Director of Public Prosecutions v Dengler

[2017] VCC 128

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-021125

DIRECTOR OF PUBLIC PROSECUTIONS

v

TRISTAN DENGLER

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	22 February 2017
CASE MAY BE CITED AS:	DPP v Dengler
MEDIUM NEUTRAL CITATION:	[2017] VCC 128

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms Duckett
For the Accused	Mr Patton

Pages 1 - 10

 

 

HER HONOUR: 

1Tristan Dengler, you have pleaded guilty before me to one charge of robbery and admitted prior convictions.  The facts underlying this offending are as follows.

2At about 11 pm on 5 March 2014 you went to the Westside Hotel, Laverton, accompanied by a co-offender Simone Weatherall and another co-accused, a man who unknown to you, all three of you arriving at the venue in a white van.  You went inside the hotel and remained there for some time. 

3On four separate occasions between 11 pm and 12.15 pm, Weatherall left the hotel to go out to the car park and then immediately came back in. 

4At about 12.15 am the victim, Daniel McAlpine, arrived at the hotel and parked his Toyota Hilux in the back row of the car park.  He noticed a white Toyota van which was parked about four spaces away from him.  While he was still seated in the car he noticed a female running towards the entrance of the hotel, recognising her as someone he knew only as Simone.

5About a minute later he saw Simone coming out of the hotel followed by two men, one of whom was you.  The three of you then approached Mr McAlpine's car.  You got into his car via the front passenger seat and asked him "Why are you being dog for?", and then asked "Where is your money?"  As this was happening, the second man was standing at Mr McAlpine's window on the driver's side and threatened to punch him in the head.  Simone Weatherall also made demands for a DVD record of interview which Mr Alpine understood her to be referring to his own record of interview with police which had taken a few days before.

6When he failed to comply the second male repeated the demand for money, stating, "Give me all of your money.  I want your wallet".  Mr McAlpine handed over all the cash he had, which was about $500 and a copy of the DVD record of interview.  These actions, resulting in the money and DVD being handed over, underlie of the charge of robbery.

7The second male took the cash and Ms Weatherall took the DVD.  The second male then grabbed McAlpine's car keys from the ignition and at this stage
Ms Weatherall told Mr McAlpine to get out of the car, stating they had what wanted.  You told Ms Weatherall you wanted more and continued to threaten him.  Mr McAlpine managed to force the door on his side of the car open by pushing the second male aside and got out.  Ms Weatherall then jumped into the driver's seat of the car, started it and drove away.  You and the other man then fled the scene in the white van.  Mr McAlpine went into the hotel, spoke to security staff and called police who arrived a short time later.

8His car was located at the intersection of Millers Road and Hobbs Street, Altona North, a few days on 9 March.  CCTV footage of the Westside Hotel showed you and the co-offenders arriving at the hotel at about 11 and Ms Weatherall was seen entering and exiting the venue as I have already detailed.  It also showed the three of you leaving the venue and walking in the direction of where Mr McAlpine's car was parked.

9You were arrested in Yarraville on 4 April 2014 and conducted a record of interview with police at the Werribee police station during which you stated that you could remember being at the Westside Hotel, that after you played the pokies for a bit you went outside and saw a bloke that you called "a dog".  You said this man then got out of his car after giving his passenger the keys and pulled a shovel from the back of the car and then you and he had a dispute during which the car took off.

10Ms Weatherall was dealt with on a charge of robbery in the Magistrates' Court on 27 July 2015 and was sentenced to 85 days' imprisonment which was time that had already been served.  At the time, she was 18 with no prior criminal history.

11Mr McAlpine declined to make a victim impact statement.  You were in custody from 4 April 2014 to 27 August 2014 before being granted bail and during that time you were sentenced to a month's imprisonment for an unrelated matter.  You therefore have served 115 days by way of pre-sentenced detention.  On 15 January 2016, you were again remanded on an unrelated matter for 43 days which time in custody fall within Renzella considerations.

12On 10 June 2014, you were sentenced to one month's imprisonment for theft of motor vehicle and on the same day were convicted of acting in a way prejudicial to security, good order, management of a gaol and fined $450.

13On 5 May 2015 you were convicted of theft of motor vehicle, receiving stolen goods, theft, burglary and unlicensed driving and was a sentenced to a
12 month community corrections order with 150 community work hours attached.

14On 25 November 2015, you were charged with carrying a prohibited weapon and possessing methamphetamine and you were also remanded on 15 January 2016 for reckless conduct endangering life and nine other charges which you were released on bail on 26 February 2016.  Ultimately, you were placed on a 12 month community corrections order for those charges on 2 August 2016 with 150 hours of community work, drug and alcohol treatment conditions and supervision.

