Director of Public Prosecutions v Dahmes
[2018] VCC 1263
•14 August 2018
guj
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE | Revised Not Restricted Suitable for Publication |
CRIMINAL DIVISION
CR-16-02267
Indictment No: G10974606
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| DANIEL BENJAMIN DAHMES |
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JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 August 2018 | |
DATE OF SENTENCE: | 14 August 2018 | |
CASE MAY BE CITED AS: | DPP v DAHMES | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1263 | |
REASONS FOR SENTENCE
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Subject:aggravated burglary, theft, attempt to obtain property and obtain property by deception. Night time entry to occupied residential premises to steal.
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr W. Stougiannos | Office of Public Prosecutions |
| For the Accused | Mr W. Toohey | Giorgianni and Liang Lawyers |
HIS HONOUR:
Daniel Benjamin Dahmes, you have pleaded guilty to one charge of aggravated burglary, one charge of theft, one charge of attempting to obtain property by deception and one charge of obtaining property by deception. Charges 2 to 4 on the indictment are rolled up charges dealing with a variety of acts. The aggravated burglary is punishable by a maximum of 25 years imprisonment, the theft and obtain property by a maximum of 10 years' imprisonment. The attempt has the lesser five year maximum term of imprisonment at play.
You have a quite short criminal history of no great relevance to my task.
This matter was opened to me on 2 August by Mr Stougiannos, who then appeared on behalf of the Director of Public Prosecutions. A written opening, dated
25 January 2018, was marked as Exhibit A on the plea. Your counsel Mr Toohey informed the court that this was an agreed statement of facts.
In such circumstances, I believe it is unnecessary to go into the full details of your offending in these my reasons. Exhibit A is a quite lengthy and detailed summary and sets out the agreed factual basis. I will not stray beyond those agreed facts.
Stated very briefly, on 2 April 2016 you entered as a trespasser a house at 43 Hilda Street in Balwyn. You did so in company with a young man named Rooney in the early hours of the morning, after the residents had retired to bed. You entered intending to steal. The feature making it an aggravated burglary was the presence of persons within the premises and your knowledge or recklessness in that regard. Entry was sometime after about 12.53 am and before 6 am. Inside was an adult couple and their adult daughter. They were all asleep upstairs in the house. Thankfully they did not hear the entry and woke the next morning to discover the entry and the various thefts. It is clear enough from the text traffic that your offsider Rooney was the instigator in the sense of selecting the house. He had somehow obtained the garage door opener. He pleaded guilty to handling that item. He texted you and told you of the house and the presence of a BMW and a Mercedes. It is equally plain that you did not need much if any encouragement. His first text seemingly contemplated your possible involvement. He said “wait till you see the place I just got the key access to”. You asked where, he told you broadly and also told you of the BMW and the Mercedes in the garage. You asked him if he wanted a hand and with that the partnership took form. At 5.24 pm, in response to his text “me n u bro” you said “done bro I’ll head over shortly just havin showers”. He said “sweet’. There was later text traffic shortly after 10 pm and later on still at 12.48 am you sent a text saying “oi bro let's do this’. He texted back saying he was coming out now and at 12.53 am he said he was just grabbing a hoodie.
The fact is of course you needed the cars to be in place and the keys to be present. The cars were plainly enough the target. You essentially needed the residents to be home, but I am sure you hoped not to disturb them. Luckily you did not, though the risk of confrontation is patent in this sort of exercise. It was not, however, a confrontational aggravated burglary. Anyway, you both entered the house via the garage. The two cars were taken, also some property from the kitchen. As to the cars, you are only to be sentenced for the theft of the Mercedes. Rooney was sentenced for both. Later that same day, and in the days following, you attempted to use and used some of the stolen cards. Those acts are captured by parts of Charge 3 and 4 and the acts are set out in paragraphs 15 to 20 of the opening. They are between dates charges. Footage available provided proof of your using those cards and driving that stolen Mercedes in this tight timeframe, which in conjunction with the text evidence, was simply overwhelming evidence of your involvement in the aggravated burglary. The conduct on 7 April also had your acting dishonestly in relation to a matter totally unrelated to the aggravated burglary, by the use of a cheque from a Ms Sun’s chequebook, in an endeavour to cash a $2700 cheque at the Thomastown branch of the Commonwealth Bank. Ms Sun’s house in Bundoora had been burgled in late March 2016 and items had been stolen, including her cheque book. Of course you do not fall to be sentenced for that burglary or theft. Interestingly, whilst engaged in that fraudulent activity at the bank, (encompassed as part of rolled up Charge 3) you then opportunistically came upon a purse that had been mistakenly left at the counter by a customer and stole that as well. That theft is rolled up into Charge 2.
