Director of Public Prosecutions v Decelis
[2018] VCC 1614
•4 October 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-01439
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANDREW SCOTT DECELIS |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 September 2018 | |
DATE OF SENTENCE: | 4 October 2018 | |
CASE MAY BE CITED AS: | DPP v Decelis | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1614 | |
REASONS FOR SENTENCE
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Subject:Criminal law – sentencing – aggravated burglary – causing injury intentionally and criminal damage – extensive and relevant prior criminal history – immediate term of imprisonment imposed
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms A. French (Plea) Ms D. Tang (Sentence) | John Cain, Solicitor for Public Prosecutions |
| For the Accused | Ms E. Clark (Plea) Mr P. McClure (Sentence) | Balmer and Associates |
HER HONOUR:
1 Andrew Scott Decelis, you have pleaded guilty before me on indictment to one charge of aggravated burglary, one charge of causing injury intentionally, and one charge of damaging property and in addition, you have pleaded guilty to summary charges that were transferred pursuant to s145 of the Criminal Procedure Act 2009 and they were Summary Charge 4, unlawful assault; Summary Charge 5, contravention of family violence intervention order, and Summary Charge 6, commit an indictable offence whilst on bail.
2 The offences are serious, and that is reflected in the maximum penalty that is prescribed by Parliament, and they are as follows:
· Aggravated burglary: 25 years’ imprisonment
· Intentionally causing injury and criminal damage: 10 years’ imprisonment
· Contravene family violence intervention order: 2 years’ imprisonment or 240 penalty units or both
· Unlawful assault: three months’ imprisonment or 15 penalty units
· Commit indictable offence whilst on bail: 30 penalty units or three months’ imprisonment.
3 You have admitted your prior criminal history and there are some five court appearances that span a period from 5 July 2013 to 18 August 2016.
4 On 5 July 2013, a three‑month term of imprisonment was imposed that was wholly suspended. That related to breach of an alcohol interlock condition on your licence.
5 On 23 February 2016 you were convicted and placed on a Community Correction Order for one year, subject to special conditions and that related to consolidation of offences which included unlawful assault, contravene family violence interim intervention order, contravene family violence final intervention order and contravene family violence intervention order (interim).
6 On 22 March 2016 you were convicted of a charge of breach of an alcohol interlock condition, for which you were placed on a Community Correction Order for one year.
7 On 18 August 2016 you were dealt with in respect to three charges of recklessly cause injury (and I noted that related to Ms Sheehan[1], one of the victims in this matter, that is, the victim of the summary charge unlawful assault), possess methylamphetamine, driving whilst disqualified, and use unregistered vehicle, for which you were convicted and placed on Community Correction Orders for 18 months.
[1] Ms Sheehan is a pseudonym
8 Therefore, the offending the subject of these proceedings constitutes a breach of those orders and is a further aggravating feature of your offending.
9 You also have had subsequent court hearings. On 3 July 2018 at Frankston Magistrates’ Court you were dealt with in respect to two charges of contravening a Family Violence Intervention Order, possess methylamphetamine, drive whilst disqualified, for which you were convicted and ordered to serve an aggregate term of 70 days’ imprisonment, and pre-sentence detention of 70 days’ was declared. You were also dealt with for a contravention of a Community Correction Order that was imposed on 18 August 2016, drive disqualified, and use unregistered vehicle, for which the offence was found proven, and the original order confirmed. You were further dealt with in respect of a breach of a Community Correction Order imposed on 18 August 2016 in respect to recklessly causing injury, and possession of methylamphetamine. That breach was also found proven and the order confirmed, and a further order of 18‑months and a Community Correction Order of 18 months duration was imposed.
10 On 3 July 2018, in respect to contravention of the Community Correction Order, in respect to the breach of the 22 March 2016 order, relating to the breach of the alcohol interlock condition, that contravention was found proven and the original order confirmed.
11 From all of that, it seems that you have had a history of not complying with court orders.
12 I will now proceed to sentence you on the basis of the prosecution opening that was read at the hearing, the plea hearing. There was no objection taken at the time and it is marked as an Exhibit: Exhibit 1.
