Director of Public Prosecutions v Briffa

[2019] VCC 2041

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-18-02266

DIRECTOR OF PUBLIC PROSECUTIONS

v

ALEX BRIFFA

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JUDGE:	HIS HONOUR JUDGE COISH
WHERE HELD:	Melbourne
DATE OF HEARING:	10 December 2019
DATE OF SENTENCE:	10 December 2019
CASE MAY BE CITED AS:	DPP v Briffa
MEDIUM NEUTRAL CITATION:	[2019] VCC 2041

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Malik	Office of Public Prosecutions
For the Accused	Mr L. Barker	Haines & Polites Lawyers

HIS HONOUR:

1Alex Briffa, you have pleaded guilty to one charge of burglary and one charge of theft.  These offences carry the following maximum penalties:  burglary, 10 years' imprisonment; theft, 10 years' imprisonment.  It is not necessary for me to recount the facts of the matter in detail as they are on transcript and contained in Exhibit 1, Summary of Prosecution Opening for Plea.  That opening was accepted by you through your counsel.

2I proceed to sentence you on the basis of the facts as opened by the prosecutor, which I shall now summarise.  Before I summarise these facts I state that these sentencing remarks must be read together with my sentencing remarks delivered on 15 November 2019, as this offending was in part related to the numerous offences you committed commencing on 18 May 2018 in the long term car park at Melbourne airport, and all of my remarks on your personal circumstances are directly relevant to this offending.

3On 17 May 2018 you burgled the residential address at 1/22 Hazeldene Court, Berwick, and stole property belonging to the owners of that property, Ron and Jenny Taylor.  The Taylors were overseas.  They have left Ron Taylor's Holden Commodore ute in the long term car park at Melbourne airport.  Jenny Taylor's BMW was locked in the garage of their Berwick home.  On 17 May 2018 you broke into the ute and stole a garage remote control.  This enabled you to gain access to the Taylor's home in Berwick.  Having gained access to that home you stole the following items:  'The BMW belonging to Jenny Taylor; jewellery belonging to Jenny Taylor worth in excess of $100,000; several boxes of tools from the garage as well as a brand new Dyson vacuum cleaner; clothing including shirts belonging to Ron Taylor; a computer hard drive and paperwork'.

4I accept the submission made on your behalf concerning the circumstances of this offence, namely that you were involved in this offending with others.

5OFFENDER:  Can't - can't hear.

6HIS HONOUR:  Can you hear it or not?  Has it dropped out?  Can you hear or not?  No.  All right, just wait a minute.  Do you want to see if we can - - -

7OFFENDER:  On here okay now.

8MR BARKER:  Can you hear us now, Alex?

9OFFENDER:  What's going on?

(Indistinct words from remote facility.)

10OFFENDER:  Hi.

11HIS HONOUR:  Yes, all right.  Can - - -

12MR BARKER:  Can you hear us now?

13OFFENDER:  I can't hear.  Can you hear me?

14HIS HONOUR:  Yes, we can hear you.  Can you hear me or not?  No.

15TIPSTAFF:  I'll redial in, sir.

16HIS HONOUR:  Yes, all right.  Thanks, John.  Do you want me just to wait here?

17OFFENDER:  Sorry, Your Honour.

18HIS HONOUR:  That's all right.  Can you hear me or not?

19OFFENDER:  Yeah, I can hear you now.

20HIS HONOUR:  All right.  I got to the point where I was just describing the burglary and I listed the items that were stolen.

21OFFENDER:  Yes, Your Honour.

22HIS HONOUR:  And then I said that I accepted the submission that was made on your behalf, which was that you committed these offences, the burglary and the theft, with others.

23OFFENDER:  Yes, sir.

24HIS HONOUR:  All right?  All right.

25OFFENDER:  Yes.

26HIS HONOUR:  I'll continue, all right?

27OFFENDER:  No worries.  Yes, sir.

28HIS HONOUR:  All right.  Can you just keep an eye on the screen in case.  If the sound drops out again just wave your arms or something like that.

29OFFENDER:  No worries, no worries.

30HIS HONOUR:  All right.  So you drove the BMW back to the airport car park in the early hours of the morning of 18 May 2018.  At about 7.50 am you were detected asleep in the BMW by Australian Federal Police officer, Cochrane.  You then committed the offences to which you pleaded guilty on Indictment J11553846A, and those were the matters for which you were sentenced by me on 15 November 2019.  On that date you were sentenced to a total effective sentence of four years' imprisonment with a non-parole period of two years and six months.

31You were arrested on 12 June 2018 after you had committed the numerous offences described in detail in my earlier sentencing remarks.  You made a no comment record of interview.

