Director of Public Prosecutions v Charles
[2019] VCC 734
•20 May 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-00832
Indictment No. H12813282P
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DERIK CHARLES |
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JUDGE: | JUDGE TRAPNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 May 2019 | |
DATE OF SENTENCE: | 20 May 2019 | |
CASE MAY BE CITED AS: | DPP v Charles | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 734 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence – Aggravated burglary – Theft – Obtain financial advantage by deception
Legislation Cited:
Cases Cited:Hogarth V R (2012) 37 VR 658
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms J Fallar | Mr J Cain, Solicitor for the Director of Public Prosecutions |
| For the Accused | Ms E Clark | Matthew White & Associates Solicitors |
HIS HONOUR:
1 Derik Charles, you have pleaded guilty to an indictment containing one charge of aggravated burglary, two charges of obtaining property by deception and two charges of theft.
2 The maximum penalty for aggravated burglary is 25 years’ imprisonment and the maximum penalties for obtaining property by deception and theft are 10 years’ imprisonment.
3 The prosecution filed a ‘Prosecution Opening for Plea’ dated 29 April 2019, which I have been told by your counsel I can treat as a statement of agreed facts.
The facts
4 The charges on the indictment arise out of two separate and discrete episodes of offending. The first occurred on 2 August 2017 and comprises the offences of aggravated burglary and obtaining property by deception and the second occurred on 30 August 2017 and comprises the remaining charges on the indictment.
5 The victim of the first episode is Elmira Kurbanova. She lived with a housemate in Collingwood. Her premises were on the first floor of the building above a hair salon.
6 On 2 August 2017, Ms Kurbanova arrived at home at about 1.30pm. The rear door of her premises, which opens to a laneway behind the property, was left unlocked by her. At about 1.45pm she was about to shower when she heard a noise inside the house. She thought it was her housemate and proceeded to shower.
7 She left the bathroom about 15 minutes later. When she reached her housemate’s bedroom door in the hallway, she saw you. You were wearing a red bandana covering half of your face; however, the bandana kept falling off. Ms Kurbanova later described you as having brown skin and she thought you appeared to an Aboriginal male who was slightly shorter than she is. You were about 30 centimetres away from her at this time.
8 Ms Kurbanova initially thought that you were one of her housemate’s friends, but she then saw you pointing a pair of scissors at her, which were about 15 centimetres long. You were carrying her shopping bag filled with her and her housemate’s belongings. She asked you if the scissors were her scissors, to which you replied, no, you brought them with you. You demanded her purse. You and Ms Kurbanova went into her bedroom and you looked around for her purse which you discovered contained no money.
9 Ms Kurbanova asked you to leave her belongings and said she would go with you to withdraw money. She recalled that you were worried that she might scream in the street. Accordingly, you asked her for her bank card and PIN. She gave you her bank card and wrote down her PIN. She told you to withdraw only $300. She promised you she would not call the police.
10 You told her you would go to the post office which is further along in Johnstone Street and you would return with her bank card. The two of you were in her bedroom for about 10 minutes. You left the premises and Ms Kurbanova transferred $300 into her bank account. These facts give rise to Charge 1 on the indictment, aggravated burglary.
11 About five minutes later, you returned to Ms Kurbanova’s premises. She was sitting on the outside steps. You gave her bank card back to her and called her a ‘legend’. You promised you would leave a present for her in a few days. You then left. Ms Kurbanova checked her bank account and established that $290 had been withdrawn at the post office. This gives rise to Charge 2 on the indictment, obtaining property by deception.
12 Ms Kurbanova was in shock and it took her some time to process what had occurred. She reported the incident to police and made a statement in which she said that she was afraid to return to the property. Shortly thereafter she moved from those premises.
13 The following day, the informant attended at the post office and spoke with the manager who said that he knew you and that you had attended the post office at about 12.43pm the day before. He said you selected a few items and then said that you did not have any money and you would come back later. You then left the post office.
14 At about 1.54pm, you returned and produced the stolen bank card. You requested $290 and entered the PIN. You told the store manager that you were wearing the bandana because you had a cold. These facts give rise to charge 2.
15 The victim of the second episode is Ms Breanna Appleby. Ms Appleby resided in Fitzroy in a four bedroom house with three housemates. On 29 August 2017 at about 11.00pm, she arrived home and parked her car directly in front of the premises. She left her purse containing her bank card and car keys on the dining table in the kitchen. She then went to sleep.