You were arrested on 11 April 2016 and really, the less said about your police interview the better. You lied about your involvement in the aggravated burglary, but of course, it is in no way an aggravating feature that you chose to lie to the police. You were quite indignant when told you would be charged with the aggravated burglary. See Questions 383 to 389. A committal hearing was conducted in December 2016. Again, that was your right. Heaven knows why you chose to exercise it, but you did. Only the informant was called at those proceedings. At committal your participation in the aggravated burglary and implicitly the theft of items and the cars was the issue and there were absurd questions flagging the so called possibility of your co-accused having stolen one car and then gone back and taken the other, without your having any role at all in the theft. It was silly stuff indeed when regard was had to the timing of your being in the Mercedes and the texts sent between you and Rooney, in the lead up. But no doubt, all of this was done on your instructions. You were committed for trial with a trial listed in September 2017.
The matter was proceeding as a trial in relation to the aggravated burglary and the theft of any items from that house including the cars. A defence response was filed spelling that out. The matter settled in the week before the trial listing and you were arraigned on what would have been the first day of the trial. As I understand it, there was then some claim made by you as to your indigenous status and the eligibility therefore of the Koori Court. The case was adjourned to a plea date in February and then from February, to allow further time for you to obtain cultural eligibility materials. Your claim as to indigenous status, for whatever reason, fell by the wayside and here we are now then in August of 2018.
Your co-accused Rooney pleaded guilty at the earliest opportunity and he was dealt with in November of 2016 by Judge Misso of this court. The reasons for sentence in his case are marked as Exhibit C. I have also read the Court of Appeal decision in that case. See Rooney v The Queen [2017] VSCA 275. Your wife was also dealt with for some related conduct, but her disposition which is set out in the agreed summary says very little as to what is required in your case. She had no prior history at all and of course, she was not involved in the aggravated burglary or thefts from the house.
You had spent 42 days in custody up to the day of the plea. You had in fact been arrested on the date that I have described, but then bailed in May of 2016. That accounts for the 42 days. I remanded you on the day of the plea so of course that pre-sentence detention figure has risen. There is nothing outstanding, though Mr Toohey told me of the existence of some offences that occurred after you had been released on bail. They were the offences that were dealt with at the Ringwood Magistrates Court in September of 2016 and you had spent an additional 44 days in custody on those matters.
In Mitigation
Mr Toohey conducted a plea on your behalf and relied upon a number of matters in mitigation. He had produced a detailed written outline that was marked as Exhibit 3 on the plea. The matters raised in mitigation principally were:
· Your guilty plea;
· The presence of some remorse;
· He relied upon two reports from Dr Cunningham, a psychologist, as well as a bundle of payslips and a reference from an employment agency and evidence that was led from your uncle.
Mr Toohey took me to your personal background, which was also detailed in those two reports. He made submissions as to the particular personal circumstances leading in to the offending. That is, relationship issues, lack of employment, financial pressure, drug use and also homelessness. He made submissions as to the level of seriousness of the offending and emphasised repeatedly that this was not a confrontational aggravated burglary. He pointed to the instigation of the co-accused, a person he said with a more relevant prior criminal history and he submitted that the concept of parity compelled that you should do far better by way of sentence. As you will ultimately see, you are going to fare better than Rooney, but if I may say so, Mr Toohey’s submissions failed to a degree to grapple with some of the differences flowing in Rooney’s favour, including his youth (he was but 21 years of age) and his earliest of guilty pleas. I will return to these concepts later in my reasons. Mr Toohey argued that it was open to impose a straight community corrections order here, or failing that, a term of imprisonment with your ultimate release onto a community corrections order upon the expiry of the prison term.
Prosecution
Mr Stougiannos, who as I say, appeared on behalf of the Director of Public Prosecutions, submitted that this was very serious offending, with a significant impact and the need for general deterrence loomed large. The prosecution conceded of course that it was not a confrontational aggravated burglary, but submitted that it was far too serious for a straight community corrections order. They submitted that it would be open to impose a term of imprisonment which would then permit the imposition also of a community corrections order taking effect upon your ultimate release.