13 You are now 44 and you were 43 at the time of these offences.
14 The context to the offending was that previously you had been in a relationship with Gail Sheehan for about four years. It was described as an “on/off” relationship and at times during the relationship Ms Sheehan had been the subject of violence against her and that was the subject of the breach of Family Violence Intervention Order that I have earlier referred to. The three convictions you have for recklessly causing injury that were recorded on 18 August 2016 also relate to Ms Sheehan.
15 A Family Violence Intervention Order was made against you on 19 July 2016 at Frankston Magistrates’ Court, which had a two year operational period. Part of the conditions of the orders were that you were prohibited from contacting or communicating with Ms Sheehan by any means, approaching or remaining within five metres of her, or going to or remaining within 200 metres of her residential address or place of work.
16 At the time of the imposition of the order you were on remand. When released from custody you reconciled with Ms Sheehan during the currency of the intervention order.
17 In about late November 2016 Ms Sheehan ended the relationship and moved in to live with her friend Tess Cain[2]. Ms Cain lived in Lakes Entrance in a unit with her son.
[2] Tess Cain is a pseudonym
18 On 1 December 2017, at approximately 3pm, you attended the unit and at the time Ms Sheehan and Ms Cain were both home. You approached the front door, yelling out to Ms Sheehan to come out, and threatened to knock out both women. Ms Sheehan told you she was doing some paperwork, and stayed inside. You continued to yell for a couple of minutes. Consequently, when Ms Sheehan did not come out, you went to Ms Sheehan’s car that was parked in the driveway, opened the bonnet, and attempted to disable the car.
19 Ms Sheehan then walked over to you and told you to move away from her car. You were yelling abuse and making threats towards her. She had called 000 and whilst she was on the phone, Ms Sheehan tried to pull you away from her car. You then struck her to the left side of her face with an open hand, the force of which caused her to stumble a few metres. (Summary Charge 4, unlawful assault.)
20 As a result of the assault Ms Sheehan sustained soreness and swelling to her cheek, and emotional trauma.
21 Some days later, on 5 December 2017, at about 3pm, Ms Cain and another friend, Peter Butterworth[3], were on the street in front of the unit and Ms Sheehan was inside.
[3] Peter Butterworth is a pseudonym
22 You drove to the unit and from the driver’s seat, you asked both Ms Cain and Mr Butterworth whether Ms Sheehan was home and you were told by them that she was not, so you drove away.
23 About 20 minutes later, when the three people were back inside the unit, you walked in aggressively through the open bi‑fold doors into the living room and approached Mr Butterworth from behind. He was unaware of your presence. You then began to attack him, grabbing him and throwing him onto the couch. You jumped on top of him and punched him to the head and face with both your fists. You were screamed at by Ms Sheehan to stop, and she tried to pull you off. Eventually Mr Butterworth was able to stand up, and you left the unit.
24 As a consequence of the assault, Mr Butterworth sustained a cut to the right side of his face close to his right eye, a cut above his left elbow, bruising to the right hand, and soreness to the left shoulder (Charge 1, the aggravated burglary, and Charge 2, intentionally causing injury to Peter Butterworth.)
25 Between 1 and 9 December 2017 you sent approximately 200 text messages to Ms Sheehan from two different mobile numbers, and some of those messages were of a threatening nature (Summary Charge 5: Contravene Family Violence Intervention Order).
26 Previously Ms Sheehan had arranged for some of her property to be stored in a factory in Sorrento that was owned by your parents. You texted her photographs which depicted damage to some of the items (and that is also part of Summary Charge 5.)
27 When Ms Sheehan went to the factory to collect the property, she observed considerable damage that had been occasioned to various items, the value of which is estimated at approximately $5,000 - Charge 3, criminal damage.
28 At the time of the commission of the offences the subject of the indictment, you were on bail in relation to breach of an Intervention Order (relating to a different person, namely your former partner) and contravention of a Community Correction Order. You had been arrested on 28 September 2017 on outstanding warrants of apprehension, and bailed on your own undertaking (Summary Charge 6 – commit an indictable offence whilst on bail).