15This matter first came before this court in April of last year.  At that stage you had just begun a residential drug rehabilitation program, Transformations, which you entered in late February of 2016 and the matter was adjourned in order to determine whether or not you were able to successfully undertake this course.  This you have clearly done and I will refer to that a little more fully later in these sentencing remarks.

16You do have a long history of criminal offending beginning in 2005.  You have been dealt with by the courts on numerous occasions for charges involving motorcar theft, possession of amphetamines, dealing with property suspected to be the proceeds of crime, burglary, attempted theft, intentionally destroying property, breaching an intervention order, making a threat to kill, being a prohibited person possessing an unregistered firearm, possessing cannabis, contravening a suspended sentence order, driving offences and unlawful assault.

17The last of the matters listed on your prior conviction sheet is dated 25 June 2012.  In addition, there was further offending by you of the kind that I have outlined in 2015 and 2016.

18You are now 30 years of age and the father of two girls, aged four and one, both of whom reside with their mother and you have access with them on a regular basis.  You have been addicted to methylamphetamine for many, many years and it would appear that this drug addiction has underpinned most of your offending.

19Ordinarily, I would go into greater detail insofar as your personal circumstances are concerned.  Suffice to say, what is important insofar as this matter is concerned is what you have in fact done since you have been apprehended and in particular since you ended the Transformations drug rehabilitation program.  And as I have said, it appears that your offending has pretty much related to a very long term and severe addiction to methamphetamine.

20I have a received a number of letters from persons involved in supervising you in this program, which you appear to have undertaken extremely successfully.  On 11 April 2016, Richard Gibbs, the director of ConnectTransformations Bendigo, wrote that you had begun the course in late February and at that stage were participating willingly in each part of the program and as he stated, "contributing positively to the life the community".

21The course that you undertook at Transformations required you to be involved in courses of study, some private study, counselling, mentoring and voluntary work.  On 29 July 2016, John West, the program coordinator wrote that you had "wholeheartedly embraced the program" and consistently done everything required of you.  At that stage, you were heading your coursework and had shown "diligence and dedication to his work, furthermore we have found him to be consistently and insightfully engaged in classes".  By that stage, you had been awarded resident of the month three times in a row, you were undergoing weekly random drug tests which had all proved negative and had been given the responsibility of driving other clients within the Transformation program to daily activities and external appointments.  You were also voluntarily chaperoning your Connect Church Youth.

22Then on 5 December 2016, program coordinator Dylan Whelan wrote that you were "one of the rare residents who's always happy to help, even when he doesn't have to, and always take directions from staff and follows through tasks until completion."  He noted that "since coming to program, Tristan has had random urine tests and breath tests, all of which have been negative to substance use."

23On 18 December 2016, Richard Gibbs again wrote a letter, this time stating that you had willingly participated in each of the components of the program and that you were progressing positively and were well liked and a well-respected resident.

24On 15 February 2017, Mr Whelan wrote that you had moved from stage 2 to stage 3 of the program which focused on more of a leadership mentor position "where the resident is required to lead by example, showing integrity, honesty, perseverance, diligence and vulnerability amongst many other attributes".  He noted that you were currently at that stage undertaking Bible college from 9 am to 9pm on a daily basis, that you were up to date with all your work and that "his lecturers love having him as part of their class".

25It appears that you are keen to progress to stage 4, where you will take on the role as second-in-charge of the men's house, under the direction of the house supervisor.  He stated "this is a significant responsibility and in my opinion would be the biggest, most rewarding for Tristan so far".

26Finally, on 21 February 2017, Mr Gibbs wrote that you had continued to make positive and steady progress through your recovery.  He said you now a senior resident in the house, where you were developing "sound leadership capacity and effectively mentoring others at earlier stages of their recovery".

27He said you are now in stage 3, taking greater responsibility for structuring and managing the components of study and work, which comprise your week.  He noted that you were also committed to "rebuilding relationships with his family, particularly with his children, having a deep concern for their welfare and future".

28He concluded "Tristan has evidenced significant change over the months he has been involved in this program and there is no reason, at this point, to think that this growth and awareness will not continue".  The program involves you having another 20 weeks in residence at the house and then a further program of 12 months in the non-residential stage.  Your study involves you undertaking a Diploma of Christian Theology.

29So, really, having a look at all that material it appears you have moved about as far as possible  from where you were that is, from an ice addicted robber, if you like, to somebody who appears to be starting to be part of the Church ministry.  And certainly the program you have undertaken, I am satisfied, is about as a rigorous a one as you could hope for.  It is one which has involved you living in, being supervised at all times and undertaking very rigorous courses - all of which, it is quite clear, you have managed to do in a most satisfactory manner.

30I also note that you have successfully completed 150 hours attached to the community corrections order imposed on 2 August last year and have also been exited from the drug and psychological conditions attached to that order.  So again, there is further proof to this court of your determination to change and to carve out a different future for yourself.

