Director of Public Prosecutions v Delphin
[2023] VCC 2165
•8 August 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-22-01697 & CR-22-01696
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BEN DELPHIN JOEL KYLE |
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JUDGE: | HIS HONOUR JUDGE HOLDING | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 August 2023 | |
DATE OF SENTENCE: | 8 August 2023 | |
CASE MAY BE CITED AS: | DPP v Delphin & Anor | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2165 | |
REASONS FOR SENTENCE
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Subject:-CRIMINAL LAW-
Catchwords: Plea of guilty – co-accused – aggravated burglary – intentionally cause injury – theft – possession of a drug of dependence – deal with property suspected of being the proceeds of crime – aggravated assault in company – young offender - relevant criminal history – deprived background – Bugmy principles – Verdins principles – risk of institutionalisation.
Legislation Cited: Crimes Act 1958 (Vic); Drugs, Poisons and Controlled Substances Act 1981 (Vic); Summary Offences Act 1966 (Vic).
Cases Cited:Boulton v The Queen [2014] 248 A Crim R 153; Bugmy v The Queen [2013] 249 CLR 571; R v Verdins [2007] 16 VR 269.
Sentence: Mr Kyle: Sentenced to 419 days imprisonment and a Community Corrections Order of 18 months’ duration.
Mr Delphin: Total effective sentence of 4 years and 8 months’ imprisonment with a non-parole period of 3 years and 3 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | S. Lee | Abbey Hogan, Solicitor for Public Prosecutions |
| For the Accused – Kyle For the Accused – Delphin | L. Dubroja A. Jackson | Balmer and Associates Slades and Parsons |
HIS HONOUR:
1Joel Kyle, you have pleaded guilty to the following charges on indictment No. C2215421:
(a) Charge 2 of Aggravated Burglary contrary to s 77 of the Crimes Act 1958 (Vic) – Maximum Penalty 25 years’ imprisonment;
(b) Charge 4 of Theft contrary to s 74(1) of the Crimes Act 1958 (Vic) which carries a maximum penalty of 10 years’ imprisonment.
(c) Charge 5 which is a rolled-up charge of Possession of a Drug of Dependence contrary to s 73 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) – Maximum penalty 30 penalty units or 1 year imprisonment, or both;
(d) You have also pleaded guilty to the summary offences of - Deal with Property Reasonably Suspected of Being the Proceeds of Crime contrary to s 195 of the Crimes Act 1958 (Vic) and Aggravated Assault contrary to s24(2) of the Summary Offences Act 1966 (Vic). Each of these summary offences attracts a maximum penalty of 2 years’ imprisonment.
2Ben Delphin, you have pleaded guilty to the following offences on the same indictment:
(a) Charge 1 of Aggravated Burglary contrary to s 77 of the Crimes Act 1958 (Vic) – Maximum Penalty 25 years’ imprisonment;
(b) Charge 3 of Causing Injury Intentionally contrary to s 18 of the Crimes Act 1958 (Vic) – Maximum penalty 10 years’ imprisonment.
(c) You are also charged jointly with Mr Kyle on charge 4 of Theft contrary to s 74(1) of the Crimes Act 1958 (Vic), which carries the maximum penalty of 10 years’ imprisonment.
3The circumstances of your offending are detailed in the prosecution opening dated 20 March 2023. Both defence counsel indicated the opening is an agreed document. The opening should be read in conjunction with these reasons for a detailed account of the offending.
4I will very briefly outline the circumstances of your crimes.
5On the morning of Friday 30 July 2021, you both travelled in a vehicle without number plates to a residence in Narre Warren. It is apparent that you were contemplating committing a crime as you both wore latex gloves.
6The car you travelled in was driven by a third person who has not been charged. The victim of your crimes, Mr Tiglar, was a person previously known to you Mr Delphin.
7You initially attempted to gain entry into Mr Tiglar’s residence through a window but when that was unsuccessful you both kicked in the front door causing some damage. Mr Tiglar grabbed some knives and retreated to his bedroom.
