Director of Public Prosecutions v Busary

[2016] VCC 745

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-16-00441

DIRECTOR OF PUBLIC PROSECUTIONS

v

STEPHEN BUSARY

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	1 June 2016
CASE MAY BE CITED AS:	DPP v Busary
MEDIUM NEUTRAL CITATION:	[2016] VCC 745

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Porceddu
For the Accused	Mr T. Sullivan

Pages 1 - 7

 

 

HIS HONOUR:

1Stephen Busary, stay seated for the time being.  You pleaded guilty to an indictment charging you with two offences of obtaining financial advantage by deception, one offence of obtaining property by deception, one offence of attempted obtaining property by deception, and one offence of attempting to obtain financial advantage by deception.  All of the offending occurred between 8 October 2014 and 21 September 2015.  You have also admitted summary offences including dealing in property suspected of being proceeds of crime, three separate offences, and one offence of contravening the terms of your bail between 31 August 2015 and 29 September 2015. 

2You have admitted a number of court appearances and prior convictions set out in your criminal record.  The prosecution has tendered and relied upon a summary of prosecution for the plea, which is Exhibit A, it has been read a few minutes ago and I am not going to repeat it again.  But it sets out the circumstances in which, first of all, you obtained a motor vehicle by deception, valued at $52,000 or thereabouts by obtaining a credit facility in the name of another person, essentially using his identity for the purposes of obtaining the vehicle which you then advertised on eBay for sale. 

3In Charges 2, 3, 4 and 5 you breached the trust of your employers in using credit card identity details of customers in order to commit the offences.  It is clear from the total number of transactions, a total of 286 fraudulent transactions, that you had plenty of opportunity to reflect upon your conduct to consider, reconsider, and reconsider again what you were doing, and consequences of what you were doing.  You have committed offences of obtaining property by deception in the past, so you are well aware of the wrongfulness of obtaining property or financial advantage by deception.  You were well aware of the wrongfulness of your conduct, yet you persisted with it.

4Having had a warning in the form of a visit from the police to your home in June, and then a subsequent visit by you to the Oakleigh Criminal Investigation Unit on 21 July 2015, you continued with your offending in spite of the fact that you knew the police were alert to your conduct.

5The total dollar value of property, or financial advantage obtained, was $226,042.17, and in relation to the offences involving attempts, a total value of $22,404.92. 

6Your counsel helpfully provided me with an outline of submissions in mitigation of sentence and took me through those submissions very frankly and openly, and realistically.  He also relied upon the content of a report of Mr Ball, psychologist, dated 18 May of this year, which is Exhibit 2.  Mr Ball deals with your background.  He deals with a somewhat troubled, as he puts it, dysfunctional upbringing,  a motor vehicle accident in which you received serious injury, and your history of relationships, including the breakdown of a relationship in 2014, which he suggests has some contributing effect to your increased drug abuse during the period following that breakdown. 

7It is clear, it seems, from Mr Ball's report, that misuse of drugs and alcohol has been a significant problem. The context of this offending and very likely the context of your previous offending has that at least as a contributing factor. 

8It is also clear from your criminal history that you have been given opportunities of addressing your substance abuse issues in the past.  In 2008 a community-based order, 2009 community-based order, and more recently in February of 2014, when you were placed on a community-correction order for a period of 18 months, requiring you to perform 200 hours of unpaid community work, but also to undergo treatment and rehabilitation for, amongst other things, drug abuse and dependency, and alcohol abuse and dependency.  Also directed at mental health issues.  It is not suggested that there was any mental impairment that triggers the principles in the well-known case of Verdins, however all of that background needs to be considered in assessing the appropriate penalty in your case.

9Your mother is in court, she supports you, and I have no doubt will continue to support you.  I have no doubt you are sorry for the distress that you have caused her, and continue to cause her.  It may be that you are remorseful now, your plea of guilty at an early stage supports that proposition. You are entitled to the full credit for your plea of guilty to each of these offences.  The suggestion that you are truly remorseful loses a little bit of its traction given that you had every opportunity to reconsider your conduct when you visited the Oakleigh Criminal Investigation unit in July of last year, yet you continued with your offending conduct.  However, I do accept that, after you have had plenty of opportunity to dry out, to reflect whilst you have been in custody, that you are now remorseful for your conduct.

10It is difficult to say that your prospects for rehabilitation are good, having regard to the opportunities you have had in the past to sort yourself out. But it is to be hoped that with the programs that you have already undertaken, the educational opportunities you have taken whilst in custody, and hopefully the programs that you may have available to you during the period of your incarceration for these offences will assist you with staying out of trouble in the future and leading a productive life.

11You have been a functional drug user.  You have been able to get work and hold a job despite the breach of trust involved in the offending in this case. 
I have no doubt that you have the capacity to lead a productive life.  You are a person of average intelligence, at least, and there is no reason why you should not be able to put these matters behind you. 

12However, the prosecution has pointed out, there are other factors which need to be considered in sentencing in cases such as this, including deterring you from further offending, and protecting the public from further offending by you, but also in a wider sense in deterring others from committing offences of this kind.  It is not that hard, if you put your mind to it, to commit these sorts of offences, and they can go undetected.  They cause considerable angst to members of the community have their identities misused in the way that you have misused them, and their credit card facilities used. It is very much in the public interest that people be deterred from engaging in this kind of conduct. 