Victim impact
There is a victim impact statement here from Ms Nicolau marked as Exhibit B on the plea. It was obviously enough prepared for the co-accused man’s plea, but has equal force in your case as was conceded by your counsel. No issue is taken with that impact statement or its form. The sentiments expressed within that document may explain why aggravated burglary is viewed as seriously as it is. Many statements have been made by the courts as to the way that aggravated burglary can impact upon the feelings of safety and well-being of the occupant or homeowner. Well those sentiments are all on display in the victim impact statement filed in this matter. It is a brief statement, but very much to the point. Your victim has been seriously affected by your crime, there is no question about that. Owing to your joint entry, as they slept, she and her family no longer felt safe. They moved to a new home. A costly and emotional decision. Your crime has obviously had a sizeable impact upon her. I take into account that impact as I am required to.
Background
15 I turn briefly to your background. I am not going to restate all that I was told. Your background is set out in quite some detail in the written plea outline submissions filed on the plea (Exhibit 3), as well as in the expert reports filed on the plea, Exhibit 4. Additionally, your counsel Mr Toohey came well prepared and made further oral submissions as to your background. There is simply no utility in me restating now all that I was told. I have no reason at all to doubt the material provided to me, as to your early childhood and family background and I do accept it. It was not a particularly happy background. Your mother was an alcoholic. She separated from your father and had a couple of partners who were themselves abusive both to her and to you. You had a reasonably poor relationship with your father it would appear. From your mid-teens you were up in Queensland. You have one sister and she still supports you. She has a successful business. Your mother died earlier this year aged 54. Your father died in 2014 I think down in Tasmania from memory and you have a sense of guilt in relation to that event, though of course you should not. Your uncle developed that theme in the course of the evidence that he gave before me and it is referred to also in the reports of Dr Cunningham. Going back to your earlier days, you left school in Year 8 or thereabouts. Despite that disadvantaged background, which I do take into account in your favour as far as I am able to, you have actually done pretty well. You have had a strong if not very strong work history and your criminal history is not long and is of very little relevance at all to my task. About all it does is prevent your counsel from saying that you have no criminal history. It really is not relevant to my task.
16 Your work ethic over the years has placed you in a position where you were able to purchase property which you then sold and upgraded and ultimately you bought a pretty decent parcel of land up on the Sunshine Coast which you were going to build on. You are married, but you have no children. Your wife and you have each had sizeable problems with drugs.
17 There were some financial pressures at the time of the offending owing to an unforeseen redundancy. You had an expensive car and a loan in relation to it. I note that having been bailed, with the exception of the hiccup provided by the subsequent offending which led you back to prison for 44 days, you have then done well in the community and have been fully employed in a couple of jobs. Before my remand of you, you had been living in the El Paso caravan park in Drouin with your wife. It would seem that things had picked up I think quite significantly from the state of affairs at the time of the commission of the offences.
18 I was most impressed by your uncle’s evidence. You have been working and apparently you are drug free. I say apparently, as there are no test results available in that regard owing to the cost of having those sorts of tests conducted. Your uncle told me that you have been, as he put it, rebuilding bridges and relationships and that you are ashamed of your conduct. He says that these crimes were not in your nature and the criminal history suggests that that is so.
19 Nonetheless, of course, you have committed them. It seems to me that you were very likely in a significant downturn in your life with loss of work, financial pressures, drug issues, issues in your relationship with your wife and homelessness when you came to this state. So they were the conditions that you were dealing with and it was all a bit much for you I suspect.
Guilty plea
20 I turn now then to the matters that have been raised in mitigation and the first of those is your guilty plea. You have pleaded guilty. It was a late plea, though not in relation to the lesser offences which you were always prepared to plead guilty to. The aggravated burglary and related theft offences were clearly the sticking point. As late as your plea is, it is still of value, of course it is, just not of the same value as an early or very early plea. You ran a committal. The trial was prepared and ready to go. You took the matter about as far as you could take it. Nonetheless, what is important is that you have pleaded guilty and I still must reward your guilty plea. You have facilitated the course of justice. You have ultimately taken responsibility for your crimes. Witnesses have been spared the experience of coming to court to give evidence. I note that only the informant was called in the court below. The community has been saved the time, the cost and effort associated with the conduct of an actual trial. So I take these matters into account in mitigation.
