Director of Public Prosecutions v Dean and Micallef
[2014] VCC 907
•6 June 2014
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No.
(Dean Micallef) CR-14-00240
(Matthew Micallef) CR-14-00239
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DEAN MICALLEF AND MATTHEW MICALLEF |
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JUDGE: | HIS HONOUR JUDGE PUNSHON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 May 2014 | |
DATE OF SENTENCE: | 6 June 2014 | |
CASE MAY BE CITED AS: | DPP v Dean & Micallef | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 907 | |
REASONS FOR SENTENCE
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Subject: Theft; obtaining by deception and associated charges.
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms D. Guesdon | OPP Victoria |
| For Dean Micallef For Matthew Micallef | Mr M. McGrath Mr R. Revill | Melasecca, Kelly and Zayler Revill and Papa Lawyers |
HIS HONOUR:
1 Dean Micallef you have pleaded guilty to one charge of theft and one charge of obtaining property by deception (Charges 1 and 2 respectively).
2 Matthew Micallef you have also pleaded guilty to one charge of theft and one charge of obtaining property by deception (Charges 3 and 4 respectively). You have also pleaded guilty to eight summary charges of dealing with property suspected of being the proceeds of crime and one charge of driving whilst suspended.
3 The prosecutor Ms Guesdon opened the circumstances of the offending by reading from a written ‘Summary of Prosecution Opening for Plea’, which was tendered.
4 Dean Micallef, between 12 July 2011 and 10 February 2012, you stole 17 motor cars and sold them to Norstar Steel Recyclers for scrap. In addition, you sold Norstar another ten cars, but the identity of these cars could not be established. The value of the 17 stolen cars was $42,800. You obtained $6,162.55 from Norstar for the 27 cars. Some of the cars were stolen from the side of the road after breaking down. Others were stolen from where they were parked. You moved them using your father’s tow truck or a trailer or ute.
5 Matthew Micallef, between 12 February 2012 and 14 September 2012, you stole 60 motor cars and sold them to Norstar Steel Recyclers for scrap. In addition, you sold Norstar another 22 cars, but the identity of these cars could not be established. Of these 22 cars, eight are the subject of the summary charges of dealing with property suspected of being the proceeds of crime. The value of the stolen cars was $174,345.60. You obtained $22,642.35 from Norstar for the 82 cars and this period of offending was between 1 December 2011 and 14 September 2012. Once again, some of the cars were stolen from the side of the road after breaking down. Others were stolen from where they had been parked. You also used your father’s tow truck to steal and deliver the cars. During this period your licence was suspended, hence the summary charge of driving whilst suspended.
6 Procedures to ensure accurate vehicle details were recorded at Norstar were deficient and each of you was able to change details to disguise the identity of the cars.
7 Warrants were executed at your homes on 23 April 2013. Each of you was interviewed and whilst you Dean Micallef made some admissions including admitting taking some cars to Norstar, you did not admit stealing them. Matthew Micallef, you admitted stealing cars and selling them for scrap at Norstar.
8 Mr McGrath appeared for you, Dean Micallef. A document outlining significant dates, sentencing submissions and background details was tendered. Mr McGrath also briefly outlined your background.
9 You are aged 33. You and Matthew, who is aged 22, have the same father but different mothers. Your mother attended court to support you. Your parents separated when you were ten and you remained with your mother. I was told your father was violent towards your mother and you witnessed this. You have maintained your relationship with your father who is a panel beater and spray painter.
10 You completed Year 10 at secondary school and then attended TAFE for Years 11 and 12 completing a course in Automotive Studies in 1998. You then did an apprenticeship as a panel beater. You worked as a fitter and then a storeman for a total of about four years whilst also studying graphic design completing three years of a four year course.
11 In 2003, you bought a tow truck and started your own business the next year. You sold this business in 2007.
12 You have a criminal history. However, your counsel noted that your first appearance was in 2006 when you were received a non-conviction bond for assaulting your then partner with whom you had been in a relationship since 2000. You had a child together in 2007, but the relationship broke down in 2009. The last five years have been difficult for you and family court property and custody issues have only resolved this year. After your son’s birth, you stayed at home caring for him. Your separation from him has affected you significantly. You are not having contact with him at the moment, but hope to re-establish access.
13 Although you have used drugs since about 2005, it seems your drug use escalated at the time of your relationship break-up and you were using ‘ice’ daily. This provides the setting for your offending history until you were sentenced to prison in late March 2012, when I was told you ceased using drugs despite not having the benefit of drug programs which were unavailable at Fulham Prison.
