Director of Public Prosecutions v Delalande
[2021] VCC 1539
•11 October 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 21-00013
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JORDAN DELALANDE |
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JUDGE: | HIS HONOUR JUDGE LAURITSEN |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 27 September 2021 |
DATE OF SENTENCE: | 11 October 2021 |
CASE MAY BE CITED AS: | DPP v Delalande |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1539 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: One charge of kidnapping – one charge of theft – one charge of committing an indictable offence whilst on bail – seriousness of the offences falls between the low and mid-range
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:R v Worboyes [2021] VSCA 169; R v Verdins [2007] VSCA 102
Sentence: Total effective sentence of 2 years and 11 months’ imprisonment with a non-parole period of two years’ imprisonment.
s6AAA: four years and six months’ imprisonment with a non-parole period of three years’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms S. Locke | Office of Public Prosecutions |
For the Accused | Mr L. Cameron | Doogue George Lawyers |
HIS HONOUR:
Introduction
1Jordan Delalande, I propose to sentence you to a total effective sentence of two years and 11 months' imprisonment and fix a non-parole period of two years. I will declare your 410 days of pre-sentence detention, excluding today, as time already served under my sentences.
2I will now explain how I reached this overall sentence.
3You have pleaded guilty to a charge of kidnapping, a charge of theft and a charge of committing an indictable offence while on bail. These offences occurred on 26 August 2020. At the time of the kidnapping and theft offences, you were on bail.
Circumstances
4In August 2020, Tara Hamilton was your partner. Previously, she had met Chris Ferragine through the exchange of messages on Facebook.
5On 26 July 2020, Ms Hamilton and Mr Ferragine met near a hotel in Lilydale. She paid $250 into his bank account electronically and he gave her a substance purporting to be half a gram of methylamphetamine, only it was not methylamphetamine but kitty litter.
6Later that day, Ms Hamilton contacted Mr Ferragine again, wanting buy another half a gram of methylamphetamine but this time she could only pay in cash.
7At 2 pm that day, Ms Hamilton and Mr Ferragine met at a hotel or motel. They spent the afternoon together. At about 5 pm, Ms Hamilton invited Mr Ferragine and the person I will described as 'the victim', to meet her and a girlfriend at a motel in Lilydale. Mr Ferragine and the victim arrived at the motel at 8 pm.
8Ms Hamilton invited the two men into Room Eight of the motel. She then left the room. Blair Jordan and an unidentified male entered the room. One of the two accused Mr Ferragine of ripping off Ms Hamilton and demanded the repayment of $250. Mr Ferragine denied ripping off Ms Hamilton.
9You and Ms Hamilton entered the room. Ms Hamilton demanded the return of her money, saying the substance was not 'gear'.
10Mr Ferragine told Ms Hamilton he had a friend nearby from whom he could get the money. He left his Samsung tablet behind to ensure his return. He asked the victim to come with him but Ms Hamilton insisted he stay.
11Mr Ferragine did not return. You and the others would not allow the victim to leave the room and made comments about Mr Ferragine's absence. Ms Hamilton made most of the comments. She tried ringing him but did not make contact. However, Mr Ferragine left voice messages for the victim saying he tried contacting his mother and grandmother to get the money but could not.
12Ms Hamilton sent two Facebook messages to Mr Ferragine. In the second, she said the victim was not leaving until the money was repaid. She told the victim he was not leaving the room until the money was repaid. These are the circumstances constituting the charge of kidnapping.
13The victim persuaded Ms Hamilton to allow him to contact his mother. For about 24 minutes, they exchanged Facebook messages where the victim requested $400 from his mother. During that period, a knife was held to his neck. The prosecution do not say who held the knife. Also, Ms Hamilton punched the victim three or four times to the head.
14At one stage, Ms Hamilton pretended to be the victim and contacted the victim's mother and demanded money.
15At 10.41 pm, one of the three men in the room spoke to Mr Ferragine and told him to get the money or the victim would get cut up.
16At about 10.45 pm, the victim's mother paid $400 into the victim's account.
17The victim was required to take off his clothes. You tried on his pants but they did not fit. He was given back his pants and t-shirt. Your co-accused took one of his jumpers. One of the rest of your group took his other jumper. You took his necklace, two of his rings, his baseball cap and his face mask. He was allowed to keep his brother's wedding ring. Ms Hamilton kept his wallet and mobile phone.