Remorse
I turn now then to the issue of remorse. As to remorse, if I only had your interview to go on, I really would not be able to find the existence of any remorse here at all. In the conduct of that interview with the police, you told a number of lies. You then ran what I judge to be a foolish committal hearing and were denying your liability pretty much right to the door of the court. None of that is much suggestive of remorse. It was an overwhelming case and I am not sure how you could not see that. However, you have seen the light. You have ultimately pleaded. Mr Toohey submits that you have some remorse and relies upon your guilty plea, the reports from Dr Cunningham and the evidence of your uncle. A guilty plea is often, but not always, indicative of some remorse.
Ultimately having reviewed all of the materials, I am prepared to find the existence of remorse here. It is implied in your plea and as I have said already, I was impressed by your uncle’s account to me and I accept it.
Rehabilitation
As to your prospects of rehabilitation, I am not sure Mr Toohey actually applied an adjective to describe them but I took him to be arguing that they were pretty decent prospects, when regard was had to what you had done in the past, including your strong work ethic, the evidence of your uncle and Dr Cunningham, the efforts that you have made to date and the absence of any significant criminal history. I accept that you do have pretty decent prospects actually. Of course they will hinge on your remaining drug free, upon your ultimate release. If you do not remain drug free, your prospects will plummet. I am sure you will be deterred to a degree, by the process of being investigated and charged and imprisoned. My sentence would also serve to deter you to a degree.
You still have family support which is a good thing. I believe that your prospects of rehabilitation are actually as I have said, pretty decent. Your counsel made no submission as to any mitigation to be had from the delay in this case. I can understand that position. Though it is a shame you have drawn this case out for as long as you have, at least in the period of that delay, you have displayed an ability (with the one exception I was told about), to stay out of trouble and to buckle down and work and get your life in some resemblance of order. To that extent, of course you profit from the delay, but that is as it must be, as I am required to sentence the person currently before the court. The person who has in the period of that delay, made the improvements spoken of by your uncle and in the two expert reports. Had you been offending left, right and centre, then the delay would not have assisted you at all, but that is not the position. In addition, no doubt, having the case over your head has involved a level of stress. I take that into account only in the most modest fashion, as the delay was caused by your own poor choices. This case really could and should have concluded some years ago. It is a shame it did not.
Expert reports
I am not going to descend in these reasons to a close examination of the two reports from Dr Cunningham. I have already referred to many aspects of the reports. One of them was prepared following a consultation when you were in custody back in August of 2016. The other is far more recent. They demonstrate the improvements in your state from the time of the offending to the first consultation, and then improvements between the first assessment and the second assessment. Gains that have then seemingly continued since the later September 2017 assessment. The reports also set out your background. They describe the disadvantages in your early childhood and adolescence, matters which as I have said, I take into account as far as I am able to. They describe the constellation of features working against you at the time of these offences, such as the pressures in the relationship, and financially owing to a loss of employment and movement to this State. In large part really, the reports are relied upon as demonstrating that you do not have any of the serious intractable mental health issues that might otherwise impede future rehabilitation. I asked Mr Toohey specifically and he told me that the reports are not being relied upon as in any way engaging any of the principles from the well-known case of Verdins v R. I take into account those reports.
Indeed I take into account all of the material placed before me. I have already commented on my very favourable assessment of your uncle’s evidence.
Parity
I turn now then to the issue of parity of sentence. You heard some discussion in the course of submissions made to me about the suggested impact upon your sentence, of the sentences imposed upon Mr Rooney. There was no such claim being deployed in any way, to rely upon the sentences imposed on your wife for obvious reasons.
Mr Toohey was suggesting that you should do far better than Rooney, given his greater role and his more relevant criminal history. These submissions raised the issue of the concept of parity of sentence. In the broadest sense, and you will understand, this is a gross simplification of the principle, parity speaks of the notion that like offenders will be dealt with in a like manner. It makes pretty good sense.
Ordinarily, if there are no points of distinction between actual offenders or their role or their background, then identical or, at least, very similar dispositions should be imposed. I repeat this is a gross simplification of the principle, but it suffices for present purposes. It is a principle which makes perfectly good sense and which strives to avoid any justifiable sense of grievance as between like offenders.
