Director of Public Prosecutions v Culibrk & Anor

[2024] VCC 141

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 22-02118

CR 22-02122

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOVAN CULIBRK

MATTHEW MESSENGER

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JUDGE:	HIS HONOUR JUDGE MURPHY
WHERE HELD:	Melbourne
DATE OF HEARING:	6 February 2024
DATE OF SENTENCE:	20 February 2024
CASE MAY BE CITED AS:	DPP v Culibrk & Anor
MEDIUM NEUTRAL CITATION:	[2024] VCC 141

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW

Legislation Cited:  Crimes Act 1958

Cases Cited:Mongrag v The Queen [2018] VSCA 105, Repac v The King [2023] VSCA 313, DPP v Sheckleton [2006] VSCA 169, Sweeney v The King [2023] VSCA 9, R v Katsoulas [2008] VSCA 278, DPP v Abdoula [2019] VCC 1653, DPP v Waite [2018] VCC 1609

Sentence:Culibrk – 5 years 6 months imprisonment, 3 years 3 months Non-Parole Period
Messenger – 3 years 2 months imprisonment

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms P. Thorp (Trial) Mr S. Tan (Plea)	Office of Public Prosecutions
For Accused CULIBRK	Mr S. Anger	Sarah Pratt & Associates
For Accused MESSENGER	Mr N. Howard	Paul Vale Criminal Law

HIS HONOUR: 

Introduction

1Mr Culibrk, on 15 November 2023 after a short trial you were found guilty by a jury of the offences of one count of attempted burglary, one count of attempted aggravated burglary, four counts of burglary, four counts of theft, and one count of theft of a motor vehicle.

2You, Mr Messenger, have pleaded guilty to one count of attempted burglary, four counts of burglary, five counts of theft, and three counts of theft of a motor vehicle. You have also pleaded guilty to two summary charges being of driving a vehicle without number plates affixed and one count of possessing a prohibited weapon without exemption.

3The relevant maximum penalties for all the charges are set out in the prosecution plea openings which I have exhibited.

4You, Mr Culibrk, must be sentenced consistently with the jury verdicts, and you, Mr Messenger, must be sentenced on the basis of the prosecution plea opening dated 6 February 2024.

5The offending arose in the context of four burglaries and two attempted burglaries on residential properties and associated thefts of valuables and thefts of motor vehicles.

6The offending occurred over the period 13 May 2022 to 22 June 2022. As will emerge, a number of the offences occurred in company and although you, Mr Culibrk, took the matter to trial, it was agreed between the parties that there was a common factual basis upon which the two of you are to be sentenced.

Outline of the offending

7It is convenient to set out the circumstances of the offending by reference to eight separate incidents in order to describe the charges for which you have either been found guilty or have pleaded guilty to.

8Preparatory incident, Mr Messenger – theft of vehicle between 13 May 2022 and 15 May 2022 and theft of fuel on 9 June 2022.

9Incident 1, both offenders – 9 June 2022 – attempted burglary at Narre Warren.

10Incident 2, both offenders – 9 June 2022 burglary and theft, and theft of motor vehicle at Glen Waverley.

11Incident 3, Mr Culibrk only – 11 June 2022 attempted aggravated burglary at Springvale South

12Incident 4, both offenders – 20 June 2022 – burglary and theft at Lynbrook.

13Incident 5, both offenders – 20 June 2022 – burglary and theft at Berwick.

14Incident 6, both offenders – 21 June 2022 - burglary and theft at Blackburn.

15Final offence, Mr Messenger only - 22 June 2022 theft of motor vehicle.

16The prosecution case against you, Mr Culibrk, in relation to the six separate incidents, relied on CCTV footage and observation of various witnesses to identify you as involved in the various events, accompanied by you Mr Messenger in those same events.

17The prosecution also relied on circumstantial evidence, including the doctrine of recent possession, to prove its case against you, Mr Culibrk, and invited the jury to engage in coincidence reasoning in relation to the similarity between a number of the incidents.

Preparatory incident : Theft of Motor Vehicle and Theft - Mr Messenger (Charges 1 & 2)

18Some time prior to 9:30 pm on 15 May 2022 a residential home in Northcote was broken into and car keys to two vehicles, house keys, and a ring worth $4,000 were stolen. A 2014 grey Volkswagen Amarok registered number 1CE 3VK valued at $28,000 and containing $20,000 worth of tools was also stolen from inside the garage.