14 In September 2011 you were convicted and released on a Community Based Order for theft of a motor vehicle, burglary and theft. In October 2011, you were sentenced to nine months’ imprisonment to be served by way of an Intensive Correction Order for reckless conduct endangering life and fined for other offending, including failing to answer bail and dangerous driving. In January 2012, you were sentenced to two months’ imprisonment wholly suspended for 12 months for burglary and theft. You were fined for unlicensed driving and failing to answer bail.
15 On 11 March 2012, you were remanded for failing to comply with the above corrections orders and on 28 March 2012, you were ordered to serve the unexpired portion of your ICO (272 days), plus 93 days for matters related to the CBO breach, a total of one year. A three month non-parole period was fixed but you were released early on 16 May 2012. On 14 November 2012, you were sentenced for contravening a family violence intervention order and released on an adjourned undertaking for one year on condition you undertake a parenting program. Your parole ended on 10 February 2013.
16 You were arrested on the current matters on 24 April 2013 and were released on CISP bail on 1 May 2013.
17 You successfully completed the CISP 13 week program, which involved a comprehensive drug and alcohol assessment and consequent counselling. You were considered ‘highly motivated to address prior issues’ and found counselling sessions beneficial. You achieved your goal of ongoing abstinence and expressed a desire to further rehabilitate.
18 You are currently in a relationship and a letter of support from your partner was tendered along with a number of other character references. Your partner had been living with you for about two months at the time of your arrest for the current matters. She noted your remorse and the impact that your conduct concerning the current offending and the pending proceedings have had upon you. You have been depressed and anxious. Your life and your partner’s life have been on hold. Your house burnt down in March this year; you lost possessions and suffered burns to your right leg.
19 I accept that you have many good qualities as other testimonials from Beau Barbara, Ms Camilleri and your mother confirm. I accept that the current offending and your past offending generally since 2010 occurred in the context of your relationship break-up and drug use. I accept that you are currently well supported and determined to rehabilitate, leading the essentially crime free, hardworking and responsible life you did prior to your relationship break-up. I accept that you are remorseful for the current offending. Your mother emphasised your decline, instability and changed character at the time of your relationship break-up. She thought the drugs totally changed your personality. She noted the impact of imprisonment on you and your determination to make the opportunities granted when you were released on CISP bail in 2013 succeed.
20 You have pleaded guilty and of course must benefit from that. It saves time, expense and the need for witnesses to give evidence at trial. Your indication to plead guilty came before the end of the committal. Your case was complicated and I accept that it was reasonable for you to explore the extent of the allegations before pleading guilty. You were successful in having the charges substantially reduced. I accept that remorse was a component in your pleas of guilty.
21 You ceased the current offending some weeks before you were imprisoned in March 2012.
22 You have some matters pending which you intend to contest. You also have a pending charge of driving whilst disqualified, but your counsel had little knowledge of this.
23 Your counsel submitted that there were three realistic sentencing options: release on a Community Correction Order, a wholly suspended sentence or immediate imprisonment. He addressed each option.
24 The prosecution submitted that immediate imprisonment should be imposed. Ms Guesdon noted that some of the current offending concerning two particular cars occurred after the imposition of the suspended sentence on 31 January 2012. The current offending would also have breached the CBO and ICO on which you were placed in 2011, however as noted, these orders were the subject of breach proceedings resulting in imprisonment in late March 2012. Accordingly, the current offending demonstrated a disregard for court orders and the opportunity they offered. Next, it was submitted that the total value of the stolen cars, although not great, was not insignificant. Furthermore, the modest value of each vehicle suggests that owners generally were unlikely to be wealthy and less able to afford the loss, in those instances when the car was uninsured. Some cars were stolen in circumstances where they were in use. Some planning was involved in the offending and there has been no restitution, noted Ms Guesdon. Finally, it was noted that the intent behind the thefts was to dispose of the cars.
25 You are at risk of having breach proceedings brought against you and therefore at risk of having to serve the two months, which was suspended, in custody.
26 Mr Revill appeared for you, Matthew Micallef.
27 As noted, you made admissions when interviewed and have pleaded guilty at the first reasonable opportunity. You must benefit from this. I accept that remorse has played a part in your pleas.
28 Your counsel emphasised your youth at the time of offending. You were born in March 1992 and turned 22 recently.
29 Heroin use was the primary reason for your offending.
30 I have already referred to some of your family details. You have four siblings, two of whom are stepsiblings. Your counsel said your father was a strict disciplinarian; you had a tough upbringing; you were in conflict with your father and went off the rails early. Your education suffered when you were expelled at the end of Year 8 or early in Year 9 aged 15.
