Director of Public Prosecutions v Dick
[2015] VCC 1107
•19 August 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-14-02140
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAVID DICK |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 June 2015 & 19 August 2015 | |
DATE OF SENTENCE: | 19 August 2015 | |
CASE MAY BE CITED AS: | DPP v Dick | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1107 | |
REASONS FOR SENTENCE
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Subject: Criminal Sentence. Burglary. Possess Drug. Deal with Proceeds of Crime.
Catchwords: Commercial Burglary.
Legislation Cited: Sentencing Act (Vic) 1991.
Cases Cited: Boulton v The Queen [2014] VSCA 342.
Sentence: 260 Days Imprisonment. Community Corrections Order- 3 years. Fines
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr S Devlin | Vaille Anscombe, Acting Solicitor for Public Prosecutions |
| For the Accused | Mr A Lewis (Plea) Mr P Doyle (Plea & Sentence) | James Dowsley & Associates |
HER HONOUR:
1 David Dick, you pleaded guilty before me to one charge of burglary; one charge of possessing a firearm whilst prohibited; and three charges of possessing a drug of dependence. In addition, summary charges were transferred, pursuant to s.145 of the Criminal Procedure Act 2009, and you entered pleas of guilty to Charge 25, a charge of possess cartridge ammunition without licence or permit; and Charge 29, knowingly deal with proceeds of crime.
2
In addition, you have admitted your extensive criminal record. There are seven court appearances that span the period from 9 July 1998 until
24 January 2014. Relevantly you have prior convictions for dishonesty offences; possession of drugs of dependence; being a non-prohibited person in possession of a firearm; possess a controlled weapon without excuse; deal with property suspected of being the proceeds of crime; dishonestly receive stolen goods; and burglary, for which you have received a variety of
non-custodial dispositions.
3 You have served two Community Based Orders in the past and breached one intensive corrections order in 2012. Due to the contravention, you were sentenced to six months' imprisonment. You have also been convicted of breach of suspended sentences in 2011 and 2012.
4 The current offending constitutes a breach of a community corrections order imposed at Heidelberg Magistrates Court on the 24 January 2014. On that day you were convicted of drive whilst authorisation suspended and placed on a 24 month Community Corrections Order, so that is an aggravating feature of your offending.
5 In the past courts have extended to you great leniency and provided to you many opportunities to address your underlining offending behaviours, but it is really not until recently that you have taken up that opportunity.
6 I shall now proceed to sentence you in respect to this current matters, on the basis of the Crown Opening, there being no objection by counsel to the summary of the Prosecution Opening that was read into the transcript at the plea hearing and was marked Exhibit 1.
7 In brief, on 31 January 2014 at about 5 am you, in company of another unknown person, entered the premises of Officeworks in Sydney Road, Campbellfield, by accessing the premises after cutting a hole in the roof and lowering yourself by a rope onto shelving. You then entered an internal security storage cage. You cut the wire of the cage and accessed stock contained within it and sought to obtain numerous items of electronic equipment that was the more expensive stock carried by the retailer.
8 A silent alarm was thereby triggered and the store manager, George Angelakos attended, together with a store security guard, Muhammed Naeem. You were seen by Mr Angelakos in the back storage area, climbing onto a pallet of stock. He challenged you. Your co-offender then crawled out of the caged area and joined you. You both then jumped from the pallet and were chased from the premises.
9 You left behind large bags containing various items, such as computers and tablet devices, together with a handwritten shopping list, written on distinctive paper that listed various items and their value. The list was later subjected to fingerprint analysis and the result was a positive match with you.
10 On 26 March 2014, police executed a search warrant in Mitcham, at the unit where you were then living. In your bedroom, police located paper identical to that that recovered at the Officeworks, Campbellfield, upon which the shopping list had been written. They also located a small silver handgun that was loaded with seven rounds of .22 calibre ammunition in a magazine, and that constitutes Charge 2, on the indictment, possess a firearm whilst prohibited and the summary Charge 25.