31I am perfectly satisfied that you have excellent prospects of rehabilitation and that the aspect of community protection is not one this court needs have regard to, in any particular sense, in sentencing you for this matter and I note that this view is one which is supported by the prosecution.

32It has been submitted to me that possibly the 158 days you have served by way of pre-sentence detention is a sufficient response to your offending and ordinarily that is something that I might have agreed to had your prior convictions been less serious.  The problem is you have, as is often the case with people who have been addicted to a drug for as long as you have been, a very long criminal history and it contains numerous convictions for various fairly serious charges.  Because of this aspect of your life it is important that the court, in sentencing you, responds in a way which indicates that even though you have clearly transformed your life in a most commendable and praiseworthy way you nevertheless, at the time of your offending, were a person who had offended on a continuous basis over a long period of time and that therefore the response of this court needs to be a little bit more serious than if you were, as
Ms Weatherall was, a person with no prior convictions.

33I have therefore decided that I should attach a community corrections order to the sentence I am about to impose but it will contain work hours only and for that reason I do not need to have you assessed, as the work hours I intend to impose will be less than 200 hours.

34I therefore sentence you as follows.  Could you stand up, please?

35On the charge of robbery, you are sentenced to 158 days' imprisonment and I declare that this sentenced has already been served by way of pre-sentence detention.

36I also order that you be placed on a community corrections order for a period of 12 months, the only special condition of which will be that you undertake 150 hours of unpaid community work.  Are you prepared to enter this order?

37OFFENDER:  Yes, Your Honour.

38HER HONOUR:  Thank you.  I should also add, it seems to me wise to attach a community corrections order to the sentence I have imposed because even though you have made enormous gains in the past 12 months, it really only has been 12 months. 

39And a community corrections order means you are under an obligation to refrain from offending; that there would be consequences if you did offend further and that is a further protection, both for you in one sense, if you like, because there are consequences if you do not keep on the path you are on, and for the community because you are still at a relatively early stage of your recovery not withstanding that you really are doing, it would seem, a very impressive job.

40Now I must, whilst the documentation is being prepared, I need to go through the conditions that attach to a community corrections order which I am sure you are familiar with but which any sentencing judge is obliged to go through.  So they are:

41You must report to the Community Corrections Office within two working days of the making of this order, that is by Friday. 

42Whilst on the order, you must not commit another offence punishable by imprisonment.  That does not mean if you commit an offence and you are not gaoled for it, you have not breached the order; if you knock off a box matches from Woolworths, theoretically, you could be gaoled for that and that would breach the order.

43You must comply with any obligation or requirement relating to this order.  You must report to and receive visits from the Office of Corrections.  You must report to corrections as directed.  You must let community corrections know within two clear working days of any change of address or employment. 

44You may not leave Victoria without the permission of the corrections office and you must obey all lawful directions and instructions from the community corrections office and you must perform 150 hours of unpaid community work.  Are you prepared to enter this order?

45OFFENDER: Yes, Your Honour.

46HER HONOUR:  Thank you very much, Mr Dengler, we will just get you to sign this

47(Community-based order signed and acknowledged)

48HER HONOUR:  Thank you very much.  All right, well you can very proud of yourself, Mr Dengler, if you hadn't done this, it would've been gaol.  That's the road you were heading down.  You've done a sensational job, really.  You can have a very skilled barrister like Mr Patton come along but unless you provide him with the material, there's not much he can do.  So you have created your own very good plea material and you've got yourself out of, what would undoubtedly have been probably the longest gaol sentence that you would have faced in your career.

49So you've been screeching along at a million miles an hour in a car, ready to crash into a wall, and you've managed to do a U-turn at the last moment so I congratulate you.  Good luck, all right?  Thank you very much.

50Pursuant to s.6AAA, I declare that had you not pleaded guilty I would have sentenced you to a term of imprisonment of two years and order that you serve a minimum term of 11 months.  All right?  Thank you.

51MS DUCKETT:  Your Honour, there's one final matter and it's simply a ‑ ‑ ‑ 

52HER HONOUR:  Have a seat Mr ‑ ‑ ‑

53MS DUCKETT:  ‑ ‑ ‑ housekeeping matter.  It's just a disposal order

54HER HONOUR:  Yes, all right.

55MS DUCKETT:  I understand it's unopposed but ‑ ‑ ‑ 

56MR PATTON:  I concede, Your Honour.

57MS DUCKETT:  ‑ ‑ ‑ I'm required to make the application.

58HER HONOUR:  Yes, all right thank you.

59MS DUCKETT:  It's simply for the exhibits that were seized.

60HER HONOUR:  I thank counsel very much for their assistance in this matter. Yes, we'll adjourn to tomorrow, thank you very much.

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