19At 6:25 am on 9 June 2022 the same vehicle, now displaying registration plates AAD 567 was caught on CCTV footage at the Coles express service station at Narre Warren.  You, Mr Messenger, were captured driving the vehicle into the service station, filling it up with 76 litres of diesel and driving off without paying. The use of the vehicle constitutes the offence of theft of a motor vehicle, Count 1, and Count 2 is theft of the diesel valued at $152.51.

20The prosecution is unable to prove that you were involved in the burglary at the Northcote property, and thus you are to be sentenced only for theft of the motor vehicle on the basis that you were in control of that vehicle on 9 June, and for the theft of the fuel.

21As will emerge, the Amarok vehicle was involved later in incidents three and five, and was recovered by the police on 13 June 2022.

22The false number plates AAD 567 were located in the stolen Toyota HiAce vehicle which is the subject of the final offence below.

Incident 1: Narre Warren - Attempted Burglary – Mr Messenger (Charge 3) and Mr Culibrk (Charge 1)

23The complainant lived in a modern two storey house in Narre Warren which was equipped with CCTV cameras. Around 7:50 am on 9 June, he was upstairs in bed when he heard someone trying to open a door in his house. He came downstairs and heard the sound of someone trying to open a sliding door at the back of the house. He saw a person outside. He screamed at him. He saw the offender running towards the fence.

24The CCTV footage captures the Amarok vehicle on the road outside the house from 7:30 am and a person dressed very like the person involved in the theft of the diesel earlier that morning emerging from the vehicle and walking to the front of the house.

25He knocks on the door number of times. A short time later the CCTV footage shows a person walking around the backyard in the direction of the side of the house. He is rummaging through a backpack and pulls out a yellow screwdriver. He removes the fly screen from the window and appears to be talking on a mobile phone. The complainant ran downstairs and saw you, Mr Culibrk, at the back door trying to break into the house through a glass sliding door using the screwdriver and he yelled out 'Thief, thief'.

26The Amarok vehicle drives away from the property and the offender at the back of the house gets into the vehicle and it drives off.

27The jury must have been satisfied that you, Mr Culibrk, were the person attempting to break into the back of the house. You, Mr Messenger, have admitted that you were driving the vehicle.

28Your driving of the vehicle with the false number plates, Mr Messenger, is the basis of the summary offence of driving a vehicle without proper number plates, to which you have pleaded guilty, maximum penalty 12 penalty units.

Assessment

29This was a serious example of attempted burglary. The two of you were in company. You were acting in a co-ordinated manner. You, Mr Culibrk, were armed with a screwdriver to allow you to attempt to break into the property. You had removed the fly screen and the sliding door was off its tracks.  There was damage to the window frame. The offending was brazen in that it was in daylight and you had disturbed the sleeping occupant of the property.

Incident 2: Glen Waverley – Burglary, Theft and Theft of Motor Vehicle – Mr Culibrk (Charges 2, 3 & 4) and Mr Messenger (Charges 4, 5 & 6)

30The complainant in this matter left her suburban home around 10.30 am on 9 June 2022. She returned at 1:20 pm and found the main door was open, all drawers were open and her wedding ring, engagement ring, other valuable jewellery, her passport and her Medicare card had been taken. She called the police who took photographs. After the police left she discovered that a spare set of car keys to her Camry, vehicle registered number BVC 891 were missing. She also found a large sum of money had been stolen. The next morning she woke to take her child to school and found that the car had been stolen overnight.

31You, Mr Messenger, have pleaded guilty to the burglary of the property, theft of the car and the valuables.

32You, Mr Culibrk, pleaded not guilty but the jury found you guilty of the offences, relying on your association with Mr Messenger and circumstantial evidence linking you to the offending, namely, your subsequent use of the Camry vehicle in association with the recovered property.

33The car was recovered by the police on 22 June when you were both arrested at the home of Mr Culibrk's mother.

34The passport and Medicare card of the complainant in this matter were discovered in the stolen Toyota HiAce vehicle, which is the subject of Charge 11 against you, Mr Messenger.

Assessment

35This was another brazen daytime burglary where valuable property was stolen in a residential home intrusion. Further, the two of you returned to the property at night after the initial burglary in order to steal the vehicle having earlier stolen the spare set of keys. This was determined offending where, other than the vehicle, the valuable property was not recovered.

Incident 3: Springvale South – Attempted Aggravated Burglary – Mr Culibrk (Charge 5)

36You, Mr Culibrk, were found guilty of this attempted aggravated burglary at a modern two storey property in Springvale South. Although you were not charged with this offence, Mr Messenger, and are not to be sentenced for it, you accompanied Mr Culibrk in this attempt.

