Director of Public Prosecutions v Camilleri

[2016] VCC 1421

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-15-01684

DIRECTOR OF PUBLIC PROSECUTIONS

v

MICHAEL CAMILLERI

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	22 September 2016
DATE OF SENTENCE:	22 September 2016
CASE MAY BE CITED AS:	DPP v Camilleri
MEDIUM NEUTRAL CITATION:	[2016] VCC 1421

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms N. Burnett	OPP
For the Offender	Mr D. Gibson	VLA

HIS HONOUR:

1Michael John Camilleri, you have pleaded guilty to the following charge on indictment number E12600456.1. 

2Charge 1, aggravated burglary at 7 Anderson Street, Bunyip on 2 August 2014.  This charge has a maximum penalty of 25 years imprisonment. 

3You admitted your criminal history.

4The offending occurred over two years ago.  You were arrested the day after the offence.  This case has then wandered through the committal system to a concluded contested committal hearing on 24 September 2015.  In the County Court, there had been a number of directions hearings and the case was ultimately resolved to a plea of guilty on the first day of your trial on 6 June 2016.

5You have spent 504 days in pre-sentence detention. 

6I sentenced your co‑accused, Matthew Gersbeck, who is your half-brother, for this charge and other offending on 27 November 2015.  The sentence for aggravated burglary was 18 months imprisonment. 

CIRCUMSTANCES OF OFFENDING

7On Saturday, 2 August 2014, you and your co-accused travelled by train to the Bunyip Railway Station. At approximately 3.10 pm that day, you walked with your co-accused from the station and arrived a short time later at the address 7 Anderson Street, Bunyip.  You both went up to the front veranda and started banging on the closed sliding glass door. 

8Mr Jeffrey was present within that house. After hearing the noises coming from the front of the house, he went to investigate and found you and Mr Gersbeck standing inside his house near the front door.  Mr Jeffrey described the two of you as:

·    Male 1-  "One guy was in a red hoody";

·    Male 2- "The other guy had a high yellow vis shirt on." 

9You then said to Mr Jeffrey “That bitch who lives here got Sandra’s kid taken off her because she phoned the Police”.

10You then punched Mr Jeffrey to the face with a clenched fist.  Whilst you and Mr Jeffrey were grappling, Mr Gersbeck struck Mr Jeffrey over the head with a plate.  You have then pulled Mr Jeffrey's jumper over his head and it came off.  Mr Gersbeck had a rock in his hand and was trying to hit Mr Jeffrey with it.  During the course of this assault, you and Mr Gersbeck were saying to Jeffrey, "You're a dead cunt." 

11In fear of his life, Mr Jeffrey managed to free himself and ran out of the house via the rear door, leaving you and Mr Gersbeck inside the house.  Mr Jeffrey climbed over the back fence and ran to the nearby Bunyip Gippsland hotel.  The licensee, Mrs Margaret Bardon, saw that Mr Jeffrey had no shirt and was bleeding from the face.  Ms Bardon also saw Mr Jeffrey had cuts to his feet and was holding and rubbing one of his arms.  Ms Bardon called 000.

12After Mr Jeffrey fled, you threw a pot plant at a front window, smashing both the window and the pot plant.  You also took Jeffrey’s wallet from inside the house.  You and Mr Gersbeck left the house and walked north up Anderson Street to Mary Street.  You and Mr Gersbeck then dropped the wallet in a drain in Mary Street.  You and Mr Gersbeck returned to the Bunyip Railway Station and boarded a train at approximately 4.17 pm.      Police attended and examined the crime scene.  Your DNA was found on the railway ballast rock.  Mr Jeffrey identified you from a photo board that he was shown by police. 

ARREST AND INTERVIEW

13You were arrested and interviewed on 3 August 2014.  Various property was located in your possession, which included a Myki travel card.  During the record of interview, you stated that you were drinking at Moe with your mate Burnie at the time of the offending. You stated you had been at Burnie's address at 326 Waterloo Road, Trafalgar from Friday night and all day Saturday until you left the address around 12 noon.