11 You are a prohibited person, by reason of the operation of the definition of "prohibited person", contained in s.3(a)(5) of the Firearms Act 1996. Further, you are not licensed or permitted to possess ammunition.
12 Police also located a small rock of methamphetamine. This is Charge 3 on the indictment; cannabis in a zip-lock bag on the television cabinet in the lounge area, Charge 4; and a quantity of goods identified as stolen or suspected of being the proceeds of crime. That is Charge 29, the summary charge.
13 Police located a Xanax tablet in your pocket following your arrest on 27 March 2014. That is Charge 5 on the indictment.
14 Each of the offences are serious and that is evidenced by the maximum penalties that are prescribed by Parliament. Charge 1 and Charge 2 are both Level 5 offending and the maximum penalty is ten years' imprisonment. In addition, Charge 2 carries an additional possibility of a maximum fine of 1,200 penalty units. In respect of the possession of drugs of dependence, where it is for non-trafficking purposes, the penalty is 30 penalty units or one year imprisonment, or both.
15 I interpolate there that the Crown conceded at the plea hearing, all drugs were considered to be for your personal use and therefore the lower penalty applies.
16 In respect to the summary charges, Charge 25, the maximum penalty if a fine of 40 penalty units; and Charge 29, two years' imprisonment.
17 You were interviewed but made a "no comment" record of interview following your arrest.
18 On 14 October 2014, a contested committal hearing was conducted, at which time you were committed for trial.
19 On 6 March 2015, a plea offer was made and the matter resolved shortly thereafter.
20 It is accepted by the Crown that the plea of guilty to an appropriate charge was entered at the earliest opportunity.
21 Disposals orders and forfeiture orders are sought for the items seized by the police under warrant; and the disposal of the firearm ammunition, and those orders are not opposed.
22 A forensic sample order, pursuant to s.465ZF of the Crimes Act 1958, was sought and that was opposed.
23 Mr Dick, this is a serious example of burglary. The Officeworks premises were deliberately targeted to obtain the pre-ordered list of expensive electronic equipment. There was a significant degree of planning and organisation. You attended premises with an unknown co-accused, equipped with tin snips, a crowbar, and ropes, necessary to lower yourself into position within the warehouse. It is obvious that there was a degree of pre-planning and that you attempted to execute the crime at an early hour, presumably to avoid detection.
24 In addition you committed the offence within a week of a community corrections order having previously been imposed at the Heidelberg Magistrates’ Court. Therefore in sentencing you, it is important and there is a real need to emphasise both general and specific deterrence.
25 I have had regard to the victim impact statement Mr George Angelakos has declared. That was read to the court. It is evident that your crime has had a significant adverse effect on his well-being and he suffers greatly as a consequence. He suffers depression and anxiety and has had time off work, due to his condition. He has difficulty sleeping and concentration and he is often scared in public places. He has been very traumatised by his experience. He now has difficulty trusting people and is afraid of being attacked. That has greatly impacted upon him. In his own words, "My whole life's been turned upside down." He is having treatment, including counselling and has had some anti-anxiety medication prescribed.
26 Mr Lewis, on your behalf, outlined to the court your personal history and background. He notes you are currently 35. You come from a supportive family. Your parents separated when you were four. Thereafter you continued to reside with your mother, Carol Cloke, with whom you still have a good relationship. She re-partnered and you had an excellent relationship with your step-father, who is now deceased.
27 After leaving home at age 18, you lived independently. You also developed a relationship with your natural father.
28 Following Year 12, you then completed a carpentry apprenticeship. At age 20 you commenced your own business and worked in that capacity until about 2009. You had a successful business, undertaking maintenance work for real estate agents and some construction work for builders. At one point you had up to 12 employees.