37The offending occurred shortly after midnight on 11 June 2022 when both of you attended at the property. The complainant was home with his parents, siblings and others. He heard a loud knock on the door and heard attempts to force open the door. He told the two of you to 'Fuck off'. You, Mr Culibrk, returned to the door and it was opened by the complainant. He asked you what you wanted and you said you were looking for No.24. You were told that this was the wrong number. The door was closed.

38A short time later you, Mr Culibrk, returned to the door and attempted to kick it in. Again, you were told to leave. The complainant went to the kitchen to get a knife and confronted you. The two of you then left the property and escaped in a vehicle that looked very similar to the Amarok vehicle that had been used in Incident 1.

39A jemmy bar similar to the one that one of you was seen using on the camera footage at the front door was found in the stolen Toyota HiAce vehicle recovered by the police on 22 June.

Victim impact statement

40The complainant in this matter has filed a victim impact statement. He indicates that in the first six months after this offence occurred he was unable to sleep as he stayed up late watching the security cameras. Noises would cause him to go on high alert. He feels like Melbourne is not a safe place anymore and he is reminded of the event by the daily news. His family has been forced to invest heavily in home security. He worries that when he moves out there will be no-one to protect his parents so he is moving close to them.

41It is clear from the VIS that this offence has had a major and continuing impact on the complainant in this matter, which goes to increase the seriousness of the offending here.

Assessment

42This was a serious example of an attempted aggravated burglary. The offending was in the middle of the night, and you, Mr Culibrk, were in the company of Mr Messenger. The heavy door was damaged and forced open. A jemmy bar was used. You, Mr Culibrk, returned to attempt to get into the property after you had been told by the complainant in no uncertain terms to leave. Two of the occupants of the residence were disturbed in the attempt.

Incident 4: Lynbrook – Burglary and Theft – Mr Culibrk (Charges 6 & 7) and Mr Messenger (Charges 7 & 8)

43The complainant in this matter returned to his suburban home on the afternoon of 20 June and found that it had been broken into and jewellery, a mobile phone and his CCTV hard drive had been stolen.

44He retrieved the CCTV footage from the neighbour across the road and it was used by the police in order to identify the two of you as the burglars.

45The CCTV footage, which is the basis for the charges, shows a Camry vehicle similar to that stolen in Incident 2.

46The footage shows a white Camry pulling up at the property at about 10.00 am. You, Mr Messenger, are dressed in a Hi Vis jumper. You got out of the car and walked to the front door and knocked on it. You returned to the vehicle. The vehicle then can be seen to drive past the property twice a short time later.

47At 10.17 AM you, Mr Culibrk, approached the house and climbed over the bins and entered the side house yard.

48Fifteen minutes later Mr Messenger arrived driving the Camry, backed up to the driveway and opened the boot. The garage door opens and both of you can be seen at the back of the vehicle putting something into the boot and then both of you get into the vehicle and it drives away.

49At 2:22 the two of you return to the home and again the vehicle was parked in the street. The garage door is opened and lifted and the two of you can be seen entering and leaving the property.

50The stolen hard drive was later identified by the complainant and found in the boot of the Camry on 22 June. When recovered the Camry was bearing different registration plates from when stolen in Incident 2.

51When your phone was seized Mr Messenger it showed multiple calls were made to the landline of the address on 20 June 2022.

Assessment

52This again was another determined burglary perpetrated by the two of you. You had clearly cased the premises. After perpetrating the original burglary you sought to cover your tracks by seizing the CCTV hard drive and then returned to the property four hours later.

53The phone calls from your phone Mr Messenger to the property landline shows that you must have had some knowledge of the property in order to be able to ring the landline on numerous occasions.

Incident 5: Berwick – Burglary and Theft – Mr Culibrk (Charges 8 & 9) and Mr Messenger (Charges 9 & 10)

54The offending here occurred on the same day as the offending in Incident 4. The complainant left home early in the morning of 20 June. She arrived back at 4:30 pm and found that her house had been broken into. A back door had been forced causing damage to the door. A number of designer handbags had been stolen along with jewellery.

55Four of the stolen handbags were located in the stolen Toyota HiAce van with false number plates BCU 587 located by the police when the two of you were arrested on 22 June. You, Mr Messenger, were found in possession of the keys to that vehicle and a bankcard in your name was found in the vehicle.  You, Mr Messenger, have pleaded guilty to the charges.

56You, Mr Culibrk, were found guilty on the basis of circumstantial evidence in that you, in company with Mr Messenger, were in possession of the recently stolen designer handbags which led inexorably to the conclusion that you Mr Culibrk were involved in the original burglary.

Victim impact statement.

