Director of Public Prosecutions v Cecchin

[2019] VCC 930

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-18-00047

DIRECTOR OF PUBLIC PROSECUTIONS

v

LUKE CECCHIN

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JUDGE:	HIS HONOUR JUDGE BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	21 June 2019
CASE MAY BE CITED AS:	DPP v Cecchin
MEDIUM NEUTRAL CITATION:	[2019] VCC 930

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	Ms V. Nguyen
For the Accused	Mr D. Gibson

HIS HONOUR:

1Luke Cecchin, you are to be sentenced,  on Indictment C1711575,  to  seven counts of theft, (maximum sentence of ten years' imprisonment); one count of causing injury recklessly (maximum sentence five years' imprisonment); five charges of burglary (maximum sentence of ten years' imprisonment); five charges of armed robbery;  (maximum sentence of 25 years' imprisonment); one charge of causing serious injury intentionally (maximum sentence of 20 years' imprisonment); two charges of obtain property by deception  (maximum sentence of ten years' imprisonment); and one charge of handling  (maximum sentence of 15 years' imprisonment).  You are also to be sentenced for the summary offences of  going equipped to steal, which carries a maximum sentence of two years' imprisonment;   failing to give name and address after a motor vehicle accident; and failing to stop after a motor vehicle accident.  As to both the maximum sentence is 14 days' imprisonment.

2You pleaded guilty to these offences before me on 13 June 2019.  When interviewed by police on 10 August 2017 you exercised your right to silence.  In March 2018 the committal went by hand-up brief after which you entered pleas of guilty.  The matter was listed for plea hearing in this court.  That has been delayed in part arising out of your attempt to suicide whilst in remand custody in May 2018.  You came before me for plea hearing more than a year later. 

3You receive the benefit of your pleas of guilty and the level of cooperation in that short history the proceeding shows.  You have pleaded guilty early.  This has facilitated the interests of justice.  You faced a strong Crown case.  However, a trial would have been a difficult exercise.  There are a large number of charges, police informants and witnesses, mainly victims of your offending.  There may have been multiple trials.  Those victims would have faced the task of giving evidence about events which were no doubt traumatic for them.  Perhaps I should qualify it.  Some of those victims would have faced the task of giving evidence about events  which were no doubt traumatic for them.  You have expressed remorse, which I accept is genuine. 

4At your plea hearing, which ran on 13 June, Ms Fallar, for the Crown tendered a written Crown opening,  the victim impact statement Hui Chui  Chen, dated 27 April 2018, and a large folio of photographs which include those of the serious injury you caused to Hui Chui Chen.  Mr Gibson for you tendered the forensic psychiatric report of Dr Adam Deakin, dated 23 October 2018;  the letter of drug and alcohol counsellor, Louise Henderson, dated 1 September 2015.  The  discharge summary of St. Vincent’s Hospital dated
27 April 2018, related to your attempted suicide; results of drug urine testing in remand throughout 2018; certificates related to training and rehabilitative programs undertaken in remand;  the  letters of your sister, Amie Keenan, and friend, Tijen Tekinn; and your own letter to the court written in January 2019.

5The tendered  Crown opening, Exhibit A, gives very comprehensive detail of your 25 offences.  My own summary therefore may be short and in some ways incomplete.  It is also informed by matters put on your behalf, not challenged by the Crown.

6In September 2016 you were released on parole in respect of a youth detention sentence, then aged 21.  That sentence and parole was to expire in
February 2018.  On 19 January 2017 you took the motor vehicle of the person with whom you were living.  I was told that up until then you were compliant with parole.    In the early hours of 20 January you were involved in a minor collision.  Events led to assault of the other driver;  then a further collision, striking a tree.  You left that scene.  You did not return to your accommodation.

7Over the following period to August 2018 you were effectively homeless and using heroin.  Over this six to seven month period and most particularly July to August, you committed these indictable offences.  It can be said that your offending was progressively more serious and more violent.  There is a broad pattern of burglaries and thefts, deceptions using stolen cards, then armed robberies.  The burglaries were often of domestic premises and goods of substantial value were taken.  One burglary was of your old school.  The armed robberies were of business, often small business premises.  Your weapon of choice was a knife.  You offended alone and wore little or no disguise.  Victims were usually alone and often women.