31 You worked as a floor tiler for six months and then began an apprenticeship in panel beating, but this ceased after eight weeks. You obtained unskilled work but were also unemployed and by 18 you were on a youth allowance.
32 Your criminal history begins in 2007 when the Children’s Court released you on a Youth Supervision Order (YSO), without conviction, for driving and dishonesty offending. Later that year, the Children’s Court once again released you on a YSO, without conviction, for driving and dishonesty offending as well as arson. The Order required you to use your best endeavours to find employment. In March 2008, you were convicted and fined for driving offences. In May 2008, you were released, without conviction, on an undertaking for driving offences. In November 2008, you were resentenced for the November 2007 offending, presumably on a breach, and were ordered to be detained in a Youth Justice Centre for three months. In August 2009, the Children’s Court once again released you on a YSO for dishonesty and driving offences as well as criminal damage and assault. A condition of your release was that you continue working with your father. You last appeared in the Children’s Court in December 2009 for driving offences and were released, without conviction, on a good behaviour bond. In September 2011, you were convicted of dishonesty and driving offences in the Magistrates’ Court and released on a CBO for 12 months.
33 You have been in a relationship for three years and have a child aged 15 months. Your partner has two other children. She wrote an articulate letter supporting you. She has given you the choice of living a stable life with her and your child or, as she put it, continue ‘down the path of destruction’. She wrote that she would no longer tolerate your drug use and all that accompanies it. In the past your partner said, although she has tried to steer you away from drugs and crime, she has accepted your choices. Your partner is 28 and has had far more than her share of tragedy. She is reliant upon you. She accepts, as do you, the inevitability of imprisonment but despite acknowledging the court opportunities you have had in the past, she believes you are remorseful and regret not taking advantage of past leniency.
34 I accept your counsel’s submission that drug taking is the critical factor explaining your past conduct and your ability to remain drug free is the chief contingency for your future. You used cannabis at 16, then ‘ice’ at 18 and heroin at 19.
35 You have been on a methadone program since late 2012, which is shortly after the current offending ceased. You have had some difficulty complying with the program but currently are applying yourself and reducing your intake.
36 Your legal advisers were concerned that you might suffer an Acquired Brain Injury (ABI) and had you assessed. A neuropsychological report dated 27 December 2013 was tendered. Although it seems you have no ABI, you do have significant thinking and reasoning capacity deficits. Quoting from the report your counsel noted that you demonstrated ‘a tendency for rigid and perseverative thinking’. Once on a particular line of thought, it seems you are unable to shift your thinking – even when prompted. This makes you somewhat confused if unable to follow another’s line of thought, increasing your frustration. Furthermore, you demonstrated a degree of impulsive thinking and reduced self-monitoring that resulted in recurrent errors. Strategies to assist your day to day functioning were recommended by Dr Evans, the Senior Clinical Neuropsychologist, who wrote the report.
37 I think the report would be of assistance to prison authorities and intend to provide a copy to them to promote your rehabilitation.
38 You are currently in custody, having been arrested on 1 May for breaching your CBO as well as further dishonesty and drug offending. These matters were listed in the Magistrates’ Court for hearing yesterday but were adjourned.
39 I accept the prosecution submission that, given your history, I need to be guarded about your rehabilitation prospects. However, you are still young and currently experiencing adult prison for the first time. You have the very considerable benefit of an intelligent and supportive partner, who whilst understanding the risks and presenting you with an ultimatum, nevertheless has confidence in your capacity to take whatever opportunities are offered. The prosecution noted your parlous criminal history, including several appearances for car theft, but also accepted that rehabilitation has a large role, given your youth.
40 You seem to have taken up your brother’s modus operandi for stealing cars when he was imprisoned. However, it is accepted that your offending is more serious, hence the concession that immediate imprisonment must be imposed. The number of stolen cars in your case is significantly greater, their value also is greater and the amount you obtained is greater. Although no victim impact statements were made, the impact on victims is likely to have been significant. Although some planning was involved your offending was not sophisticated and why it was not detected earlier obviously provokes questions.
41 The prosecution was unable to direct me to any comparable cases. Your cases do have some unique features. Of course the number of cars stolen or presented for sale as scrap is relevant to the culpability of each of you and provides some basis for distinguishing between each of you, however the numbers of cars, their values and amounts received are only part of the picture. At the heart of each of your cases is a sustained course of conduct of stealing cars and selling them for scrap. In my view, only imprisonment is appropriate in each of your cases.
