Director of Public Prosecutions v Constantinou
[2015] VCC 1975
•3 August 2015
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR 14-01291
| DIRECTOR OF PUBLIC PROSECUTIONS | Prosecution |
| v | |
| PHILLIP CONSTANTINOU | Accused |
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JUDGE: | HIS HONOUR JUDGE MAIDMENT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 3 August 2015 | |
CASE MAY BE CITED AS: | DPP v Constantinou | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1975 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms Lee | |
| For the Accused | Mr Cronin |
HIS HONOUR:
1 Well, Phillip Constantinou, you can stay seated for the time being. You pleaded guilty to two indictments; the first charging you with aggravated burglary in Charge 2, reckless conduct endangering persons in Charge 3, and possession of a firearm whilst prohibited in Charge 4 on that first indictment. Those offences all occurred on 20 November of 2013.
2 You were granted bail in relation to those matters, and it was whilst you were on bail for those matters that you committed the offences the subject of the second indictment to which you have pleaded guilty in count 1 to recklessly causing injury to Bianca Phillips; in Charge 2 common assault of Benjamin Gow; and in Charge 3 being a prohibited person in possession of a firearm, that is, a different firearm to that which was the subject of Charge 4 on the first indictment. All of those offences occurred on 9 March of 2014.
3 The prosecution tendered in relation to the first indictment an amended summary of prosecution opening which is Exhibit A, and in relation to the second indictment a summary of prosecution opening for plea which is Exhibit B.
4 In relation to the first indictment, you were part of a team of people who carried out an aggravated burglary at Unit 148 Dundas Street, Thornbury on 20 November of 2013 during the early morning. You used your muscle in support of others who were there in connection with some sort of dispute. The precise details of which are not entirely clear. You went in as a trespasser knowing that persons were present, and you went in with a loaded shotgun. That was an extremely dangerous thing to do and is the subject of Charge 3 on that indictment, namely, you engaging in reckless conduct endangering persons of serious injury.
5 As it was, there was a struggle, and the firearm discharged. You were lucky that you’re not up on more serious charges because you could have ended up causing somebody a very serious injury or death. So it clearly was a dangerous thing to do in the extreme, and the fact that you went in there with a loaded firearm aggravates the offence of aggravated burglary which is itself a serious offence carrying a maximum term of imprisonment of 25 years.
6 You were also a prohibited person in possession of a firearm. In relation to the second indictment, you, on 9 March of 2014, went to premises in Narre Warren in company with others and in possession of a firearm to remonstrate with the occupants about some money owed to you as a result of purchasing drugs from you on credit.
7
Apparently, one of your victims, Mr Gow, owed you about $80, but you claimed that he owed you a total of $500, including interest. Again, you behaved in what can only be described as a thuggish manner. You did not stop at threatening. You struck the female, Bianca Phillips, pushing her, first of all, and then punching her on the left side of the mouth. You punched
Mr Gow in the face. You then pulled out a handgun which had been carried by one of your co-offenders and threatened Ms Phillips with that gun, causing her to fear for her life. When she made good her escape you made good yours.
8 There are victim impact statements which are provided as Exhibits E and H. Not surprisingly, your victims have, not just suffered the fear that was bound to occur in the course of your offending conduct, but continued to suffer the emotional consequences of your conduct. I’m bound to take into account those victim impact statements.
9 You have admitted prior convictions, and those prior convictions go back to June of 2011. I accept what your counsel said on your behalf that in the main they are symptomatic of your addiction to amphetamines, in particular, ice. Unfortunately, they are of a kind which one commonly sees with persons like yourself who get themselves involved with that pernicious drug. You don’t have any significant convictions for violent offences apart from the intentionally causing injury and threat to inflict serious injury for which you appeared at the Dandenong Magistrates Court in February of 2014.
10 I note that you received a wholly suspended sentence for those offences. That is still something that you’re going to have to negotiate because the offences the subject of the second indictment put you fair and square in breach of that. So you still have the prospect of having to do that in addition to the sentences that I must impose upon you today. That is all part of the picture.
11 Your counsel provided me with an outline of submissions. They show that you had a pretty good start to life. The people that are ranged here today are very much part of your history. I suspect that you feel that you have let them down. You got through Year 12 apprenticeship. You started your own business, were successful at it. It was going well until you got into illicit drugs which no doubt you were able to control initially, but, typically, it got out of control, particularly when you got into ice. You had been a soccer player and, apparently, had a pretty bright future until you had a serious injury. Not everybody who has a setback like that succumbs to the temptation of getting into drugs. You did, and you’ve had a number of reminders through the court system about the consequences of that prior to you’re getting involved in this series of offences.
12 This does represent an escalation in your criminal conduct. I would, I think, accept that that is a product of the escalation in your use of ice and the degree to which that drug had taken over your life. Unfortunately, for persons who, obviously, have very good qualities like yourself this is not an uncommon story. It is unfortunate that a person with as many advantages in life as you and as many attributes that are praiseworthy and a capacity, obviously, for hard work and good business should have found themselves sitting in the dock here, leaving the judge with no alternative other than to impose a term of imprisonment.
13 It is a sad situation. I note your character references. I can well understand that those who speak on your behalf are entirely sincere in the good things they say about you. It is very much in favour of your prospects of rehabilitation that you have all the supports that you have. Look around you, you know. You are going to need those people. You will not be out of the woods, unfortunately, until you have well and truly sorted out your taste for illicit drugs, in particular, ice.