57In that statement the victim indicates that her 10-year-old son and seven-year-old daughter were the initial individuals to enter the home and discover the crime scene. This has had a major impact on them due to the fear of encountering intruders in the future and the disturbance to the sanctity of their home.

Assessment.

58This is a further domestic burglary perpetrated as part of a spate of burglaries.

Incident 6: Blackburn - Burglary and Theft – Mr Culibrk (Charges 10 & 11) and Mr Messenger (Charges 11 & 12)

59Between 8.00 am and 1:30 pm on 21 June, you Mr Messenger broke into the home of the complainants and stole a safe from the master bedroom that contained $10,000 worth of jewellery, legal documents, passports, keys, bank account details and bank cards. At 1:44 pm $1,000 was withdrawn from a bank account of the female complainant.

60At the time of the arrest of the two of you on 22 June, the following property was found in the back of the white Toyota HiAce bearing registration number 1QK 6PY.  There were keys, two bankcards in the name of the male complainant, one bankcard in the name of the female complainant, a Will in the name of the male complainant, and hard drives.

61The passport cover and photograph of the female complainant were found in the rear seat of the Camry with stolen number plates BVC 891. Both of you were seen inside that vehicle.

62When your phone was analysed, Mr Messenger, there was a photograph of the Blackburn property taken on 22 June at 11 am, as well as a photograph depicting a piece of paper and PIN numbers and other confidential information that had come from the stolen safe.

63The prosecution relied on circumstantial reasoning to find you, Mr Culibrk, guilty by reason of complicity of this offence. You, Mr Messenger, have pleaded guilty to it. Property from the burglary was found in both vehicles that the two of you were associated with when you were arrested on 22 June.

Assessment

64This was another determined burglary where you had clearly cased the property. You stole a safe and were able to open that safe and then utilised the personal material and bankcards following that theft.

Final offences and arrests – Mr Messenger (Charge 13)

65On 22 June police arrested both of you. You were at the property of your mother, Mr Culibrk, and were both in the stolen Camry vehicle and had been seen near the number plate which had come from a vehicle in Vermont South. Further, you Mr Messenger were in possession of the keys to the stolen Toyota HiAce vehicle, registered number 1QK 6PY parked on the street which was displaying plates BCU 587. This gives rise to Charge 12, theft of a motor vehicle.

66As noted, in the vehicle was property stolen from Incident 4, the hard drive, Incident 5, the handbags, and Incident 6, the passport document.

67The items found in both vehicles were part of the circumstantial case against both of you based on recent possession of stolen goods.

68When you were arrested, Mr Messenger, you were found in possession of a taser. This gives rise to the uplifted summary charge of possessing a prohibited weapon without an exemption, maximum penalty 240 penalty units or two years' imprisonment.

Subsequent events

69Both of you were interviewed and gave a 'no comment' record of interview.

70You, Mr Messenger, were in custody for two days and granted bail. You were subsequently re-arrested and are in custody at the moment on other matters.

71You, Mr Culibrk, were refused bail and have been in custody since that time.

Forensic history

72You, Mr Culibrk, took this matter to a contested committal and then to trial.

73Mr Messenger, although the matter was listed for a committal, the matter was adjourned to allow settlement discussions. The matter was committed to this court on a plea of not guilty. There were further case conferences until the settlement discussions led to an offer to plead guilty which was accepted on 23 October last year, shortly before the trial was due to commence.

74You, Mr Messenger, are entitled to credit for your plea of guilty. You have facilitated the course of justice and obviated the need for a trial. The plea is also evidence of remorse.

75Your plea of guilty, however, was relatively late in the piece and thus is not to be accorded the same weight had the matter been the subject of a plea much earlier in the proceedings. I accept, however, there were negotiations in relation to the relevant charges.

Prior convictions

76No prior convictions are alleged against you, Mr Messenger.

77Mr Culibrk, you are aged 28 and you have admitted your criminal record. You have been before the Magistrates' Court on several occasions but have only been before this court on appeals. Your first appearance at Dandenong Magistrates' Court in June 2015, aged 18, was for possession of methylamphetamine, and your next appearance in 2017 was for shoplifting and unlicensed driving. For this latter matter you were placed on a community corrections order, which you subsequently breached.

78In January 2019 you were before the Melbourne Magistrates' Court for offences including burglary, theft and receiving and retaining stolen goods. You were sentenced to nine months' imprisonment and a community corrections order. On appeal to this court in April 2019 you were re-sentenced to nine months' imprisonment with no CCO.