14The police requested a Myki travel history in relation to the Myki travel card found in your possession.  The Myki travel history indicated that the card was used to enter and exit of the Bunyip Railway Station before and after the offending. 

IMPACT ON VICTIMS

15Mr Jeffrey attended his doctor for the injuries inflicted on him during the aggravated burglary.  Dr Dilip Singh Dhillon examined Mr Jeffrey at the Longwarry Medical Centre on 4 August 2014.  Dr Dhillon reported that Mr Jeffrey, suffered the following injuries:

·    a tender right infraorbital margin;

·    a tender supraorbital bone; and

·     tender nostril. 

Dr Dhillon found that Mr Jeffrey required follow-up treatment with a specialist and referred him to the Warragul Hospital Emergency Department for diagnostic imaging.

16Mr Jeffrey has not made a victim impact statement.  The mother of Mr Jeffrey, Vicki Smith, has made a victim impact statement, dated 21 June 2016.  Ms Smith asked that it not be read out in Court, but in my reasons for sentence I will go to some of the matters she raised.  Mrs Smith sets out how the offence impacted on her and her family. 

17She did not feel safe in the house after the offence and was forced to move after having lived in the town of Bunyip for 30 years.  She was unsafe when she visited her family in Bunyip, because your relatives still live there.  She sets out how Mr Jeffrey's health has deteriorated and he was not coping with all the court appearances.  It is clear that your offending has greatly upset the peace of mind and personal security of Mr Jeffrey and his mother Mrs Smith.

YOUR PERSONAL CIRCUMSTANCES

18You are 32 years old.  At the time of the offence you were 30 years old.  You were adopted at 18 months of age.  Your adoptive family had eight children.  You were the second youngest child of the family.  You had a good relationship with your adoptive mother.  She helped you preserve a relationship with your biological mother.  With your adoptive family, you grew up on a dairy farm.  Your adoptive father was a violent man.  He was violent to you.  You left the home at 14 years old because of that violence. 

19You were educated at St James Primary School in Nar Nar Goon.  You then attended the St Francis Xavier in Beaconsfield to half way through year 9.  It was at this time that you had left home and you had never returned to school.  You commenced an apprenticeship as a cabinet maker, but did not complete it. 

20After leaving home, you had lived in a caravan at Drouin and then moved to a house in Warragul.  You were using cannabis, and then moved on to heroin and pills by the age of 16 years old. 

21In 2001, you were sentenced to a nine-month youth training centre order for theft and theft of a motor car.  This was your first court appearance and your first incarceration.  You have had 21 subsequent court appearances.  Your offending includes violence, dishonesty, and drug offences.  Relevantly, on 17 May 2011, you were convicted of aggravated burglary and sentenced to a term of 33 months imprisonment.  At that court hearing, you were sentenced for the whole of your offending to a total effective sentence of five years with a non-parole period of two years imprisonment. 

22Subsequent to that matter, you have one further sentence of 30 days on 31 October 2012.  On my calculation, you had been out of gaol for approximately 15 months prior to this offence.  You were on bail at the time of this offence.  Your criminal history is extensive and involves serious criminal offending. 

23At age 18 you commenced a relationship with Sandra.  She has a daughter aged five.  You treat that daughter as your own child.  When interviewed by the psychiatrist, you express a desire to be a better father figure to your daughter.  It was your misguided loyalty to Sandra that has been the catalyst for your offending on this occasion. 

24I have read the report of Dr Danny Sullivan, Forensic Psychiatrist, dated 4 September 2016 and exhibited in this plea.  Dr Sullivan assess you as low average to borderline intellect.  Dr Sullivan assesses you as having severe problems with polysubstance dependence and generalised anxiety disorder.  He states you meet the criteria for dissocial personality disorder.  That is a psychologist/psychiatrist term for, "You are antisocial." 