8Ultimately on 9 August you committed an armed robbery upon Hui Chui Chen at her Carlton newsagency.  Bravely, she resisted you.  You stabbed her to the chest.  You were chased in the street, attempting to escape with the cash register.  You did escape efforts of a number to hold you.  Full detail of this is at paragraphs 50 to 54 of the opening.  You were arrested the next day,  on
10 August.  Items found in your possession form the basis of the summary charge, going equipped to steal, and the indictable charge of handling stolen goods.

9A feature of your offending, as it developed over the period,  is that you were readily identified almost throughout by fingerprint, DNA, and in respect of your old school, also photographic evidence.  I accept the submission of Mr Gibson that you cared little about this; that you expected and awaited detection and arrest; that you had in a sense given up.  Nevertheless what you did over this approximate six month period was senseless, sustained and,  finally, quite brutally you inflicted serious injury upon a vulnerable victim.

10The immediately caused injuries to Huey Chui Chen are described as follows at paragraph 61 of the Crown opening.

“The informant called the Royal Melbourne Hospital and was informed Chen was in a serious but stable condition.  She was scheduled for surgery the following day, 11 August 2017.  Chen sustained a stab wound on the right, upper quadrant of the abdomen and a laceration at the base of right thumb.  She remained in hospital for three days and required surgery for her fingers”.

11I have carefully read Hui Chui Chen's victim impact statement.  It is short and under-stated.  She reports ongoing symptoms in respect of the hand where her fingers were cut.  She feels pain and soreness in her body, particularly where you stabbed her.  Her ability to work is affected.  She feels stress and tension.  She is cautious and sometimes frightened.  Sleep is affected.  She fears your return.  Financially,  her business has been badly impacted.  She has cut her work hours very considerably.  She states that the business is lost.

12No other victim impact statements have been tendered.  However, I would have little doubt that there has been other impact, particularly upon victims of the armed robberies. 

13Victim impact here has been considerable and must be taken into account in my sentence of you.

14You are now 24 years of age and await this sentence in remand custody.  You are the product of a dislocated, and I would find, damaging early life.  You seem to have been raised mainly in the Carlton area but there was some time in New South Wales.  You have three older sisters.  Your parents separated when you were about five.  You were sexually abused by a stepfather who later partnered one of your sisters.  The sexual abuse of you ran over three years.  You were anally raped.  That man is currently in prison.

15Both of your parents died when you were in teen age, within 12 months of each other.  You remained with your grandfather until his death in 2013.  You wasted his inheritance on drugs.  You began using cannabis at 12 or 13.  You used amphetamine, methamphetamine and then heroin in teen age.  As stated, you were using heroin, at least part funded by these offences,  in the months leading to your 2017 arrest.

16Dr Deakin diagnoses symptoms of post-traumatic stress disorder with associated depression linked to your childhood experiences, which particularly include your stepfather's abuse.  You reported to Dr Deakin that a random meeting with a homeless man in the early months of the offending period led to sharing experiences of similar abuse.  This impacted badly upon you. 

17You have disclosed your experiences of abuse to a psychiatric nurse in remand custody.  As to your mental health and drug abuse, Dr Deakin states:

'Mr Cecchin's offending spree closely correlates with his need to finance heroin dependency.  His heroin use directly relates to his attempt to combat underlying trauma with associated distressing thoughts, emotions and reliving experiences consistent with post-traumatic stress disorder'.

18There have been a number of attempts at suicide.  Most recently,  in May 2018 and in remand,  you swallowed bleach and were treated at St Vincent's Hospital.  You were then placed in a mental health unit and have been helped by medication and counselling.  Dr Deakin's report continues:

'Mr Cecchin has been demoralised, hopeless and helpless.  He has likely experienced periods of profound depression.  He has lately benefited from prescribed antidepressant medication and psychological therapy.  He will require ongoing medical management and psychological therapy upon his release into the community.  He continues to be prescribed methadone in prison.  He will require drug counselling upon release from custody'.

19Dr Deakin also states that you present as both remorseful and genuinely motivated to alter your life trajectory.  He states that you will likely find prison more difficult because of your psychological vulnerability.

