel has submitted that the Verdins principles apply to your case.  In particular, the submission was based on Ms Lechner's report. You have been assessed by her, a consultant psychologist, on 5 April 2016.  The report was Exhibit 2 on the plea and dated 28 April 2016.  Ms Lechner took a history from you that you had been diagnosed with Bipolar Mood Disorder about two years ago.  You gave a history to Ms Lechner that you were prescribed Zyprexa. There was no evidence or report from the medical practitioners, who made the diagnosis of Bipolar Mood Disorder, or who prescribed Zyprexa.  Ms Lechner's opinion is that you present with symptoms of Bipolar Mood Disorder and Stimulant Use Disorder, which is in early remission.  Ms Lechner does not make a positive diagnosis of Bipolar Mood Disorder herself, but accepted your history instead and stated you had symptoms of that condition.  Ms Lechner does diagnose you as suffering from depression at a clinical level, but stated that your depressive symptoms are mostly reactive to your situation, being your incarceration and awaiting sentence.

38It was submitted on your behalf that Verdins principles are enlivened by the opinion of Ms Lechner.  I accept that your depression will make your time in prison more burdensome, but this is only a factor tending to mitigate the punishment.  I do not accept that there is a realistic connection, or that your Bipolar Mood Disorder is an impairment of mental functioning that is causally linked to your offending in this case.  The Court of Appeal in O'Neill's case has made it clear that for the principles of Verdins to have application, the mental impairment must have existed at the time of the offence and it had some realistic connection to the actual offending.  There is no credible evidence in this case to establish the necessary connection.

39I accept that giving your exhibited symptoms of Bipolar Mood Disorder, as observed by Ms Lechner, that your time in custody would be more onerous than other prisoners, but note your history to her that since you are mediated on Zyprexa, you feel more stabilised.  I take these matters into account in the exercise of my sentencing discretion.  The offending in this case is driven by your drug abuse and what your counsel described as your addictive personality.  Only you can do something about that to rectify that combinations of problems.

40A further psychologist's report was tendered on your plea after I sought a Community Corrections Order assessment.  A report of Peter Kyriakoulis, clinical psychologist dated 4 June 2014, which is Exhibit 3 on the plea, was tendered.  The history given to Mr Kyriakoulis by you, is different to the extent that your father was an alcoholic and your mother has suffered numerous mental health concerns.  Further, it is apparent from this report that your drug abuse was well established in 2010, not 2011, as had previously been put to me.

41Mr Kyriakoulis took a history from you that you had symptoms throughout your life that were consistent with manic episodes of Bipolar Disorder.  Mr Kyriakoulis applied the Mini-International Neuropsychiatric Interview test to you for 15 minutes and diagnosed you as suffering from Bipolar Disorder (past-manic episode), Substance Abuse and Substance Dependence of methylamphetamine.  That diagnosis is in 2014, before these events, when the testing occurs.

42Mr Kyriakoulis concluded that Mr Bakomihalis' complex symptom cluster, as he described it, is characterised by a presentation of Bipolar Disorder, Post-Traumatic Stress Disorder symptoms, substance abuse and dependence of methylamphetamine.  He found that you presented with a number of maladaptive personality traits surrounding grandiosity, over-valued beliefs and anti-social behaviour.  He concluded as follows:

However it remains unlikely that his mental state or psychological symptoms significantly impair decision-making, forward planning and ability to foresee consequences of offending behaviour.  Therefore, his psychological symptoms surrounding depressive, anxious and stress symptomatology appear largely unrelated to his offending behaviour.

43I have previously stated that I accept that the condition of Bipolar Mood Disorder will make your time in prison more burdensome for you.  I take that into account when sentencing you.  I do not accept that there is sufficient evidence to support that the offending and your Bipolar Mood Disorder had a sufficient causal connection in the sense required to activate the principles in Verdins.

44I have had you assessed for a CCO.  That assessment was suitable. In the report from Corrections there has been clarification of your prescription for medication in prison. The position concerning your prescribed medication of Zyprexa is said by you to be an anti-depressant medication. The CCO report did not have any independent report from within Corrections as to why you are prescribed this medication. I find that these offences in the setting of your criminal history are far too serious to have a sentence that combines a CCO with imprisonment and necessarily the only appropriate sentence is as follows.

45On Charge 1, you are convicted and sentenced to three years and six months' imprisonment.  This is the base sentence.

46On Charge 2, you are convicted and sentenced to 12 months' imprisonment.  I direct that six months of the sentence in Charge 2 be served cumulatively on the sentence in Charge 1. 

47That is a total effective sentence of four years' imprisonment.  I fix a non-parole period of two years and nine months' imprisonment.  I declare that you have served 130 days pre-sentence detention, to be deducted administratively from your sentence. 

48Pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty, I would have sentenced you to six years' imprisonment, with a four year non-parole period for these offences.

49I have signed a forfeiture order, a disposal order and I have signed a s.464ZF order, which is a forensic sample order.  Do you understand what a forensic sample order is?  No.  The authorities, that is, the Corrections people, have the power to take from you a sample inside your mouth.  Do you understand that?  Yes.  I've signed those orders and I'll hand them down.  Is there anything further?

50MS CASEY:  No Your Honour.

51MR MCCLURE:  No Your Honour.

52HIS HONOUR:  Thank you.  Thanks.  Remove the prisoner, thank you.

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