Director of Public Prosecutions v Diamond

[2022] VCC 2036

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

CR-21-00972

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOEL DIAMOND

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JUDGE:	HIS HONOUR JUDGE MOGLIA
WHERE HELD:	Melbourne
DATE OF HEARING:	3 May 2022, 2 November 2022
DATE OF SENTENCE:	22 November 2022
CASE MAY BE CITED AS:	DPP v Diamond
MEDIUM NEUTRAL CITATION:	[2022] VCC 2036

REASONS FOR SENTENCE

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Subject:Criminal law – sentence – guilty plea

Catchwords:              Sentencing – aggravated burglary – common law assault – stalking – commit indictable offence while on bail – 38 years old – drug problem since childhood – no aggravating features – offender did not break in, had no weapon, did not cause injury – totality – custody more onerous than usual due to COVID – released on bail into residential rehabilitation – completed 10 months of intensive residential treatment – demonstrated progress towards rehabilitation – Akoka time – Worboyes plea discount – combination sentence

Legislation Cited:      Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic); Confiscation Act 1997 (Vic)

Cases Cited:Akoka v The Queen [2017] VSCA 214; Brown (aka Davis) v The Queen [2020] VSCA 60; Worboyes v The Queen [2021] VSCA 169;

Sentence:Total effective sentence – 11 months' imprisonment combined with a Community Correction Order for 12 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	D Manova	OPP
For the Accused	J Mortley	Emma Turnbull Lawyers

HIS HONOUR:

1Joel Diamond, you have pleaded guilty to aggravated burglary (maximum penalty 25 years), two charges of common law assault (maximum penalty 5 years each), stalking (maximum penalty 15 years) and committing an indictable offence while on bail (maximum penalty of 2 years) all relating to events between 22 December 2020 and 3 January 2021.

Your offending

2The agreed basis for your guilty plea is set out in the summary of prosecution opening dated 28 April 2022.  You are to be sentenced based on those facts, which I summarise and make findings about as follows.

3For some time leading up until December 2020, you enjoyed an intimate relationship with Madelaine Zerafa.  Indeed, you had been in prison for some 11 months up until your release in December 2020 during which time she had kept in contact with you and indicated that your relationship was ongoing.  In fact, she attended court to support you at a bail application in December 2020, which resulted in your release.

4Having been released, however, Ms Zerafa, was hard to find.  She did not return your calls or messages.  While you did not know it, she had
re-partnered with a Mr Pretty.  You persisted in asking her to make time to talk with you. You were, understandably, confused and distressed.  In one message, you said, “… Are you going to talk to me or are you just going to ignore me?… I've waited 11 months and you won’t even talk to me?  Rude.  What have I done?”  There was no suggestion that this request, such as it was, was inappropriate.

5On 23 December 2020, at about 10 AM, you went to her father's house where she was staying.  You went with a friend of yours, who played no part in the offending.  You knocked on the front door.  She answered, you asked if you could come in, but she refused.  You had heard by this time that she had re-partnered and you were assuming he was in the house, you told her he should leave or there would be trouble. As she tried to come outside, you passed her and went inside the house.  She yelled at you to leave, which you did.  You both sat down out the front and talked for about 10 minutes, including about your relationship.

6I accept that you were angry and that you had been mucked around, and that Ms Zerafa was not asking Mr Pretty to leave. You again entered the house to find and assault him (charge 1, aggravated burglary).

7You found him in the upstairs bedroom and hit him in the face once.  He was uninjured (charge 2, common law assault).  After telling him to leave, you left the house.

8Mr Pretty then left and drove off. You remained outside with Ms Zerafa trying to talk with her.  Soon, however, her father arrived and you and he had an altercation before you also left.

9Over the next week or so, you continued to send messages to Ms Zerafa hoping to rekindle your relationship and to find where she and Mr Pretty were.  You also enlisted others to help you search.

10On 3 January 2021, one Emily Milekovic arranged for Ms Zerafa and
Mr Pretty to come to her home to use drugs together, which they did.  Without telling them, Ms Milekovic had also arranged for you to go there at the same time.

11When Ms Zerafa and Mr Pretty were leaving, you confronted them.  You pushed Mr Pretty and threw a few punches that missed.  You did however connect once with the back of his head but caused no injury (charge 3, common law assault).