32I state to you that I have taken into account the following matters in mitigation of sentence.  You have pleaded guilty.  You are entitled to have that fact taken into account in your favour and I do so.  The community has by your plea been spared the time and cost of a trial.  Witnesses have been spared the ordeal of giving evidence upon your trial.  I accept in all the circumstances that you pleaded guilty at a relatively early stage.  I accept on the material before me that you are genuinely remorseful.

33I have been told something of your personal circumstances.  You are 27 years of age, having been born on 25 September 1992.  I set out in my sentencing remarks on 15 November 2019 your personal circumstances in some detail.  I will not repeat those remarks.  As I stated on that day, I do accept the submissions that were put to me on your behalf concerning your background and I adopt the comments that I made in regard to the application of the principles enunciated in Bugmy's case and the principles enunciated in Verdins case.  I will not repeat all of the relevant comments made by
Dr Treeby, the neuropsychologist, as I set those matters out in detail on
15 November 2019, but I do state that I have accepted those matters in relation to this offending.  I also remain of the opinion that your prospects of rehabilitation are cloudy as much will depend upon your ability to remain drug free upon your eventual release from custody.

34Against these matters in mitigation, your actions were very serious indeed.  You have burgled the home of the Taylors and stolen a significant quantity of items, some of which were particularly valuable.

35There is a victim impact statement from Ron and Jenny Taylor.  I have had regard to that victim impact statement and, in particular, to the effect of the offending upon them.  It has left them both emotionally and financially broken.  Ms Taylor suffers from anxiety and is scared to remain in her home alone and Mr Taylor has had to accommodate these difficulties and reduce his workload.  This was no doubt a distressing experience for the victims.

36In my earlier sentencing remarks I set out in some detail your prior convictions and prior criminal history.  The comments that I made on 15 November 2019 in relation to those matters continue to apply.

37I agree with the submissions made on your behalf that this is a matter where the principle of totality looms large.  I do need to sentence you for these two offences but these two offences were very closely related in time to the numerous offences that you committed from 18 May onwards.

38As well as the matters to which I have referred, I must also take into account the need for general and specific deterrence, although once again I have sensibly moderated the weight to be attached to these factors in accordance with Verdins principles.

39I am called upon by the Sentencing Act to manifest the community's denunciation of your conduct and generally to impose a just punishment.  I do agree with the submission made on your behalf that there ought be a relevantly modest increase in the non-parole period.  I am also of the opinion that there ought be a degree of cumulation in respect of the sentences I am imposing today with the sentence you are currently undergoing.

40Having regard to all relevant facts and appropriate sentencing principles, I sentence you as follows:

On Charge 1 you are convicted and sentenced to 18 months' imprisonment;

On Charge 2 you are convicted and sentenced to 18 months' imprisonment.

41Charge 2 is the charge of theft.  I also make an order on Charge 2 in respect of any motor vehicle licence, any licence is cancelled and you are disqualified from obtaining such a licence for two years.  This order is to run concurrently with the order that I made on 15 November 2019.

42I direct in relation to the sentences of imprisonment, I direct that six months of the sentence imposed on Charge 2 be served cumulatively upon the sentence imposed on Charge 1, otherwise the sentences are to be served concurrently.  The total effective sentence for these charges of burglary and theft is two years' imprisonment.  I direct that six months of this sentence be served cumulatively with the sentence you are currently undergoing in respect of Indictment No.J11553846A.

43Section 14 of the Sentencing Act is relevant.  I am sentencing you before the end of the non-parole period that was imposed on 15 November 2019 and I am sentencing you to a further term of imprisonment and I do propose to fix a non-parole period.  So in these circumstances I must fix a new single non-parole period in respect of all the sentences you are to serve or complete.  I fix a new single non-parole period in respect of all the sentences you are to serve or complete of two years and nine months.

44For the sake of completeness, whilst there is no pre-sentence detention in relation to these matters, I note that a declaration was made in respect of pre-sentence detention of 503 days on 15 November 2019 in respect of the sentence imposed on that date.  That continues to apply.

45The only final matter is a statement pursuant to s.6AAA of the Sentencing Act that the sentence of non-parole period I would have imposed but for the plea of guilty is three years with a two year non-parole period.

46COUNSEL:  If Your Honour pleases.

47HIS HONOUR:  So the mechanics of that are all clear?

48MR MALIK:  Yes, Your Honour.

49MR BARKER:  Indeed, Your Honour.

50HIS HONOUR:  Yes, all right.  I will leave the link for you for a few minutes.

51MR BARKER:  Just briefly, Your Honour, very briefly.

52HIS HONOUR:  Anything further from you?

53MR MALIK:  Not from me, thank you very much, Your Honour.

54HIS HONOUR:  All right.  I am leaving the link for you to talk to Mr Barker.

55OFFENDER:  No worries.  Thank you, Your Honour.

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