Director of Public Prosecutions v Calleja
[2019] VCC 893
•21 June 2019
| IN THE COUNTY COURT OF VICTORIA AT BENDIGO CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-00777
Indictment No. G1191012.1
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GLEN MATTHEW CALLEJA |
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JUDGE: | HIS HONOUR JUDGE TRAPNELL | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 17 June 2019 | |
DATE OF SENTENCE: | 21 June 2019 | |
CASE MAY BE CITED AS: | DPP v Calleja | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 893 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence – Confrontational aggravated burglary – Common assault – Committing an indictable offence whilst on bail –
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D R Cordy | John Cain, Solicitor for Public Prosecutions |
| For the Accused | Mr J F Desmond Mr M Mahady | Nicholas W J Rolf and Associates |
HIS HONOUR:
Glen Matthew Calleja, you have pleaded guilty to an indictment containing one charge of aggravated burglary and one charge of common assault. You have also consented to this Court dealing with one transferred related summary offence of committing an indictable offence whilst on bail. The maximum penalty for aggravated burglary is 25 years’ imprisonment and the maximum penalty for common assault is five years’ imprisonment. The summary offence of committing an indictable offence whilst on bail carries a maximum penalty of 30 penalty units or three months’ imprisonment or both.
The prosecution filed a summary of prosecution opening dated 12 March 2019, which I was told by your counsel I can treat as a summary of agreed facts.[1]
[1] Exhibit P1.
The facts
The victims in this matter are Mr Daniel Shipp and Ms Renee Scaletti, who had known you for about six months prior to the offending.
On the morning of 10 January 2016, Mr Shipp and Ms Scaletti were asleep in bed at their home in Echuca. At about 6am, Mr Shipp heard loud banging on the front door of the house and heard the front door open. Soon after, the door of the bedroom opened and you entered the room carrying a wooden bat. After pausing for a moment, you went around the side of the bed closest to the window and street to where Mr Shipp was lying. These facts give rise to Charge 1, aggravated burglary.
At the time of committing this offence, you were wearing a black balaclava which had two holes in it for eyes.
You struck Mr Shipp a number of times to the right knee and ankle with the wooden bat. You also struck him to the left side of his body a couple of times, but the major contact was to the right side of his body. These facts give rise to Charge 2, common assault.
You also struck Ms Scaletti to the right side of her leg, but there is no charge relating to this.
During the assault, you told Mr Shipp ‘You’re fucked, you dog cunt’, or words to that effect.
Following the assault on Mr Shipp, you left via the front door. Mr Shipp heard a car start. He and Ms Scaletti got out of bed and saw a dual cab Toyota HiLux drive past the property. A unknown male was driving and you were in the passenger seat. By this stage, you had removed your balaclava. Police were summoned.
Mr Shipp suffered a swollen knee that caused him difficulties in walking. He attended the Echuca Regional Health Service on 10 January 2016, where a medical officer observed mild soft tissue swelling at the medial aspect of the patella.
The front door and bedroom door of the premises were damaged by reason of your forced entry and had to be replaced. There is no charge of criminal damage before me. However, a Compensation Order is sought in respect of the damage to the doors, which is not opposed, and I have made that order.
About two or three weeks after these events, you returned to the house in Echuca and spoke with Ms Scaletti. You apologised for kicking the door in and ‘running through’ the house. You said to her that ‘it has nothing to do with you, you’re the reason why I didn’t shoot him, I wanted to’, whereupon Ms Scaletti started crying and said to you ‘You frightened the fuck out of me’. You replied ‘You’re a good person, I didn’t mean to upset you, it’s only because of you I held back on hurting him worse’.
Apparently there was a rumour circulating in Echuca that Mr Shipp had been assisting police with some form of investigation and, as a consequence, there was a ‘bounty’ on his head. It appears that the motive for your aggravated burglary and assault of Mr Shipp was as a result of your desire to punish him for helping the police. These facts were accepted by your counsel on the plea and aggravate the seriousness of what is otherwise a very serious offence.
At the time of committing these offences, you were on bail for a number of offences which included unlawful assault and a number of charges involving other offences. This gives rise to the related summary charge of committing an indictable offence whilst on bail.