12Your conduct during the whole period since your release until the incident at Ms Milekovic's home amounted to stalking (charge 4), which you committed whilst on bail for an unrelated matter (summary charge 12).

13Mr Pretty called police who arrived and arrested you.  They interviewed you during which you denied any of the offending.

14There are no victim impact statements from either Ms Zerafa or Mr Pretty.

15You remained in custody on remand for this offending until released on bail on 6 December 2021.  Your time in prison during those 338 days was onerous because of the restrictions in place due to COVID-19.

16Your release on bail was conditional upon you entering a residential rehab program conducted by Remar Australia at Nyora, east of Melbourne, which you did.

17On 8 April 2022, about four months into the program, you sought a sentence indication on a reduced set of charges, as agreed with the prosecution.  Your trial was set down for 19 May 2022.  At that time, the work of the Court in conducting trials was still sorely hampered by the impacts of the pandemic and it was not certain that your trial would commence as listed.

18During the indication hearing, the prosecutor did not oppose the continuation of your residential rehabilitation and drew the Court’s attention to the case of Akoka v The Queen [2017] VSCA 214 and the credit you would be due on sentence for the time you spend in rehab, to a degree to be set by the court. Nor did the prosecutor oppose vacating the trial date.

19You relied upon a psychological report by Pamela Matthews dated
12 April 2022 (Exhibit 1) and a letter from Mr Luis Brito,
Executive Director of Remar (Exhibit 2), during that hearing.  Mr Brito also gave evidence confirming your ongoing engagement with the program, your positive steps towards recovery, the great promise you had shown, the extra responsibilities you had taken on as the head of the kitchen at Nyora.  He said you were learning how to manage challenging situations in a respectful manner.

20On those circumstances, I indicated that if you pleaded guilty to the agreed charges, I would defer sentence to permit you to continue the Remar program and upon successful completion of it, proposed to be up to a year, I would impose a combination sentence involving the time you had already served in prison and a Community Correction Order.

21In a letter dated 14 October 2022 (Exhibit 3), Mr Brito reported that during your time at Remar you had successfully learned several skills and responsibilities, both in the kitchen and in construction work.  He said you had found a desire to restart your life and that if you put into practice what you had learned you had a high probability of doing well.  To that end, they had supported you to move to new accommodation and to commence work in construction.

22Residential rehabilitation is a hard program.  You were living day to day with 15-20 other men, all with problems with substance abuse and needs to change their patterns of behaviour. I accept you have completed 10 months of intensive residential treatment in what was at times a trying environment, not only engaging in treatment but contributing to the treatment of others by your leadership and work in the kitchen.  This is a real achievement and is very much to your credit.

23You had obtained work via Matchworks employment services with a construction company as a general labourer at the time of the November hearing, for a minimum of 15 hours per week with the hope of extending this to full-time work, in the following months. You also provided evidence in relation to obtaining a white card necessary to do the work, having done courses in traffic control and traffic management, having engaged in developing a job plan and you presented pay slips for your work at that time (Exhibit 4).

24Having varied your bail to permit you to live at your new address and work, I had you assessed for a Community Correction Order for which you have been found suitable.

25In all the circumstances, including your plea, your cooperation with rehabilitation and the observations of the Community Corrections assessor, I accept you are remorseful.  I also accept that your plea represents an acceptance of responsibility and your willingness to aid in the processes of justice.

Personal circumstances

26You are now 38 years old.  Your mother raised you and your younger brother alone from when you were very young until about 13 years.  Your important formative years, and your schooling, were disrupted as you moved regularly between your mum and dad interstate.  Perhaps unsurprisingly, this was a difficult time for you, and you acted out.  You were expelled from schools and, at times, home for being disruptive.

27Even though these times were hard, you did not give up and you worked. You completed two and a half years of a cooking apprenticeship and fully completed an apprenticeship in bricklaying in 2006 when you turned 22.

28All this while dealing with an emerging drug addiction.  You started using cannabis at about 13 years and methylamphetamine by 20 and ecstasy heavily during your early 20s.

29Your prior offending is consistent with this history.  Since you were
24 years old, you have appeared in court for drug and drug-related offending, including, more recently, trafficking.  You were released from gaol for such offending only a short time before the offending in this case.  Your drug problem needed to be addressed.

