Director of Public Prosecutions v Christoforou

[2022] VCC 1742

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-21-01570

DIRECTOR OF PUBLIC PROSECUTIONS

v

DAMIEN CHRISTOFOROU

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JUDGE:	HIS HONOUR JUDGE WRAIGHT
WHERE HELD:	Melbourne
DATE OF HEARING:	5 October 2022
DATE OF SENTENCE:	13 October 2022
CASE MAY BE CITED AS:	DPP v Christoforou
MEDIUM NEUTRAL CITATION:	[2022] VCC 1742

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing.

Catchwords:              Contravention of order intending to cause harm or fear for safety – Aggravated burglary – Common assault – Theft – Commit indictable offence whilst on bail – Family violence – Drug related offending – Guarded prospects of rehabilitation – Relevant criminal history – COVID-19 pandemic.

Legislation Cited: Crimes Act ss 74(1), 77; Family Violence Protection Act 2008 s 123A(2); Bail Act 1977 s 30B; Sentencing Act 1991 ss 6AAA, 18.

Cases Cited:Worboyes v The Queen [2021] VSCA 169

Sentence:                  Imprisonment for a period of 4 years with a non parole period of 3 years.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms K Crennan	Office of Public Prosecutions
For the Accused	Mr L Barker	SLKQ Lawyers

HIS HONOUR:

Introduction

1Damien Christoforou, you have pleaded guilty to:

(a) one charge of contravention of order intending to cause harm or fear for safety contrary to s 123A(2) of the Family Violence Protection Act 2008, which carries a maximum penalty of 5 years imprisonment (Charge 1);

(b) one charge of aggravated burglary contrary to s 77 of the Crimes Act 1958 (‘Crimes Act’), which carries a maximum penalty of 25 years imprisonment (Charge 2);

(c)   one rolled up charge of common assault contrary to Common Law, which carries a maximum penalty of 5 years imprisonment (Charge 3); and

(d) one charge of theft contrary to s 74(1) of the Crimes Act, which carries a maximum penalty of 10 years imprisonment (Charge 4).

2You have also pleaded guilty to the related summary offence of commit an indictable offence whilst on bail contrary to s 30B of the Bail Act 1977, which carries a maximum penalty of 3 months imprisonment (Summary Charge 6).

3You have also admitted your Criminal Record.

Circumstances of the offending

4A prosecution opening was tendered on the plea and may be summarised as follows:

5You were 37 years of age at the time of the offending and were residing with your ex-partner, Michelle Macintosh[1], in room 17 at the Bell Motel.

[1] A pseudonym.

6You and Ms Macintosh commenced an intimate relationship in early 2020. On 30 November 2020, the Melbourne Magistrates’ Court granted an interim family violence intervention order with full conditions where you were the respondent and Ms Macintosh the affected family member. The order was served on you on 13 December 2020.

7The victim, Alexa Brian[2], was 33 years of age at the time of the offending and resided in room 18 at the Bell Motel.

[2] A pseudonym.

8The Bell Motel is a two-level accommodation provider located at 2 Patterson Street, Preston. You and the victim were residing in neighbouring rooms located on the ground floor which shared a communal corridor.

9On Monday 11 January 2021, Ms Macintosh was in room 17 with you when you became agitated and angry because you didn’t have cigarettes. She left the room out of fear from your behaviour and went into the corridor. You followed, demanding she go inside (Charge 1 – Contravene family violence intervention order intending to cause harm or fear for safety).

10Between 5:00am and 5:30am, the victim was awake in room 18 when she heard banging and the sound of a distressed female. She opened her door and located Ms Macintosh sitting on the corridor floor with her back against the opposite wall, knees bent and her face in her hands. You were standing opposite Ms Macintosh.

11The victim heard a verbal altercation between the two of you where Ms Macintosh was asking you to leave, and you were questioning her behaviour and telling her to get back in the room. The victim moved away from the doorway, retreating to her room leaving her door open as she was concerned about what was happening.

