Director of Public Prosecutions v Commisso

[2017] VCC 986

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

AT SHEPPARTON
CRIMINAL JURISDICTION

CR 17-00739

DIRECTOR OF PUBLIC PROSECUTIONS

v

BROCK COMMISSO

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JUDGE:	HIS HONOUR JUDGE MONTGOMERY
WHERE HELD:	Shepparton
DATE OF HEARING:
DATE OF SENTENCE:	21 July 2017
CASE MAY BE CITED AS:	DPP v Commisso
MEDIUM NEUTRAL CITATION:	[2017] VCC 986

REASONS FOR SENTENCE
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Subject:
Catchwords:
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Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Devlin
For the Accused	Mr G. O'Shea

Pages 1 - 7

 

 

HIS HONOUR: 

1Brock Andrew Commisso, you have pleaded guilty to one charge of burglary, seven charges of theft, one charge of theft of a firearm, one charge of prohibited person carrying a firearm, one charge of possess a drug of dependence that is cannabis, one charge possess a drug of dependence - amphetamine. 

2You have consented to summary matters being heard and have pleaded guilty to commit an indictable offence whilst on bail, fraudulently use number plate, unlicensed driving and drive an unregistered vehicle. 

3The facts of the matter are set out in Exhibit 1 - the prosecution summary.  They are not disputed by your counsel.  I will not refer to the facts in any detail.  Any reader of these reasons can refer to that summary to place the sentences in their factual context.  

4In relation to Charges 5 and 6 which are charges of theft of a firearm and a prohibited person carrying a firearm. In the absence of evidence from you or on your behalf, I accept beyond reasonable doubt that you forced the safe open in which the firearms were contained.  And based on your answers in the record of interview, you did not throw them in the river as stated to the psychologist but one was taken from your car by a person unknown and you gave the other to a friend.

5You have admitted your criminal history. There is a gap in it between 2009 and 2016.  It contains amongst other things damage to property, assault, threats, drug offences, driving offences and a burglary in 2001.  So to that extent, it is relevant to my sentencing considerations here. 

6On your behalf, your counsel filed written submissions and supplemented them orally.  I have taken into account all of those submissions.  In mitigation, he submitted that I should take into account and accept you have made an early plea of guilty and I do so.  It is an acceptance of responsibility by you and has saved the court the time and expense of a jury trial and you will be given the appropriate discount for that.

7You have spent 240 days now in custody.  Your counsel submitted that this was opportunistic offending and that you have shown remorse and insight.  You have displayed a positive attitude whilst in custody by the work you have done there.  He submitted that I should consider a sentence of time served and then place you on a community corrections order. 

8He tendered a report from Warren Simmons, psychologist, dated 25 May 2017.  In that, your personal history is set out - you are now 34.  You were born in Bendigo and grew up in Shepparton and South Australia.  You had a difficult childhood, being subjected to family violence.  You began using drugs at an early age and left home at around the age of 12.  You attended some six primary schools and completed Year 9 at the Hay Street Development School.  You have worked in a number of jobs but basically, you are a commercial fisherman. 

9You had a number of relationships including one to a lady named Sharon.  You remained with her for some 16 years and by her, you have a 12-year-old daughter. 

10In September of last year, you were introduced to methamphetamine.  Not a good introduction.  And you began to regularly use it.  You have been using cannabis since the age of 13 and alcohol in substantial amounts from the age of 22.  You have a history of suicidal behaviour, it is said in the report. 

11You have been attempting to obtain your Masters Class 5 certificate which would enable you to skipper fishing boats.  And can I encourage you to continue to do that and have a productive work life.

12As I said, you told the psychologist that you entered the container where the weapons were through car keys, and on finding them threw them in the river.  It seems to me that was an attempt by you to deflect from your responsibility for giving one weapon to someone else and allowing another to be taken from your car. 

13He said you were of average intelligence and pointed to your use of amphetamine up until the time of this offending.  Counsel put that you have good prospects or rehabilitation based on the fact that you have a job to go to.  You have had a consistent work record in the fishing industry. 

14In sentencing you, I am required to balance the interest of the community in denouncing criminal conduct, the interest of the community to seek to ensure as far as possible offenders are rehabilitated into society.  I express my denunciation of the conduct. 

15Although you have expressed insight and remorse to the psychologist and I accept that you had it at the time, during the scope of the offending you did not seem to have much insight into what you were doing, and indeed, you particularly targeted Rullo Orchards for some reason, possibly because it was an easy target.  This was a mini crime spree without really any sense to it at all. 