29
In 2009 you suffered significant financial stress as a consequence of a number of significant clients defaulting on payment. Difficulties with
non-payment meant that you were then unable to meet your own commitments and thus your business stopped its operations. This coincided with a number of other life stresses that were referred to, namely, the death of your step-father; your biological father was diagnosed with Alzheimer’s Disease and being placed in a nursing home; three of your close friends dying in the same year; and your mother experiencing nervous breakdowns for which she had inpatient treatment on three occasions; plus you separated from a long-term relationship.
30 Coinciding with those stresses, you began using methamphetamine intravenously. To an extent, that explains your criminal history and its escalating pattern following 2009. Further, a friend committed suicide on New Year’s Eve in 2011; and another friend was murdered in January 2012. As a consequence of a combination of those events, your life literally spiralled out of control and you relapsed heavily into methamphetamines use.
31 I note you were the victim of a home invasion in early February 2014. You were admitted to the Box Hill Hospital for treatment. You were there for two days and discharged yourself. The records of the hospital confirm you presented with a splenic laceration from being struck with a baseball bat to the left flank and you were admitted initially for conservative management. But because of threats from the perpetrator, you discharged yourself from their care. You were re-admitted a few days later on 15 February 2014 and then you had treatment for a ruptured spleen and underwent urgent splenectomy. You were discharged from hospital on 20 February 2014.
32 As a consequence of your arrest on 26 March 2014 and the charges, you were then remanded in custody and you spent some 260 days on remand. You were released on bail on 11 December 2014, by His Honour Judge Chettle and you had stringent bail conditions and in particular, you were released into the care of Recover Oz, an inpatient rehabilitation program conducted in Box Hill, where George Thompson is the clinical director.
33 I am satisfied, having read Mr Thompson's letters to the court and also having heard his evidence today, you have made good progress whilst resident at Recover Oz. I accept you have been a model patient and that you have been “clean” since attending that establishment. I note that you are now working, effectively, full-time, as well as attending to the commitments in relation to the rehabilitation program. You are considered ready to leave rehabilitation. And to live independently, with appropriate supports. I note you do have the ongoing support of your mother, Carol Cloke, and your aunt and uncle, Sandra and John Hall, all of whom have been present at each of the plea hearings.
34 Mr Lewis highlighted your useful and contributing lifestyle, prior to 2009. He also mentioned that you undertook the voluntary role of President of the Glen Iris Cricket Club. He stressed, prison for you on this occasion was a salutary experience and he highlighted your strong commitment whilst undergoing rehabilitation and your success while at Recover Oz.
35 He submitted references from Xavier Broughman, director of MaxBuild Proprietary Limited; Patrick Buchanan, community safety officer; and Leo Iacuone, director of Trackworks.
36 Mr Broughman is a registered builder and business owner. He has known you for the best part of 20 years and worked with you for over 15 years. He attests to your good reputation within the building industry, and also your commitment to turning around your life, following your release from prison. He was aware that you were the victim of a home invasions and he said that that traumatised you greatly.
37 Since you have been in rehabilitation, he has continued to be in regular contact with you and he says you have made big changes in the way that your life is structured. Most importantly, your career, lifestyle and daily routines. He holds great optimism for your future. He says you have always been a high achiever, but you do acknowledge to him, your behaviour in the recent past years has been unacceptable. He noted the strong network of people that are around you and he believes you have all the right things in place to prevent you from re-offending. So that is a strong endorsement and one that has been very influential in my sentencing process.
38 Mr Buchanan tells of your role helping with running a program called "North Wall", which is a program to activate a neglected space along the Darebin Creek, involving the creation of a large-scale legal mural. He says you assisted with that program. He is the safety officer with the Darebin City Council and he says that you are a positive model and you have a constructive attitude.
39
You current employer, Leo Iacuone, is aware of the charges. He runs his own business which sub-contracts to large, structured companies. You have been working with him since February this year and he says that you have been an integral person in his business and the growth of his business. He says you are an engaging and resilient character. He is very impressed with your work commitments, despite your current living arrangements and stringent bail conditions. He also noted that you have expressed remorse and disappointment for your actions. He too is optimistic that you will not
re-offend.
