Director of Public Prosecutions v Dean
[2024] VCC 1602
•11 October 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-01068; CR-23-01067
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GENE CAMILLERI |
---
JUDGE: | Karapanagiotidis | |
WHERE HELD: | Ballarat and Melbourne | |
DATE OF HEARING: | 1 August 2024 and 23 September 2024 | |
DATE OF SENTENCE: | 11 October 2024 | |
CASE MAY BE CITED AS: | DPP v Dean | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1602 | |
REASONS FOR SENTENCE
---
Subject:CRIMINAL LAW – Sentencing.
Catchwords: damaging property – aggravated burglary – causing injury intentionally – causing injury recklessly – common assault.
Legislation Cited: ss 5(1), 6AAA Sentencing Act 1991 (Vic).
Cases Cited: DPP v Meyers [2014] VSCA 314; R v Verdins [2007] VSCA 102;
Bugmy v The Queen [2013] HCA 37; Kellway (a pseudonym) v The
King [2023] VSCA 109; Boulton v The Queen [2014] VSCA 342.
Sentence: Camilleri and Dean: Total effective sentence of 3 months imprisonment and a 20 month Community Corrections Order.
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A. McKenry | Office of Public Prosecutions |
| For Offender Camilleri For Offender Dean | Mr N. Hutton Mr R. Thyssen | David Tamanika Solicitors Adrian Paull Criminal Lawyers |
HER HONOUR:
1Gene Camilleri and Darren Dean you have each pleaded guilty to charges of aggravated burglary, intentionally cause injury, recklessly cause injury and common assault. You Mr Dean have also pleaded guilty to a charge of damaging property.
Circumstances of the offending
2The circumstances of your offending are outlined in the prosecution opening of 31 July 2024, marked as Exhibit A.
3At the time of the offending, you Mr Camilleri were aged 42 and you Mr Dean were aged 52 years. The victim of your offending, Mr Ronald McComish was aged 51 and lived alone. You were both known to Mr Camilleri though it seems that you Mr Camilleri were closer to him but you had not seen each other for approximately 18 months. Approximately two and a half years before the incident, Mr McComish told you Mr Camilleri that he would give you his 1983 Datsun Bluebird TRX as a birthday present. He gave you a spare key and some paperwork. Mr McComish later changed his mind and in early 2021 sold the car for $750 without telling you.
4At approximately 1.30 am on Wednesday, 26 October 2022, you Mr Camilleri sent a number of text messages to Mr McComish. His phone was on silent so he was unaware of the calls and text messages at the time. The text messages are as outlined at paragraph [7] of the prosecution opening and include the following:
(a) Message 1: “You owe me an I want it I’m gunna teach you a lesson let’s see how much of a man you really think you are bitch”
5At approximately 2.30 am that night, you both arrived at Mr McComish’s unit in Pisgah Street, Ballarat. You Mr Camilleri banged on the front door.
6Mr McComish woke up. He was unwell and went to the front door on his hands and knees. He opened the front door a little and recognised you Mr Camilleri. He also recognised you Mr Dean but could not recall your name. He did not let you inside.
7You Mr Dean began throwing Mr McComish’s pot plants around the front yard and pushed over his outside table (Charge 1 – Criminal damage).
8You Mr Camilleri were asking where the car was and trying to force your way inside. Mr McComish had his foot near the door but you Mr Camilleri overpowered him and forced the door open against his foot, which was twisting against the wall. He pushed you back with his right hand but you Mr Camilleri forced your way into the hallway. Mr McComish was lying on the floor. You said “why haven’t you been answering my calls?” and he told you that he had not been well. You accused him of lying and further words were exchanged about why he hadn’t answered your calls.
9Mr McComish was on the floor in the foetal position in the hallway and you Mr Camilleri leaned over him and punched him to the right side of his face with a closed fist. He was pleading with you “don’t do this, Gene, don’t do this.” Mr Dean at this point you entered the house (charge 2 – aggravated burglary; charge 3 – intentionally causing injury, rolled up charge).
10You Mr Dean began looking in the bedrooms and turning lights off inside the house. Mr McComish told you not to go into the bedrooms. You Mr Dean told him that you were just checking to make sure there was nobody else in the house and you kicked his floor speaker over in the lounge room.
11You Mr Camilleri then lifted your leg and stomped on Mr McComish’s ribs with your foot 4 or 5 time (Part of Charge 3 – Intentionally causing injury).
12You Mr Camilleri picked up a solid toy plastic hand-gun off the floor and struck Mr McComick to the left side of the face with it (part of Charge 3 – Intentionally causing injury).
13You Mr Camilleri then punched Mr McComish to the left side of his face again with a closed fist while he lay on the floor (part of Charge 3 – Intentionally causing injury).
14Mr McComish’s bicycle was in the hallway. One of you said “if you’re well enough to ride a bike you can get up.” Mr McComish replied “I can’t get up, I can’t get up, I’ve been sick.”