79In December 2019 you were before the Dandenong Magistrates' Court for offences including burglary and theft and were sentenced to 180 days' imprisonment and a 12 month community corrections order. While serving this sentence you were also sentenced to serve 16 days concurrently for offences including attempted burglary at the Ringwood Magistrates' Court.

80This CCO seems to have been of less effect than the learned magistrate may have hoped, as you were again brought before the Dandenong Magistrates' Court in June and October 2020 for contraventions of the order and further offences, including attempted theft and burglary and receiving time served sentences on both occasions.

81In March 2021 you received a sentence of three months' imprisonment for driving-related offences.

82In June 2021 you appeared before the Dandenong Magistrates' Court for charges including burglary, theft, and theft of a motor vehicle, trafficking GHB and methylamphetamine, and several driving and endangerment offences. You received an aggregate sentence of 18 months' imprisonment to be served by way of a drug treatment order. This order was cancelled in October 2021 due to poor compliance with the order and further offending, and you were sentenced to 15 months' imprisonment and a CCO for offences including burglary, theft, theft of a motor vehicle and various driving and drug offences. On appeal to this court in February 2022 the order was cancelled and you were sentenced to 12 months' imprisonment for a number of the earlier offences.

83Thus, your prior offending, Mr Culibrk, includes six counts of burglary, 12 counts of theft and two counts of theft of a motor vehicle.

84I regard your prior appearances, and particularly the burglary and theft matters, as being of significance in sentencing here. You have failed to respond to sentences in the past. The need for specific deterrence is engaged.

85Your prior convictions also increase your culpability for this offending.

86Further, you were on bail at the time of this offending which is an aggravating factor.

Personal circumstances

87Mr Culibrk, your personal circumstances are set out in your plea submission and in the report of Dr Cunningham, psychologist.

88You are currently aged 27 and were raised in the south eastern suburbs of Melbourne by your parents. You have a brother 11 years older than you. You had a disrupted schooling and attended a number of schools after behavioural problems, concluding your schooling at Caulfield Park Community College. At one stage you were living with your aunt due to health problems besetting your mother.

89Your father was in the building industry and when you were aged 18 you were able to commence a carpentry apprenticeship with his business. You successfully pursued this until late 2016 when you suffered a serious industrial accident which led to you ceasing work. According to a reference from your father you were also involved in caring for your mother who was suffering from significant health issues.

90You also entered into a spiral of drug use and criminal conduct. Your spiral into drug use and criminality is confirmed by your criminal record to which I have referred, with you being sentenced to a term of imprisonment for the first time when you were aged 22 on driving offences after breaching a community corrections order.

91Thereafter, it is clear from your criminal record that you committed a spate of dishonesty offences that led to you being placed on a combination sentence with a rehabilitative focus and then ultimately being placed on a Drug Court order which you failed to respond to and which was cancelled.

Report of Dr Cunningham

92Your counsel relied on a report from Dr Cunningham, psychologist. He notes that you commenced using cannabis at age 13 and then methylamphetamine at 15, and after your injury you commenced using a combination of drugs, but despite at one stage an admission to Odyssey House you were not in a position to rehabilitate.

93His psychometric assessment indicates that you have learning impediments consistent with a disrupted schooling.

94He notes that you instructed him that you had been kidnapped and assaulted at one stage and shot in the knee. Your assailants have not been brought to justice. You have suffered PTSD as a result of this event and that continues. His assessment notes that your aunt indicates that you changed significantly after this event and are always stressed and anxious.

95Dr Cunningham's recommendation is that you require a disposition that facilitates your rehabilitation. He is of the view that incarceration will aggravate your PTSD. He notes that you have family support and accommodation and that you require support to avoid negative peers and relapse into drug use. You require counselling to support abstinence. He concludes by noting that:

'Mr Culibrk’s prospects of rehabilitation are dependent on his motivation to abstain from drug use and antisocial peer associations.'

References

96On the plea your counsel submitted a reference from your father. He notes the disruption to your apprenticeship caused by the industrial accident and your assistance to your mother. Further, you spiralled into drug use. He remains supportive of you and is of the opinion that you are committed to attempting to return to your apprenticeship.

97Also in evidence was a reference from your partner. She has been in a relationship with you for the last nine years and you have been parenting her six-year-old son. The relationship has been difficult at times but she will continue to support you and is optimistic as to your future prospects.

98A further reference from your partner's mother notes that the offending is out of character and you have shown remorse, and she is also of the view that you have the potential to move into being a responsible law-abiding citizen.

99Your counsel also submitted a reference from the YMCA. You have been involved in their rebuilding program in Ravenhall and they are prepared to offer you a position upon release.