8At the time you both kicked in the front door, you Mr Delphin were armed with a large knife and entered as a trespasser with intent to commit an offence involving an assault. This is the basis of charge 1 against you of aggravated burglary.
9After the initial entry into the residence, you both began to throw objects, fixtures, and fittings throughout the premises.
10Although you, Mr Kyle, entered with Mr Delphin, the prosecution allege your entry as a trespasser was with an intent to steal and constitutes the offence of aggravated burglary on this occasion on the basis you were aware or reckless as to the presence of people inside the residence. The prosecution concedes the evidence does not prove you were aware that Mr Delphin was armed with a knife at the point he initially entered through the front door. However, once inside the premises you, Mr Kyle, grabbed a red handled knife from the kitchen, went back outside and entered Mr Tiglar’s bedroom through the window. The prosecution asserts this second entry also constitutes an aggravated burglary. You entered the bedroom as a trespasser, knowing a person was present, intending to steal and armed with a knife.
11This second entry by you Mr Kyle would constitute a separate offence of aggravated burglary, but the prosecution has elected to charge you with one charge of aggravated burglary, charge 2, on the basis that it is a ‘rolled up’ charge incorporating both instances of your entry into this premises.
12Another person living in the premises at the time, Ms Repka, sought refuge in another bedroom and telephoned 000.
13Both of you confronted Mr Tiglar in his bedroom. Mr Tiglar dropped his knives as he was cornered by both of you. Mr Delphin caused Mr Tiglar to back into a corner while you Mr Kyle began to search the room. Mr Delphin then struck Mr Tiglar with the knife he carried into the premises. Mr Tiglar raised his left arm to protect his face and was struck in the wrist with the knife. The depositions contain a photograph subsequently taken by police that depict the injury caused to Mr Tiglar. That injury might be described as a deep laceration to the forearm that would no doubt require medical treatment in the form of sutures.
14This blow with the knife against Mr Tiglar is the act that constitutes charge 3 against you, Mr Delphin, of intentionally causing injury. You, Mr Kyle, are also charged in relation to this conduct on the basis you were complicit in the actions of Mr Delphin and are as a result guilty of the summary offence of aggravated assault. [1]
[1] S 24(2) of the Summary Offences Act 1966 (Vic) states: ‘Any person who in company with any other person or persons assaults another person shall be liable to imprisonment for twelve months and any person who by kicking or with any weapon or instrument whatsoever assaults another person shall be liable to imprisonment for two years’.
15You, Mr Kyle, then took possession of Mr Tiglar’s laptop computer and you both fled by exiting through the bedroom window. You both drove away in the same car in which you arrived. The act of taking away the computer constitutes charge 4, the charge of theft against you both.
16That car you used was later located and seen by witnesses outside a house where Mr Delphin’s mother resided. CCTV footage recovered in the subsequent investigation also depicted the same vehicle outside Mr Tiglar’s residence at the time the crimes had been committed. Later forensic examination of the car linked it to both of you through DNA and fingerprint analysis.
17You, Mr Delphin, were interviewed twice in relation to this offending. You were first interviewed on 11 August 2021 although at that time it appears authorities did not have sufficient evidence to charge you. You were again arrested on 1 April 2022. On the day of this interview, you had just been released from custody on unrelated matters. Since your interview and arrest on 1 April 2022 you have remained in custody in relation to these offences. It is not suggested you made admissions to these crimes in your interviews.
18You, Mr Kyle, were arrested on 31 March 2022. At that time, a search warrant was executed at the premises where you were living. Police located $4,750 cash. This cash is the property dealt with by you (by virtue of the money being found in your possession) which is reasonably suspected as being the proceeds of crime and constitutes summary charge 8.
19Police also located 15 grams of loose green vegetable matter, multiple zip lock bags of green vegetable matter, a ziplock bag containing a crystal substance and a ziplock bag containing 2.5 white pills.[2] These drugs of dependence are alleged to be in your possession for a purpose unrelated to trafficking and constitute charge 5 on the indictment of possession of a drug of dependence.
[2] The summary of prosecution opening does not indicate whether the crystal substance or white pills were ever analysed, and parties agreed the that you should be sentenced on the basis your possession of these substances were for personal use.
