Director of Public Prosecutions v Binder
[2019] VCC 1597
•28 October 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-19-01010
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CHRISTOPHER BINDER |
---
JUDGE: | HER HONOUR JUDGE BRIMER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 October 2019 | |
DATE OF SENTENCE: | 28 October 2019 | |
CASE MAY BE CITED AS: | DPP v Binder | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1597 | |
REASONS FOR SENTENCE
---
Catchwords: CRIMINAL LAW – sentence – home invasion – offender had baseball bat – lesser role than co-offender who was the instigator - 18 months’ imprisonment imposed on charge of home invasion & CCO made for 12 months on charge of theft
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P. Raimondo (plea & sentence) | Office of Public Prosecutions Victoria |
| For the Accused | Mr A. Marshall (plea & sentence) | James Dowsley & Associates Pty Ltd |
HER HONOUR:
1 Christopher Binder, you have pleaded guilty to one charge of home invasion contrary to s.77A of the Crimes Act 1958 and one charge of theft contrary to s.74(1) of the Crimes Act. The maximum penalties for these offences are 25 years and 10 years' imprisonment respectively. The offence of home invasion is a category 2 offence and pursuant to s.5(2H) of the Sentencing Act, a custodial sentence must be imposed on you in respect of that offence.
2 The circumstances of your offending are set out in the Prosecution Opening on Plea dated 24 September 2019 which was read out and tendered as Exhibit A. The agreed summary forms the factual basis upon which I will sentence you. I will summarise the circumstances in short compass.
3 On 30 September 2018 Ken Salmi, your partner Caitlyn Salmi’s uncle, came to your house together with his ex-partner, Sallyanne Wynwood. Mr Salmi‘s family was concerned about Caitlyn Salmi’s drug use and contact with the victim, Anthony Grima. Mr Salmi had been at Mr Grima’s house the day before and there had been a confrontation. Mr Salmi reported to Ms Wynwood, that
Mr Grima had hit him with a baseball bat.
4 You and Mr Salmi had a conversation about 'going to scare people'. At about 7:30 pm Ms Wynwood drove you both to Mr Grima’s house. When Mr Grima recognised Mr Salmi he immediately tried to shut his door.
5 Before Mr Grima could lock the door, you and Mr Salmi forced it open. You were both aggressive and yelling at Mr Grima, 'We're going to hurt you'. You had a baseball bat. At some point, Mr Salmi picked up a knife from Mr Grima’s bench and waved it about.
6 Also in the house was a woman, Ms Showler. Mr Salmi told Mr Grima to sit on the couch next to Ms Showler, then was told to get his wallet. Mr Grima went over to the fridge and picked up an empty cigarette packet which contained $40 cash and handed it to Mr Salmi. Mr Salmi said 'You’re full of shit. Where is the rest of the cash'. Mr Grima responded 'That’s it'.
7 You were going through Mr Grima’s belongings and putting things into your pockets when Mr Salmi threw the knife upwards, causing it to get stuck in the ceiling. Mr Grima ran out of the house leaving Ms Showler behind.
8 Ms Showler asked if she could ring her boyfriend to come and pick her up. You took a number of items from the house and carried them out to Ms Wynwood’s car where you put them in the boot along with other stolen items. As you were leaving the house, Mr Salmi asked you, 'Where is the lighter?'. You threw him a lighter. Soon after, you and Mr Salmi climbed into Ms Wynwood’s car and drove off.
9 Mr Salmi had set fire to Mr Grima’s house.
Investigation, arrest and interview
10 On 2 October 2018, police executed a search warrant at Ms Wynwood’s house. Ms Wynwood was arrested and interviewed. During her interview she told police what had happened that weekend.
11 On 5 October 2018, police went to your sister’s home where you had been staying. She told police she had put some of Mr Grima’s stolen items in a pile so that the police could find them more easily. The police seized assorted tools and accessories belonging to Mr Grima.
12 On 7 October 2018, you attended the Sunshine Police Station where you were arrested and interviewed. You made admissions to the offending and were charged and remanded in custody.
13 You have served 386 days of pre-sentence detention not including the plea date.
Plea of guilty
14 You cooperated with the police investigation, answering questions fully in your record of interview. You pleaded guilty prior to committal. You did not cross‑examine any witnesses. You ought be given the benefit of an early plea of guilty both as an indication of remorse and for the utilitarian benefit that your plea has had in avoiding a trial.