15You Mr Dean then picked up the bike and said “We’ll take his bike then”. You Mr Camilleri said to Mr Dean “I don’t want the bike” so you Mr Dean took the bicycle outside and threw it against the front fence.
16Mr McComish said to you Mr Camilleri “come back when’ you’re sober and we’ll talk about it”. You Mr Camilleri replied with “nah, it’s time for you to meet your maker” and tried to drag McComish outside by his arm (Charge 4 – Recklessly causing injury).
17Mr McComish put his legs out against the wall to stop you from getting him out of the house. Mr Camilleri you then kicked him in the left buttock and said “this isn’t the last of it, I’ll be back to see you again” (Charge 5 – Common assault).
18You then left. Mr McComish received injuries including bruising and abrasions to his face, bruising to his ribs and arm and abrasions and bruising on both knees as a result of the assault. A large portion of the incident, including audio, was captured by the complainant’s doorbell CCTV and was played in court, and marked as Exhibit B.
19A member of the public found Mr McComish’s wallet later that day, went to his house to return it and saw that he was injured. Upon leaving the address he called the police.
20Police observed Mr McComish had visible facial injuries and bruising to his upper body. Photographs were taken of the injuries and tendered in Court, marked Exhibit C He identified you Mr Camilleri as the offender and he didn’t know your name Mr Dean.
21Paramedics took Mr McComish to hospital where he received treatment for his injuries and was discharged later that evening.
22You Mr Camilleri were interviewed on 1 November 2022 and a summary of the interview is extracted in paragraph [30] of the opening.
23You Mr Dean were interviewed on 3 November 2022 and your interview is summarised at paragraph [31] of the opening.
Victim Impact
24Mr McComish has provided a victim impact statement in which he details the significant impact of your offending. It has affected all areas of his life and has undermined his trust in people and his sense of safety. He states, ‘I have turned into a hermit and have very limited relationships.’ ‘I get distressed and have suffered significant physical trauma due to the incident.’ He has trouble sleeping because of PTSD, he is on a disability pension and has anxiety and depression. He has also had to move house since the incident as he didn’t feel safe anymore.
25In sentencing you both I take into account the impact of your offending on Mr McComish.
Gravity of offending
26The offending is plainly serious, as indicated by the applicable maximum penalties.
27The prosecution make the following submissions, in summary:
(a) The intrusion and assault on Mr McComish was at a time when he was particularly vulnerable, bedridden and having to crawl to the front door.
(b) As pleaded to, the intention on the aggravated burglary was to assault him.
(c) Given the circumstances, including the time of day and what, based on the video recordings, was being said and it’s aggressive tone, this would have been a terrifying experience.
(d) It is accepted that it cannot be proven beyond reasonable doubt that there was a great deal of premeditation to committing the offences charged.
(e) Mr McComish was entitled to feel safe in his own home.
(f) In his home he was assaulted, by being punched, struck to the face, and stomped on.
(g) You Mr Camilleri were an active participant in the offending and you Mr Dean while not playing as prominent a role, were nevertheless still actively involved and your acts, such as kicking over the pot plant, the subject of charge 1, would have added to the overall terror of the event. Any suggestion that you Mr Camilleri were not aware of Mr Dean’s presence or contribution – which ought to then reflect on your moral culpability – should, in all the circumstances, be dismissed and the court should be satisfied of the contrary beyond reasonable doubt.
28The prosecution submitted that this was a serious example of a confrontational aggravated burglary, on a victim who was vulnerable, in his own home. The intentionally causing injury was constituted by multiple acts, including punching and stomping in circumstances where Mr McComish was not resisting at the time. The reckless cause injury and common assault are separate offences that also added to the humiliation and fear experienced.
29On your behalf Mr Camilleri your Counsel submitted that the objective gravity of the aggravated burglary and your moral culpability is low. In summary, he pointed to the following matters:
(a) There is no evidence of planning or premeditation. There were no masks or disguises worn, no breaking doors or windows to gain entry, and no weapons used. You announced who you were and demanded he open the door and waited for some time, as indicated by the video footage, before making any attempt to force entry into his home.
(b) While there were confrontational messages sent in the lead up to the offending, the intention in attending the address was to confront Mr McComish about the car, not to commit an aggravated burglary. The offending that went on to occur was spontaneous and any premeditation could not have been over and above seconds.
(c) The duration of the offending was brief.
(d) The offending occurred in company, which is relevant to the objective gravity of the offending, however given the spontaneity of what occurred, this is not a case where you knew that you were being aided and assisted on the night.
(e) While the offending took place in the early hours, you assert in your interview that Mr McComish was basically nocturnal and kept unusual hours.
(f) The assault that occurred in the house is not relevant to an assessment of the principal charge and is, obviously, the subject of separate offending.