20You, Mr Kyle, were interviewed on the same day the warrant was executed. After initially denying all the allegations, you made a combination of admissions and denials.
Objective gravity of offending
21I will refer below to some of the significant differences between each of you in terms of your personal circumstances and the details of the charges each of you face. You should both be under no misapprehension that your offending is very serious.
22Aggravated burglaries which involve the potential for confrontation and violence are viewed seriously by the courts. People are entitled to feel safe in their own homes. Breaking through a door with criminal intent, whether it be with intent to steal or assault, in anticipation that people are inside the premises, creates a highly volatile situation that is completely intolerable in a civilised society. That is why there is really no issue in this case that both of you must serve imprisonment.
23Ultimately, I have been persuaded in your case Mr Kyle, that the combination of the circumstances of your offending and personal matters allows me to give you an opportunity after having served a period of imprisonment for you to be now placed on a Community Corrections Order (CCO). However, you should appreciate you now have a very serious criminal history where you have received a significant period of gaol for a serious criminal offence.
Personal circumstances – Joel Kyle
24I turn to your personal circumstances Mr Kyle.
25The prosecutor during the plea hearing conceded that your personal background was one of deprivation that enlivened principles stated in the case of Bugmy.[3]
[3] Bugmy v The Queen [2013] 249 CLR 571.
26Your background was outlined in your counsel's written submissions and in a psychological report prepared by Ms Carla Lechna that was tendered on your plea.[4]
[4] Exhibit 3, Kyle.
27You are now aged 25 and were 23 years old when you offended. You grew up in Cranbourne and your parents separated when you were young. You had no relationship with your father and you describe your mother as an alcoholic. You were one of triplets, however, one of the triplets died of SIDS after eight weeks. The other triplet Daniel suffered a horrific motor accident at the age of 17 and suffered significant brain damage as a consequence. His behaviour then became very difficult, and this imposed considerable strain on the family and contributed to you leaving home in your teenage years and being homeless for considerable periods of time.
28You have three older half-brothers who bullied you when you were young. These half-brothers have had police involvement and your counsel submits they contributed to your behavioural problems through poor mentorship.[5]
[5] Exhibit 1, Kyle.
29You began smoking cannabis at age 13 and Ice when you were 15. While you have tried to cease your drug consumption on occasions, you told Mr Lechna that you would typically relapse within a couple of weeks.
30Your employment history is patchy. You have at times been offered work by your brother’s shop-fitting, landscaping and panel beating. Your longest job was for two years with a panel beating company and you estimate that since leaving school you have been in employment about 40 per cent of the time.
31You also told Ms Lechna that you believed there was an employment opportunity through your brothers in demolition work at some point in the future.
32You have prior court proceedings mostly for motor traffic offences, breaching family violence intervention orders, and some dishonesty and bail offences. You have never received a gaol sentence before, indeed many of your court proceedings resulted in you being sentenced without conviction. Ms Lechna states in her report, ‘He has a prior history of offending that has arisen in the setting of a long term and chronic drug addiction problem…”
33Your Counsel submitted that the following factors are mitigatory in your case:
· You pleaded guilty at an early opportunity;
· You are a young offender and were 23 at the time you offended;
· Your plea of guilty is accompanied by remorse;
· You have suffered a background of deprivation that according to Bugmy principles is relevant to the assessment of your moral culpability;
· You have, as a consequence of this offending, served your first period of imprisonment and you told Ms Lechna it assisted you by providing you with a period of enforced abstinence from illicit drug use for the first time since your mid teenage years;
· The period of imprisonment was during the covid pandemic, so consequently you experienced periods of lockdown that made your imprisonment more onerous and restricted your ability to undertake programs;
· The offence of aggravated burglary was a significant escalation in your offending. However, between the date of this offending and your arrest approximately 8 months later on 31 March 2022 there was no further offending;
· Since your release on bail on 22 May 2023 (after having served 419 days of imprisonment), you have not been charged with any offences and you have complied with the obligations of CISP[6] bail and are making real efforts to rehabilitate yourself; and
· As a young offender, your rehabilitation is of predominant importance and warrants the court combining the period of imprisonment you have served with a CCO.