14 You are clean at the moment. You are thinking well, and all of this seems like a bad dream, looking back on it. But you would know that it is not necessarily going to be easy for you in the future to get your head right so that you can stay away from the temptations that undoubtedly will be placed in your way when you complete your term of imprisonment.
15 You have pleaded guilty. It can’t be said it’s an early plea. But I give you credit for the utilitarian value of your plea, and I accept that it is consistent with remorse. I accept also that you are genuinely remorseful now that you’re clean and that at the moment, you’re thinking that you can put all this behind you. I hope you do. There is no doubt that your offending conduct had a significant interrelationship with your drug use. But I do think that your prospects of rehabilitation are good. I think the public are going to be best protected by promoting your rehabilitation as much as I reasonably can.
16 I am restricted in what I can do here and now because I have to look at other sentencing considerations as well. I have to look at denunciation of your conduct, and, particularly, an aggravated burglary with a loaded firearm is a serious offence. I’ve got to look at deterring you to some extent, although I’m sure that you’ve learnt a big lesson from this. I have also got to consider punishing you properly for your offending. Most importantly, I must impose a sentence aimed at deterring others from committing offences of this kind in the future. At the same time I take into account the desirability of helping you, so far as I can in sentencing, to put all this behind you and to stay out of trouble in the future and to get away from drug abuse.
17 I think your prospects are good despite your prior convictions, despite the opportunities you’ve had in the past and despite the fact that the offences the subject of the second indictment were committed whilst you were on bail for the first. Your counsel has, quite rightly, urged me to take into consideration the fact that you’ve been, like others, subject of lockdowns and a considerable inconvenience during the period following the riots at the Metropolitan Remand Centre and that you’ve not had access to personal belongings and that, to that extent, your time most recently has been done harder than usual.
18 Your counsel has also asked me to give proper attention to what is known as the totality principle, to moderate the degree of cumulation as between sentences to a point where the sentence is not a crushing one and which, properly, still has regard to your rehabilitation. I have no control over what might happen in relation to the outstanding suspended sentence of which you were in breach, and I have to sentence you for what’s in front of me. Prima facie, I should be giving you a wholly cumulative sentence in relation to indictment 2. However, it seems to me that the need to promote your rehabilitation has to be balanced against those considerations, and I propose to moderate the degree to which I impose cumulation on any of these matters, including the second indictment.
19 Doing my best to balance all of those matters, I’m ready to pass sentence upon you. Would you please stand. On the first indictment, on Charge 2 of aggravated burglary, I convict you and sentence you to imprisonment for a period of four years. On Charge 3 of reckless conduct endangering serious injury, I convict you and sentence you to imprisonment for 18 months. On Charge 4 of being a prohibited person in possession of a firearm, I convict you and sentence you to imprisonment for a period of nine months. On Charge 1 on the second indictment, that is, of recklessly causing injury, I convict you and sentence you to imprisonment for nine months. On Charge 2 of common assault, I convict you and sentence you to imprisonment for a period of four months. On Charge 3 of being a prohibited person in possession of a firearm, I convict you and sentence you to imprisonment for a period of nine months.
20 The sentence of four years on Charge 2 on the first indictment is regarded as the base sentence, and I order that six months of the sentence on Charge 3 on the first indictment be cumulative upon the sentence on Charge 2 on that indictment, and I order that six months of the sentence on Charge 1 on the second indictment and three months of the sentence on Charge 3 on the second indictment be served cumulatively upon one another and upon the sentence of four years on Charge 2 on the first indictment, which makes a total effective sentence of five years and three months, and I order that you serve a period of three years before becoming eligible for parole.
21 I say that because I accept your counsel’s submission that a long period of parole will assist your rehabilitation, and, in my view, that will be a better community protection than having you come out and having no substantial period whilst you’re on parole. You will have to earn parole. You don’t get that automatically. Your conduct between now and when you become eligible for parole will have the capacity to give you the best chance of getting it. I saw you nodding the other day when I mentioned Marngoneet Prison. Hopefully you will be able to get there and get yourself into a program that will help your prospects of rehabilitation and help your prospects of getting out on parole.
22 But for your pleas of guilty, I would have sentenced you to a total effective sentence of six years and six months imprisonment and ordered that you serve a period of four years and four months before becoming eligible for parole. I declare pre-sentence detention totalling 493 days as time to be reckoned as served on the sentences that I have imposed and to be deducted administratively from the period you will actually have to serve.
23 I make the disposal order in the terms of the draft with which I have been provided, and I order that you provide a forensic sample by a scraping from the inside of your mouth. That, of course, will be done during the period you’re in custody. You will be asked by an authorised officer to give a scraping from the inside of your mouth. If you do that, all well and good. If you fail or refuse to do that when requested by an authorised officer, the officer will have the authority to take blood from you and may use reasonable force to do that. I’m quite sure you won’t put them to that trouble. All right. Are there any other orders? No?
24 MS LEE: No, Your Honour.
25 HIS HONOUR: No. All right. Thank you.
26 MR CRONIN: Thank you, your Honour.
27 MS LEE: As Your Honour pleases.
28 MR CRONIN: As Your Honour pleases.
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