The principle of parity is easy enough to state in the hypothetical, but is often a more difficult principle to grapple with in the real world. The truth is of course, there is almost never such a thing as a like offender or like backgrounds. There are far more commonly differences in the individual features of offenders, of the matters that exist in mitigation or in the role of offenders in the commission of the crime.
I have the sentencing remarks of Judge Misso and for that matter, the disposition of Rooney's matter in the Court of Appeal. Rooney pleaded guilty to some different offences. It is apparent enough that Rooney had obtained the garage door opener. He pleaded guilty to handling that. So there is no doubt that he is the person introducing you to this escapade as the texts plainly demonstrate. In that sense, he is the instigator. However, as I said earlier in these reasons, he hardly exerted any pressure on you. He did not hold a gun to your head. He merely mentioned the fact of the house and the cars and did not even need to invite you to be involved. You offered to assist and the plan was formulated. From that point, you were equals. You jointly committed the aggravated burglary.
I can see no distinction in your actual physical role in that offence. You met in the vicinity and went and both entered intending to steal. I note that he had a criminal record, so do you. But his, Rooney’s, is clearly more serious than yours. Plainly, he had committed the serious confrontational aggravated burglaries for which he had been previously sentenced by Judge Pullen. He was though, only 19 years old when he committed them. He received from Judge Pullen the combination type disposition and then committed this aggravated burglary whilst on that community corrections order. That more recent and serious criminal history is of course a point of distinction in your favour. So too, his, that is Rooney’s, selection of the premises. Rooney pleaded guilty to theft of both of the cars. That was in a single charge of theft. Again, that is a point of distinction. He also though pleaded guilty to theft of other items from the house in a separate charge that was laid against him. You pleaded guilty to a rolled up theft, embracing the single car and some other items taken from the house and also embracing an unrelated theft. Another very obvious point of distinction of course is that he was but 21 years of age at the commission date of the shared offending. He had youth on his side. You do not. Another obvious distinction is that he pleaded guilty and at the earliest opportunity. This is apparent from the summary attached to the sentencing remarks marked as Exhibit C in this proceeding. You have pleaded guilty to the aggravated burglary and the related theft about as late as was possible. About a week shy of the trial listing. You ran a committal. He did not. He had made good efforts in custody. You have made good efforts in the community. He, Rooney, had some concerns as to the prospects of deportation. You do not.
Well then, there are very obviously differences in each direction. Some favouring him, some favouring you. He received three years for the aggravated burglary, 12 months for the theft of the cars (with nine months of that cumulative) and six months for the related thefts with three months cumulative. He received three months for the handling of the garage door opener, with one month running cumulative. He did not face the fraudulent conduct in relation to the cards or the unrelated theft of the purse at the bank, or the cheque offence. The total effective sentence after orders for cumulation was four years and one month. Judge Misso had to then consider the relationship between that sentence and the sentence that Rooney was then serving and he went onto fix a new single non-parole period of two years and nine months.
Well plainly, given that I have set this matter out in such a detail, I do not ignore the issue of parity. I just do not accept that you must do, as Mr Toohey submitted “far far better than Rooney”. In the sense that Mr Toohey’s “far far better” translated, he said, into your avoiding any return to prison. That is impossible. As I say, the distinctions run in both directions. At one stage, Mr Toohey raised the concept of “parity” of outcome with Rooney’s sentence at the hands of Judge Pullen, for the unrelated serious confrontational aggravated burglaries that he had committed. The argument, as far as I could follow it, was that Rooney had achieved that combination sentence for those more serious offences and therefore you really should do no worse than that in relation to this quite different and unrelated aggravated burglary. That was neither a helpful nor sensible submission and did not involve the concept of parity at all. The shared offence here is the Balwyn aggravated burglary that I am dealing with and some aspects of the related thefts. The sentencing outcome imposed on Rooney for those earlier offences committed by him, as a 19 year old, says nothing at all as to the sentence required in your case.
General remarks
I turn now then to make some general remarks about the case. As to the offences themselves, your counsel conceded that this was serious offending.