32During your plea hearing these submissions were supported by evidence from Ms Svendsen, Senior AOD Counsellor and psychologist, and Ms Kew, your CISP case manager. Both of these witnesses are part of the CISP program you were placed on when granted bail. They both gave evidence that you regularly and genuinely engaged in the CISP program, although admittedly the program has only been operative for the few months between you being granted bail and your plea hearing. Under their direction you have undergone a neuropsychological assessment that may be helpful in formulating a more individualised treatment plan for you, however the results of this assessment are not yet available.
33Ms Svendson and Ms Kew gave evidence that you frankly disclosed one instance where you had relapsed and used methamphetamine since your release but were appropriately regretful about that relapse and demonstrated an ongoing commitment to abstinence. Both these witnesses gave evidence that you had not commenced employment yet as it was felt that it was more appropriate in the initial stages of your bail for you to concentrate on your obligations in attending the program. This sometimes involves you travelling on public transport from Cranbourne to the Melbourne CBD.
34Your counsel, Ms Dubroja, relied upon the Court of Appeal decision of Boulton[7] to submit that given all the circumstances of your case, in particular your age, lack of similar offending in your history, the period of gaol you have served and your rehabilitative efforts, a sentence combining the period of custody with a Community Corrections Order (CCO) would be an appropriate and just sentence.
35The prosecutor did not take issue with any of the factual matters asserted in mitigation and conceded that a combination of gaol and a CCO was within the proper sentencing discretion of the court.
36I had you assessed for suitability for a CCO and have now received a report recommending you as a suitable person to be placed on a CCO.
[6] Court Integrated Service Program.
[7] Boulton v The Queen [2014] 248 A Crim R 153.
Sentence – Mr Kyle
37Mr Kyle, the purposes of sentencing as stated in the Sentencing Act 1991 (Vic) are to punish an offender to an extent that is just in all the circumstances, to deter him and others from committing offences, to facilitate rehabilitation, to denounce the offending conduct and to protect the community. I accept the matters put in mitigation of your offending, in particular, the fact that you were 23 years old when you offended and are still a relatively young man. I do regard your ongoing rehabilitation as the best way to promote protection of the community. I am going to sentence you to the time served in gaol in combination with a CCO that you must comply with for 18 months from today. This means that by the time you have completed the CCO it will be three and a half years since your offending. Hopefully by that time your life will be on a different path where you will no longer be tempted to commit crimes in order to feed an addiction to illicit drugs.
38On charge 2 of aggravated burglary, you are sentenced to 419 days’ imprisonment and a CCO of 18 months duration.
39On charge 4 of theft, you are convicted and sentenced to 3 months’ imprisonment.
40On charge 5 of possessing drugs of dependence, you are convicted and sentenced to 1 months’ imprisonment.
41On summary charge 8 of deal with property suspected of being the proceeds of crime, you are convicted and sentenced to 2 months’ imprisonment.
42On summary charge 1, assault in company, you are convicted and sentenced to 8 months’ imprisonment.
43These sentences of imprisonment are to be served concurrently and pursuant to s 18 (4) of the Sentencing Act 1991 (Vic) I declare that the period of 419 days that you have been in custody be reckoned as time already served under the sentence imposed today and I direct that this be entered into the records of the Court.
34In respect of the CCO, in addition to the core conditions the following special conditions are imposed:
(a) Section 48D(3)(a) Treatment and Rehabilitation regarding drug use;
(b) Section 48D(3)(e) Treatment and Rehabilitation regarding mental health
(c) Section 48D(3)(f) Treatment and Rehabilitation – engagement in programs to reduce reoffending.
(d) Section 48E - Supervision. And you are required to report to the Cranbourne CCS at 176 Sladen Street, Cranbourne, Victoria 3977.
35I declare according to s 6AAA of the Sentencing Act 1991 (Vic) that had you not pleaded guilty to these offences, I would have sentenced you to 3 years imprisonment.