100In support of your counsel's argument that you are on the way to rehabilitation, your counsel submitted certificates of courses that you have undertaken while in prison and also clean drug screens. I have taken them into account in your favour.

Prospects of rehabilitation

101Given your prior criminal history, your recent release from prison prior to this offending, your plea of not guilty and thus lack of insight or remorse, I place your prospects of rehabilitation as fair. You are a comparatively late entrant into the criminal justice system and your offending appears attributable to drug addiction. As indicated in the report of Dr Cunningham, you require significant support to address your PTSD and your prior drug addiction. On the other hand, you do have family support, an offer of housing and a job, and you have had employment prior to your workplace injury.

102It appears from the references and the report of Dr Cunningham that notwithstanding your plea of not guilty, you do have some insight into your offending and understand what is required to turn your life around.

103This sentence will be the longest sentence that you have served. This will allow a significant period of abstinence, a break from your criminal associates and an opportunity to mature.

104Your counsel submitted that the period of time that you have currently served would be an appropriate minimum sentence for you. I regard your offending considered as a whole as very serious and calling for a sentence with a non-parole period greater than the time that you have been in custody.

105I have considered all the submissions, and in particular the report from Dr Cunningham, and the references and the efforts that you have undertaken whilst in custody, and also the opinion of Dr Cunningham that your PTSD will be aggravated by custody. I have taken those factors into account in your favour. I have also had regard to your age. You are a youngish man that is a factor in sentencing.

106All the matters I have referred to are relevant in constructing both a sentence and an appropriate non-parole period. Given the matters that I have discussed, and in particular the report of Dr Cunningham that you would benefit from further revised treatment, and your relatively late entry into criminality, I regard it as appropriate to impose a longer than usual period under parole supervision that will provide the best prospect for your return to the community.

107I turn to you Mr Messenger.

108Mr Messenger, your personal circumstances are set out in your plea submission and in the report of Dr Grech, consultant clinical psychologist. You were born in August 1995 and thus were 26 years of age at the time of the offending. You are a year older than your co-offender and are now aged 28.

109You were born in the Pilbara region of WA and spent your early years with your mother and three siblings in Geraldton. Your early relationship with your father was non-existent until you were aged eight when you were reunited with your father to escape abuse from your mother. Your father was a truck driver and thus you spent a lot of times without any supervision.

110Your schooling was disrupted and you left school having completed Year 9. At age 15 you moved to Victoria on your own and worked in the construction industry driving forklifts and cranes for eight years.

111In late 2019 you fell into the wrong crowd and commenced using various drugs including amphetamines. You ceased to be employed. You were close to your brother, Michael, who had remained in Western Australia but who took his own life in February 2023, and this had a major impact on you, particularly given that you were unable to attend the funeral.

112Your counsel relied on comments by Dr Grech that indicates that he is of the view that you have significant insight and report shame, embarrassment and deep remorse for your behaviour.

113You were first referred for alcohol and drug counselling in September 2022 and completed two telehealth visits. Subsequently you engaged in four psychology consultations with Dr Grech from November 2023 to earlier this year.

114His assessment is that you are suffering a moderate level of major depression, PTSD and adult ADHD. You are demonstrating improving insight with psychological therapy. You recognise the benefit of availing yourself of ongoing psychological therapy. Dr Grech is prepared to remain involved.

115You have been in a relationship with a Miss Morrell for approximately 15 months and she is supporting you, particularly in circumstances where Dr Grech's view is that you are suffering significant distress.

Outstanding matters

116You are facing the Magistrates' Court for three different sets of offending subsequent to this offending. The offending is of a similar nature to the offending with which I am dealing.

117The lapse into further offending is troubling. On the other hand you do come before this court, indeed any court, without any prior appearances, with a significant employment record until you fell into the use of highly addictive drugs, and now with the assistance of psychological therapy have insight into your behaviours and remorse. I accept that you are genuinely remorseful for your conduct.

118Given your difficult upbringing where you effectively have been on your own in the world since aged around 15 and you have a significant employment record until your early 20s, your insight is a significant matter for a person of your age. It is relevant to your prospects of rehabilitation which I would regard as good.

119Your counsel sought a combination sentence. I determined, however, that the offending here is too serious for a combination sentence.

120Your counsel, however, submitted that you are a different person from the person who was involved in this offending 20 months ago. The matters that I have canvassed in relation to your history in the content of the Dr Grech report are such that this is your first sentence of imprisonment and at age 28 it will have a very salutary impact on you. I find that with continued psychological support it is very probable that you will learn the lesson of your ways and that your prospects of rehabilitation can be regarded as good. I have considered that as an important focus of the sentence.