30In relation to the assault charges your Counsel concedes that charge 3 is relatively more serious than the remaining assault charges and also involves an allegation of stomping. He submits however that individually the injuries comprising the charge are each comparatively minor, falling well short of any suggestion of a serious injury. There is little to assist in determining the degree of force used. The other charges, your Counsel submits, are at the lower end of the spectrum of seriousness. The reckless cause injury is constituted by a bruise on the inside of the arm and the common law assault a kick to Mr McComish’s backside. The assaults, collectively, were also of short duration. Also, while Mr Dean is charged with you on a complicity basis, he did not actively or physically assist in the assault.
31Your Counsel Mr Dean generally adopted the characterisation of the offending, as advanced on behalf of Mr Camilleri.
32In terms of the aggravated burglary charge, assessing the charge against the considerations outlined in the relevant cases, including DPP v Meyers, overall, while I accept that there are more serious examples, I do regard your offending as serious[1]. I am satisfied that your intention at entry was to assault Mr McComish. Your mode of entry was forceful. Importantly you were not in possession of a weapon, which would have significantly aggravated your offending. You were in company, and while I accept that this is not a case where you both physically joined in the acts or use of force or violence, you were acting in complicity – your presence was known to each other - and the presence of you both increases the objective gravity of the offending. The entry occurred in the early hours and whether or not Mr McComish kept the hours you suggest, this is a relevant circumstance. I accept that while you, Mr Camilleri, were angry at Mr McComish, as evidenced by the text messages, there was no pre-planning or premeditation. In other words and importantly, I accept that you did not attend the address for the purpose of breaking into Mr McComish’s home or assaulting him. The evidence supports that you initially wanted to confront him and when you first arrived at the house you were telling him to open the door. When he didn’t, the situation quickly escalated from there and you both went on to make some very poor choices.
[1] DPP v Meyers [2014] VSCA 314.
33The intentionally cause injury is a rolled-up charge and constituted by the separate acts, as outlined in the prosecution opening, including by you, Mr Camilleri, punching Mr McComish to the side of the face with a closed fist and stomping on his ribs with your foot 4 or 5 times. The attack was unprovoked and cowardly. Your victim was vulnerable and in his own home.
34Mr Camilleri you clearly had a history with Mr McComish and this offending was largely driven by you.
35Mr Dean I accept that while you were present, encouraging and complicit in the offending, you were not the instigator, and your role was more limited.
36Mr Camilleri your ex-partner, Satania Dyson, provided a reference that chronicles your families relationship with Mr McComish and its deterioration. She notes the assistance you gave him in the past and also how you previously dealt with some of his poor behaviours, that is without any retaliation or negative attitudes. Of course, nothing about the history of your relationship justifies your actions on this particular evening, but I accept it highlights your behaviour as being uncharacteristic and provides a broad context to what occurred.
37You Mr Camilleri told Dr Aaron Cunningham that you had consumed eight cans of Jack Daniels before going to Mr McComish’s home to confront him about the car that had been offered to you as both a repayment and as a gift. Your Counsel submits that the non-delivery of the car had become a prominent issue between you and you became frustrated by the lies Mr McComish was telling you.
38At the time of your offending you had relapsed into alcohol use following the recent death of your mother. Her death, Dr Cunningham opines, had been a significant trigger of past trauma. He states that the disinhibition caused by your alcohol abuse was the main contributor to your offending. I take into account these circumstances and I accept that you may have reconsidered or refrained from such behaviour if you were sober, but of course this is not an excuse to your offending.
39You Mr Dean, by your utterances, actions and by entering the home, accept that you were complicit in the actions of Mr Camilleri which constitute the aggravated burglary and the causing of injury offences. You told psychologist Mr Jeffrey Cummins that ‘this was all Camilleri’s thing’. You’d been a friend of Mr Camilleri’s for a long time. On this night, he said he had a debt to collect and you knew the guy he was wanting to collect from. You thought he would just go and talk to him to make him pay the debt but then he went ‘overboard’ and the situation ‘got out of control.’
40You also told Mr Cummins that when you attended the house you would have been under the influence of cannabis and alcohol. You told him that you regretted accompanying Mr Camilleri to the address and becoming involved. I also note that you were suffering some additional stressors and triggers in the lead up to the offending. The year earlier, in 2021 you also lost your mother which represented a difficult time for you. You had spent time caring for her and then were excluded as a beneficiary of her estate in favour of your brother, causing considerable stress, conflict and grievance.
Plea of guilty
41Both your cases resolved following resolution discussions on 31 July 2024, on the day the matter was listed for trial. Whilst they are late pleas, you are still both entitled to an important sentencing discount. I accept that your pleas of guilty represent an acceptance of responsibility on your part, a willingness to facilitate the course of justice and they have utilitarian value.
Personal circumstances
Camilleri
42Your personal circumstances Mr Camilleri were canvassed in the psychological report of Dr Cunningham of 9 August 2024 and by your Counsel.