18When the money arrived into the victim's account, he was allowed to put on his shoes.
19At about 11 pm, you and Ms Hamilton took the victim to an ATM next to a hotel in Lilydale. Ms Hamilton removed a bankcard from his wallet and gave it to him. He withdrew $360 from his account. He could not withdraw $400 because the account was overdrawn. He gave the cash to you. You and Ms Hamilton then allowed the victim to leave. Your parting comment to the victim was:
“By the way, tell your mate he's still going to fucken get it.”
20The victim walked to a McDonald's outlet in Lilydale and at about 11.25 pm phoned his mother requesting she collect him. She did so about 20 minutes later. When he phoned his mother, he was crying and could not speak properly. After she picked him up, it took time before he made sense in what he said to his mother.[1]
[1]Statement of Celia Dewar made on 27 August 2020.
21The victim has not made an impact statement.
22At 1.15 pm the next day, the police executed a search warrant on Room 7 of the Yarra Valley Motel. You were present in the room and were arrested.
23Later that afternoon, you were interviewed by the police. You made admissions.
Co-accused
24Blair Jordan was a co-accused. At committal, he was discharged on the charge of kidnapping. He pleaded guilty to a charge of theft and a charge of committing an indictable offence on bail. He was sentenced to three months' imprisonment and placed on a community correction order for six months.
Guilty pleas
25On 7 January 2021, at a second committal mention hearing, you pleaded guilty to these charges and were committed for trial without the need of a committal hearing. The Director accepts these were pleas of guilty entered at the earliest reasonable opportunity.
26Your pleas of guilty assist the administration of justice. By pleading guilty, there is no need for a trial. This allows other cases to have a trial earlier than would otherwise be the case.
27Your pleas of guilty have allowed the prosecution witnesses to avoid the ordeal of giving evidence. This would have been especially so for the victim.
28These benefits are increased while the criminal justice system is so stymied by the restrictions necessitated by the pandemic. Your counsel referred to a passage from the recent case of Worboyes v R[2]. I daresay it is a passage frequently cited to, and quoted by, judges of this court. It is important to quote the passage to show how important a plea of guilty is in the present circumstances:[3]
“As is abundantly clear, one of the pernicious effects of the current pandemic is that the lists of the criminal courts in this State have become severely congested. Unacceptable delay in the disposition of criminal cases is endemic. Indeed, it is not an overstatement to say that the system of criminal justice in this State is in crisis, requiring a response from the courts. We therefore consider that, whilst the courts of this State continue to labour under the adverse effects of the pandemic, a sentencing court should view a plea of guilty as carrying with it a greater utilitarian benefit than at other times and in other circumstances, and, concomitantly, as attracting an augmented mitigatory effect on sentence, simply because the plea will benefit the beleaguered administration of justice. Given the unhappy state of the courts’ lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead. Such encouragement must come from an actual and palpable amelioration of sentence.”
[2][2021] VSCA 169.
[3]At [35].
29Your pleas of guilty are also evidence of your remorse for your offending.
Legal considerations
30Kidnapping is a category 2 offence under the Sentencing Act 1991 (“the Act”). Section 5(2H) requires the imposition of a sentence of imprisonment unless an exception applies. It was not submitted an exception did apply.
Personal
31You are now 26. At the time of these offences you were 25.
32For your first two years of your life you were cared for your mother. She gave you into the care of your father until you were five, when your care was assumed by your mother's parents until you reached 16. You have two siblings and four half-siblings. You do not have contact with your parents or siblings.
33After the abandonment by your parents, it was fortunate your grandparents raised you. They were strict but you were happy. You maintain a relationship with them now even while in custody. You speak with them three times a week and exchange letters with your grandmother. Nevertheless, you have had, and still have, the feelings of abandonment and rejection.
34At the age of five, you were diagnosed with attention deficit hyperactivity disorder and medicated with stimulants.
35You attended two primary schools and then a secondary college where you completed Year 10. You struggled academically. You misbehaved, were suspended many times and, ultimately, expelled after bringing alcohol and drugs into the school.
36At 15, you were diagnosed as suffering from sinusitis, meningitis, osteomyelitis, cerebritis and parafacine empyema. You were admitted to the Children's Hospital and stayed for two months and underwent two craniotomies. You spent a significant time away from school. This experience adversely affected your behaviour.
37At 16, you left your grandparents' home after increasing conflict with them over your behaviour. You were homeless and mixed with the wrong people. This led to conflict with the law and, ultimately, detention.