16 The following morning at about 8.30am, Ms Appleby woke up to a phone call from Bendigo Bank advising they had cancelled her bank card owing to suspicious activity. Ms Appleby checked her on-line banking and realised several purchases had been made while she was asleep. She looked around the kitchen and noticed that her purse was missing and an empty laptop back had been moved from the coffee table to the couch. The medicine cupboard in the bathroom was opened. She went outside and discovered her car was missing.
17 She reported the incident to police. Upon questioning her housemates, Ms Appleby established that one housemate left for work at around 6.30am and did not notice anything out of place. He saw Ms Appleby’s car parked in front of the house. Another housemate said he got up and left quickly at about 8.30am and did not notice anything out of place. However, he noticed Ms Appleby’s car was not parked outside the premises at that time.
18 You are not charged with aggravated burglary or burglary in relation to this episode of offending. The prosecution accept they are unable to prove that it was you who entered Ms Appleby’s house. Rather, the case against you is put on the basis that at some point in time you gained possession of Ms Appleby’s stolen bank card and her motor vehicle. You then exercised the rights of an owner over that property, thereby stealing the items.
19 During their investigation police established that Ms Appleby’s credit card had been used at the Summerhill and Northland shopping centres. CCTV footage from those locations showed you using Ms Appleby’s credit card at various shops within the centres. The CCTV footage shows you driving Ms Appleby’s car into the Summerhill shopping centre and entering Kmart and Coles, where you made a number of purchases. You left the shopping centre after about 30 minutes. You then drove Ms Appleby’s vehicle to the Northland shopping centre where you made numerous purchases.
20 In total, you purchased goods to the value of $1,486.87. Ms Appleby’s car was ultimately recovered about a month after it was stolen.
21 The theft of Ms Appleby’s credit card gives rise to Charge 3, the theft of her car gives rise to Charge 4 and the obtaining goods by deception to the value of $1,486.87 gives rise to Charge 5. I note that this is a rolled-up charge comprising the thirteen transactions you conducted using Ms Appleby’s credit card.
22 You were arrested on 9 October 2017. Owing to your drug-affected state, it was not possible to interview you in relation these offences.
Victim impact
23 No victim impact statement has been made by either victim in this case. However, where no victim impact statement has been tendered, a sentencer may draw reasonable inferences regarding the likely impact of an offence upon any victim.
24 I am satisfied that your confrontation with Ms Kurbanova in her home was a terrifying incident for her and, to emphasise the point, she has had to leave those premises as a consequence of your offending. I am also satisfied that Ms Appleby would have been greatly inconvenienced and no doubt quite upset by the circumstances giving rise to the charges involving her.
Offence seriousness
25 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.
26 In the Victorian Court of Appeal case of Hogarth v R,[1] a case involving a ‘confrontational’ aggravated burglary, the Court said that: ‘Home invasion is a particularly nasty form of criminal conduct’[2] and a particularly: ‘egregious form of aggravated burglary.’[3] I accept that in your case I am not sentencing you for a ‘confrontational’ aggravated burglary in the Hogarth sense, although the invasion of the victim’s home must have been a terrifying experience for her.
[1](2012) 37 VR 658
[2](ibid) 659 [1] (Maxwell P, Neave JA and Coghlan AJA)
[3](ibid) 660 [6]
27 Clearly, general deterrence, denunciation and just punishment are important sentencing considerations in this case. Obtaining property by deception and theft are also serious enough criminal offences.
28 A concerning aspect of your offending conduct is that it was committed while you were on a community correction order for similar offences. You had appeared on 10 April 2017, less than four months before the first offence which is before me, on a large number of charges involving dishonesty offences, drug offences, property damage and driving offences. These included a charge of theft of a motor vehicle. You received an aggregate 120 days’ imprisonment and a community correction order for 15 months with a number of program, treatment and rehabilitation conditions. As I understand it, breach proceedings in respect of this community correction order are pending.
29 Apparently, your present offending occurred in the context of you being released from custody some four months earlier, you relapsing into illicit drug use and being unemployed and in a situation of unstable housing. Nonetheless, I consider that your moral culpability in relation to all the offences before me is high.
30 Clearly, in light of your appalling prior criminal history, specific deterrence and protection of the community must be given great weight. Moreover, I can also only adopt a very cautious view of your prospects of rehabilitation.