36Mr Kyle, when you enter a Community Corrections Order you've got to understand your obligations, and you must consent for the order to be imposed. I won't go through all the orders yet, your counsel will do that, but in brief terms, there's core conditions. You have to attend when you are required. You must not attend drug–affected. If you have got problems attending, you need to let them know. And if you want to change your address or move interstate or do things of that nature, you've also got to get permission. I'm now going to ask that this be given your counsel to see that it's in order and for you to sign or not. And give one to the prosecutor.
Personal circumstances - Mr Delphin
37I now turn to your personal circumstances, Mr Delphin.
38The prosecutor during your plea also conceded that your deprived background enlivened the principles stated in the High Court case of Bugmy. These circumstances are set out in written submissions of your counsel and in the psychological report of Jeffrey Cummins dated 14 July 2023 that were tendered at your plea.[8]
[8] Exhibits 1 and 2, Delphin.
39You are now 29 years old and were 27 at the time you committed these offences. You were born in Castlemaine and were raised in a violent and dysfunctional family by parents afflicted with substance abuse issues of their own. Both your parents have been methamphetamine users in the past and your father has spent time in custody. You are the second eldest in a sibship of six (although one of your brothers died of cot death approximately 16 years ago). You do not have a close relationship with your parents and are not close with your siblings.
40You became a ward of the state at around 13 or 14 years of age and remained under state care until you were 18. You spent time during this period in residential and foster care with your younger brother. During this time, you state you had limited schooling and did some demolition work with your father. You completed primary but not secondary schooling and your counsel submitted during your plea that you have not held any real form of employment.
41You told Mr Cummins that you have intermittently received Centrelink benefits and believe the Department of Human Services at one point assessed you as having an intellectual disability. You stated that you are currently being assessed for registration under the National Disability Insurance Scheme.
42You told Mr Cummins that you began using cannabis, amphetamines, methamphetamine, and ecstasy tablets at 13 or 14 years of age and that you would steal these substances from your parents. You have used a combination of illicit drugs into adulthood. You have experienced drug-induced psychosis and received psychological support and medication as treatment. You stated you abused inhalants, ‘sniffing paint’, throughout your teenage years and that you believe your memory and mental health have been impacted as a result of this abuse.
43You disclosed to Mr Cummins that you were sexually abused by a male staff member while detained in Parkville Youth Justice centre. You did not elaborate to Mr Cummins about the details of this abuse beyond stating it involved penetrative activity.
44You have been in a long-term relationship with a woman named Hannah McLaughlin and together you have seven children; two-year-old triplets (two boys and one girl) and four daughters (the eldest being six years old).
45You have never undergone any form of inpatient residential detoxification or rehabilitation.
46You told Mr Cummins that your offending was committed because you were owed a debt related to drug transactions and that you do not remember the details of your offending as ‘at that time I was into ice, GHB and dope’, suggesting that you were taking 3-5 grams daily on a daily basis.
47According to your criminal history (that I will refer to below in more detail) and the psychological report prepared by Mr Cummins, you had been placed on a ‘Drug Court Order’ in the Magistrates’ Court and had ‘been clean’ for 9 months but relapsed when learning your brother received a gaol sentence and it ‘retriggered my memories of my dysfunctional upbringing’.
48Mr Cummins administered psychological tests and based on those tests and his clinical review of your history, he assessed your risk of committing further offences of violence as “Moderate”. He stated:
‘In my opinion a major risk factor for him is a return to illicit substance use and/or a return to a dependency on Xanax’.
49He did not assess you as having an antisocial personality disorder but stated:
“Nonetheless, he acknowledged that when he was dependent on various substances his attitude to life and his moral outlook changed significantly.’
50In conclusion, Mr Cummins expressed the view that you had intermittently been suffering from symptoms of depression and traumatisation from at least your early teenage years. He thought there was a real risk of you becoming institutionalised if you are not able to remain drug free within the community.