You were arrested on 4 May 2016 and interviewed that day. You told police that you knew Mr Shipp and Ms Scaletti and you knew how to get to their home. You falsely said that the last time you had been to their house was about six weeks before your arrest. You admitted you had a problem with Mr Shipp, but you denied committing the aggravated burglary and assault. You told police that at the relevant time you were in Melbourne doing a little bit of work and you were not living in the area. You told police you were aware that there was a ‘bounty’ on Mr Shipp for $2,000.00 for being a ‘snitch’. You said you wouldn’t do it for money, but you’d do it for yourself.
Victim impact
16 No victim impact statement has been made by either victim in this case. I was advised by the prosecutor that they had been advised of their rights in this regard. Nonetheless, where no victim impact statement has been tendered, a sentencer may draw reasonable inferences regarding the likely impact of an offence upon any victim.
I am satisfied that your confrontation with Mr Shipp and Ms Scaletti in the relatively early hours of the morning in their home, whilst you were armed with a wooden bat and wearing a balaclava, was a terrifying incident for them.
Offence seriousness
18 Aggravated burglary is a serious criminal offence carrying a maximum penalty of 25 years’ imprisonment, which is the highest fixed maximum penalty in the criminal calendar. This indicates the seriousness with which the legislature on behalf of the Victorian community views this offence.
19 In the Victorian Court of Appeal case of Hogarth v R,[2] a case, like this one, involving a ‘confrontational’ aggravated burglary, the Court said that: ‘Home invasion is a particularly nasty form of criminal conduct’[3] and a particularly: ‘egregious form of aggravated burglary.’[4] Common assault is also a serious enough criminal offence.
[2] (2012) 37 VR 658.
[3] Ibid 659 [1] (Maxwell P, Neave JA and Coghlan AJA).
[4] Ibid 660 [6].
20 Clearly, general deterrence, denunciation and just punishment are important sentencing considerations in this case.
21 A concerning aspect of this offending is that your motive for committing the offences was as ‘pay back’ for Mr Calleja allegedly assisting police in some way. Members of this community who assist police investigations must be protected from criminals who seek to conceal their crimes. Accordingly, I consider that your moral culpability in relation to these offences is high.
22 Another concerning aspect of your offending conduct is that it was committed while you were on bail for a charge arising out of an assault on a former domestic partner. According to a Victoria Police ‘Summary of Circumstances’ in relation to the granting of that bail,[5] you were bailed on 13 September 2015 to appear at the Echuca Magistrates’ Court on 15 September 2015. That bail was extended on 15 September 2015 and further extended on 27 October 2015 and 8 December 2015. Accordingly, you committed the present offences a little over a month after your bail was extended in the Echuca Magistrates’ Court.
[5] Exhibit P3.
23 You will be separately sentenced on a related summary charge of committing an indictable offence whilst on bail, which includes both the aggravated burglary and the common assault charges. Consequently, I must be careful not to doubly punishment you. Nonetheless, this history indicates that specific deterrence is also a highly relevant sentencing consideration in your case.
24 You have a relevant prior criminal history extending from 23 September 2009 to 8 August 2015. Apart from some irrelevant driving offences and offences against public order, there are prior matters for assault or obstruct police, possess shortened forearm and possess loaded firearm (for both of which you received a suspended sentence of 12 months’ imprisonment), unlawful assault and a number offences involving contravening family violence intervention orders.
25 You also have a number of subsequent criminal convictions including for unlawful assault, contravene family violence intervention order, use a carriage service to menace, six charges of commit an indictable offence on bail and reckless conduct endanger serious injury.[6] On 12 January 2018, you received a total effective sentence of two months’ imprisonment and a twelve month community correction order. Sixty days’ pre-sentence detention was declared, so you remained at large on bail for the present offences.
[6] See LEAP report dated 4 February 2019 (Exhibit P2).