Personal circumstances
31 You are now 47 years of age. You are single and have two children; a son, Trent, aged 26 years and a daughter, Lakeea, aged 18. You have some contact with Lakeea whose mother is in custody. You have no contact with Trent whose mother does not want you to see him, fearing you may be a bad influence on him.
32 Both of your parents are of Aboriginal background. Your father comes from the Yorta Yorta Nation and you mother is from a South Australian tribe the identity of which is unknown to you.
33 Your parents separated when you were about five years of age and you were predominantly raised by your father from that age. You have a sister who lives with your mother and you have two half-brothers to a subsequent relationship of your mother. You have some contact with your mother.
34 When you were aged five, you suffered extensive injuries to your leg when you were struck by a road train in South Australia. You required medical attention which lasted for over one year.
35 Your life with your father was transient in nature and marked by poverty, violence and your father’s alcoholism. Your father refused to accept charity and you and he often slept rough on the streets. Your father was an alcoholic and a violent person.
36 You were sexually assaulted by a man in Sydney at the age of eight when you and your father were staying in a boarding house.
37 You received little formal education owing to your father’s frequent moves. You have taught yourself basic literacy skills whilst you have been in custody. This peripatetic lifestyle meant that it was difficult for you to make friends. Whilst you were living on the streets, you felt very vulnerable.
38 Your father passed away when you were 14 years’ old. You then lived with your aunt, Charlotte, in Shepparton and in Thornbury. You lived with your aunt from about the age of eight. She passed away in 1992.
39 You have some work history in the demolition industry and also as a truck jockey and picking fruit. You have not worked for many years.
40 You have a history of drug use commencing at the age of seven when you experimented with cannabis. You have used amphetamine from the age of 11 and heroin from the age of 15. You told police that you had used heroin shortly before your arrest. Some years ago you had a period of abstinence and relative stability from drug abuse which lasted two years. It seems that you ‘went off the rails’ after your father died. You were admitted to youth detention at the age of fourteen.
41 So far as your health is concerned, you have epilepsy but you are not medicated for that condition. Your counsel accepted that no Verdins principles were engaged in your case. You have been on the Methadone program while you at the Metropolitan Remand Centre.
Prior criminal history
42 You have an appalling prior criminal history extending from January 1989 to April 2017. It mostly comprises dishonesty and drug related offences, some offences involving violence (including robbery), escaping from lawful custody, damaging property and driving offences. You have many prior convictions for burglary and theft, including theft of a motor vehicle, and some for obtaining property by deception. In the past you have breached suspended sentences and community correction orders.
43 At I noted earlier, at the time of committing the present offences you were on a community correction order imposed less than four months earlier for a large number offences including theft, theft of a motor vehicle, six charges of theft from a shop and deal with property suspected of being the proceeds of crime.
44 I was told by your counsel that you were first detained in custody at the age of 14 and you have spent a good part of 22 years in custody out of the last 29 years of your life. It is fair to say you have become institutionalised. You told your counsel: ‘I adapt easier in here’. You have never occupied a home of your own, not even a rental property. You have always lived on an ad hoc basis with friends or sexual partners.
45 I accept that this is the first time you have committed an aggravated burglary and it is the first time you have been sentenced in a higher criminal court.
46 You are not to be punished again for your past offending, however your prior criminal history demonstrates that you have ‘manifested in [your] commission of the instant offence[s] a continuing attitude of disobedience of the law’. Accordingly, it is necessary in your case to give significant weight to specific deterrence and protection of the community.[4] Moreover, as I said earlier, I can only adopt a very cautious approach to your prospects for rehabilitation.
[4]Veen v The Queen (No 2) (1988) 164 CLR 465, 477 (Mason CJ, Brennan, Dawson and Toohey JJ).
Mitigating circumstances
47 There is little by way of mitigation present in your case. You pleaded guilty at a late stage in the proceedings on the first day the trial was listed. I was told you first indicated an intention to plead guilty to some of the charges then before me on 26 April 2019.
48 Nonetheless, your plea of guilty has objective utilitarian benefit in saving a not insignificant amount of court time, as well as a subjective quality, in the sense that it indicates your acceptance of responsibility for your offending conduct and a willingness on your part to facilitate the course of justice. Accordingly, you will receive a real discount from the sentence I would otherwise have imposed in respect of these offences.