30To your credit, you acted on that need by finding the Remar program and volunteering yourself for it.  You waited until a bed became available and sought bail then to engage in it.  As Ms Matthews reported, this showed valuable insight into your problems.

31Importantly, as Ms Matthews spelt out, your mid-20s, when your drug offending commenced in earnest, you were the victim of a serious stabbing and glassing from which you suffered post-traumatic symptoms.  This was exacerbated by you discovering, some years later, a friend who had hung himself and your own suicidal thinking at that time.  You have struggled to obtain or benefit from relevant treatment for some time.  Again, your insight into your need for long term residential treatment following your 2021 remand was timely.

32The lack of any such treatment in custody, especially during the COVID years of 2020-2021, underscores the significance of the opportunity you found at Remar. Ms Matthews said that your insight has improved compared to her other assessments of you over the past 10 years and in this you are in the best shape she has ever seen you.  I agree that these are very positive signs of change.

Sentencing issues

33The offence of aggravated burglary is of course very serious.  While it does not attract mandatory sentencing provisions, a term of imprisonment should be expected to flow from it.  The recent introduction of home invasion offences with such mandatory provisions highlights this fact.

34I accept, however, that your entry into Ms Zerafa's home on this occasion does not have the kinds of serious features that usually call for higher sentencing.  You did not break in as such, you had no weapon, you did not cause injury, the incident was very short lived, and it arose out of trying emotional circumstances rather than some other criminal purpose.

35The stalking was significant, and also warrants imprisonment.  By punishing you with such a sentence, I also intend likewise to deter others from stalking and to make it clear that such behaviour is unacceptable.  I note, however, that the level of violence that occurred at the Milekovic home was at a relatively low level.

36Your criminal history makes it clear that you need to be deterred from such offending and that the contributing causes of your conduct over the years need to be addressed to protect the community from any recurrence.

37I have aimed to tailor a combined sentence that is proportionate to the totality of your actions.

38When calculating the length of the imprisonment component of your overall sentence, I have taken into account the following:

(a)   Your 338 days pre-sentence detention in this case, formally;

(b)   That these days were served during the height of the COVID restrictions and were more onerous than usual, to a significant degree;[1]

(c)   The 299 days you remained in full time residence at Remar under somewhat restrictive conditions, for which I have given you credit at a rate of two-thirds, in accordance with the principles in the case of Akoka v The Queen.

[1] Brown (aka Davis) v The Queen [2020] VSCA 60, [48]

39I have also reduced your sentence significantly because you pleaded guilty during a time when the trial work of the court was under considerable burdens due to the pandemic, thus increasing the usefulness of your plea to the community.[2]

[2] Worboyes v The Queen [2021] VSCA 169

40In light of your readiness for rehabilitation as demonstrated by your voluntary engagement in the Remar program, and the significance of your 10-month stay there, I regard you to have travelled a significant way towards achieving actual rehabilitation.  While you may have a way to go, I accept that now is an appropriate stage in the progress to move back into the community to put your learning to the test.

41I sentence you as follows:

(a)   On Charge 1, aggravated burglary, 10 months.

(b)   On Charge 4, stalking, 3 months.

(c)   On Summary Charge 12, offending, whilst on bail, 1 month.

(d)   One month of the sentence on Charge 4, stalking is to be served cumulatively upon the sentence on Charge 1 for your aggravated burglary.

(e)   On Charges 1, 2, 3 and 4, a Community Correction Order with conviction for 12 months, including supervision, assessment and treatment for past drug use, mental health and programs to reduce the risk of re-offending and judicial monitoring

(f)    Your first judicial monitoring hearing will be on 22 February 2023 at 3.30 pm.

(g)   The total effective sentence is 11 months' imprisonment combined with a Community Correction Order for 12 months.

(h)   I declare that you have served 338 days and direct that this be reckoned as a period already served under this sentence.

42In accordance with s6AAA of the Sentencing Act, but for your plea of guilty I would have imposed 3 years and 3 months and fixed a non-parole period of 2 years and 3 months.

Ancillary orders

43The prosecutor has applied for a forfeiture order under s33 of the Confiscation Act, relating to your mobile phone that police seized.  You did not oppose the making of this order and, in the circumstances, I grant the application.

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