There has been much discussion in the Court of Appeal about the sentencing practices for the crime of aggravated burglary and the manner of assessing the seriousness of the given offence. In the case of Meyers, a number of considerations were set out though, obviously they are not treated as exhaustive. They include, for instance, the intent upon entry, the mode of entry, whether a weapon was carried, whether the offender was alone or in company, the time of the day, what the offender knew about who would be inside and whether the offender was someone of whom the victim was particularly frightened.
Mr Toohey, kept coming back to the fact of this not being a confrontational aggravated burglary. It was almost being raised as a matter in mitigation. Well of course it is not. I accept by the way that it was not a confrontational aggravated burglary. It was not confrontational in nature at all. Hence, that feature of aggravation is lacking. There was no weapon. There was no intention to assault. The intention was to steal. No doubt, the hope was to do as you did, enter without disturbing the occupants or being discovered by them. This was however, on any view of it, a premeditated entry. Your offsider had found the premises. He had the remote control. He contacted you and the plan was hatched. It was plainly premeditated. The cars were obviously enough the major target. You required the keys to be present and therefore the people to be in occupation. So you have had far more than a suspicion that the house was occupied. These were residential premises. It was a joint entry in the early hours. At best, you were reckless as to the presence of a person within, though plainly enough, you believed that people were home when one looks at the texts and the consideration of the timing of the entry. Your intention was to steal not to confront.
Though yours was not a confrontational aggravated burglary and there are therefore a number of features of aggravation that are absent, that does not somehow transform it into anything other than the serious offence that it is. This style of aggravated burglary, though clearly in my judgement not as serious as an in company confrontational type entry, is still an inherently dangerous and serious offence. The trespasser has no concept at all of who is actually within the building and what may happen if the trespasser is disturbed in the act. Though not a confrontational offence, the risk of confrontation and escalation in this style of offending is inherent. It is hardly surprising that such entries have a significant impact upon the sense of safety and security ordinarily felt within one’s own home. That significant impact is on display here. It was not dependent on confrontation or observation of your conduct. It was produced by the very fact of the unobserved entry. The impact here has been sizeable. The occupants were left with no choice in their mind, but to move homes.
The penalty for aggravated burglary was increased back in 1997. When introducing the amending legislation, the relevant Minister at the time, back in 1997, noted the prevalence of the offence and the fact that the offence undermines the sense of security people feel in their own homes. The Court of Appeal in this State has often enough referred to this same concept.
Indeed, the Court of Appeal has spoken more recently as to their disapproval of the application of labels or tags as sentencing tools. See Maslen 2017 VSCA 90 para 33. The fact is, that every aggravated burglary is by its very nature serious criminal conduct. Non-confrontational aggravated burglaries can be serious. This one was a relatively serious offence, given the particular features of it, that is, planned, joint entry, at night into another person’s home and with substantial impact flowing from that crime. The aggravated burglary, once complete, then flowed on to the commission of thefts in part covered by Charge 2, and then in part to the fraudulent activity covered by the other charges.
Purposes
I have to consider a number of purposes of sentencing including of course your prospects of rehabilitation. I believe you have pretty decent prospects of rehabilitation and a relatively low risk of reoffending in this way in the future.
I am required to impose a just and proportionate sentence in relation to your offending. You must be punished and you know that. That is an important sentencing purpose. I am required also to denounce your conduct and again, that is an important consideration.
I must seek to deter you from offending in the future. In that regard, I suspect that this has to a degree, already been achieved, so there can in my judgment, be some moderation of that sentencing purpose. It is still a relevant purpose though. Community protection for the same reasons I believe can be moderated to a large degree here, given my quite favourable findings as to your future prospects.
General deterrence though is still a significant purpose of sentencing in this case. That is the need for this court to send a message to other likeminded offenders in the community. This court must send a clear message to other individuals in the community who might be minded to commit this sort of serious, aggravated burglary. Those contemplating that style of offending, must understand that this sort of conduct will be met with sizeable terms of imprisonment. That is because of the serious nature of aggravated burglary, a fact which has been spelt out repeatedly both by our Parliament and by the highest court in this state, the Court of Appeal.
I must and do pay regard to current sentencing practices. It is though not a single controlling factor.