Prior convictions
15 You have a relevant criminal history including matters of violence spanning the period 2010 to 2017. In particular, on 11 August 2017 you pleaded guilty to a number of charges including reckless conduct endangering serious injury and unlawful assault which resulted in the imposition of a term of imprisonment of seven months together with a community correction order of 12 months. An aggravating feature of this offending is that you were on a community correction order for unlawful assault and other related matters at the time of this offending.
Victim Impact Statement
16 Mr Grima’s victim impact statement details his battle with depression and the impact on his home and business of the terrifying events of 30 September 2018. I have had regard to his statement but have been careful not to take into account matters that are properly attributable to the arson, a charge which you do not face.
Personal circumstances
17 You are now age 28 years old. You were 27 years old at the time of the offending. You grew up in Broadmeadows, one of eight siblings. You are the eldest. Your counsel noted that all of your siblings, bar one, are law abiding and in the community. You have contact with them all. Your parents separated when you were young although you keep in contact with them. They were both in court supporting you on your plea.
18 You remained at school until Year 10 when you left to become a carpenter. You finished your apprenticeship and have a significant, consistent employment history working with different caravan companies. You have also done some work as a house painter.
19 You have a long standing problem with alcohol but otherwise you have had limited health issues over your adult years.
20 At the time of the offending, you were in an on and off relationship with
Caitlyn Salmi. You had been in that relationship about five years and have two children who are currently in the care of Ms Salmi’s mother.
21 The Department of Health and Human Services is involved in the care of the children and bring the children to visit you in custody every two weeks. You have a strong relationship with them.
Objective gravity of the offence
22 The offence of home invasion is a very serious offence as is indicated by the maximum penalty of 25 years' imprisonment. Invading a person’s home strikes at the heart of a person’s sense of safety in their own home.
Circumstances of the offending
23 Mr Raimondo submitted that this is serious vigilante behaviour. This calls for the principles of general and specific deterrence and denunciation, given the nature and gravity of the offending, to loom large in the sentencing process. You invaded Mr Grima’s home, to cause him fear, armed with a baseball bat.
24 Mr Marshall submitted on your behalf, that the circumstances in which you became involved and your conduct during the home invasion provide a basis on which I ought to differentiate your moral culpability from that of your co‑offender, Mr Salmi.
25 It was Mr Salmi who approached you, fired you up and talked you into going to Mr Grima’s place. You had been drinking alcohol before the events unfolded. Mr Marshall submitted on your behalf that you had the bat with you for your own protection, as Mr Salmi had claimed to have been hit on the head by Mr Grima the evening before.
26 Whilst in Mr Grima’s house, you reassured Ms Showler and got her to ring her boyfriend to pick her up. You asked her if she was okay and apologised. Although you did behave in a threatening manner, you did not touch Mr Grima. Whilst the incident would have been undoubtedly terrifying for Mr Grima,
Mr Salmi was very much the major protagonist in the whole incident. He was the one who used the knife and set fire to Mr Grima’s house. You have not been charged with arson.
27 In respect of the charge of home invasion, Mr Salmi was sentenced to a term of imprisonment of two years. He also faced charges of arson and theft and was sentenced to a total effective sentence of six years’ imprisonment with a non-parole period of four years. On the basis of your lesser role, Mr Marshall submitted that there should be a disparity between his sentence of two years’ imprisonment on the charge of home invasion and the sentence imposed on you for this charge.
28 Mr Marshall accepted during the course of your plea, that in respect of the charge of theft, you played more of the lead role. You took and had at your sister’s house, the majority of the items stolen from Mr Grima’s house. For the most part, these items were recovered by the police.
29 Whilst I accept the submission that Mr Salmi took the lead role in instigating and carrying out the home invasion, and I will take this into account when sentencing you in respect of Charge 1, nevertheless you were a willing participant. This behaviour cannot be tolerated. Whatever the motivation, the community will not tolerate people taking the law into their own hands. As I said, this sort of violence strikes at the heart of the community’s entitlement to feel safe in their own homes. The sentence imposed on you must reflect denunciation of this sort of offending. It must also reflect the proper application of general deterrence to deter others who might be minded to take the law into their own hands and to act in this way.