43In summary, you are 42 years of age and have no prior criminal history. You were raised by your parents in the Ballarat area with four older siblings. Your father worked as a used car salesman while your mother worked in the home. You describe both parents as violent alcoholics and you lacked a strong emotional connection with them. Both you and your sister experienced abuse by a sibling when you were quite young which has always caused emotional pain and was always ‘swept under the carpet[2].’
[2] See first paragraph, page 2 of Dr Cunningham’s report, 9 August 2024.
44You have continuing contact with your sisters but not your brothers. As already noted, your mother passed away several years ago and your father is still alive.
45At the age of 14 you were evicted from home by your parents. You stayed with a friend and then managed to secure a rental property. You ended up with ‘bad drug habits’ and so returned to live in the bungalow at your parents home.
46In terms of your schooling you struggled and ended up repeating Year 9. It wasn’t until the age of 38 that you were formally diagnosed with ADHD. You attended trade school and completed a pre-apprenticeship as a fitter and turner. You gained a Year 10 pass at night school. You are a qualified mechanic, welder and metal fabricator. You also have a truck licence and ATM technician qualifications.
47You worked in panel beating before working in event management. You worked for Face to Face Touring for eight years. You have worked for Regional Touring for the past 11 years. You are on the road for eight months out of the year. You enjoy your work, have a good working relationship with your boss and it has offered you a stable income over the last 14 years or so. Stacey Fritsch, manager of Regional Touring, describes you as ‘loyal, hardworking, honest, polite and friendly.’ She also considers your offending to be ‘very uncharacteristic.’ Duanne McDonald, Director of Regional Touring, states that ‘not once in the past 10 years has there been any issues with Gene or his level of work.’ He states, ‘Gene has full support of this company, all of our staff and families.’
48At the age of 17 years you lived with a girlfriend with whom you had a child and maintained a relationship with for 5 years. The relationship ended in the context of her infidelity. Your daughter from this relationship is now 22, herself a young mother, and you see her occasionally. You then had another relationship of 14 years, producing 5 children, aged between 8 and 17. This relationship ended approximately eight years ago. You continue a relationship with your children; you see them when you’re not on tour and you also assist to financially support them. In Ms Dyson’s letter to the Court she provides details of your previous relationship and confirms that you share 5 children who you jointly help raise.
49Your relationship with your current partner, Megan Wilding, has continued for five years. You live together in Ballarat. You describe it as a supportive and stable relationship. Ms Wilding has four children, three of whom live with you, aged 14, 7 and 6. You are the primary income earner for the family. Your partner told Dr Cunningham that three of her children refer to you as their father and she was concerned about how the family would cope if you were imprisoned. In particular, one of her children has autism and would struggle to cope with the change of losing you.
50Ms Wilding also provided a letter in support of you (exhibit GC8), providing further insights into your relationship and the family dynamic. You are the only father that her children have known and you have a strong bond with all three children. Her 14 year old daughter has had no contact with her biological father for years and felt abandoned. She relies on you for advice and guidance. Her 7 year old son has ADHD for which he is medicated and she describes your bond with him as strong – ‘[He] has many challenges ahead and I fear how he will react physically, mentally, emotionally and academically without his dad and the significant changes this would cause our family.’ Her 6 year old is also in the process of seeing a paediatrician and is being assessed for ADHD and/or autism. She also speaks of her own dependence on you and the important financial and emotional support you provide. She was in a motor vehicle accident in 2022 and is struggling to recover and has been diagnosed with adjustment disorder. While she struggles when you are away at work, she’s able to phone you to receive emotional support, which is important and your work also enables you to provide ongoing financial support.
51In terms of any health issues, you had an extra disc in your back that caused chronic pain. You received DSP for eight years but were able to rehabilitate and manage your pain. You also have some stomach issues that require dietary adjustments.
52You reported to Dr Cunningham that alcohol had always been a problem before your relationship with Ms Wilding. Following your mother’s death, you relapsed into significant alcohol abuse, drinking around eight cans of Jack Daniel’s per day. Now you report drinking only socially. When you moved out of the family home as a young teen, as already noted, you used amphetamine, but you stopped using upon return home and have not used illicit substances for a long time.
53Dr Cunningham assessed you as meeting the criteria for Persistent Depressive Disorder. You present with a chronic low level depressed mood in the context of your childhood abuse. He considered that the stress of incarceration and separation from your family would aggravate your depression. You would feel guilt and shame at not being able to support your family and from being a burden. Relying on this opinion, your Counsel submits, and I accept, that limb 5 of Verdins is enlivened in your case[3].
Dean
[3] R v Verdins [2007] VSCA 102.
54Your personal details were outlined in the psychological report of Mr Jeffrey Cummins and by your Counsel. I note that you have some difficulties in recalling your history and I accept, as advanced by your Counsel, that this is likely attributable to the abuse you have suffered in the past.