13I am not persuaded, as I indicated to your counsel, that it is appropriate for me to make a community correction order in your case. I think that now is the time when appropriate head sentence and non-parole period needs to be imposed.  You are still relatively young, although old enough to know better.  And I am inclined to accede to your counsel's submission that a reasonable, and perhaps slightly longer than usual period when you are eligible for parole may assist you with your further rehabilitation.  However, I am also conscious of the need to impose a punishment which is adequate for your offending conduct, and which adequately denounces your conduct. 

14I am doing the best I can to balance all those sentencing considerations, would you please stand?

15On Charge 1 on the indictment of obtaining property by deception, I convict you and sentence you to imprisonment for a period of 15 months.  On Charge 2 of obtaining property by deception, I convict you and sentence you to imprisonment for a period of 20 months.  On Charge 3 of obtaining a financial advantage by deception, I convict you and sentence you to imprisonment for a period of 20 months.  On Charge 4 of attempting to obtain property by deception, I convict you and sentence you to imprisonment for a period of
14 months.  On Charge 5 of attempting to obtain a financial advantage by deception, I convict you and sentence you to imprisonment for a period of six months. 

16In respect of the summary offences, on Charge 6 of dealing with property suspected of being the proceeds of crime, I convict you and sentence you to imprisonment for a period of two months.  On Charge 51 of dealing in property suspected of being the proceeds of crime, I convict you and sentence you to imprisonment for a period of four months.  On Charge 52 of breaching your bail conditions, I convict you and sentence you to imprisonment for a period of one month.  And on Charge 262 of dealing with property suspected of being the proceeds of crime, I convict you and sentence you to imprisonment for a period of one month.

17Charge 2 on the indictment is to be regarded as the base sentence, and I order that three months of the sentence imposed on Charge 3 and one month of the sentences imposed on Charges 1, 4 and 5 be served cumulatively upon one another, and upon the sentence of 20 months imposed in respect of Charge 2, making a total effective sentence of 26 months imprisonment.  I order that you serve a period of 18 months before you become eligible for parole. 

18But for your plea of guilty, I would have sentenced you to imprisonment for a period of 32 months, and ordered you to serve a non-parole period of
22 months.  I make the orders for disposal and forfeiture and compensation in accordance with the drafts with which I have been provided.  Now, the application for DNA sample, is that proceeded with?

19MR PORCEDDU:  It is pursued, yes, Your Honour.

20HIS HONOUR:  And that is not opposed, I take it?

21MR SULLIVAN:  No, Your Honour.

22HIS HONOUR:  And I make the order for the provision of a DNA sample, which will be requested from you by an authorised officer, and it will involve you providing a scraping of the inside of your mouth.  If you provide that sample when requested by the authorised officer in that way, then that is the end of the matter.  If however you fail or refuse to provide the sample in that way, then the officer will be authorised to take blood and may use reasonable force to obtain that sample.  I am sure you will not put them to that trouble.  Mr Porceddu, we will print those various orders off, and I will sign them.

23MR PORCEDDU:  Yes.

24HIS HONOUR:  But they are not in court at present.  If you have spare copies, well that is all well and good.  Take a seat, Mr Busary.

25MR PORCEDDU:  Your Honour, I am not sure whether or not you declared PSD.

26HIS HONOUR:  I did not, you are quite right, and it is ‑ ‑ ‑

27MR PORCEDDU: Two forty-six days.

28HIS HONOUR:  Two hundred and forty-six days.

29MR PORCEDDU:  Excluding today.

30HIS HONOUR:  Yes, I declare presentence detention of 246 days as time to be reckoned as served on the sentence that I have imposed, and order that that 246 days be deducted from the sentence you will actually have to serve.  And I order that that matter be noted in the records of the court.

31MR PORCEDUU:  As Your Honour pleases.

32MR SULLIVAN:  As it please Your Honour.  Your Honour, can I just raise - Your Honour is signing a whole lot of orders, but ‑ ‑ ‑

33HIS HONOUR:  Yes.

34MR SULLIVAN:  I am just thinking, Your Honour, a shorter than usual non-parole period, this is getting me into danger, but has Your Honour done that by the 18 months under the 26?

35HIS HONOUR:  Yes.

36MR SULLIVAN:  So if I just work that out, say if it was 24, then it would be - I am looking at 66 being the usual, but - 66 per cent, so that is two-thirds, so if it was 24, that 18 - it is like about right on.  What I am suggesting to Your Honour is that it appears that it is 66 per cent, not less than.  As a percent.

37HIS HONOUR:  There is no usual, there is no usual.

38MR SULLIVAN:  No, there is no usual, that is why trying not to use that word, but I have this time.

39HIS HONOUR:  Well, you just have, have you not? 

40MR SULLIVAN:  Yes I did, but I am just trying to bring it to Your Honour's attention.  Your Honour has considered that through, I just have not overlooked that aspect.

41HIS HONOUR:  I certainly have.  Twenty-six months ‑ ‑ ‑

42MR SULLIVAN:  As it please Your Honour, I will not take it any further.

43HIS HONOUR:  ‑ ‑ ‑ versus 18 months.  I think I will complete these orders off the Bench, there are a lot of compensation orders that need to be signed.

44MR PORCEDDU:  Yes, Your Honour.

45MR SULLIVAN:  As it please Your Honour. 

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