Relationships
38Between 2014 and 2019, you had a relationship with Keena Feeney. You fathered two children, Noah, aged two and Lexa, aged one. You are prevented from having contact with Ms Feeney and the children by an intervention order. Upon your release from custody, you would like to have contact with your children. You realise this can occur only through lawful means.
39At the time of the offences, you had been in a relationship with Ms Hamilton for a short while.
Employment
40Your employment history is erratic. You have had short stints working as a retail assistant, a steel worker, a screen printer and labourer. However, you were unemployed when arrested and had been receiving Centrelink benefits on and off over the past six years. Interestingly, you hold a forklift licence.
In custody
41You have used your time on remand profitably, completing four courses including a Certificate III in Engineering.
42While at Port Phillip Prison, you have worked five days a week building laundry cabinets and sinks. More recently, you mow and care for the grounds of the prison.
Substances
43You started drinking alcohol at 15, which has continued at excessive levels since then. You were heavily intoxicated when committing these offences. In the months before your arrest, you were drinking up to a slab of beer each Friday, Saturday and Sunday and on the other days up to a six-pack of beer.
44You started using cannabis at 16. Between 22 and 25, your use was at significant levels. But you ceased using in February 2020 and have not resumed.
45Occasionally, you have used other drugs including methylamphetamine, GHB and MDMA.
Mental health
46While in custody, you have taken olanzapine to stabilise your mood and help you to sleep.
47You have not been diagnosed with a recognised psychological disorder except for attention deficient hyperactivity disorder when you were young.
48Owing to the conditions that saw you admitted to the Children's Hospital in 2016, you have suffered from a mild acquired brain injury. This injury served to exacerbate aspects of your existing ADHD.
49On 9 July 2020, you were examined by a clinical neuropsychologist, Dr Matt Treeby, for the purposes of proceedings in the Magistrates' Court.
50Dr Treeby assessed you as having an intelligence in the high average range. In other words, you are intelligent. He diagnosed you as suffering from a mild acquired brain injury due to three of the conditions I mentioned earlier: cerebritis, meningitis and parafacine empyema. These conditions affected your brain and required two craniotomy operations.
51The effects of this injury are permanent. It affects your behaviour by making your ability to solve problems and think logically more difficult. Coupled with your tendency to behave impulsively, you can behave without thinking about it beforehand or about its consequences. When in an heightened emotional state or intoxicated, your tendency to behave impulsively is made worse.
52Dr Treeby raised the possibility that your acquired brain injury aggravated your already existing behavioural issues with impulse control and frustration tolerance. Despite these impairments, he thought there were underlying antisocial personality traits which saw you having difficulties regulating your anger and regulating your behaviour in a socially appropriate way.
53Sitting behind the injury and the traits is your excessive consumption of alcohol. It affects many aspects of your life. It is so bad that it justified a diagnosis as a recognised psychological disorder, Alcohol Use Disorder. Dr Treeby even diagnosed a Cannabis Use Disorder based on your use since 14. Since you told Dr Treeby you stopped using cannabis in February 2020, I dare say the disorder is in remission.
54Dr Treeby considered you were a moderate to high risk of reoffending. Curing you of your alcohol addiction would reduce your risk of reoffending. It would not eliminate the risk.
55Not unnaturally, he strongly recommended measures to overcome your substance misuse.
Discussion
56Section 5(1) of the Sentencing Act 1991 sets out the purposes of sentences. Section 5(2) sets out various factors which I must take into account where relevant.
57Plainly, in your case, the purposes of general and specific deterrence, denunciation and the protection of the community from you must play an important role in my sentencing.
Gravity of the offending
58The offence of kidnapping occurred over several hours. It was not as long as some examples of this offence but not as short as others. It was accompanied by two acts of physical violence: the repeated punching of the victim by Ms Hamilton; and the holding of a knife to the victim's neck.
59There are other forms of kidnapping which are far more serious: kidnapping for ransom; for sexual offending; or for revenge. Although these circumstances were nowhere near as serious as some, they left the victim when phoning his mother and later, in her car, as distressed and barely coherent.
60The seriousness of the offences falls between low and the mid-range.
Responsibility
61I agree with the Director's submission that you played a significant role in the kidnapping. Your presence with two others prevented the victim from escaping. It also enabled Ms Hamilton to assault the victim.