40 Dr Aaron Cunningham, the consultant psychiatrist's reports were tendered and there are two, 24 July 2014 and 14 June 2015. He goes over much of your past history, which I am not going to repeat. He confirms you present with symptoms consistent with an adjustment disorder, with mixed anxiety and depressed mood, which he primarily relates to the home invasion and the consequential injuries you suffered. He notes that since you have been at Recover Oz, you have been living there, attending daily groups and Narcotics Anonymous sessions. He says that you have told him you have learnt a lot from that treatment and learnt a lot about your personality type and better ways to cope with difficult situations. He believes you now have insight into your offending behaviour and what triggers your drug use.
41
He says that you also meet the diagnostic criteria for post-traumatic stress disorder, related to the traumatic symptoms you suffered following the home invasion. He considers you have made significant steps towards rehabilitation in the community and that is more significant, given your diagnosis of
post-traumatic stress disorder. In his opinion, you function well in the community due to the structure and support granted by rehabilitation services.
42 He considers that you would have a more onerous experience of gaol, compared to an individual without post-traumatic stress disorder. The stress of imprisonment and danger of exposure to further trauma would aggravate your paranoia and hypervigilance, and that is accepted. He recommends psychological intervention to deal with your condition and also it would be of benefit to you to continue drug and alcohol counselling, and I have incorporated those recommendations into the community corrections order we have already discussed.
43
From what has been said about you by the referees, Dr Cunningham and
Mr Thompson, it is apparent to me, Mr Dick, that you have now finally taken up the opportunities that were provided to you whilst on bail with stringent bail conditions. You have made genuine efforts at your rehabilitation through your participation in the program at Recover Oz. Also in obtaining employment and remaining drug free
44 Overall, I form the view that you have reasonable prospects of rehabilitation, given your current level of abstinence.
45 I note that you have not been able to provide any real explanation for your offending, other than your methamphetamine addiction. Whilst providing an explanation, it in no way excuses your behaviour.
46 In terms of the firearm, I accept that the charge of possession of an unregistered firearm, being a prohibited person in possession, falls into the first category of cases that was referred to by His Honour Redlich JA in Berichon v R (2013) VSCA 319, 7-[26]. I am satisfied that the possession of the firearm was not associated with any ongoing criminal activity, and therefore I consider the offending is at the lower end of the spectrum for this sort of offending, and a sentence of a lower order of imprisonment is appropriate.
47 I have taken into account all the factors put in mitigation. I accept that your plea of guilty was entered at the earliest opportunity. By that plea, you have spared the State the expense and inconvenience of a trial and also saved the witnesses from the trauma of having to give evidence. You have thereby facilitated justice and I accept there is real utility in your plea and your sentence will be discounted accordingly.
48 It is accepted by the Crown that all the drugs were found to be in your possession of at the time of your arrest, was for personal use and that is not disputed and your sentence reflects accordingly.
49 Mr Lewis accepted, having regard to the serious nature of the offending, involving as it does commercial burglary, means that the term of imprisonment would ordinarily be imposed in respect to both the burglary and firearm charge. He submitted that the 260 days already served would be sufficient punishment. Alternatively, he submitted that the punitive aspects of the sentence could be dealt with by way of the imposition of time served, coupled with a community corrections order.
50
He acknowledged your criminal history was not good and in the past many orders have been breached. However, he submitted, relying on your
post-release conduct and your efforts at rehabilitation, that for you, an appropriately structured community corrections order could provide for both the punitive aspects and also provide you with ongoing support in the community.
51 He submitted that you have done everything that you could do to rehabilitate yourself over the past eight months and that that is commendable for somebody who was in the grip of a heavy drug addiction, namely methamphetamines over many years and that you are genuine in your expressed desire to move from your criminal past.