12A short time later, the victim heard a door slam. She looked outside her room and saw Ms Macintosh still seated on the floor in the corridor. You were no longer present. The victim mouthed the words ‘are you okay?’ to Ms Macintosh. She did not respond and ran into the victim’s room. Ms Macintosh asked the victim to lock the door, which she did using the slide lock.

13Inside the room, Ms Macintosh told the victim she was concerned you would leave the motel in her rented motor vehicle. After about fifteen minutes, she asked the victim to search the motel carpark for the vehicle as she didn’t want to go back to her room if you were still there. The victim looked for the vehicle but returned when she was unable to locate it. She informed Ms Macintosh that she thought that you were gone and asked how she could help.

14Ms Macintosh still appeared quite panicked. The victim left her room for a second time to check if you were around and saw you in the corridor. You walked towards the victim and said ‘let me talk to her’. Ms Macintosh exited the victim’s room and entered the corridor where she had a heated discussion with you. You insisted that she return to the room and that you had calmed down.

15Ms Macintosh asked the victim to stay with her. She remained in the corridor and you kept walking in and out of room 17. Ms Macintosh wanted her belongings and you told her they were in the vehicle parked down the road.

16You and Ms Macintosh continued to argue. She initially refused to enter her room, before going inside and collecting a red satchel bag. The victim moved to see inside room 17 and saw you seated on the bed blowing smoke and holding an ice pipe. You continued to refuse Ms Macintosh’s requests for her keys and bags and she came back into the corridor. The victim could hear you smashing things and threatening to trash the room if Ms Macintosh didn’t come back.

17You came out into the corridor and Ms Macintosh sheltered behind the victim. You kept advancing and leaning in and the victim put her arms in a blocking motion. You stated, ‘mind your business, this has nothing to do with you’ and the victim told you ‘she just wants some space, what’s wrong with giving her her keys, she’s not comfortable being alone with you at the minute’.

18You re-entered room 17 whilst the victim and Ms Macintosh returned to room 18. The victim closed and locked the door behind her. Ms Macintosh was seated on the floor up against the fridge and the victim on the bed. A short time later, the victim heard a loud ‘snap’. You smashed your way through the wooden door into room 18 holding a clothing iron in your right hand wielding it threateningly (Charge 2 – Aggravated burglary).

19Ms Macintosh moved across the floor towards the bathroom. The victim stood up off the bed upon your entry and told you to get out. You approached the victim and pushed her with your left hand, resulting in her falling to the ground. You were still holding the iron in your right hand. You attempted to stand over her, but the victim managed to get to her feet (Charge 3 – Common assault).

20You dropped the iron, grabbed the victim with both hands and pushed her to the ground a second time with more force than previously used. You stood over her and kicked her whilst she was on the ground (Charge 3 – Common assault).

21The victim used her feet and kicked you off her and she managed to stand back up. You continued to try and grab the victim who used her left hand to hit you in the jaw and told you to ‘get the fuck out’.

22You exited the room and returned a short time later demanding your mobile phone. You took the victim’s Samsung S5 which was on the floor, prior to leaving the room (Charge 4 – Theft).

23As a result of the physical altercation with you, the victim sustained bruising to her hands, arms, left leg and hip. She did not require medical treatment.

24At 7:36am, Ms Macintosh contacted emergency services and reported the incident. You had left the scene in Ms Macintosh’s rental vehicle prior to police arrival.

25At approximately 1:00pm, Police attended the Bell Motel but were unable to locate you.

26Senior Constable Troy Reynolds and Senior Constable Matthew Oake were patrolling the area in response to police communications. They observed a male passenger in a taxi who kept looking back at police. They followed the taxi in an unmarked police vehicle and intercepted it on Plenty Road, Preston. The male passenger exited the vehicle and identified himself as you.  You were then placed under arrest.

27The victim’s mobile phone, Ms Macintosh’s mobile phone and the keys to Ms Macintosh’s rental vehicle were located on you following a search.

28You were transported to Preston Police Station where you were deemed unfit for interview.

29You were on bail at the time of the offending (Summary Charge 6 – Commit indictable offending whilst on bail).