55You are now 52 years of age. You were born in Dandenong and raised in Ballarat and Western Australia. Your mother left your father when you were aged three/four. You told Mr Cummins that your father was a paedophile and that you and your mum ended up looking after him for about four months before he died in March 2009.
56You report being subject to frequent domestic violence as a child and teenager at the hands of your father and then your mother’s third husband. You also report significant family dysfunction and abuse as a child. I have taken this into account but given your statement to Mr Cummins that you do not want such details read out in Court, I propose not to do so. The details are canvassed in the report[4]..
[4] See Mr Cummins report of 19 February 2024, paragraphs [14] and [15].
57After your parents separated your father removed you and your brother to Western Australia from the ages of 4-9 years. At that time your schooling was minimal as you report that your father precluded you from attending because he did not want your mother to locate you.
58Ultimately your mother did manage to locate you and you ended up returning to Melbourne and staying with her in Ballarat and recommencing school.
59It’s around this time that you report suffering an ABI as a result of being run over whilst riding your bike when in grade 5 in Ballarat. You told Mr Cummins that you spent time in the Ballarat Hospital. You went back to school for a period but report that you experienced difficulties with your concentration and patience and you left half way through Year 9. You went on to do a chef’s apprenticeship and you were then introduced to a life of alcohol and drugs. You completed your apprenticeship though I note you report suffering abuse during this period.
60Over the years you have received Jobseeker allowance though have been able to earn some income through working as a casual chef. You have worked for catering services on and off over the years. Mark Batchelor of J&M Catering Services provided a letter of support confirming that over the busy touring and catering season you have been ‘a major asset to [him] and [his] business.’ He describes you as a ‘valued member of our team.’
61You told Mr Cummins that in 2017 you underwent surgery for testicular cancer.
62You have no history of mental health involvement or treatment though between 2017 and 2019 you report attending upon a counsellor via a medical centre in Lucas.
63You have a history of drug use and alcohol abuse from a young age. You have used cannabis from around the age of 13 and in the last 18 months or so have reduced your dependency. Alcohol has been a significant part of your life also from the age of 13 and you continue to drink daily though have made efforts to cut down your consumption.
64Over the last 13 years you have been living in Scarsdale, in a property that was owned by your mother, but now belongs to your brother.
65You appear to have quite a complex relationship with your brother. As already noted, you are aggrieved by the situation as prior to your mother’s death you were her carer. Your mother purchased a property for your brother, gave him money and then, in addition, he received the Scarsdale property, for which you’re now expected to pay rent. Your brother lives in Delacombe and you currently refuse to pay rent. You reside at the property with two of your brothers' adult children, aged 37 and 18. Also living with you is one of the children’s partner and their two-year-old child. Your girlfriend, Sharon, who used to be your brother’s girlfriend, also regularly stays at the Scarsdale address. She is the mother of your brothers' children and you describe having effectively been their stepfather for years as he had abandoned them. You have been in a relationship with Sharon for some 27 years and you also share a daughter, aged 21, together. You lived together until around 2009 when there was a house fire and you lost your accommodation. You have not lived together full time since then. She lives in Beaufort with your daughter. She suffers from chronic emphysema and you provide her with significant care and support.
66Mr Cummins considered that on interview you presented as significantly agitated and formed the opinion that you suffer from ‘agitated depression’, whereby you are actually depressed but the symptoms of depression are overridden by symptoms of agitation (at [34]). He also considers that this is ‘most probably reflective of [you] suffering from Complex PTSD (at [48]). You also spoke in an antisocial and anti-authoritarian manner and therefore attracted the diagnosis of an Antisocial Personality Disorder (at [35]). Your Counsel relies on the contents of Mr Cummins’s report but does not suggest that any of your conditions enliven the Verdins principles.
67You have an extensive prior criminal history and a number of alcohol related priors, reflective of your alcohol abuse issues and dysfunctional upbringing. You have received a variety of dispositions in the past, including community correction orders and terms of imprisonment. Relevantly, in 2004 you received a suspended sentence for charges of reckless cause injury and aggravated burglary – person present. Also, in October 2021 you pleaded guilty to threaten injury charges and received a monetary penalty. The Court was told that this matter related to telephone harassment of a pharmacist who, on your understanding, wouldn’t explain why he wasn’t able to provide ‘dying with dignity medications’ to your mother.
68In your case Mr Dean, I accept, as submitted by your Counsel that Bugmy sentencing considerations have application and that your childhood deprivation is relevant to an assessment of your moral culpability[5].
[5] Bugmy v The Queen [2013] HCA 37.
Prospects of rehabilitation
Camilleri
69Mr Camilleri I assess you as having very good prospects of rehabilitation. As already noted, you are a mature man with no prior criminal history and no further offending in the subsequent years that have followed the offending. In your case Dr Cunningham administered the HCR-20 to assess your risk of future violent offending and he assessed you as presenting a low risk of future violence offending. He identified that resuming alcohol abuse would increase your risk.