51Your criminal history runs to some 27 pages. It commences in 2012 when you were approximately 18 years old. In 2012 you were sentenced to be detained for 14 months in a Youth Training Centre in respect of 6 counts of burglary and charges of theft. In 2013 you were sentenced in the County Court to 40 months imprisonment with a non-parole period of 12 months in respect of multiple charges including reckless conduct endangering life, theft, and associated offences. In 2017 you received another significant gaol sentence of 181 days combined with a Community Corrections Order, again in relation to multiple charges of burglary and other dishonesty offences, as well as further endangerment charges. In 2018 you received a sentence of 12 months’ imprisonment and another sentence of 4 months’ imprisonment again for burglary charges. In April 2020 you received a sentence of 136 days’ imprisonment in combination with a CCO to undertake unpaid community work and treatment for drug addiction in relation to further motor traffic and dishonesty offences. Your criminal history demonstrates that sadly when you have been given orders intended to treat your problems with drugs, they have not been effective and have ultimately been breached.
52On 6 October 2020 you received a sentence of 98 days’ imprisonment that had already been served by way of pre-sentence detention and a further period of imprisonment to be served by way of a drug treatment order in respect of drug charges, motor traffic offences, and endangerment offences. The last entries on your criminal history record you attended the Dandenong Magistrates Court on 17 May 2021 and 14 July 2021, and you were sentenced to undergo a Drug Treatment Order.
53I was told during your plea hearing that after you had committed this offending on 30 July 2021 you were sentenced on 6 October 2021 in respect of further charges of burglary, theft, fail to obey police direction, and drive suspended.[9] You were remanded in custody on those charges on 31 August 2021. I was told, and it was not disputed, that the sentence you received on 6 October 2021 lapsed on 1 April 2022 when you were released on 1 April 2022. You were then re-arrested the same day. You have therefore been in custody, save for the one day of your release and rearrest, since 31 August 2021.
[9] Exhibit 1, Delphin.
54It is apparent from this criminal history that you had been before the Dandenong Magistrates Court within a few weeks of committing the offences for which I am now to sentence you. Clearly the Drug Treatment Order was not effective in bringing your drug-related offending to an end.
55Your counsel, Mr Jackson, realistically conceded that the seriousness of your offending could only justly result in a prison sentence with a head sentence and non-parole period.
56He also conceded that the report of Mr Cummins did not outline mental health issues that enlivened any of the principles referred to in the case of Verdins.[10]
[10] R v Verdins [2007] 16 VR 269.
57Mr Jackson submitted that your plea of guilty, although not at the earliest time, was entered at the ‘earliest reasonable opportunity’ and has significant utilitarian value. This submission was not disputed by the prosecutor as it was apparent that negotiations between the parties had led to a resolution of your charges on a different basis to which you had originally been charged. It was also not in dispute that as of 1 April 2021 when you first went into custody in relation to these charges, conditions in prison were more onerous as a result of the efforts to combat the pandemic. It is still the case that due to the pandemic there is a backlog of cases in this court and your pleas of guilty have expedited the course of justice and helped to clear that backlog. You will be given an appropriate discount in your sentence to reflect these considerations that flow from your pleas of guilty.
58Mr Jackson also tendered evidence at the plea hearing that your partner has recently been very ill, requiring hospitalisation.[11] Her mother has been able to assist with the care of the children, but it was submitted that your partner’s illness has brought home to you just how much impact your criminality has on your family. Your partner, even without suffering an illness, is obviously under a great burden in caring for seven children under the age of six. Mr Jackson submitted this realisation of yours provides you with additional motivation to battle your drug problem. I indicated to Mr Jackson that while I accept the illness of your partner may make your own period of imprisonment more difficult by bringing home to you how much your family suffers from your absence (and I will take that fact into account), it is an unfortunate reality that hardship is almost inevitably caused to the family of an accused person when imprisonment is the only appropriate sentence.
[11] Exhibits 3-6, Delphin.
59I accept that your background was one of profound deprivation enlivening the principles referred to in the case of Bugmy. Your background has been awful and no doubt contributed to the many problems that are related to your offending. I accept that your moral culpability is to some extent reduced as a consequence of those aspects of deprivation.