Nature and gravity of the offending

30Aggravated burglary is by its nature a serious offence, reflected in the maximum penalty of 25 years imprisonment. However aggravated burglary offences are committed in a wide range of circumstances. In this instance, the aggravated burglary charge is particularised as you entering with the intent to assault while holding an iron which in the circumstances, was a weapon.  Ms Macintosh and Ms Brian had sheltered from you in Ms Brian’s room following verbal threatening behaviour by you towards Ms Macintosh. It was made it abundantly clear to you that they did not want you near them. They had closed and locked the door to the room. Nonetheless, you violently kicked the door in and entered the room wielding the iron. You went on to immediately assault the victim the way described.

31While no victim impact statements have been tendered, it is clear from the evidence that this was a frightening experience for the victim, Ms Brian and undoubtedly, Ms Macintosh.

32Your offending arises in the context of family violence. Ms Macintosh was clearly intimidated by your after your angry outburst. Ms Brian was simply coming to Ms Macintosh’s aid having heard some of the altercation. She tried to protect Ms Macintosh by taking her into her room and locking the door. In those circumstances she was entitled to feel safe and did all she could to protect herself and Ms Macintosh from you.

33Mr Barker who appeared on your behalf, submitted that the aggravated burglary should be considered to be at the lower end of seriousness as the episode was spontaneous and of brief duration. Ms Crennan who appeared on behalf of the Director of Public Prosecutions, submitted that the aggravated burglary is serious: as it was confrontational; that at the point of entry your intention was to assault; and that you broke through a locked door, armed with a weapon.

34I do not accept that the aggravated burglary is at the lower level. While it is true that it was a spontaneous and brief encounter it followed a number of verbal threatening abusive conversations that had already instilled fear in the two women who sought shelter from you. In that sense in my view your offending may be considered to be a relatively serious example of this type of aggravated burglary, where it involved confronting a former partner in a violent manner.

35Further, there was an intervention order in place preventing you from abusing or threatening Ms Macintosh in any way. While that conduct is captured by a separate charge, it clearly demonstrates that on this particular evening you disregarded that order which culminated in the angry confrontation with Ms Macintosh and the subsequent offending.

36Further, the seriousness of your conduct on this occasion is heightened as you committed the offences whilst on bail.

Personal circumstances

37You are 39 years of age. You are the eldest among four. You have a brother who is currently also imprisoned, and two sisters. Your mother is a nurse and personal care attendant and your father is a retired panel beater. They separated when you were young and both went on to have subsequent relationships. You have a half-sister from your mother’s subsequent relationship.

38After your parents separated, you and two of your siblings lived predominantly with your mother in Greenvale. Your brother lived with your father in Strathmore. You had access visits with your father on weekends; you described this arrangement as an ‘unsettling phase’ in your life. In spite of this, you completed your primary school education with little trouble and went on to attend Strathmore Secondary College, leaving at 16 to commence a panel beating apprenticeship with your father. You remain close with your family and I note both your father and step-mother provided character references, tendered on the plea, which indicate their continued support of you. 

39You maintained consistent employment in various labouring roles until your early thirties. From about the age of 28, you commenced using methylamphetamine after being introduced to the drug by co-workers. Until that point you had been using cannabis daily. Around this time, your relationship with your then partner, Catherine Natoli, who you had been with since the age of 24, started to deteriorate. You and Ms Natoli were engaged to be married and you also had a close relationship with Ms Natoli’s daughter from a previous relationship. The relationship ended due to your drug use and this upheaval contributed to your further reliance on methylamphetamine.

40You met Ms Macintosh in 2017. At the time, she was in an unhappy relationship, and eventually she left her home and commenced residing with you. The two of you were verging on homelessness and the relationship was marked by volatility and shared drug use. Your offending on this occasion marked the end of the relationship.

41You have an extensive criminal history dating back to 2015. Most recently, you have been dealt with in the Broadmeadows Magistrates’ Court for, among other things, using a carriage service to harass and persistent contravention of a Family Violence Intervention Order, the victim was in that case, Ms Macintosh. Your history is otherwise compromised largely of drug or drug-related offending.