70Since July of this year you have also attended upon a psychologist fortnightly and received treatment for issues, including your childhood abuse. Dr Cunningham assessed your cognitive functioning as falling within the average range and that you suffer from Persistent Depressive Disorder. He also relevantly notes that despite the instability of your background and the stressors you have experienced, you have managed to maintain stable employment and relationships. In Dr Cunningham’s opinion you did not present as an ‘antisocial individual’. He considers that you would benefit from continuing your counselling and employment and from retaining the purpose and meaning of supporting your family. He concludes as follows:
He stated that he has always paid child support and cares for his partners children. He presents as an important contributor to the stability of his partner and her children. In my opinion, Mr Camilleri has good prospects for rehabilitation should he continue to abstain from alcohol abuse and maintain the support of his family.
71A range of testimonials were submitted on your behalf that collectively speak of you as someone who is decent, hardworking and trustworthy. In stark contrast to the behaviour on the night of your offending, they also speak of your general approach to others as calm, considered and respectful (see Exhibit 4, John Bourke). Anthony Molden has worked with you over the years and states that you ‘excel’ in your role as a site and logistics manager, ‘showcasing unparalleled experience and expertise in managing large-scale events.’ Further he states, ‘his commitment to ensuring the safety and well-being of both patrons and staff is unwavering, making safety a top priority in all his endeavours. What truly sets Gene apart is his calm and constructive communication style, which fosters a positive and collaborative work environment.’
72In her reference, Deb Alexander, Director of 180 degrees, has worked with you on various annual outdoor concerts over the last decade. She speaks of the complexity of managing events and of your ability to remain ‘calm under pressure whilst dealing with challenging situations and liaising with all involved at any level has been one of [your] strengths over the years.’ She refers to you as a valued member of the team; loyal, dedicated and passionate, with a commendable work ethic.
Dean
73In your case, Mr Dean there is a need for some caution but I accept that in more recent years you are showing progress and that your prospects would be enhanced by therapeutic interventions. Mr Cummins assessed you using the HCR-20 tool and you were assessed as representing a Moderate-High risk. He stated, ‘in my opinion it is imperative he participate in a Men’s Behaviour Change Program or an anger management program. In my opinion the main risk factors for him are alcohol intoxication/dependence and the fact he has an anger management problem reflective of his dysfunctional upbringing and being (sexually) abused and feeling psychologically abused by his mother and his brother.’ Mr Cummins also consider that your level of insight into the seriousness of your offending was ‘clearly limited’ (at [47]). He ultimately suggests that you would benefit from residential cannabis and alcohol detoxification. I note that a GP letter was also tendered on your behalf at the plea along with a ‘Mental Health Step Process’ which confirms an entrenched history and diagnosis of ‘alcohol abuse’, notes ‘acquired brain injury’ on 27/1/21 and that you are ‘having stress issues depression/alcohol over use’ and that you are ‘happy to go to drug and rehab’.
74In assessing your rehabilitative prospects, I also take into account the ongoing support that you have been providing your partner. Further, I take into account that you are a qualified chef, described by Mr Batchelor as ‘hardworking’. He states, ‘when he attends work, he demonstrates that he is polite, well mannered and represents my business in a professional way.’ He has clearly known you for a long period of time and speaks of the considerable efforts you’ve made to manage your challenges, stress and to prioritise your work.
75Your Counsel also submits that your offending appears to be ‘tapering off’ and relies on your recent successful completion of a community corrections order (CCO). This was imposed by the Ballarat Magistrates Court imposed on 16 October 2023 relating to threats made to your brother when he tried to evict you from the home. I also note that you have received some assistance from the uniting church.
76In both your cases, even though a late plea, I also take into account the delay in the finalisation of your cases (as noted above). Also, I accept that if required to serve a period in custody you will both experience concern for the welfare of your respective families.
Parity
77The purpose of parity in sentencing is to ensure consistency in punishment. It is based on the ‘broad principle of equal justice’. Disparities in sentences ‘should be capable of a rational explanation’ however that is not to say that there will be a ‘scientifically precise answer to the quantification of disparities between offenders.[6]’
[6] Kellway (a pseudonym) v The King [2023] VSCA 109 [124]-[126].
78In terms of role and moral culpability, as already stated, I accept that you Mr Dean were neither the instigator or the main offender and that, while complicit, your role was more limited than that of Mr Camilleri. While you were present and encouraged him your moral culpability is not as high. There is therefore a discernible and important difference between your roles. Your personal circumstances can also be distinguished. As already noted, you Mr Camilleri are a relatively mature man with no prior criminal history whereas you Mr Dean have a lengthy and relevant criminal history. Consequently in your case, Mr Camilleri on my assessment I consider less weight needs to be given to specific deterrence and community protection.