26 This is relevant to my sentencing task in the present case in a number of ways. While subsequent convictions and findings of guilt cannot be taken into account in the same way as prior convictions can be, they bear upon my assessment of your character and shed light on your risk of recidivism. This is relevant to the weight I give to specific deterrence and protection of the community in sentencing you for the present offences. Subsequent offending is also relevant to my assessment of your prospects of rehabilitation.[7]
[7] See R v Rumpf [1988] VR 466, 475 (McGarvie J, Young CJ and Murray J agreeing); Alexandros v Birchell (2000) 31 MVR 307, 310-1 [15], [18] (Smith J); DPP v Rongonui (2007) 17 VR 571, 580 [37] (Maxwell P); Bellizia v The Queen [2016] VSCA 21 [75], [77]-[78] (Santamaria JA).
27 Moreover, the 60 days’ imprisonment you served since being arrested for the present offending, while not being time that is ‘doubly warranted’, is relevant to the application of the totality principle in your case, because it is not declarable as pre-sentence detention in this case.[8]
[8] See R v Renzella [1997] 2 VR 88, 96; R v Stares (2002) 4 VR 314; R v Berry and Wenitong (2007) 17 VR 153, 187–8 [115]–[117] (Redlich JA, Buchanan and Kellam JJA agreeing).
28 The fact you have successfully completed the twelve month community correction order imposed on you in January 2018 is also relevant to my assessment of your current prospects of rehabilitation.
29 It appears you have some outstanding criminal matters pending in the magistrates’ court dating back to 2016. However, I was told by your counsel that you have been law abiding since your release from custody in March 2017, and I accept this is so.
Personal circumstances
30 You were born in Melbourne and raised in Echuca by your parents, who remain living there. Your mother is the manager of a medical centre and your father was a dairy farmer who now works as a ranger protecting wildlife. Your sister lives with your parents and she works at the local bowling club as a waitress. You have two brothers, one who lives in Echuca with his partner and performs similar work to your father. Your younger brother also lives with your parents and works as an electrician. All your family are law abiding.
31 You attended Echuca West Primary School and Echuca Technical School to half way through Year 9. You experienced some difficulties with reading and writing, but you were never held back from progressing to the next level.
32 Your first job was as a plasterer in the Echuca area, and you did this over a seven year period in NSW and Echuca. You eventually employed four other plasterers in your business.
33 You moved out of home for the first time when aged 23. You were living in Wilcannia NSW in a caravan park for three years. While in NSW you were employed culling kangaroos for a period. A number of your prior convictions and findings of guilt relate to this period.
34 You came back to Victoria when aged 26 and lived in Echuca with your girlfriend for three years. Your relationship failed as a result of your drug abuse. You have a son 5 year old named ‘Dominic’ as a result of that relationship. You continue to emotionally support his mother, while Dominic currently resides with you.
35 You have a daughter aged 2½ years from a brief relationship. She lives in Echuca with her mother.
36 Your parents disowned you when your drug use escalated and you lost touch with everyone in your family except your younger brother who remained supportive. You then experienced a period of homelessness. Prior to your arrest on the present matters you were living in stolen cars and at the houses of other drug users for about ten months.
37 So far as your physical health is concerned, you were hospitalised for asthma in childhood. You had surgery on your elbows in your teenage years to correct a congenital deformity. You were involved in a motor vehicle accident in Queensland when aged 22. You were rendered unconscious for a period of time and hospitalised for a few days. You suffered a snake bite when aged 25 and you contracted septicaemia from a rusty nail when aged 27. You fractured your fingers while riding a motorbike in your 20's and about the same time you cut your finger on glass, which required a skin graft.
38 All of your past physical ailments have resolved, and none would adversely affect the manner you would serve any period of imprisonment imposed in this case.
39 So far as alcohol and drug abuse is concerned, you commenced abusing alcohol at age 16. When aged 17 to 25, you were drinking alcohol to excess on a daily basis. You experimented with cannabis in you teenage years. You commenced using ecstasy from age 20 and by 25 you were a regular user. You used amphetamines and methamphetamines from age 22 until your arrest on 4 May 2016.