52 Mr Devlin, the prosecutor, highlighted the aggravating features of your offending that has already been covered by me in these sentencing remarks. The nature of the offending has all the hallmarks of a professional burglary and it was committed within a short time of the imposition of a community corrections order. He also highlighted your prior criminal history.
53 He submitted a custodial sentence was appropriate. He further agreed it was not submitted that a community corrections order, in conjunction with a gaol term was not appropriate. He acknowledged the rehabilitative aspects of a community corrections order and stated that both you and the community would be greatly assisted by an ongoing structured regime. He submitted that a period of any imprisonment is a matter for the court. Therefore, it was appropriate for the court to consider a period of imprisonment and a community corrections order and the court was to determine both the length of imprisonment and the length and terms of a community corrections order.
54
As I have stated earlier, you have been assessed as suitable for such an order. You have been assessed as a moderate risk of re-offending, due to previous criminal history, issues with illicit drugs and absence of pro-social activities. Judicial monitoring is recommended, due to issues with
non-compliance with court orders in the past.
55 Overall, having regard to your significant progress whilst released on stringent bail conditions, your genuine attempts at addressing all your underlying offending behaviours, taken with your current stable employment and regular lifestyle, I consider that it is both in your personal interest and also in the interest of the community, that you continue your current progress in the community, with appropriate supports and monitoring.
56 I consider to return you to gaol at this time, would just expose you to the risk of further harm, in terms of your mental health, and also would have the prospect of undoing all the good that has been done thus far.
57 So as I said to you before, Mr Dick, I do propose to impose a sentence that effectively means that you have already served the term of imprisonment to be imposed, to be followed by a community corrections order of three years' duration, with special conditions. That will be imposed with respect to the burglary charge.
58 I propose to impose a term of imprisonment for the firearms offence. Because of time served already, that has already been served and then fines for the balance of the offending.
59 The combined effect of the sentence is to punish you and also act as a deterrent for both you and others from undertaking such serious offending in the future. The onerous nature of the community corrections order is such that both the protection of the community and your prospects of rehabilitation will be enhanced by continuing with your current regime of treatment for drug abuse and also addressing your post-traumatic stress disorder, to ensure you remain well. All of this can be better achieved by allowing you to remain in the community, where you have skilled and responsible work and great support from family, rather than returning you to gaol.
60 As has been explained in Boulton, a community corrections order with conditions such as these, operates punitively everyday it is in force.[1] That being so, and taking into account the punitive and deterrent effect of the time that you have already spent in custody, I consider that all the relevant purposes of sentencing can be met by the proposed order and no further time in custody need be served.[2]
[1]Boulton [2014] VSCA 342, [90]-[97]
[2] The Act s5(4C)
61 Insofar as the application for the obtaining of a forensic sample is concerned, your counsel, Mr Lewis, objected to that, on the basis that it is discretionary. He submitted, given all the circumstances, the court ought not exercise its discretion to grant the order. Mr Devlin submitted, having regard to the seriousness of the offending, your prior criminal history, and the nature of the offending, all combined, are such that an order is warranted. Further it provides some protection for the community in the future.
62
I am satisfied, having regard to the particular circumstances of the burglary, whereby you entered a commercial premise in the early hours, fully disguised and took active steps to hide your identity, that I consider it is a case where
I ought exercise my discretion in granting this application. Therefore, an order will be made for the taking of a forensic sample. I consider it is in the interests of the community that such order be made.
63 I will now announce the formal orders, so could you please stand Mr Dick.
64 In respect to Charge 1, the burglary, you will be convicted and sentenced to 260 days, to be followed by release on community corrections order of three years' duration, with special conditions that you perform 300 hours community work; that you undergo supervision; undergo assessment and treatment for drug abuse, including testing; mental health assessment and treatment as directed; offending behaviour programs as directed; and I direct you attend for judicial monitoring on Monday 15 February 2015 at 10 am.
65 In respect to Charge 2, possessing a firearm whilst prohibited, you are convicted and sentenced to six months' imprisonment.