Relevant sentencing principles
30 Mr Marshall accepted that specific deterrence is a relevant sentencing consideration in your case given your prior history of offending. He submitted however that I should consider your offending in the context of personal issues present at the time. A week before this offending, the Department of Health and Human Services took your children away from their mother. Ms Salmi had a number of personal issues which she was relieving by taking drugs. You left the relationship and were in a particularly unhappy state of mind when you were approached by Mr Salmi. You have had little involvement with drugs but have an alcohol problem. You were ‘an easy mark’, it was submitted, in that moment.
31 I accept Mr Marshall’s submission that at the time you were approached by Mr Salmi, you were vulnerable given your personal situation at the time. The weight to be given to this however must be tempered by your history, which demonstrates a preparedness to engage in violent conduct over a period of a number of years.
32 Mr Marshall submitted that despite your history, you have real prospects of rehabilitation. You have a positive and strong relationship with your children despite being in custody. The Department of Health and Human Services is assisting Ms Salmi to deal with her situation. It is hoped that upon your release the family will be reunited. Whilst in custody you have completed a number of courses including the Anglicare course ‘Tuning into Respectful Relationships’.
33 It is also anticipated that upon your release from gaol, you will again find employment. Although there was no evidence from a previous employer that a job will be waiting for you upon your release, it can be inferred from your consistent work history and your employment upon release on the last time you were imprisoned, that you will find work again.
34 Mr Marshall submitted that you demonstrated immediate contrition as demonstrated by your apologetic behaviour towards Ms Showler. You cooperated with the police and gave a full and frank account of your offending conduct during the record of interview. Your answers demonstrate that you were contrite and were upset about the way the whole incident had gone.
35 Mr Raimondo submitted that your prospects of rehabilitation are guarded and dependent on being alcohol free. It is an aggravating feature of these offences that they were committed whilst you were on a community correction order at the time.
36 I accept that there are positive indications of real prospects of rehabilitation. In particular, your full cooperation with the police demonstrates remorse for your actions and acceptance of responsibility. I have had regard to other protective features that were referred to by Mr Marshall. These are tempered, however, by the aggravating feature that these offences were committed whilst you were on a community correction order. Very little information was provided to the court regarding the nature and extent of your compliance up to the point of this offending whilst on your community correction order. What is clear is that at the time of this offending you were drinking alcohol.
37 I ordered a pre-sentence report be obtained which has disclosed some information regarding your compliance with previous community correction orders. The author of the report notes that you acknowledged positive engagement with order conditions and described this offending as 'stupid' given you considered you had done well and were due to complete both orders. You identified the correlation between your offending and alcohol consumption, admitting that you were remorseful and ashamed of your actions. You considered this period in custody to have been beneficial for your sobriety. You were assessed as suitable for a CCO.
38 I accept Mr Raimondo’s characterisation of your prospects as guarded and accept that they are linked with your ability to abstain from alcohol in the future.
39 Mr Raimondo submitted that a head sentence with a non-parole period is an appropriate disposition. Mr Marshall on your behalf submitted that whilst that is one option, another option is to impose a term of imprisonment on Charge 1 together with a CCO on Charge 2, theft, to commence at the end of your term of imprisonment. He acknowledged that, on the face of it, it may appear to be a more severe sentence by reference to the sentence imposed on Mr Salmi in respect of Charge 1, however, you are keen to have the structure provided by a community correction order upon your release from prison.
40 General deterrence and denunciation of this type of conduct in which you have engaged in is a significant sentencing consideration. To the extent that a sentence is imposed on you for the purpose of punishing you, however, it must be imposed only to an extent and in the manner which is just in all of the circumstances.
41 I consider that in respect of Charge 1 home invasion, this is achieved by the imposition of a term of imprisonment. I have taken into account the term of imprisonment imposed on Mr Salmi, as I must, to achieve parity. This means, given my acceptance of his lead role in respect of this charge, the sentence imposed on you must reflect an appropriate difference from that imposed upon Mr Salmi, whilst still denouncing this appalling behaviour.
