Director of Public Prosecutions v DeGruchy

[2018] VCC 315

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-01582

DIRECTOR OF PUBLIC PROSECUTIONS

v

JUSTIN DEGRUCHY

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JUDGE:	HIS HONOUR JUDGE DEAN
WHERE HELD:	Melbourne
DATE OF HEARING:	11 December 2017, 23 February 2018, 2 March 2018
DATE OF SENTENCE:	5 March 2018
CASE MAY BE CITED AS:	DPP v DeGruchy
MEDIUM NEUTRAL CITATION:	[2018] VCC 315

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director  For the Accused	Ms E. Tueno Mr M. Kozlowski	Office of Public Prosecutions Emma Turnbull Lawyers

HIS HONOUR:

1Justin DeGruchy, you have pleaded guilty to one charge of burglary, contrary to s.76(1)(a) of the Crimes Act 1958. The maximum penalty for that offence is ten years’ imprisonment.

2You have also pleaded guilty to the related summary offence of possession of a prohibited weapon, contrary to s.5AA of the Control of Weapons Act 1990. The maximum penalty for that offence is a fine of 240 penalty units or imprisonment for two years.

3You pleaded guilty at a committal case conference on 7 August 2017 and I have taken your early plea into account in your favour in mitigation of sentence. I also accept that your plea is evidence of a degree of remorse in your case.

4You have admitted an extensive criminal history for a range of offences. You have served a number of terms of imprisonment and, notably, on 31 January 2005 you were sentenced to nine years and six months’ imprisonment, with a non-parole period of seven years for offences of kidnapping, indecent assault, and intentionally causing injury.

5Following your release from prison, you were placed on a supervision order for four years, which you breached. At the time of your offending in this instance, you had been placed on a Community Correction Order merely one month before your offending. All previous attempts by courts and corrections agencies to bring about your rehabilitation have to date failed. 

6On 11 December 2017, I adjourned your plea hearing for the purposes of obtaining a comprehensive Community Correction Order report. You were released on bail.

7On 8 January 2018, you were arrested at Bunnings in Sunshine and charged with the theft of $152 worth of electrical goods. It also became clear that you had not complied with the residency condition of your bail. It is plain from this summary that your prospects for rehabilitation are poor, although I accept that with age you have developed some insight into your offending behaviour and its consequences.

8A prosecution opening was read to the court and your offending may be summarised as follows: –

9On 9 May 2017 at 2.10 am, you and a co-offender broke into residential premises at St Andrews Drive, Werribee. You were carrying equipment for that purpose. You expected to find a cannabis crop growing there. You were also carrying a knuckle duster, which is a prohibited weapon. Your entry triggered a security system. Police attended and you were both arrested. You made full admissions to investigating police following your arrest. As I have said, the purpose of the burglary was to steal a cannabis crop. This was not a low-level offence, often committed to relieve poverty or to provide funds to support drug addiction.

10It is, in my opinion, an example of mid-range offending for the crime of burglary. The sentence I impose must be calculated to deter others from offending in this manner and in my opinion, specific deterrence is a significant sentencing consideration in your case. You must also be punished for your offending and your moral culpability is properly characterised as high.

11I now turn to your personal circumstances.

12You were born on 25 February 1969 and are now aged 49. As I have already observed, you have an extensive criminal history for a range of serious offences. You grew up in Gisborne and were educated to Year 10 level. You have four adult children and two grandchildren. You are in a stable relationship with your former parole officer, who was married to a police officer. I accept that this relationship has resulted in a significant level of stress for both of you, by reason of your respective backgrounds. I also accept that you have endeavoured to build an offending-free life with your partner, although you have repeatedly breached family violence intervention orders taken out by her or on her behalf.

13You have built up a landscaping business and are undertaking psychological treatment to address your offending behaviour and your underlying psychological issues. I accept the evidence contained in the character references tendered on your behalf and the evidence that your partner gave that you are capable of supporting and caring for others in your own family. It would appear drug use, however, continues to be an issue in your case, in particular cannabis use. You gave evidence on your plea hearing on two occasions and I accept, as I have said, that you have developed a degree of insight into your offending behaviour.

14With some hesitation, I had you assessed for a Community Correction Order.  The report I have received states that you are not suitable for such a disposition. I agree, and in my opinion, the purposes for which this sentence is to be imposed would not be met by the imposition of such a disposition.

15I have had regard to the principle of parity in sentencing by reference to the sentence passed on your co-offender, Kane Hadley, in the Magistrates’ Court on 14 February 2018. He was released on a 12-month Community Correction Order with a number of treatment conditions.

16Mr Hadley also has an extensive criminal history, but he does not have the serious convictions that you have. He has not served lengthy terms of imprisonment and he was not on a Community Correction Order when he offended. I also assume that he was found suitable by Corrections Victoria for such a disposition. Furthermore, parity in sentencing does not require me to pass a sentence which, in my opinion, would be inadequate or not proportionate in your case. In my opinion, the only appropriate, proportionate sentence in your case is one of imprisonment.

17However, I accept that your current psychological condition will compound the hardship of imprisonment upon you, and I will accordingly fix a short non-parole period in your case for that reason.

18In relation to the charge of burglary, you are convicted and sentenced to one year and nine months’ imprisonment.

19I direct that you serve nine months before becoming eligible for release on parole.

20I declare that you have served three days by way of pre-sentence detention.

21But for your plea of guilty, I would have imposed a total effective term of imprisonment of two years and six months and fixed a non-parole period of one year and six months.

22In relation to the charge of possession of a prohibited weapon, you are convicted and sentenced to one month imprisonment.

23I direct that that sentence be served concurrently with the sentence imposed in relation to the charge of burglary and the s.6AAA declaration has regard to the sentence imposed on the charge of possession of a prohibited weapon.

24I have made the disposal order sought on behalf of the prosecution.

25Are there any further orders required?

26MS TUENO: No, Your Honour.

27HIS HONOUR: Mr Kozlowski?

28MR KOZLOWSKI: No, Your Honour.

29HIS HONOUR: Thank you. We’ll adjourn it until 10.30.

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