49 However, whilst you are undoubtedly regretful for the situation in which you find yourself and the effect your offending has had on you, there is no evidence before me sufficient for me to make a finding in your favour that you demonstrate true contrition and remorse for your offending conduct.[5] Your counsel accepted this was so.
[5] See Barbaro v The Queen (2012) 226 A Crim R 354, 364–365 [32]–[38] ((Maxwell P, Harper JA and T Forrest AJA).
50 In sentencing you I am mindful of the sentencing principles that apply to you as an aboriginal person, who has suffered significant social disadvantage and a dysfunctional upbringing as set out by Eames JA in R v Fuller-Cust[6] and by the High Court in Bugmy v The Queen.[7]
[6] (2002) 6 VR 496, 520–523[78]–[90]
[7] (2013) 249 CLR 571 [43]–[44].
51 I accept that you are socially isolated in prison and that this, together with your aboriginality, will increase the burden of custody on you. You have some phone contact with your son’s mother, and at one stage whilst in Port Phillip Prison you shared a cell with your son.
52 I also accept that whilst in custody you have taken some positive steps towards your ultimate rehabilitation. You have worked for and received a forklift licence and a welding certificate whilst in custody. You have also engaged in programs and worked in the prison laundry, as a cleaning billet and, more recently, in horticulture, which you enjoy.
53 Your risk of institutionalisation is a relevant sentencing consideration in your case.[8]
[8]DPP v Stone and Uren [2003] VSCA 208 [20].
Application of sentencing principles
54 I have had regard to current sentencing practices in relation to the charges before me in light of the decision of the High Court of Australia in DPP v Dalgliesh (a pseudonym).[9] I was not referred to any comparable cases by the Crown or the defence.[10]
[9] (2017) 91 ALJR 1063.
[10] [2009] VSCA 205.
55 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 these offences and the myriad of personal circumstances pertaining to individual offenders. Nonetheless, to the extent that I have been able to gain any assistance from comparable cases, I have sought to do so in your case.
56 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 and your personal circumstances.
57 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, so far as is possible, you are rehabilitated and reintegrated into society.
58 General deterrence is a very important sentencing consideration for the offence of aggravated burglary. These offences are prevalent in the community and, as the Court of Appeal has recently observed, the link between prevalence and general deterrence is self-evident.
59 Whilst just punishment, general deterrence and denunciation must be given primary consideration in the instinctive synthesis, I am of the view that, in your case, specific deterrence and protection of the community must also be given significant weight. Moreover, I can only adopt a very cautious approach to your prospects of rehabilitation. In this regard much will depend on your remaining drug free when released from custody and on you taking full advantage of rehabilitative programs and other supports offered to you.
60 In your case, despite your prior criminal history and the view I have taken of your prospects for rehabilitation, I am prepared to fix a non-parole period which will allow for your release from custody at an earlier time than I might otherwise have fixed.
Stand up Mr Charles
On the charge of aggravated burglary (charge 1) you are convicted and sentenced to 4 years’ imprisonment.
On the charge of obtain property by deception (charge 2) you are convicted and sentenced to 3 months’ imprisonment.
On the charge of theft (charge 3) you are convicted and sentenced to 3 months’ imprisonment.
On the charge of theft of a motor vehicle (charge 4) you are convicted and sentenced to 6 months’ imprisonment and all licences and permits held by you under the Road Safety Act 1986 are cancelled and you are disqualified from obtaining any such licence or permit for a period of 6 months.
On the charge of obtaining property by deception (charge 5), being a rolled-up charge, you are convicted and sentenced to 6 months’ imprisonment.
Charge 1 is the base sentence and I direct that 1 month of the sentence imposed on charge 2, 3 months the sentence imposed on charge 4 and 3 months the sentence imposed on charge 5 be served cumulatively on the sentence imposed on charge 1 and on each other. The sentence imposed on charge 3 is to be served wholly concurrently with all other sentenced imposed this day.
This makes a total effective sentence of 4 years’ and 7 months’ imprisonment.
I order that you serve a minimum of 30 months’ imprisonment before becoming eligible for parole.
I declare 588 days (not including this day) as the period of pre-sentence detention to be reckoned as already served under this sentence and I direct the fact that declaration was made and its details be noted in the records of the court.
Pursuant to s 6AAA of the Sentencing Act 1991 I state that the sentence I would have imposed on you but for your plea of guilty would have been a sentence of 6 years’ imprisonment with a non-parole period of 4 years’.
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