79While it is not a mathematical formula and it requires careful evaluation, overall, I consider that the significant difference in your respective roles in the offending and your personal circumstances operate to largely ‘balance’ your positions, from a sentencing perspective.
Sentencing purposes
80The purposes for which sentences may be imposed are just punishment, general deterrence, specific deterrence, rehabilitation, denunciation and protection of the community. The appellate courts have made clear that confrontational aggravated burglaries are serious and that general deterrence is a prominent consideration. Such offending will not be tolerated by the community. People are entitled to feel safe in their home.
81I take into account the sentencing guidelines referred to in s5 of the Sentencing Act 1991, where relevant in your case. In determining the sentence to be imposed in this case I must also, and I do, have regard to the principles of proportionality, parsimony and totality.
82Both Counsel on your behalf submitted that it was open to the Court to impose a non-custodial disposition, though in your case Mr Dean in the alternative a combination sentence was submitted as appropriate. In your case Mr Camilleri your work is likely to pose a challenge to your ongoing ability to comply with any order imposed but your counsel submits you are willing to do so and it will be a matter for you to successfully navigate. The prosecution submit that a term of imprisonment is required, structured with a non-parole period.
83Counsel referred to a range of cases and I have considered all of these closely[7].. They have been of assistance and guidance but ultimately each case turns on its own facts and circumstances. Some of the cases invoke considerations that don’t apply in yours, such as an early plea of guilty, substantial remorse and the impact of the pandemic. As for offending, while there are some parallels, many of the cases relied upon by the prosecution involve offending that I consider to be objectively more serious than this case.
[7] See for example, Defence:DPP v Koeble [2019] VCC 1330; DPP v Bellette [2018] VCC 366; DPP v Arnott [2018] VCC 758; DPP v Hall, Traill, Hall, Jeane-Pierre Badey [2023] VCC 650; Prosecution: Tseros v The King [2023] VSCA 179; Turney v The Queen [2020] VSCA 131; Lucas v The Queen [2021] VSCA 314; Brown v The Queen [2021] VSCA 204; and October 2024 Sentencing Snapshot 286.
84Guided by the Court of Appeal in Boulton’s case, I accept that a CCO is capable of being a highly punitive sentence and can be imposed in cases of relatively serious offending (see paragraph [25]). After careful consideration however I consider that an immediate term of imprisonment is necessary, to give proper effect to the punitive and denunciatory purposes of sentencing. However, there are powerful mitigatory factors advanced on your behalf that must also be reflected. Mr Camilleri in your case, as already stated, you are a mature man, with work, family responsibilities, connections in the community, no prior criminal history, and you present with what I have assessed to be very strong prospects of rehabilitation. Mr Dean in your case I have taken into account your lesser role in the offending and also other factors, including the application of Bugmy considerations and your relative current stability. In all the circumstances, I consider that a combination sentence is the just and appropriate sentence in each of your cases.
85As the Court stated in Boulton[8]:
“The availability of the combination sentence option adds to the flexibility of the CCO regime. It means that even in cases of objectively grave criminal conduct, the court may conclude that all of the purposes of the sentence can be served by a short term of imprisonment coupled with a CCO of lengthy duration, with conditions tailored to the offenders circumstances and the causes of the offending.’ I consider that the punitive, deterrent, denunciatory and rehabilitative purposes of sentencing can be sufficiently achieved by a short term of imprisonment, coupled with a CCO of lengthy duration.”
[8] Boulton v The Queen [2014] VSCA 342.
86I had you both assessed for CCO’s and you were assessed as suitable.
Sentence
87Synthesising all relevant matters you are convicted and sentenced as follows –
Camilleri
88Mr Camilleri, on Charge 2, aggravated burglary, you are convicted and sentenced to three months' imprisonment combined with a community corrections order of 20 months.
89Charge 3, intentionally cause injury, three months' imprisonment with a community corrections order, it is the same order, of 20 months.
90Charge 4, 20 month community corrections order.
91Charge 5, 20 months community corrections order.
92Charge 2 is the base sentence for all purposes. I make no orders for cumulation. So in other words, Mr Camilleri, I am requiring that you serve three months' imprisonment followed by a community corrections order of 20 months. Do you understand?
93OFFENDER CAMILLERI: Yes.
94HER HONOUR: All right. The conditions of the order are as follows.
a)Supervision
b)Treatment and rehabilitation for alcohol
c)Treatment and rehabilitation for mental health
d)Community work, which I am setting at 150 hours. I offset against that work 80 hours against treatment.
95Now could you just take a seat please.
Dean
96Mr Dean, in your case you are convicted and sentenced as follows:
97Charge 1, criminal damage, you are convicted and sentenced to a 20 month community corrections order.
98Charge 2, aggravated burglary, you are convicted and sentenced to three months' imprisonment and a 20 month community corrections order.
99Charge 3, intentionally cause injury, three months' imprisonment and a community corrections order of 20 months.