I have considered the Sentencing Advisory Council’s Snapshot in relation to the offence of aggravated burglary, that is Snapshot number 211 of June 2018. But that sort of statistical material always has an inherent limitation. I am not required to sentence according to the median or to the statistically most common sentence. The statistics of course say nothing as to the individual feature of the offence, or the offender. Still though, the data demonstrates how seriously the offence is commonly treated, with the most common principal sentence of imprisonment falling between three to less than four years. By 2016-17, the average that is (mean) sentence imposed was three years and three months for that crime.
Of course what I have had to do is pass an appropriate sentence in your case for your crimes. I have looked also at the Judicial College of Victoria sentencing manual dealing with an overview of aggravated burglary sentences. As I have said already though, other cases are not sentencing precedents.
Of course I have considered the sentences imposed upon your co-accused, and having considered the concept of parity, you will see ultimately that you are going to actually fare better than Rooney, by way of sentence. Not as well as your counsel submits you should do, as in my view, that end destination would not actually pay sufficient regard to the principles of parity. Rooney would in fact be left with a justifiable sense of grievance, if I sentenced you in the way suggested by your counsel.
Though yours was not a confrontational aggravated burglary, it still has a 25 year maximum penalty and of course, I must pay regard to that maximum penalty. I have scarcely mentioned the thefts and the attempt to obtain and obtain property matters. The rolled up theft includes the theft of a valuable car. It was itself a serious offence. The obtaining and attempted obtaining were clearly less serious.
Boulton
Mr Toohey argued that it would be open to release you immediately onto a suitably conditioned community corrections order. The prosecution did not accept that submission and argued that you would need to be sent back to prison for a sizeable period, before the possibility of release onto such an order. So the Crown conceded that a combined disposition was open here, but one requiring a significant term yet to be served by you.
So as is usually the position, each party made submissions as to what they said was the available disposition. Whilst of course I pay a regard to all submissions made to me by either party, I am not bound by any submission or argument as to penalty. What I have to do is exercise my own discretion in this case.
Mr Toohey’s submission as to penalty no doubt was based on a consideration of the case of Boulton that was decided some years ago. It is obvious enough that not every offender for every crime can, or should be admitted to a community corrections order. There are some crimes where the purposes of sentencing cannot be given adequate weight by the use of such an order, even in combination with a prison term. I have to pass appropriate sentences. I cannot just fix upon a community corrections order and then plot some path to that destination
One thing is always a constant in sentencing; locking a person up, confining a person is always a matter of last resort. It always has been and hopefully always will be. Section 5(4C) of the Sentencing Act, prohibits the imposition of a sentence of confinement unless the court concludes that the purposes of sentence cannot be achieved by a suitably conditioned community corrections order.
There is just no question in my mind that a community corrections order on its own cannot meet all the needs of sentencing here. Confinement is required. Significant terms of imprisonment are required here. Mr Toohey’s fall-back position was to argue for your ultimate release onto a community corrections order. Plainly, if a suitably conditioned community corrections order, in combination with a term of imprisonment of up to 12 months could achieve all the needs of sentencing in this case, I would proceed in such a way. Again, I am entirely confident that it cannot. Such a disposition would not achieve all the purposes of sentencing, including the need to punish, to denounce and to deter. I have absolutely no doubt at all that it is not open to me to structure sentences such that a community corrections order is even as a matter of law, theoretically available. Your crimes are too serious. It is not available owing to the nature of your crimes, predominantly the aggravated burglary, and my need to impose adequate and appropriate sentences of imprisonment.
Totality
I have taken into account the principle of totality of sentence.
I must consider whether the effect of the sentences I will soon pronounce is just and appropriate and commensurate with your overall criminality. I have engaged in a last look at the sentences imposed by this court and the total effect of them, in endeavouring to guard against the imposition of a crushing term upon you. There plainly must be some cumulation as between the individual sentences imposed. That is obvious enough. There are a number of offences with differing elements. Some are rolled up between dates offences. However, I cannot lose sight of the fact that it is a reasonably tightly grouped set of offences. The aggravated burglary was committed. Not every aggravated burglary leads on to other offending. Some do, some do not. This one did, with the sizeable theft of the car and the less serious thefts spelt out as well. There is the unrelated theft of the purse at the bank rolled up into that charge. There are then offences, again in the main, connected to the proceeds of the theft from the house with the attempt to obtain and obtain property offending. Though there are these separate offences with separate elements, there is in my view a legitimate claim for pretty significant concurrency given the limited timeframe involved.