20You left school during Year 11 and worked for a while, including as a cleaner, shop assistant, salesman, and then in the finance industry.   You have not worked significantly for some time. 

21You have made attempts at rehabilitation from drug dependence.  That has included a three week period at a residential rehabilitation unit in 2010 when only 15, and again for eight weeks at another facility in 2015.   You appear to be drug free in prison and negative urine testing results over the period of about 12 months have been tendered.

22Your criminal record states three prior court appearances between May 2012, when you were 17, and March 2016. There are offences of dishonesty and violence. Particularly in 3 December 2016, aged 20, you were sentenced for armed robbery to two years and three months' detention in a Youth Justice Centre. This is the sentence on which you were paroled at the time of this offending. That is an aggravating feature of the offending before me. Section 16(3B) of the Sentencing Act requires,  in the absence of exceptional circumstances,  that a sentence of imprisonment for offending committed whilst on parole for another sentence of imprisonment be served cumulatively upon any imprisonment required to be served upon parole cancellation.  I form the view that your Youth Justice Centre sentence of December 2016 is not a sentence of imprisonment.  The provision does not apply. 

23It is my expectation that cancellation of your Youth Justice parole will likely lead to transfer of the remaining Youth Justice detention to adult imprisonment under relevant provisions of the Children and Young Persons Act.  It is not a matter relevant to my sentence today.

24As my earlier description and remarks should make clear, this was a very serious, prolonged and ultimately very intensive spate of offending.  There has been very substantial victim impact.  You have, although still young, a significant and relevant criminal history.  It is very sad but also concerning that a badly disadvantaged early life has led to your drug dependent, drug driven assault upon the community's safety and wellbeing.

25In such circumstances the sentencing considerations of deterrence  (that is both general and specific deterrence), your moral culpability, the need to condemn what you did and proportionately punish it are important.  Particularly there is a need to deter others, to attempt  protection of the community.  A substantial period of imprisonment is necessary.

26There are also relevant moderating factors, matters which  should  go to reduce that sentence; that is, compared to what the objective seriousness may otherwise require.  These include the following.

(1)  Your plea of guilty and cooperation.  I accept that you have become genuinely remorseful.

(2)  To some extent,  the circumstances of offending.  This was reckless offending including in that identification of you and eventual arrest was inevitable.  I accept the truth of your statement to Dr Deakin that you were relieved upon arrest.  In part you were driven by a sense of hopelessness.  However, it has resulted in very serious and damaging offending indeed.

(3)  Your personal history and circumstances.  This includes the fact and effect of your childhood deprivation.  The principles stated in The Queen v Bugmy apply.  This can be seen to have particular reference to your drug dependence and its connection to your offending.  Such dependence cannot be found to be mitigating in any direct sense.  However, it is relevant and it would be unjust not to take into account that your introduction to drug use had the context and explanation of your damaged early life.

(4)    Your mental health symptoms are also relevant.  Although this oes not approach the requirements of the primary Verdins principle and was not put that way, I accept that your post-traumatic stress disorder condition and related impact of serious childhood sexual abuse are an important part of the personal context for your sentence and were present in the background circumstances of the offending.  I accept the opinion and remarks of Dr Deakin on these things and the likely greater impact of prison upon you.  He is a well-recognised forensic psychiatrist, one not inclined in my experience to advocacy driven opinion.  I was told that you are placed in protection and suffer the disadvantages of that.  I accept that reasons at least include the nature of your offence and that you are thought to have relatives who work in the prison system.

(5)   Related to a number of these matters and important in itself is your youth.  You were 21 at the time the offending period started and are still young at 24.  As stated, you began using drugs when very young.  This is also relevant to the community benefit and prospects of your rehabilitation.  One must be guarded;  but I should not discount your chances of it.  You have some family support and may live with your sister upon release.  There is evidence of effort to rehabilitation in remand and preparation for life outside prison.  I accept that you wish to live a better prosocial life and you present as a person with abilities to do so.

(6)  The principle of totality becomes important in the case of many charges, charges committed,  as here, in a sustained pattern.  It requires lesser sentences for individual charges and lesser cumulation between the charges.  The aim is a proper and just total sentence.  Some cumulation is necessary to address the fact of different occasions and different victims. 