29 It is a further aggravating feature of this offending that you have committed the indictable offences whilst on bail.
30 You were arrested on 11 December 2017 and a formal record of interview was conducted, during which you made some admissions in relation to breaching the intervention order. You made no comment in relation to the allegations of criminal damage. You answered essentially “no comment” in relation to the 5 December 2017 incident.
31 You informed police that during the period 1 to 5 December 2017 you had had quite a few drinks, and probably had used Ice once, and used pseudoephedrine.
32 You pleaded guilty to the offences on the indictment at committal hearing, and it is accepted by the prosecution the plea was entered at an early stage. I accept there is real utility in the plea. You have spared the State the expense and inconvenience of a trial and you spared the witnesses the further trauma of having to come to give evidence on your trial. You have facilitated justice such that your sentence will be discounted accordingly.
33 The consequences of your offending have been great and that was exemplified by the content of each of the victim impact statements that were read at the plea hearing.
34 Peter Butterworth confirms that your unprovoked attack has had a profound effect. He was angry because he was unable to properly defend himself. He felt trapped, and feared for his life. Since this incident he has had difficulty sleeping. He suffers anxiety, and is now hypervigilant.
35 He has counselling from a psychologist. Because of the consequences, he relocated to Queensland and the move has been very disruptive and caused further stress. He has had difficulties coping with the physical demands of his work and a consequence he has suffered both financial and emotional distress.
36 Tess Cain writes about the sadness and distress that you have caused as a consequence of the offending. Sadly, she had a history of having suffered the consequences of domestic violence as well, and your offending triggered a lot of the issues that she has had to deal with other the years from being exposed to violence in past relationships. She has a young son, and she felt that she could not keep him safe anymore at that unit and she too had to leave it and relocate at great financial costs.
37 Because of her anxiety and need to feel safe, that caused further strains on her relationship with her family.
38 Her family did not understand the bond that she had with Ms Sheehan. She has also had to cope with the loss of the friendship with Peter, who relocated to Queensland. She has had anxiety and depression, and has required extra support.
39 Ms Sheehan described the difficulties she had coping following your abusive relationship with her. This was further exacerbated by your criminal conduct on this occasion. As well, she has had to cope with your unprovoked attack on her two friends. She believed that you were going to kill her friend Peter. The damage to her furniture has been very costly, and she too has had to relocate in order to feel safe.
40 The offending is a serious example of aggravated burglary and I will talk a little bit about that later.
41 In court supporting you was your mother, as well as Mary-Louise Fryberg[4], a former partner, with whom you have a son, Morris[5].
[4] Mary-Louise Fryberg is a pseudonym
[5] Morris is a pseudonym
42 I note that your background was unremarkable. You are the eldest of three children. Your parents live together and raised you in the Upper Beaconsfield area. They owned the general store that was tragically destroyed as a consequence of the Black Friday fires in 1982. After those fires, your father rebuilt the store and developed a garden-supply aspect to the business.
43 You completed your schooling at Haileybury College, where you excelled at sports. You are said to be an excellent water-polo player, performing at State championship level. You did not complete Year 12, but you did complete a Certificate in Landscaping and Horticulture. You were gainfully employed in that field for about 20 years in both Victoria, Perth, Western Australia and London, in the United Kingdom. You returned to Australia and commenced working with your father’s building company that he had established and for the future you have plans to resume employment in that business upon your eventual release.
44 At the end of 2007 you were diagnosed with thyroid cancer, and it took six months for the condition to be treated. When you were diagnosed with thyroid cancer, you curbed your drinking, which had been an issue that was described as being significant for you prior to that.
45 You then started dabbling, using Ice in 2010, initially using it off and on and gradually your use escalated. That had a particularly negative impact upon your personal circumstances from around 2012. In 2014 you lost your business, in large part due to your spiralling drug use. You were unable to meet commitments. You were indulging heavily in methylamphetamine and as a consequence, you lost the business.
46 Your son Morris was born in October 2011 at 28 weeks’ gestation and your partner suffered post-natal depression. You both had difficulties as a consequence and that relationship eventually broke down.
47 In 2014 you met Ms Sheehan and commenced an intimate relationship with her. That relationship coincided with your escalating drug use.
48 You now acknowledge the harm that you have caused as a consequence of your actions, involving as it did on this occasion violence against three people. You acknowledge now that you need assistance to address anger management, illicit drug use, and appropriate relationships.