66 Charges 3, 4 and 5, possession of a drug of dependence, you are convicted and fined $500.00 on each charge, being a total of $1,500.00.
67 In respect to the summary charges,
68 Charge 25, possess cartridge ammunition without licence or permit, convicted and fined $500.00.
69 Charge 29, knowingly deal with the proceeds of crime, convicted and fined $1,500.00.
70 So that is a total of 3,500 for the fines.
71 I make the declaration insofar as pre-sentence is concerned, that you have already served 260 days of the sentence imposed. I direct that that be entered into the records of the court. So effectively you have served all the terms of imprisonment that I have imposed and there is no need for you to be taken back into custody.
72 Pursuant to s.6AAA of the Sentencing Act 1991, I state that but for your plea of guilty, I would have imposed a term of imprisonment of five years', to serve three years'.
73 I make the disposal order and forfeiture order sought. Those orders were not opposed.
74
Insofar as the taking of the forensic sample is concerned, the only other thing
I have to tell you, is that if you do not consent for the taking of a sample, then an authorised member of the police force may use reasonable force to enable that forensic procedure to be conducted.
75 Is there a problem?
76 MR DEVLIN: No.
77 HER HONOUR: I just heard there was some - - -
78 MR DOYLE: No, Your Honour, I was just debating with my instructor whether Your Honour needed to make an order that the sentence of imprisonment on the firearm charge be concurrent, or if that is the default position under the Sentencing Act?
79 HER HONOUR: I thought it was default, but I will make it clear.
80 MR DOYLE: Yes.
81 HER HONOUR: It is to be concurrent. And I made it clear that all - the days declared cover all period of imprisonment that I have imposed this day.
82 MR DOYLE: Yes, Your Honour.
83 HIS HONOUR: So it is absolutely clear.
84 So do you understand that? There will be an order that will be given to you at some stage, once it is prepared, that the police can take a scraping from your mouth. They just give you a little cotton bud and you put it in the inside of your mouth. Provided you do that, there is no need for them to exercise any force. All right?
85 So I think that covers everything.
86 MR DOYLE: Your Honour, on Mr Dick's behalf, could I seek an initial stay on the fines?
87 HER HONOUR: A stay, in relation to the fine, yes.
88 MR DOYLE: Yes.
89 HER HONOUR: For how long?
90 MR DOYLE: Three months.
91 HER HONOUR: Three months?
92 MR DOYLE: Yes, Your Honour.
93 HER HONOUR: That is fine. I will grant a stay of three months.
94 I think that covers everything now.
95 MR DEVLIN: It does, Your Honour.
96
HER HONOUR: I think we have got the - I actually have a copy of the order for a not in custody taking of a sample here, so I have signed all those orders. You can copy them and provide them to the parties. Why have we got, "Commences upon completion of imprisonment", it commences today,
19 August. I just want this corrected so it is the 19th, so it is very clear to
Mr Dick when it starts.
97 We have just got an issue with the way the machine has printed out the order. It has got "commencing after completion of the imprisonment", whereas it has already been completed and should have today's date.
98 MR DEVLIN: Yes.
99 HER HONOUR: It is just the way the system is generated it, so my associate will have to contact whoever is responsible for the orders, so it may mean it will take a little while. We will stand the matter down. Hopefully it will be resolved in ten minutes.
100 MR DOYLE: Yes. Your Honour.
101 MR DEVLIN: As Your Honour pleases.
102 HER HONOUR: Sorry about that.
103 MR DEVLIN: No, Your Honour.
104 HIS HONOUR: I apologise. Sometimes the machine thinks differently from the rest of us, but I think it is best that Mr Dick understand that the three years starts from today's date and he has got two working days from today's date to attend the Box Hill Community Corrections.
105 MR DEVLIN: Yes, Your Honour.
106 HER HONOUR: So there is no misunderstanding. So I will stand the matter down. And if you can come down to my room with the orders, once they are ready, that would be good. All right.
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