Maximum penalties
62The maximum penalty for the offences are:
(a) kidnapping - 25 years' imprisonment;
(b) theft - 10 years' imprisonment;
(c) committing an indictable offence while on bail - 30 penalty units or three months' imprisonment.
Criminal history
63Between 3 May 2013 and 17 January 2020, you have appeared in a criminal court on nine occasions. You have been found guilty or convicted of 68 charges. You have been sentenced to imprisonment or detention on three occasions. Your longest sentence was a period of detention of 16 months, while your longest period of imprisonment was 10 months.
Current sentencing practice
64The Director's counsel drew my attention to the statistics published by the Sentencing Advisory Council on the offence of kidnapping. She also drew my attention to two sentences of judges of this Court which were thought to be of assistance. I have read those cases.
Rehabilitation
65If you are unable to address your excessive consumption of alcohol, your risk of offending is moderate to high according to Dr Treeby. This is not your only problem but it is the dominant one.
66Together with your pre-sentence detention and my sentences today, this will be by far the longest period you have spent in custody. It is an ample demonstration of the ability of the law to punish serious offending. One would expect this time in custody would either assist your rehabilitation or, at least, act as a deterrent to further offending.
67You instructed your counsel about your remorse. You displayed an awareness of the harm you caused to the victim during your interview with the police.
68You were 25 when you committed these offences. However one might classify your age, you were then, and are now, on the cusp of being considered sufficiently mature to dispel any consideration of age as a mitigating factor. Your age at the time of offending plays a very small part in assessing your prospects of rehabilitation.
69Your criminal history is dispiriting. You have been given plenty of chances to rehabilitate yourself and have failed to take any.
70Unlike some who come before this court on serious criminal charges, you are intelligent. You have the capacity to engage in meaningful employment and recreational pursuits, as Dr Treeby puts it. However, unless you are able to overcome your addiction to alcohol as a first step, your prospects of rehabilitation are poor and you will remain a significant risk of reoffending. You have done little in the past. I disagree with your counsel's submission that your prospects of rehabilitation are modestly positive. In my view, they are uncertain.
COVID-19
71Somewhat allied with the effect of imprisonment upon you is the fact that your period in custody has been in the restricted circumstances due to the pandemic. Your counsel outlined several effects, all of which would affect you to some extent at least. Given the confined environment of a prison and the infectious nature of the virus, especially the Delta variant, one may suppose the rest of your time in custody will attract restrictions of some sort.
R v Verdins
72You rely on limbs 1 to 4 set out in the case of R v Verdins[4] to mitigate my sentences to a modest extent. The Director does not disagree with the applicability of those limbs or the description of the modest extent of the moderation of penalty.
[4][2007] VSCA 102.
73The modesty of the discount is a reflection of Dr Treeby's view that the impairment of your reasoning abilities and your impulsive behaviour played a minor role in some of your past behaviour. He saw you about six weeks before the commission of these offences.
Cumulation
74The offences of kidnapping and theft were committed while you were on bail for other offences. Section 16(3C) of the Sentencing Act 1991 requires cumulation of the sentences of theft and the summary offence upon the sentence of imprisonment unless I direct otherwise. Your counsel invited me to do otherwise by way of a significant degree of concurrency. It was an invitation to apply the principle of totality in the context of that sub-section.
Sentence
75On Charge 1, the charge of kidnapping, I sentence you to two years and six months' imprisonment.
76On Charge 2, the charge of theft, I sentence you to nine months' imprisonment.
77On Charge 3, the offence of committing an indictable offence on bail, I sentence you to two months' imprisonment.
78The sentence on Charge 1 will be the base sentence. Three months of the sentence on Charge 2 and the entirety of the sentence on Charge 3 will be served cumulatively upon the sentence on Charge 1. Accordingly, the total effective sentence is two years and 11 months' imprisonment. I will set a non‑parole period of two years' imprisonment.
Pre-sentence detention
79You have remained in custody since your arrest on 27 August 2020. Excluding today, you have been in custody for 410 days. I declare 410 days of your pre-sentence detention as time served under the sentences I have just imposed.
Declaration under s6AAA of the Sentencing Act 1991
80If you had not pleaded guilty but had been found guilty after a trial, I would have sentenced you to a total effective sentence of four years and six months' imprisonment with a non-parole period of three years' imprisonment.
Disposal and Forfeiture orders
81I will make the disposal and forfeiture orders as sought by the Director.
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