Compensation
Application was made for compensation orders relating to the vehicle you stole and the associated costs. The orders were opposed. There was no issue taken in terms of the actual amount sought, or the calculation of the amount. Rather, they were opposed as you were not the driver when the Mercedes was damaged. The fact remains of course that you stole that vehicle. So too did your co-accused. It is not actually to the point that he was the driver of the car when it was damaged; you stole it with him and hence removed it from the rightful owner. You are fortunate, in my judgment, not to be met with an application for the full amount, as indeed he was fortunate. I do not pretend to understand why the Crown are not seeking the full amount as against each offender, but they are not. I will make the orders in the manner sought and I take this into account as part of the sentence imposed. So I have signed each of the orders there. I am satisfied that you have been convicted of the theft. In fact the conviction date was the date of the arraignment as I understand it, back on 4 September 2017. I am satisfied that CGU Insurance have suffered the loss of property and I order that you pay to that insurer compensation in the sum of $24,621.38.
In addition, I am satisfied of the loss suffered by the Australian Associated Motor Insurers Limited and I order that you pay to that institution the sum of $2,945.99. So I have signed each of those orders.
Sentence
If you could stand please Mr Dahmes.
On the charge of aggravated burglary, which is Charge 1 on in the indictment, you are convicted and sentenced to two years, three months imprisonment. That is the base sentence. On Charge 2, the charge of theft, Rooney of course pleaded guilty to both cars in a single charge. In his case, there was also a separate charge relating to other items stolen from the house. He received 12 months for the car thefts with nine months cumulative and six months for the theft from the house, with three months cumulative. You fall to be sentenced for only one of the vehicle, but the theft charge in your case encompasses also the additional particularised property stolen from the house and the purse stolen from another victim at another time. On this rolled up charge, you are convicted and sentenced to eight months imprisonment.
60 On Charge 3, attempting to obtain property by deception, again it is a rolled up charge, you are convicted and sentenced to two months imprisonment. On Charge 4, the completed offence of obtaining property by deception, again a rolled up offence, you are convicted and likewise sentenced to two months imprisonment.
That the base sentence therefore is the two years and three months, or twenty-seven months imposed on the aggravated burglary. I direct then that four months of the sentence on Charge 2, one month of the sentence imposed on Charge 3 and one month of the sentence imposed on Charge 4, are to be served cumulatively upon the base and upon each other.
TES
What this produces therefore is a total effective sentence of 33 months or two years and nine months imprisonment.
Non-Parole period
I fix a period of 16 months, during which you will not be eligible for release on parole.
Section 18 pre-sentence detention
64 You have already served 54 days by way of pre-sentence detention and that declaration is to be entered into the records of the court. You get credit obviously for that period.
Licence order on Charge 2
65 I am required to make an order against your licence on Charge 2, as that charge includes the theft of a motor car. I have considered whether I should make the order in such a way that it takes effect upon you, at the time of your release from custody, whether on parole or the expiry of sentence. In the circumstances, I believe that such an order would actually likely be counterproductive to your rehabilitation. So I am not going to structure the order in that fashion. All licences to drive are cancelled and you are disqualified from driving or obtaining a licence for a period of six months, but that is effective from today’s date. So it will have no practical effect upon you.
Section 6AAA
I have taken into account your guilty plea. If you had pleaded not guilty to these charges and then been found guilty by a jury, I would have sentenced you to a term of five years' imprisonment and fixed a non-parole period of three and a half years. Grab a seat for a moment, I will just see if there are any other matters I need to deal with. Mr Stougiannos, any matters I need to attend to?
MR STOUGIANNOS: No, Your Honour, I think you've covered them all sir.
HIS HONOUR: All right. Mr Toohey, any other matters I need to deal with at all?
MR TOOHEY: No other matters.
HIS HONOUR: Very well. Now I have sat down - where you both sit – do you follow the individual sentences and their structures and the mathematics at least all adds up does it or - no issues in terms of the maths of it? All right, you'll go down and see your client downstairs Mr Toohey won't you?
MR TOOHEY: Yes.
HIS HONOUR: Very well, good. All right, I'll just sign that formal order. Yes, all right, I've signed that formal order. So Mr Toohey will come down and see you downstairs Mr Dahmes, all right? You can head out. Thank you.
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