49 You have written the following apology to your victims and the court. You say and I quote: "I apologise to you all for the pain I have caused and I realise that I have no excuse for what I did. There's no arguing that what I did was irresponsible and wrong. I want to make sure that you all know that I recognise that and feel horrible about it. I can promise to you all, with all my heart, that I will never be that person I was ever again. I know that I was acting out of character. I'm a much better person than that. I'm sorry that I've caused such sadness and a painful event and I know that I really do owe you all an apology. I clearly wasn't thinking and now I do realise that what I did was hurtful. At any rate, I extend to you all my sincerest apologies."
50 You have been in custody on remand for some time, and this is your first time you have spent in adult custody. It has been a very salutary experience for you.
51 I accept that you are now developing insight into the triggers for your offending behaviour and you openly acknowledge that what you did was wrong. You were acting out of control on a very destructive path at the time of this offending.
52 You are now seeking to restore your relationship with your son Morris, from whom you have been prohibited in contacting in the past. There is an Application currently before the Magistrates’ Court to vary the Family Violence Intervention Order that is to be heard in mid-October and the understanding is that the variation will occur so that you can work towards the restoration of your relationship with your son.
53 It is apparent that gaol has been an important circuit-breaker for you. This has been your longest period of abstinence from drugs since 2014. You have demonstrated that you have been very productive in gaol. You hold a position as recreational peer/support person and you have undertaken various courses dedicated to occupational pursuits, as well as drug and alcohol issues. You have undertaken a Building Healthy Relationships course, a problem solving course, a Managing Cravings program, drug and alcohol programs through Caraniche, a Think Smart program, and a positive problem solving program.
54 You are fortunate in that you have the ongoing support of both parents, as well as Ms Fryberg, who have indicated their preparedness to support you upon your eventual release. It is intended that you will go and live with your parents and undertake employment through the family business.
55 I accept, having regard to your expressed apology and your early plea of guilty that you are genuinely remorseful and that you are motivated to change for the future.
56 Ms Jessica Martino, psychologist, confirmed that she has been providing counselling to you through the services offered by Caraniche at Marngoneet Correctional Centre. You have been able to provide evidence to the court of abstinence from drugs. I noted the negative drug screens that were exhibited.
57 I have read the letter written to the court by your parents. They confirm that they are prepared to provide ongoing support and employment prospects for you. You are a person who otherwise does have a very good work history and you are considered to be a valuable and talented tradesman.
58 A further family connection, Mr Ray Montague has indicated his willingness to re‑employ you in the future. Mr Peter Hughes, who has known you since 1993, has had the advantage of observing you in prison and he said that you are starting to become a stronger person, one who is more focused on new beginnings and a fresh start away from past negative influences. He too will continue to support you in your transition back into the community. So, all in all, you are in the very fortunate position of being provided with strong supports in the community. That augurs well for your rehabilitation in the future.
59 As was discussed in the plea hearing, the nature of your offending, involving as it does offending whilst you were on bail and also in breach of Community Correction Orders, is very serious.
60 I consider that the confrontational aggravated burglary is a serious example of the offence. It is low to mid-range offending, however, there is the absence of the usual features one finds in these sorts of cases-: I note that you entered without forcing the door, that you were alone, not armed and the offending occurred in mid-afternoon, you were known to the victims and not disguised. Nonetheless it is still a serious example, involving as it does entering with intent to assault, and thereafter assaulting the victim, Mr Butterworth.
61 The unlawful assault is a serious example. It is exacerbated because of the history that you have had with Ms Sheehan, of inflicting violence upon her and it would have been terrifying for her to have seen you behave in that manner and to assault her in the way you did.
62 The contravention of the Family Violence Intervention Order is again a serious example of that sort of offence, having regard to the period over which the texts were sent, the number of texts and the nature of the content of those texts which, in the context of your previous dysfunctional and irresponsible relationship with Ms Sheehan, would have further caused her to be frightened of your conduct and fearful of further actions. The damaging property charge is but an extension of that as further aggravation in terms of you being negative towards her and wishing to inflict further harm upon her.