25I have also read a report of Dr Sheryl Monteath, dated 19 April 2010 and exhibited in the plea.  She assessed you as suffering from an impaired understanding of social norms and constructs.  She did not assess you as suffering from an intellectual disability.  In summary, you are a person who displays antisocial behaviour who has a long history of drug and alcohol abuse.  You also have a substantial criminal history.

SENTENCING CONSIDERATIONS

26The basic purpose for which a court may impose a sentence of imprisonment are 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 offending, your culpability for it, and your personal circumstances. 

27I am also required to balance the interests of the community in denouncing your criminal conduct with the interest of the community in seeking to ensure, as far as possible, that you as an offender are rehabilitated and reintegrated into society. 

28Further, I am required to take into account current sentencing practice in respect of confrontation of aggravated burglaries in fixing your sentence.  That enquiry is directed particularly, but not exclusively, to the kinds of sentences imposed in comparable cases and the statistics of those sentences at the time.  I have considered the statistics in current sentencing practices, mindful that each case must be considered in the light of its own particular circumstances, and many of the cases would be distinguishable from your case as indeed they are from one another. 

29This charge of aggravated burglary is serious because it was confrontational in character, upon a premises with people unknown to you inside. The entry to the premises was done whilst you were armed with a rock and intending to seek retribution for a perceived wrong done to your partner Sandra. 

30The considerations of general and specific deterrence and denunciation ought to be accorded full weight given the circumstances of this particular case.  I accept that the considerations of specific and general deterrence combined with the denunciation of these offences are very significant in sentencing you to imprisonment. 

31You have pleaded guilty to this charge.  You have previously conduced a contested committal in September 2015.  Your plea of guilty was indicated on the first day of your trial in June 2016.  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 allows for the preservation of court and police resources to deal with other matters.  Your plea vindicates the public confidence in the legal process set up to protect the community.  

32Your plea is also a clear acknowledgement by you that you accept the responsibility for your criminal behaviour in this case.  Your plea also recognises 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 some remorse on your behalf. 

33I take into account the principles of parity in sentencing you.  I have sentenced your co-accused to 18 months imprisonment for the charge of aggravated burglary.  Mr Gersbeck was much younger than you.  You were the principal offender and he was the backup person.  Your co-accused was your younger half-brother.  The sentence I imposed on him was his first time in prison.  His criminal history was much less than your criminal history, you were older and the leader of this criminality. 

34You have previously been sentenced for 33 months imprisonment for aggravated burglary.  That sentence did not deter you from committing this offence.  I regard your prospects of rehabilitation as poor.  Your extensive criminal history and drug and alcohol abuse problems over a 16-year period do not augur well for your rehabilitation. 

35The learned prosecutor submitted that an immediate term of imprisonment of some length is appropriate to satisfy the general and specific deterrence and denunciation of your conduct to arrive at a just sentence.  Mr Gibson on your behalf submitted that a sentence should have a longer than usual parole period to allow you to break the cycle of imprisonment and the risk of you becoming institutionalised.  Balancing all the matters to which I have referred, I sentence you as follows.  Would you stand please?

SENTENCE

36On Charge 1, you are convicted and sentenced to four and a half years imprisonment. 

37I fix a non-parole period of three years imprisonment. 

38That is a total effective sentence of four and a half years imprisonment with a non-parole period of three years imprisonment.

39Pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty I would have sentenced you to six years imprisonment with a minimum non-parole period of four years imprisonment.

40I have signed a compensation order and I have signed a disposal order, which you consent to.

41I declare that you have served 504 days of presentence detention which is to be deducted administratively. 

42HIS HONOUR:  Is there anything further I have to deal with?

43MS NORBETT:  No, Your Honour.

44HIS HONOUR:  Thank you.  I will sign those orders that I have said and I will hand them down.

45MS NORBETT:  Thank you, Your Honour.

46HIS HONOUR:  Thanks.  You can remove the prisoner.  Thank you.  Thank you both for your assistance.

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