42 In respect of the charge of theft, I consider the imposition of a CCO to be appropriate. The imposition of a community work condition will address the punitive element required, whilst therapeutic conditions will further your rehabilitation which I consider will also better protect the community. Given your lead role in respect of the charge of theft and the correlation between your long term alcohol misuse and your offending, I do not consider that the imposition of a CCO leads to a lack of parity between the sentence imposed on you and that imposed on Mr Salmi, being a term of imprisonment of
three months.
43 Please stand.
44 On Charge 1, you are convicted and sentenced to a term of imprisonment of
18 months. I declare that there are 386 days of pre-sentence detention to be reckoned as having been served under s.18 of the Sentencing Act.
45 On Charge 2, theft, you are convicted and sentenced to a community correction order for a period of 12 months to commence upon your release from prison.
46 Because you must agree, I will explain the conditions to you. The order will have the conditions that are attached to every order which are: that you must report to and receive visits from Corrections Victoria; must notify Corrections Victoria of any change of address or employment; must not leave Victoria without permission of Corrections Victoria and must comply with any direction given by Corrections Victoria to ensure compliance.
47 I will also order that you comply with other conditions: you must be under supervision; you must perform 150 hours of unpaid community work; you must undertake assessment and treatment for alcohol use and undertake programs to reduce re-offending. Do you agree to being released on a community correction order with the conditions attached?
48 OFFENDER: Yes.
49 HER HONOUR: Pursuant to s.48CA of the Sentencing Act, I determine that
40 hours satisfactorily undertaken for treatment and rehabilitation are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition.
50 Pursuant to s.6AAA of the Sentencing Act, I declare that had it not been for your plea of guilty to the charges I would have imposed a term of imprisonment of two years and six months, together with a community correction order of 20 months.
- - -
HER HONOUR: I understand there's an ancillary order for the taking of a forensic sample?
MR RAIMONDO: Yes, Your Honour.
MR MARSHALL: Sorry, Your Honour. I was just making the point that – I apologise, I hadn't – wasn't aware and hadn't spoken to my client. I would have thought there would have already been one if my client's already had a term in custody but - - -
MR RAIMONDO: I looked through the criminal record and there's no indication - - -
HER HONOUR: All right.
MR RAIMONDO: - - - that a sample's been provided in the past.
HER HONOUR: Yes. Well I'll give you a - - -
MR RAIMONDO: Perhaps I could go - - -
HER HONOUR: Yes, please do.
MR RAIMONDO: Thank you, Your Honour.
HER HONOUR: If leave the Bar table to have a word to your client.
MR RAIMONDO: My client consents to the - - -
HER HONOUR: I'm sorry?
MR RAIMONDO: He will consent in any event, Your Honour.
HER HONOUR: Yes, thank you. Mr Binder, you've consented to the making of an order under s.464ZF(2) of the Crimes Act which is the taking of a forensic sample. If at the time of the request you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted. Do you understand that?
OFFENDER: Yes, Your Honour.
HER HONOUR: We'll just printout a copy of the community correction order and give you an opportunity to speak to Mr Binder about the conditions.
MR RAIMONDO: Yes. Thank you, Your Honour.
HER HONOUR: Could we have Mr Binder's residential address please? Mr Binder, what's your address? We need to record it on the community correction order.
OFFENDER: Ah yeah, 4 Albert Crescent, St Albans.
HER HONOUR: All right, thank you.
MR RAIMONDO: Your Honour, as I understand it, it would be – the correct address is 4 and then 1/5 is the full address.
HER HONOUR: Yes, thank you.
MR RAIMONDO: I would assume either would probably - - -
HER HONOUR: Perhaps if you could just make a note so that Mr Bastianon can accurately record it on the CCO.
MR RAIMONDO: Yes.
HER HONOUR: You may be seated, Mr Binder. You may take a seat.
MR RAIMONDO: So 4 1/5 and then whatever the street, Albert Crescent. That's 4, just the number and then between those two is 1/5. Yes. Thank you,
Your Honour, if I could again - - -
HER HONOUR: Yes, if you'd like a moment to go and explain the conditions to Mr Binder.
MR RAIMONDO: Thank you, Your Honour. I think he's seen them before but I was able to explain those other simple factors and I will talk to him again after court.
HER HONOUR: Yes. Yes, thank you. Are there any matters to raise, Mr Raimondo and Mr Marshall?
MR MARSHALL: No, Your Honour.
HER HONOUR: Yes, thank you, 11 o'clock.
- - -
0
0