40 Just prior to being remanded in relation to the present charges, you were using a gram and a half a day of ‘ice’. At times you had nowhere to sleep so you would stay awake for days at a time. At this time you also had been using ‘liquid G’ for the past 12 months. You drug abuse would have compromised your judgment and clear thinking. This is not mitigatory, but does provide some explanation for your criminal behaviour.
41 As a result of being remanded in custody, you came to realise that you had lost all control over yourself. You realised that your illicit drug use contributed to your anger and the breakdown of your family relationships.
42 So far as your mental health is concerned, you have no history of treatment, counselling or any other history of mental health care. I received two reports from Ms Gina Cidoni, a psychologist engaged by your legal representatives.[9] Ms Cidoni conducted psychological testing on you, which revealed that you have a full scale IQ of 78, which places you in the 7th percentile where 93% of your age related peers would do better. This positions your IQ in the borderline category. At this level, your judgment and problem solving capabilities are compromised.
[9] Dated 9 March 2017 (exhibit D1) and 12 April 2019 (exhibit D2).
43 At the time of Ms Cidoni’s first report in March 2017, your depressive symptoms were mildly elevated. There was a trend in schizoid behaviour through feelings of alienation and remoteness from your environment. There was paranoid ideation linked to your drug abuse. You also had problems with managing your anger. Your risk score on the violence risk appraisal guide administered by Ms Cidoni placed you at a medium to high risk of violent reoffending at that time.
44 Your counsel accepted that no Verdins principles are engaged in your case.[10]
[10] R v Verdins (2007) 16 VR 269.
45 By the time of Ms Cidoni’s second report in April 2019, your symptoms had settled. You displayed no symptoms of depression, no psychotic or schizoid symptoms or major paranoid ideation and no overt hostility. You were then assessed to present a low risk of violent reoffending, largely owing to the protective factors that are now in place.
46 Clearly, specific deterrence and protection of the community remain relevant sentencing considerations in your case, but the weight I give them is greatly reduced by reason of the very encouraging efforts you have made at your rehabilitation.
47 While I can also only adopt a cautious approach to your prospects of rehabilitation, I am prepared to sentence you on the basis that if you remain drug-free you have reasonably good prospects of rehabilitation.
Mitigating circumstances
48 You pleaded guilty to these charges at a late stage in these proceedings, just prior to a listed trial date in April 2019, a previously listed trial having been not reached in April 2018. Subsequently, Ms Scaletti was cross-examined on a Basha hearing[11] in July 2018. I note that Mr Shipp had been cross-examined at a contested committal hearing in the magistrates’ court in April 2017. You first indicated an intention to plead guilty to the present charges on 12 February 2019. Of course it was always your right to contest these charges, however the lateness of your pleas of guilty means you will not receive as big a discount for pleading guilty as otherwise would have been the case.
[11] R v Basha (1989) 39 A Crim R 337.
49 Nonetheless, your pleas of guilty have a utilitarian benefit and also indicate a willingness on your part to facilitate the administration of justice and an acceptance by you of responsibility for your criminal conduct. However, I cannot find that in your case your demonstrate true contrition and remorse for your offending conduct over and above that which is implicit in your pleas of guilty.
50 Delay is a significant factor in this case. Through no fault of yours this matter has taken over two years to finalise. While this is not unusual in cases of this kind in a regional setting, it does mean that you have had these proceedings hanging over your head and your life, to some extent, has been put on hold in the meantime. However, as the courts have emphasised on many occasions, it is the effect of delay which carries the greatest weight, and in your case you have used the opportunity extended to you by reason of the delay to completely rehabilitate yourself.
51 By the time of Ms Cidoni’s interview and report in April 2019, it appears you had completely turned your life around with the help of your extremely supportive family. And I see a number of your family members are present in court supporting you today.
52 You have reconciled with you family and you now live with your parents, sister and younger brother. Your have family support and your father gave impressive evidence on the plea. Your mother and father also provided a written testimonial as to how you have turned your life around since being remanded in custody for these offences.[12] It seems incarceration provided the ‘wake-up call’ you needed and, to your credit, you have taken full advantage of the opportunities offered to you upon your release on bail, to rehabilitate yourself and become a useful and law-abiding member of the community.
[12] Exhibit D5.