16The basic purposes for which a court may impose a sentence are punishment, general deterrence - that is to impose a sentence to deter others, specific deterrence - that is to impose a sentence to deter you and in light of the repetition of the offending here and on your prior criminal history that is still a relevant matter here, general rehabilitation, denunciation and protection of the community.  I regard protection of the community as significant sentencing factor here.

17In sentencing you, I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances and the fact that various people were affected by your behaviour although I have no victim impact statements.  You committed these offences whilst on bail. 

18Your counsel submitted that I should look at releasing you on a community corrections order after serving the 240 days.  He referred me to the relevant case of Boulton.  I have considered the principles there and in my view, the offending here is - because of the repetition - is too serious to place you on such an order. 

19Taking all those factors into account, I impose the following sentences. 

20In relation to the thefts - 2, 3, 4, 7, 8, 9 and 10 - because they are all of a similar nature and a similar time frame, I have decided pursuant to s.9(1) of the Sentencing Act to impose an aggregate sentence which is 18 months.

21In relation to the charge of burglary, six months. 

22Theft of the firearm, 12 months.

23Prohibited person carrying a firearm, six months.

24Possessing cannabis, five days.

25Possessing amphetamine, five days.

26Moving to the summary offences - committing an indictable offence whilst on bail, one month.

27Fraudulently use a number plate, one day.

28Unlicensed driving, five days.

29And fine you $100 on driving an unregistered vehicle. 

30In relation to the driving charges and the theft of the motor vehicle, your licences are cancelled and you are disqualified from obtaining a licence for six years.

31I declare the aggregate sentence to be the base sentence and that six months of the sentence on theft of a firearm be served cumulatively with the base sentences and with all other sentences, which makes a head sentence of 24 months. 

32I declare that you serve a period of 14 months before becoming eligible for parole.  Declare that the 240 days that you have served to be reckoned as part of the term of imprisonment that I have just imposed. 

33I declare pursuant to s.6AAA of the Sentencing Act that if this matter had proceeding to trial, I would estimate roughly that you would have received a sentence of some six years with a non-parole period of four years.

34Does anyone want me to repeat any of that?

35MR O'SHEA:  No, Your Honour.  

36HIS HONOUR:  Mr Devlin?

37MR DEVLIN:  Pardon me, Your Honour, I am just making sure the maths is right.

38HIS HONOUR:  You can sit down for the moment, thanks.  So it is 18 months aggregate on the thefts, six months on the burglary, 12 months on the theft of firearm, six months on the possess carrying firearm, five days on each of the drug possessions, one month on the commit offence whilst on bail, one day - fraudulently use number plate, five days - unlicensed driving, $100 - drive unregistered vehicle, six months on the theft of the firearm.  Cumulative with every other charge and cumulative upon the base sentence imposed - that is the aggregate sentence - of eight and six is 24.  And 14 months is the non-parole period.

39MR O'SHEA:  Yes, Your Honour.  I think we are just checking in relation to the drug of dependence - in cannabis, that it is - I think it is summarised as a small amount although the amount is not particularised and that - yes, and I believe Your Honour indicates that a small amount - it is not subject to a period of imprisonment.

40HIS HONOUR:  Sorry, I was just going on what was in the prosecution outline of the sentences available.  Do you agree with that, Mr Devlin?

41MR DEVLIN:  Certainly, the summary did not say the amounts, Your Honour.  And it is a small amount that I am trying to clarify.  Pardon me, Your Honour, if I can take a seat, I might do it quicker.

42HIS HONOUR:  Well, is a fine available?

43MR DEVLIN:  Yes.

44HIS HONOUR:  Well, given that it is a minor offence in the context of law, it makes no sense if there is going to be dispute about whether he should get a fine or five days to change, to change the five days to $200.

45MR DEVLIN:  Yes, the maximum is five penalty units.  The $200 is ‑ ‑ ‑ 

46HIS HONOUR:  Within range?

47MR DEVLIN:  ‑ ‑ ‑ is perfectly acceptable.

48HIS HONOUR:  All right.  So I will change the possess cannabis sentence to one of $200.  The possess amphetamine - I do not have to change that?

49MR O'SHEA:  No, Your Honour.  That is a small amount there, it is still a one-year period of imprisonment.

50HIS HONOUR:  All right.  Everything else clear?

51COUNSEL:  Yes, Your Honour.

52OFFENDER:  Thank you, Your Honour. 

53HIS HONOUR:  All right.  Thank you.  You can take Mr Commisso out, thank you.  Thanks Mr O'Shea for coming back.

54MR O'SHEA:  As the court pleases.

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