63 In sentencing you there is a strong need for the court to impose stern punishment.
64 General deterrence is of great significance, as well as specific deterrence, denunciation, and protection of the community. I do consider that the offending overall is of serious gravity and a term of imprisonment is warranted.
65 It is evident from a reading of your prior criminal history and subsequent history that you have developed a course of conduct over the years that is very negative towards your former intimate partners. You must take stock and address the triggers for your offending in order for you to make good your expressed commitment to change to be a law-abiding person and a proper father to your son.
66 I have taken into consideration all the factors emphasised by Ms Clark in mitigation. She conceded on your behalf that these events must have been terrifying and the courts must denounce confrontational aggravated burglaries.
67 I believe your conduct would have been terrifying for each of the victims that were affected and in particular, your former partner Ms Sheehan.
68 It is acknowledged through your plea of guilty and your expressions of remorse and your written apology that you understand what you did was wrong and you fully accept responsibility for your conduct.
69 I consider that you are a person who has developed evolving insight and I consider that your prospects for rehabilitation are reasonable.
70 All in all, I have had regard to the time you have already spent in custody, namely, the 70 days' imprisonment that was referred to earlier and I have had regard to the principle of totality in formulating the appropriate sentence.
71 I will allow a longer than normal non-parole period in order to facilitate your transition back into the community with appropriate supports, to ensure that you remain drug free and also make good your intention to seek productive employment and to regularise your life.
72 It will be necessary for you to work with counsellors to reflect on your behaviour towards those with whom you have had intimate relationships in the past and for you to deal with stress without resorting to anger and violence. You do have a young six-year-old son with whom you desire to build a proper parental relationship and in order to achieve that, it will be necessary for you to be respectful in your relationships with your former partner and also any other partner in the future.
73 I will now announce the formal orders.
74 There will be a degree of cumulation to reflect the separate criminal acts and the different victims of your crimes. Could you please stand while I announce the formal court orders?
75 The formal court orders are that you will be convicted and sentenced as follows:
76 Charge 1, that is the base sentence, the aggravated burglary, you will be convicted and sentenced to three years’ imprisonment.
77 Charge 2, causing injury intentionally, convicted and sentenced to two years’ imprisonment.
78 Charge 3, damaging property, convicted and sentenced to one year imprisonment.
79 Summary Charge 4, unlawful assault, convicted and sentenced to two month’s imprisonment.
80 Summary Charge 5, contravene family violence intervention order, convicted and sentenced to 12 months’ imprisonment.
81 Summary Charge 6, commit an indictable offence whilst on bail, convicted and sentenced to one month’s imprisonment.
82 I make the following orders for cumulation. Six months of the sentence imposed with respect to Charge 2, three months of the sentence imposed in respect to Charge 3, one month of Summary Charge 4, six months of Summary Charge 5 and one month of Summary Charge 6 are cumulative upon each other and upon the sentence imposed on Charge 1, making a total effective sentence of four years and five months’ imprisonment and I fix a non-parole period of two years and five months.
83 I make the following declaration pursuant to s.6AAA: but for your plea of guilty, I would have imposed a term of imprisonment of five and a half years, to serve three and a half years.
84 I declare that you served 227 days pre-sentence detention, and direct that that be entered into the records of the court.
85 I make the disposal order sought and finally, I make the order pursuant to s.464ZF(2) of the Crimes Act for the taking of a forensic sample. Having regard to the seriousness of the circumstances of the offending, your prior convictions, I consider such an order is warranted. I note that the order was made by consent and I consider the granting of the order is in the public interest.
86 So the only thing I need to tell you, Mr Decelis, is that you will be requested to provide a forensic sample and in the event that you do not provide such a sample, that that can be taken under supervision and that police may use reasonable force to enable that to be taken by way of blood sample, as opposed to a mouth scraping.
87 That concludes my sentencing remarks. There's nothing further, I believe? All right. Will you talk to your client downstairs Mr McClure?
88 MR McCLURE: Yes Your Honour. If I might have a moment just now, just one moment?
89 HER HONOUR: All right.
90 MR McCLURE: Thank you Your Honour. Thank you Your Honour.
91 HER HONOUR: All right, we can adjourn.
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