53 Since your release from custody in late March 2017, with the financial and physical assistance of your father, you have established a very successful trailer manufacturing business, utilising the welding skills you learned whilst in custody. Presently this business operates out of a large shed on your parents’ farm. I viewed photographs of the business premises and manufacturing process. You now have the opportunity to purchase another trailer business from Mr Glen Wales, which will greatly expand your present enterprise.[13] Once again, your father plans to provide financial and physical assistance to make this a reality for you. You estimate that you currently have work until December and beyond.
[13] See exhibit D6.
54 You have also remained drug free since your arrest in May 2016. You have successfully completed a drug rehabilitation course with Salvocare[14] and on the plea hearing a large number of ‘clean’ random urine drug screens were tendered extending from September 2016 to November 2017.[15] I also heard sworn evidence from your father attesting to this, which I accept.
[14] Exhibit D7.
[15] Exhibit D3.
55 You have also ceased all contact with your former criminal associates. You spend most of your time outside working hours at home with your family. While you now have regained a driver license, you do not have a car.
56 You have reconnected with your son Dominic, who is now 5 years of age, and he stays with you and your family five to six nights per week. You are also supporting Dominic’s mother who has a young baby by another man. You wish to establish an ongoing relation with Dominic and his mother.
57 Also tendered on the plea hearing were a large number of testimonials attesting to your efforts at rehabilitation and the programs you have undergone.[16] Moreover, whilst in custody, you have undertaken a number of trade courses in engineering and kitchen operations, and other educative courses.[17] This included the MIG welding course which you are now putting to great use in your trailer business. You have also obtained your driver licence following its cancellation for driving offences.[18]
[16] Exhibits D3 (part), D6, D8 and D9.
[17] Exhibit D3 (part).
[18] Exhibit D4.
58 I am satisfied that you now have a large number of protective factors in place which should have the effect of keeping you away from drugs and anti-social and criminal behaviour. Yours and your family’s efforts to date are to be encouraged and supported.
Sentencing principles
59 I have had regard to current sentencing practices in relation to aggravated burglary in particular in light of the decision of the High Court of Australia in DPP v Dalgliesh (a Pseudonym).[19] I was provided by defence counsel with the latest sentencing snapshot for aggravated burglary[20] together with a number of so-called ‘comparable cases’.[21]
[19] (2017) 91 ALJR 1063.
[20] Victoria, Sentencing Advisory Council, Sentencing Snapshot – Aggravated Burglary (June 2018, No 211).
[21] R v Lowe [2009] VSCA 268, Radovsky v The Queen [2013] VSCA 214 and Khayre v The Queen [2013] VSCA 286.
60 It is difficult to gauge more than a very general yardstick from so called comparable cases given the wide range of offending conduct which can constitute the offence of aggravated burglary and the myriad of personal circumstances pertaining to individual offenders. I have had regard also in particular to the decisions of the Victorian Court of Appeal in Hogarth v The Queen[22] and DPP v Meyers[23] and also to the cases to which I was referred by your counsel.
[22] (2012) 37 VR 658.
[23] (2014) 44 VR 486, 489 [3]–[6], 498 [47]–[49] (Maxwell P, Redlich and Osborn JJA).
61 I am of the view that the offending conduct comprising Charge 1 on the indictment is a relatively serious example of offences of that nature. To the extent that I have been able to gain assistance from comparable cases, I have sought to do so in your case.
62 The basic purposes for which a court may impose a sentence are just punishment, deterrence – both specific and general – rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of factors such as the seriousness of the offences, your culpability for them, the effect of your crimes on your victims and your personal circumstances.
63 I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, you are rehabilitated.
64 Given the serious nature of the offence of aggravated burglary, general deterrence, denunciation and just punishment must be accorded significant weight in sentencing you. However, this must be tempered by the fact that you have undergone a significant level of rehabilitation directed towards minimising the risk of you reoffending and intended to reintegrate you back into law-abiding society.
65 I must also give some weight to specific deterrence and protection of the community, given the nature of the offending conduct and your prior criminal history. As I said earlier, I assess your prospects of rehabilitation as being reasonably good provided, you remain drug free.