In combination these matters go to reduce both your total head sentence and perhaps particularly the minimum term you should serve before being eligible for parole.

27However, I must also impose a sentence which does not fail to address the seriousness of your offending. 

28I have found this a difficult sentence.  There are starkly conflicting factors,   your youth and what I see to be your own vulnerability; but also the nature, the intensity and ultimate violence of offending against vulnerable people.

29I am about to sentence.  I would be obliged, given the number of charges, if people followed and checked the arithmetic.  I have done that and I think it is right but there are a lot of them and there are a lot of different orders.  Stand up, please.

30After considering the relevant matters I sentence you as follows:

on charges 1, 2, 13, 14, 15 and 22 you are sentenced to six months' imprisonment on each;

on charges 3, 4, 5, 6, 8, 9, 11, 12, 16 and 17 you are sentenced to 18 months' imprisonment on each;

on charges 7, 10, 18 and 19 you are sentenced to four years' imprisonment on each;

on Charge 20, the armed robbery upon Hui Chui Chen, you are sentenced to four and a half years' imprisonment; on Charge 21, intentionally causing serious injury to her, you are sentenced to five and a half years' imprisonment.

31As to cumulation I direct as follows:  three months of the sentences for charges 3, 5, 8, 11 and 16, and six months of the sentences on charges 7, 10, 18 and 19, be served cumulatively upon the sentence of five and a half years for charge 21 and cumulatively upon each other.  That is a total effective sentence of eight years and nine months.  I set a minimum term of five years and three months before eligibility for parole.

32I declare under s.18, 680 days of pre-sentence detention.

33Had you not pleaded guilty I would have imposed a sentence of 12 years with a minimum term of nine years.  Sit down, please.

34Presuming the arithmetic to be right I will give you some time to reflect on it.  I will deal with other matters.

35MR GIBSON:  The summary maters, Your Honour.

36MS NGUYEN:  Yes.

37HIS HONOUR:  I am sorry.

38MR GIBSON:  Yes.

39HIS HONOUR:  I did include - I have got them in another part of my notes.  I am sorry.  They make no difference to the - - -

40MR GIBSON:  No.

41HIS HONOUR:  They are all concurrent.

42MR GIBSON:  I think my learned friend also drew my attention to the mandatory licence.

43HIS HONOUR:  Yes, I will deal with that in a moment.

44MS NGUYEN:  For Charge 1, yes.

45MR GIBSON:  Yes.

46HIS HONOUR:  Let us deal with the - yes.  On the summary matters, on the charge of going equipped to steal you are sentenced to four years' imprisonment - for four months' imprisonment, I am sorry - on failing to leave a name and address, seven days' imprisonment; on failing to stop, seven days' imprisonment.  There is no order for cumulation in respect of those.  It makes no difference to the total sentence.

47Now, yes, I need some assistance, I think, in relation to what I impose by way of sentence cancellation, but before I do that I have declared pre-sentence detention, I have stated a s.6AAA indication.

48MS NGUYEN:  Yes, Your Honour.

49HIS HONOUR:  Are there other, before we get to the licence are there other matters or formal orders I need to make?  For example, forensic sample and the like?

50MS NGUYEN:  Your Honour, forensic sample, with respect to that it's automatic retention.  There are six compensation orders, a forfeiture order and a disposal order by consent.

51HIS HONOUR:  All right.  Yes, well, they are - right.  So now there are compensation orders.  I should state the amounts.  The first one I have got here is $379.50 payable to Woolworths.  It is not clear where I should sign.  I will just sign at the bottom.  The others appear to be - no, I will deal with the similar ones first.  There is $106 payable to Woolworths trading as a liquor outlet.  I will leave the disposal order aside for the moment.  There is a compensation order to an insurance company, AAI Ltd, in the sum of $4905.89.  There is another order to the personal victim of one of the burglaries, Christopher Adam Smith, of $1015.60.  There is also an order of $700 to Wendy Gallom, who is also a personal victim of the armed robbery, I think, and $110 to Sophie Emmett.  I am not sure but is she a victim of a burglary or of a card fraud?

52MS NGUYEN:  An armed robbery I believe, Your Honour.