100Charge 4, 20 month community corrections order.
101Charge 5, 20 month community corrections order.
102Conditions are as follows on your order.
a)Supervision
b)Treatment and rehabilitation for drugs
c)Treatment and rehabilitation for alcohol and mental health issues, along with programs.
d)You are also ordered to undertake and to complete 100 hours of community work and I offset 50 hours against treatment.
103Now in your case, Mr Dean, I am just going to explain, I will have these orders printed in a moment, but given that you are in court but not presently in this court, the order will be sent to you but I need to ensure that you consent to it. You have to serve three months' imprisonment and it will be followed by a
20 month order, do you understand?104OFFENDER DEAN: Yes, Your Honour.
105HER HONOUR: All right. The conditions of that order, there are core conditions, which you would appreciate, attach to all orders. They are as follows:
a)You must not commit another offence during the operational period, which is 20 months on your release
b)You must report to Community Corrections within two clear working days. That will be indicated on the orders as to the – it will be the local Community Corrections order facility.
c)You must let them know within two clear working days of you changing your address or job.
d)You must not leave Victoria without first getting their permission.
e)You must obey by all lawful instructions.
106In addition to that I have imposed the further conditions, as I have just outlined for you, which is:
a)Supervision
b)Treatment for drugs, alcohol, mental health and programs
c)Community work, which is a further punitive element, of 100 hours but you can credit 50 hours against treatment if you undertake it.
107Now do you understand what the conditions are?
108OFFENDER DEAN: Yes, Your Honour.
109HER HONOUR: All right. You can breach a community corrections order by either
a)not complying with the conditions; or
b)committing an offence during the operational period.
110Do you understand that?
111OFFENDER DEAN: (No audible response.)
112If you breach an order, you can come back to this court and I have the power to deal with you for the breach, and to resentence you for the original charges. All right. Now Mr Dean, understanding the conditions of the order and also how you can breach it and the consequences of a breach, do you consent to the order?
113OFFENDER DEAN: Yes.
114HER HONOUR: You do, all right, thank you. You can just take a seat for the time being, thank you.
115Counsel, we will have the order for Mr Camilleri printed now given that he is in court and you can have a look at that to ensure it reflects what has been indicated, and you can approach him also.
116MR YOUNG: Thank you, Your Honour.
117HER HONOUR: Mr Thyssen, I consider that I have gone through the matters that I need to with Mr Dean, given he is remote.
118MR THYSSEN: Yes.
119HER HONOUR: The order will be sent through to the court or to custody in Ballarat and he can actually sign it, I will have him sign it as well. All right, do either of you consider that I need to do anything further in respect of the order? I will come to s6AAA and so forth shortly.
120All right. Before I do that then, we will just have Mr Camilleri's order please, printed.
121MR McKENRY: Your Honour, I understood that there was no cumulation for Mr Dean either, Your Honour didn't say so, but am I correct in that?
122HER HONOUR: Yes. The base sentence is as I have indicated in
Mr Camilleri's case, no orders for cumulation.123MR McKENRY: Understood.
124HER HONOUR: And Ballarat would be the appropriate Corrections office for Mr Camilleri.
125MR YOUNG: Yes, Your Honour.
126HER HONOUR: Just to make plain, I am not sure if I did, I did not order residential treatment. It is treatment for – and I have been guided by the Corrections assessments – so perhaps just wait a moment because that needs to be changed.
127MR YOUNG: Yes, Your Honour.
128HER HONOUR: Look while that is being done, there is no s18 pre-sentence detention in either case, is that right?
129MR YOUNG: No.
130MR McKENRY: That's correct, Your Honour.
131HER HONOUR: All right.
132Section 6AAA declaration. This is directed at you, Mr Camilleri and Mr Dean. Had you not entered pleas of guilty I would have sentenced you to some two years and 10 months' imprisonment and set a non-parole period of one year and 10 months.
133The purpose of that indication is to indicate that I have taken into account your pleas of guilty and it is reflected in the sentence.
134Were there any other ancillary orders, Mr McKenry?
135MR McKENRY: (Indistinct).
136HER HONOUR: All right. Custody management issues that I will have noted for Mr Camilleri is that this is his first term or experience of prison and also that he suffers from – can you just check, is he on medication presently?
137MR YOUNG: He's not currently, no, Your Honour.
138HER HONOUR: No, all right. But I just will note the diagnosis made in his case and I will have that noted as a custody management issue. Was there anything further in that regard?
139MR YOUNG: No, Your Honour. Thank you.
140HER HONOUR: I will have noted that he suffers from persistent depressive disorder.
141Both of you have three months to serve from today's date and then you will commence the community corrections order. Do you understand?
142MR McKENRY: As Your Honour pleases.
143COUNSEL: As the court pleases.
144HER HONOUR: Thank you.
‑ ‑ ‑
0
12
0