66 I have found this to be a difficult sentencing exercise. As is almost always the case, the various sentencing considerations and principles pull in different directions. The seriousness of the offence of aggravated burglary committed by you, given its objective facts and circumstances, cannot be gainsaid. As against this, you have made a determined effort to avail yourself of every avenue of rehabilitation available to you and you have been highly successful to date in these endeavours. I consider it is in yours’ and the community’s interest that you be encouraged and supported in this.
67 I accept your counsel’s submission that your present efforts at rehabilitation should be encouraged and not be interfered with by visiting upon you the risks that a further period of immediate custody necessarily brings with it. I also accept that you have a number of protective measure in place which provide me with a considerable degree of comfort that it is unlikely you will relapse back into illicit drug use and further criminal offending. You simply have far too much to lose for you to let that happen.
68 After much anxious consideration, I have decided that in your case it is appropriate to structure a sentence which will maximise your prospects of rehabilitation, while giving what I regard to be appropriate weight to general deterrence, denunciation and just punishment in particular. In Markovic v R,[24] the Victorian Court of Appeal affirmed the ‘proposition of longstanding and high authority, that there is always a place in sentencing for the exercise of mercy where a Judge’s sympathies are reasonably excited by the circumstances of the case’.[25]
[24](2010) 30 VR 589.
[25] Markovic 590 [1] (Maxwell P, Nettle, Neave, Redlich and Weinberg JJA) citing R v Osenkowski (1982) 30 SASR 212, 212-13 (King CJ).
69 Ultimately, I am moved by your circumstances, in particular your efforts at rehabilitation, to impose a very lenient sentence upon you for such serious offending. While you are not a youthful offender, nonetheless I am mindful of what the Victorian Court of Appeal has said in Bradshaw v The Queen[26] and Boulton v The Queen.[27]
[26][2017] VSCA 273 [49].
[27](2014) 46 VR 308, 311 [2].
70 I had you assessed for suitability for a community correction order and you have been found suitable for such a disposition. The community corrections officer assessed you as having a medium risk of reoffending. He noted you now have sole custody of your son. He also commented on the exemplary manner in which you approached your recent community correction order.
71 I have concluded, consistent with my earlier indication of imposing a merciful sentence in your case, that the purposes for which these sentences are imposed can be appropriately achieved by imposing a lengthy community correction order together with a sentence of imprisonment equivalent to the time you have already spent in custody in relation to these offence.[28] I note that the prosecutor, very fairly, submitted that such a disposition was open to me given the unusual circumstances in this case.
[28]Sentencing Act ss 5(3) and (4).
Stand up Mr Calleja
On the charge of aggravated burglary (charge 1) you will be convicted and sentenced to 158 days’ imprisonment together with a community correction order with the following terms and conditions:
It will be for a period of three years from today and have the following conditions:
You are to report to the Echuca CCS at 461-463 High Street Echuca within two clear days of today.
S 48C You are to perform 600 hours of unpaid community work.
S 48CA All hours satisfactorily undertaken for treatment and rehabilitation are to be counted as hours of unpaid community work.
S 48D(3)(a) You are to undergo assessment and treatment (including testing) for drug abuse or dependency.
S 48D(3)(f) You are to undergo programs that address offending behaviours.
S 48E You are to be under supervision for three years.
S 48K(1) There will be a judicial monitoring condition – You must appear before me here in Bendigo by video-link to Melbourne for a review of your compliance with this order on Friday, 27 September 2019 at 9.30 am.
S 48 There will be a residual condition – You must abstain from consumption of any illicit drugs not prescribed to you by a registered medical practitioner during the period of the order. That is, 3 years from today.
72 On the charge of common assault (charge 2) you are convicted and sentenced to three month’s imprisonment, which is to be served concurrently with the sentence I have imposed on charge 1.
73 On the charge of committing an indictable offence on bail (related summary offence 6) you will be convicted and fined $1000 which is referred to the director of Fines Victoria for collection.
74 PSD is 158 days
75 6AAA declaration total effective sentence of 3 years’ imprisonment with a minimum non-parole period of two years.
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