42I granted you bail on this matter in February 2022 with a condition that you reside at the Cottage in Shepparton which is a residential drug rehabilitation facility. You participated in the program for seven weeks however you absconded on 9 April 2022 and I ultimately issued a warrant for your arrest. After leaving the Cottage, you lived itinerantly and relapsed into drug use until your re-arrest in September 2022. A letter was tended from the Cottage stating that when you were there you participated fully.

Sentencing considerations

43Mr Barker, who appeared on your behalf, highlighted a number of matters in mitigation.

44First is your plea of guilty.  While the prosecution case was strong, your plea of guilty still carries utilitarian value. It was entered following a case conference before me earlier this year. While your plea was not at the earliest opportunity, it nevertheless demonstrates your acceptance of responsibility and willingness to facilitate the course of justice. Your plea avoids the need for a trial and most importantly, your plea has spared the victims from having to give evidence.

45Furthermore, as your plea has been entered in circumstances where the pandemic has created a substantial backlog of cases in the criminal justice system, it carries additional weight and this must be reflected in a further amelioration in sentence.[3]

[3] Worboyes v The Queen [2021] VSCA 169 at [39].

46You have served your time on remand under onerous prison conditions as a result of the COVID-19 pandemic and I take this into account. While the conditions have been improving, there is uncertainty as to when the prison environment will revert to normality. As such I accept that the additional burden you have endured over your time on remand as a result of the restrictions, will persist for some time.

47I turn to your prospects of rehabilitation. Mr Barker submitted your prospects may be characterised as positive, citing your strong family supports, your consistent work history up until 2015 when you first started offending and your seven week stint at The Cottage, a residential rehabilitation facility in Shepparton.

48Given your history of offending since 2015, and the fact that you absconded from the Cottage in recent times, I am of the view that your prospects of rehabilitation remain somewhat guarded. Your criminal history consists of offending that is related to your long term drug habit and as is self evident, unless you are able to break your drug habit and demonstrate a sustained period of abstinence and stability, your prospects will remain uncertain.

49Ms Crennan submitted that deterrence, both general and specific, denunciation of your conduct and community protection are relevant sentencing considerations. I agree. A message must continue to be sent that this type of family violence cannot be tolerated and will be met with stern consequences. Given your criminal history, which includes family violence offending, together with the fact that you were subject to a family violence intervention order and on bail at the time of this offending, specific deterrence is a relevant sentencing consideration.

50As to your recent prison history, you have been in custody for some 439 days with a break in that time while you attended the Cottage and were in the community after you absconded. However during that period you served a six month sentence for drug related property offending and thus for the purposes of s 18 of the Sentencing Act 1991 (‘Sentencing Act’), you have 256 days available to you. Mr Barker submitted that the six months should be taken into account pursuant to the principle of totality, which I accept. Further, that you have spent some two months at the Cottage which is a highly restrictive regime. While you absconded without completing the program, I also take into account time spent at the Cottage.

Sentence

51Mr Christoforou, would you please stand.

52Damien Christoforou, on Charge 1, contravention of a family violence intervention order intending to cause harm or fear, you are convicted and sentenced to 6 months imprisonment.

53On Charge 2, aggravated burglary, you are convicted and sentenced to 3 years and 9 months imprisonment.

54On Charge 3, common assault you are convicted and sentenced to 8 months imprisonment.

55On Charge 4, theft, you are convicted and sentenced to 1 month imprisonment.

56On Summary Charge 6, commit an indictable offence whilst on bail, you are convicted and sentenced to 1 month imprisonment.

57I direct that 3 months of the sentence on Charge 3 be served cumulatively on Charge 2 making for a total effective sentence of 4 years imprisonment. I direct that you serve 3 years before becoming eligible for parole.

58Pursuant to s 18 of the Sentencing Act, I declare that 256 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.

59Pursuant to s 6AAA of the Sentencing Act, I indicate that had you not pleaded guilty, I would have sentence you to a period of 6 years imprisonment with a non-parole period of 4 years.