53HIS HONOUR:  Armed robbery, I see, I am sorry.  Now, during the course of the plea hearing it was indicated to me that there were more substantial values attached to some of the burglaries but there was insurance but the insurance companies have not claimed compensation.  It is not my job to chase it up.

54MR GIBSON:  Yes.

55HIS HONOUR:  But they have not.  I have got them all.

56MS NGUYEN:  Yes, Your Honour.

57HIS HONOUR:  Yes.  I should make it clear.  The burglaries amounted to considerably more value than what I have ordered there.  There is a disposal order in respect of a large number of items that would have been relevant to the investigation or investigations against Mr Cecchin.  I will not read them all out.  I am presuming that all of these are consented.

58MR GIBSON:  Yes, they are, Your Honour, yes.

59HIS HONOUR:  Then there is a forfeiture order, I suppose there was a - of  knife that must have been found on him and may or may not have been associated with the armed robberies.  It is probably not clear but the order should be made.  It was part of the - at least part of the equipment, the subject of one of the summary charges.  Now, have I covered them all?

60MS NGUYEN:  Yes, Your Honour, you have.

61HIS HONOUR:  All right, well, I will hand those down.  Now, what are - the licence cancellations.  What - I think that Ms Follar in her typically thorough way, dealt with these in her opening and said something of them to me.  I would be assisted by that being done again, albeit in a fairly brief way.

62MS NGUYEN:  Your Honour, if I may assist.

63HIS HONOUR:  Yes.  What paragraph am I going to?

64MS NGUYEN:  it is the final page of - it is the final page.  Page 15 of Ms Follar's opening.

65HIS HONOUR:  Yes.

66MS NGUYEN:  With respect to the motor vehicle licence suspension periods, Charge 1, which was the theft of motor vehicle, it is mandatory.

67HIS HONOUR:  Yes.

68MS NGUYEN: That is per s.89(4) of the Sentencing Act.  If there is no period specified then the deemed period is three months, Your Honour.

69HIS HONOUR:  Yes.

70MS NGUYEN:  It is discretionary for any offence under s.89A.

71HIS HONOUR:  What is that?  What offences are those?

72MS NGUYEN:   For any offence.

73HIS HONOUR:  Any offence?

74MS NGUYEN:  Yes, correct, Your Honour, and it is discretionary with respect to summary charges 60 and 61, which was the failure to give name and address and the fail to stop.

75HIS HONOUR:  Yes.

76MS NGUYEN: That is under s.28 of the Road Safety Act.

77HIS HONOUR:  It all seems so pointless, does it not?  I am not going to make an order cancelling his licence.  It will cover more than what is left of his non-parole period, but I should make it - I have got to make it because it is mandatory.

78MS NGUYEN:  That is correct.

79HIS HONOUR:  I mean in the range of very serious offending, the offending at the beginning, played a significant - well, I will not make any comment about what it may have caused or the like, but it was pretty minor, was it not?  I will simply make - look, I do not think I should make any further order but the mandatory order for suspension or cancellation under the theft charge.  I would listen to argument about it though.  There just seems no point.

80MS NGUYEN:  I hear what Your Honour is saying.  With respect to just charge 1 that is - - -

81HIS HONOUR:  I have got, under Charge 1 I have got to do it and I will do it, and the applicable period will be three months.  I know it looks silly but this man is going to come out, he would have aspirations towards getting parole.  Whether he does or not is a matter for the Parole Board, but I think it is in the community's interest that he overcomes his hitherto criminogenic lifestyle and having a licence is going to help him do that.  I think most people, thinking it through, would take that view.  So that is the only rule I will make.

MR GIBSON:  As Your Honour pleases.

HIS HONOUR:  All right.  Now, some - have people come to support Mr Cecchin today?  They may briefly speak to him before he is taken into custody.

MR GIBSON:  I do not think so, Your Honour.  I will go down and see him afterwards.

HIS HONOUR:  I am sorry.  I thought I noticed people, all right.  Well, he needs to be taken into custody now.

MR GIBSON:  Thank you, Your Honour.

HIS HONOUR:  Yes, all right.  Thank you for your assistance.

MR GIBSON:  Thank you, Your Honour.

MS NGUYEN:  As Your Honour pleases.

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