Sentencing submissions

121In her sentencing submissions, the learned prosecutor emphasised the seriousness of the offence of attempted aggravated burglary, to which you have pleaded guilty, Mr Culibrk. The offending here was in company and the complainant saw the two of you trying to get into his house. It was also part of a pattern of offending.

122She referred to the case of Mongrag v The Queen [2018] VSCA 105 which has some similarities, although the relevant offender was a youthful offender and the sentence was regarded as merciful.

123She also emphasised the fact that the balance of the offending that both of you are to be dealt with for was a spate of serious offending of burglary on residential properties. There was evidence of planning, significant valuable property was taken, not all of which was recovered.

124The offending occurred in company.

125Your counsel, Mr Culibrk, submitted that the offending must be seen as of a mid-range of seriousness.

126Your counsel, Mr Messenger, submitted that this was somewhat amateurish offending. I do not accept that characterisation. This was determined offending in company. Although only two victim impact statements were filed, it is a reasonable inference that the other complainants would also have been impacted in a similar way by the intrusion into their residential properties.

Comparable cases and current sentencing practices

127The prosecution and the parties relied on a number of cases including Repac v The King [2023] VSCA 313, DPP v Sheckleton [2006] VSCA 169, Sweeney v The King [2023] VSCA 9, R v Katsoulas [2008] VSCA 278, DPP v Abdoula [2019] VCC 1653, and the defence also referred to Sweeney and Katsoulas, as well as DPP v Waite [2018] VCC 1609.

128I have considered all of the cases as illuminating the approach where offenders face multiple counts of burglary and theft as here.  They are only of limited assistance, however, due to the different circumstances of the offending and the age and antecedents of the offenders.

129The decisions, however, confirm that the Court of Appeal regards burglary as a serious offence calling for significant punishment and, as submitted by the learned prosecutor, the offence of aggravated burglary is also regarded as even more seriously, calling for denunciation and general deterrence.

130In this case, while the offence in your case Mr Culibrk was not successful, it was a very determined attempt.

131In sentencing each of you this was a course of conduct over a narrow time period, although the sentence must reflect the individual victims in the matter.

132Parity is an important consideration. You were both involved in a number of the offences, although there is no need to differentiate your roles. The appropriate sentence, however, will not be identical because you Mr Culibrk pleaded not guilty, you were on bail at the time, and you also have significant antecedents. Given your prior experience with the criminal justice system I have also regarded your prospects of rehabilitation as less significantly favourable than those of Mr Messenger.

133In sentencing for multiple offences, considerations of totality also come into play. After considering each of the individual offences it is necessary for the court to step back and consider the overall criminality and craft a sentence that is proportionate to the criminality.

134The conduct of each of you must be utterly denounced. General deterrence plays an important consideration. People are entitled to leave their homes to go to work and not expect to come back and find them burgled, cars stolen and valuables stolen. You, Mr Culibrk, failed in your attempt to break into the property at Springvale South. You were fully aware that the occupants were present and went ahead. This was serious offending.

135Similarly, the two of you failed in your attempt to break into the Narre Warren property. Again, it was a determined effort and both of you are to be denounced for your conduct.

136In your case, Mr Culibrk, specific deterrence is a consideration given the opportunities that you have had in the past that you have failed to respond to. Notwithstanding your criminal record, Mr Culibrk, it is in the community interests that you be rehabilitated, and you are showing some prospects since your incarceration. Similarly, you require significant treatment and this is relevant to sentence.

137In your case, Mr Messenger, I will accord you significant leniency given your age and the matters that I have referred to above, and in particular the fact that you are before the courts for the first time. The community interest is in giving you this one last chance.

Purposes of sentencing

138The basic purposes for which a court may impose a sentence are punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community.  In sentencing I must have regard to a range of factors such as the seriousness of the offences, your culpability for them, your personal circumstances and those of the victims, if any.  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 as far as possible offenders are rehabilitated and reintegrated into society.

139I have sought to balance the competing sentencing considerations that I have discussed above in relation to each of you and taken into account your similar roles but different antecedents and plea, as well as the different number of offences, and I sentence each of you as follows.

140Mr Culibrk, you are to be sentenced for a total effective sentence of five years and six months with a non-parole period of three years and three months.

141You, Mr Messenger, are to be sentenced to a total effective sentence of three years and two months with a non-parole period of 21 months.