60I take into account that you are still a man in his mid to late 20’s. Although it was conceded by your counsel that your prospects of rehabilitation given your history, can only be regarded as guarded, I must be mindful not to impose a crushing sentence upon you. The sentence must be just in all the circumstances and despite your history of offending I do not regard your prospects of rehabilitation to be completely extinguished. I also note that Mr Cummins expressed the view that it would be appropriate for you to be neuropsychologically assessed to determine whether you have any intellectual disability. In my view it would be appropriate for the authorities to arrange clinical investigation of this issue while you are in custody and in consideration of your application for parole.
61During your plea hearing there was some discussion of the application of the principle of totality to your circumstances. It is apparent that police only had sufficient information to charge you after some time. You had, before being remanded in relation to this offending, served a sentence of approximately 7 months for unrelated (although in some respects similar) offending. That is a relevant circumstance in your personal history. Although that period of custody was for unrelated offending it is still a relevant consideration to the sentence I impose upon you today.
62Mr Delphin, you have already heard some of the remarks I have made in relation to the objective gravity of the offending when I was dealing with your co – accused.
63I must have regard to the principle of parity. A realistic comparison between your offending and the offending of Mr Kyle must not leave you with a justifiable sense of grievance. I must take account of the sentence imposed upon Mr Kyle when considering the sentence to be imposed upon you.
64There are, however, some significant differences in both your personal circumstances and the offences before this Court. Your offending is more serious in a number of respects. You were charged and pleaded guilty on the basis that you entered the premises intending to commit an offence involving an assault. You entered armed with a large knife. You were the person who had prior dealings with the victim, and I am satisfied beyond reasonable doubt that it was your perception of a debt being owed to you that was the relevant background to the offending.
65You are also the person who inflicted the wound upon the victim and the charge you face in relation to that act carries a maximum of 10 years’ imprisonment as opposed to the charge Mr Kyle faces in relation to that act that carries a maximum of 2 years’ imprisonment. The offence of aggravated burglary was also complete upon your entry into Mr Tiglar’s home. Your subsequent conduct in striking him with the knife was a serious attack upon a person in their own home. In saying that, I recognise I must be mindful in not doubly punishing you for the trespassory aspect of the aggravated burglary and the fact that the injury you caused to Mr Tiglar occurred in his own home.
66The Court of Appeal has indicated that the intent upon entry and whether a person is armed at the time are important features to consider in assessing the seriousness of the offence of aggravated burglary.[12]
[12] DPP v Meyers [2014] VSCA 314, [48].
67The final factors of comparison between you and Mr Kyle relate to your personal circumstances, in particular, your more mature age and more extensive criminal history are of significance. While you are not to be re–punished in respect of your past criminal behaviour, your criminal history is relevant in assessing your moral culpability for this offending. You have, as I have detailed above, received a number of gaol sentences in respect of charges of burglary. You have failed to be deterred by those sentences. Your prospects of rehabilitation are guarded to say the least. This, in my view, increases the need for the sentence to specifically deter you and also increases the weight to be attached to considerations of protection of the community.
Sentence – Mr Delphin
68As I have already stated in relation to Mr Kyle, the purposes of sentencing involve a number of considerations that must be balanced. Taking account of those considerations and having regard to all of the material placed before me and the submissions of the parties, I have determined that the appropriate sentence in respect of your offending is as follows:
69On charge 1 aggravated burglary you will be convicted and sentenced to 4 years’ imprisonment. This will be the base sentence.
70On charge 3 of intentionally causing injury, you will be convicted and sentenced to 15 months’ imprisonment.
71On charge 4 of theft, you will be convicted and sentenced to 6 months’ imprisonment.
72I further order that in respect of charge 3, 8 months of that sentence is to be served cumulatively upon the sentence imposed upon Charge 1.
73That makes a total effective sentence of 4 years and 8 months’ imprisonment. I declare that you serve a period 3 years and 3 months before being eligible for parole.
74Pursuant to s 18(4) of the Sentencing Act 1991 (Vic), I declare that the period of 493 Days that you have been in custody be reckoned as time already served under the sentence passed today and I direct that this be entered into the records of the court.
75Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), I declare that had you not pleaded guilty I would have sentenced you to a total effective sentence of 6 years and 3 months imprisonment.
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