42 In your case Dean Micallef, you will be convicted of both charges and sentenced to an aggregate term of 21 months’ imprisonment.
43 I am impressed by your rehabilitative progress and potential. Your efforts to date have been considerable. You ceased the current offending before being imprisoned in March 2012. I accept that the two and a half months you then served had a significant deterrent impact on you and has encouraged your determination to continue rehabilitating and remain drug and crime free. I accept that the period of offending after your relationship break-up and before being imprisoned in March 2012 was an aberrant period. Your counsel submitted that if imprisonment was imposed I should wholly suspend the sentence. I have not found it easy to resolve the question of whether immediate imprisonment must be imposed as the prosecution urged. The line is fine, but in the end I consider that a wholly suspended sentence can serve the interests of justice particularly the requirements of general deterrence. The community is better served by encouraging you to continue your rehabilitation rather than expose you to the risk of contamination in prison. You must understand that you are simply being offered an opportunity. The sentence is imprisonment for 21 months and is simply being held in suspension. If you commit another offence punishable by imprisonment in the next two years, you will almost certainly be sent to prison.
44 Accordingly, the sentence of 21 months I have imposed will be wholly suspended for a period of two years.
45 I do note that you have served ten days in pre-sentence detention, but given the suspension of your prison term, make no order concerning this period.
46 Concerning Charge 1, any licence you hold is to be cancelled and you are to be disqualified from driving for a period of three months from today.
47 Had you not pleaded guilty and all other things being equal, despite the artificiality of this assumption, I expect I would have sentenced you to about 30 months imprisonment and fixed a non-parole period of at least 15 months.
48 In your case Matthew Micallef, you will be convicted of Charges 1 and 2. You will also be convicted on the eight summary charges of dealing with property being the suspected proceeds of crime. On all these ten charges, you will be sentenced to an aggregate term of two years and eight months’ imprisonment. You also will be convicted of the summary charge of driving whilst suspended, a charge reflecting a lengthy course of conduct, and sentenced to three months’ imprisonment.
49 I order that one month of the sentence imposed on the summary charge of driving whilst suspended be served cumulatively on the aggregate term imposed on Charge 1 and 2 (and the 8 summary charges).
50 That makes for a total effective sentence of two years and nine months imprisonment. Your youth is important to fixing both the sentence and non-parole period. I intend to be as lenient as I consider possible in fixing the non-parole to reduce the risks of contamination. I fix 15 months as the term you must serve before being eligible for release on parole.
51 I declare that you have served 39 days pre-sentence detention, however this period is to be reckoned as time already served on the sentence I have imposed.
52 Had you not pleaded guilty I expect I would have sentenced you to a total effective term of three years and nine months’ imprisonment and fixed a non-parole period of about two years and three months’ imprisonment.
53 On Charge 1, I formally cancel any licence you hold, although I understand you have none, and disqualify you from obtaining a licence for a period of three months to begin on the day you are released from prison.
54 Although strictly speaking you are not co-accused, I have been concerned to avoid imposing disparate penalties. The outcomes for each of you are significantly different. Dean Micallef, you will be free to leave the courtroom. Matthew Micallef, you will have to serve at least 15 months less pre sentence detention in prison and may have to serve 33 months. However, Matthew Micalleff, despite your age, this disparity results from a number of distinguishing features concerning your and your brother’s cases, these factors include your more serious offending, your less favourable rehabilitation prospects and the fact that I was persuaded that your brother’s circumstances permitted, albeit barely, the sentence to be wholly suspended. He may, of course, still have to serve 21 months in prison. Is there anything that needs correcting that counsel can identify?
55 MR REVILL: No Your Honour.
56 HIS HONOUR: Anything further I need to do?
57 MR REVILL: No Your Honour.
58 MR McGRATH: The only thing Your Honour is in the circumstances and given that it may well be that the summary suspended sentence if it is activated or prosecuted by the police - - -
59 HIS HONOUR: Yes.
60 MR McGRATH: I ask that Your Honour consider having - either releasing your reasons or sentencing remarks or - - -
61 HIS HONOUR: Yes, if you make application for them I'll release them to you or your instructors.
62 (Discussion)
63 HIS HONOUR: You can come out of the dock, you can come out of the dock now. You'll reinforce to your client what these significance of a suspended sentence is.
64 MR McGRATH: Yes I will Your Honour. Yes I will.
65 HIS HONOUR: How close the judgment was.
66 MR McGRATH: Yes I'll explain that Your Honour.
67 HIS HONOUR: I think I'll leave the Bench and come back when we've made the link for the next case.
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