142The individual sentences are as follows: The individual sentence in relation to you, Mr Culibrk, Charge 1, attempted burglary, 24 months.  Charge 2, burglary, 36 months.  Charge 3, theft, 24 months.  Charge 4, theft of a motor vehicle, 12 months.  Charge 5, attempted burglary, 45 months, base sentence.  Charge 6, burglary, 36 months.  Charge 7, theft, 24 months.  Charge 8, burglary, 36 months.  Charge 9, theft, 24 months.  Charge 10, burglary, 36 months.  Charge 11, theft, 24 months.

143I direct that four months of the sentence on Charge 1, four months of the sentence on Charge 4, one month of the sentence on Charge 6, four months of the sentence on Charge 7, four months of the sentence on Charge 9 and four months of the sentence on Charge 11, be served cumulatively on the base sentence and on each other, making a total effective sentence of five years and six months and I order that you serve a minimum period of three years and three months before being eligible for parole and I declare that you have served 607 days presentence detention, excluding today.

144Turning to you, Mr Messenger, on Charge 1 of theft of a motor vehicle, you are sentenced to six months' imprisonment.  Charge 2, theft of the petrol diesel, seven days.  Charge 3, attempted burglary, 18 months.  Summary charge, driving a vehicle without numberplates, convicted and fined $500.  Charge 4, burglary, 24 months.  That is the base sentence.  Charge 5, theft, 18 months.  Charge 6, theft of a motor vehicle, 9 months.  Charge 7, burglary, 24 months.  Charge 8, theft, 18 months.  Charge 9, burglary, 24 months.  Charge 10, theft, 18 months.  Charge 11, burglary, 24 months.  Charge 12, theft, 18 months.  Charge 13, theft of the motor vehicle, 9 months.  Summary Charge 13, possessing a prohibited weapon, sentenced to seven days' imprisonment.

145I order the following cumulation on the base sentence, one month on the theft of the motor vehicle, Charge 1.  Two months on the Charge 3, attempted burglary.  One month on Charge 6, theft of a motor vehicle.  Three months on Charge 7, burglary.  Three months on Charge 9, burglary.  Three months on Charge 11, burglary and one month on Charge 13.  The total effective sentence is three years and two months. The non-parole period is one year and nine months. If you had not have pleaded guilty, Mr Messenger, I would have imposed a total effective sentence of three years and six months, with a non-parole period of two years and four months and I declare that you have served 70 days PSD

146I also make the disposal order for the drug paraphernalia and the forfeiture order for the weapons that have been sought by the prosecutor. 

147Mr Culibrk’s summary matters that weren't dealt with are to be remitted to the Dandenong Magistrates' Court on 3 April.

148I want to thank both counsel in this matter, the prosecutors Ms Thorpe for the trial and Mr Tan for plea, and Mr Howard for Mr Messenger and Mr Anger for Mr Culibrk and I wish both prisoners all the best in their future life after the sentence that I've imposed.

‑ ‑ ‑

Sentence Chart
Jovan CULIBRK
Charge	Sentence	Cumulation
1 – Attempted Burglary	24 Months	4 Months
2 – Burglary	36 Months	4 Months
3 – Theft	24 Months	-
4 – Theft Of Motor Vehicle	12 Months	1 Month
5 – Attempted Aggravated Burglary	45 Months	Base Sentence
6 – Burglary	36 Months	4 Months
7 – Theft	24 Months	-
8 – Burglary	36 Months	4 Months
9 – Theft	24 Months	-
10 – Burglary	36 Months	4 Months
11 – Theft	24 Months	-
Total Effective Sentence	5 Years 6 Months
Non-Parole Period	3 years 3 Months
PSD	607 Days
Matthew MESSENGER
Charge	Sentence	Cumulation
1 – Theft Of Motor Vehicle	6 Months	1 Month
2 – Theft	7 Days	-
3 – Attempted Burglary	18 Months	2 Months
Summary Charge 12 –Drive Vehicle W/out Number Plates	$500	-
4 - Burglary	24 Months	Base Sentence
5 – Theft	18 Months	-
6 – Theft Of Motor Vehicle	9 Months	1 Month
7 – Burglary	24 Months	3 Months
8 – Theft	18 Months	-
9 – Burglary	24 Months	3 Months
10 – Theft	18 Months	-
11 - Burglary	24 Months	3 Months
12 – Theft	18 Months	-
13 – Theft Of Motor Vehicle	9 Months	1 Month
Summary Charge 13 – Possess Prohibited Weapon	7 Days	-
Total Effective Sentence	3 Years 2 Months
Non-Parole Period	21 Months
PSD	70 Days
S 6AAA	3 years 6 Months, NPP 2 years 4 Months