Director of Public Prosecutions v Dimitriadis
[2022] VCC 1428
•29 August 2022
| IN THE COUNTY COURT OF VICTORIA CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication | |
CR-21-01241
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GEORGE DIMITRIADIS |
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JUDGE: | HER HONOUR JUDGE SYME | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 June 2022 | |
DATE OF SENTENCE: | 29 August 2022 | |
CASE MAY BE CITED AS: | DPP v Dimitriadis | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1428 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW - Aggravated burglary – Destroying property.
Catchwords: Prior good character – Charitable community contributions and volunteering – Charitable background not an excuse for offending – Welfare of business employees –Psychologist impermissibly took on the role of advocate – Anger management - Good prospects of rehabilitation.
Cases Cited: Hogarth v The Queen (2012) VR 658; Boulton v The Queen [2014] VSCA 324; Hope v R [2021] VSCA 177.
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic).
Sentence: Convicted and sentenced to undertake a Community Corrections Order of 2 years duration. Fined in the sum of $10,000.00.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. White | Ms A. Hutchings |
| For the Accused | Mr D. Dann | Mr G. Vassis |
HER HONOUR:
1 Mr Dimitriadis, you have pleaded guilty to one count of aggravated burglary and one count of destroying property. The maximum penalty for aggravated burglary is 25 years' imprisonment and the maximum penalty for destroying property is 10 years' imprisonment and/or a fine in excess of $190,000.00. These charges do not fall within Victoria's standard sentencing regime.
Criminal history and context
2 You have admitted prior convictions, although you have not been convicted of offending until recent times, until 2011, and most of the prior offending was for cannabis offences. There were, in 1996 and 1997, two damage offences. I was told that the 1996 conviction related to an incident where you damaged property in anger and that in 1997, the conviction related to a road rage incident. While these occurred many years ago, and do not aggravate the present offending, your prior offending provides the court with some context to your background and observations of your psychologist to which I will refer later.
3 I was also told of a Magistrates' Court matter that had not been dealt with. I am told today that assault and threatening words charges have now been dealt with in the Magistrates' Court by way of conviction and the imposition of a $1,000.00 fine. That is a matter that again, does not aggravate this matter, but puts your offending in context. It must also further deprive you of some leniency given that this took place not long before the present offending. These matters form part of a matrix of the facts which the court will take into account.
Circumstances of offending
4 The facts relevant to the current offences, as set out in the prosecution opening, are not in dispute.
5
I am told that you are the proprietor of a restaurant called Montania, a licensed dining venue in Ferntree Gully. On
8 December, at approximately 8.30 pm, you visited a former employee,
Mr Peios, at an address in Willandra Way in Clyde. You did so to apparently give him food and money in exchange for a shift he had worked at the restaurant. A heated exchange ensued. You left the address. Mr Peios also left the address at about the same time, but you were unaware of that.
6
At about 9 pm that night, after ruminating about the exchange you had, you took a baseball bat from your garage and returned to Mr Peios' residence. At about 9.30 pm, Mr Praveen Jaladi and Ms Divya Bakthav, who also lived at the house, heard loud banging at the door. Thinking it may be
Mr Peios returning, Mr Jaladi went to the garage and opened the door using a remote switch situated between the garage and the main part of the house. You ducked under the garage door as it was opening and proceeded towards
Mr Jaladi. He observed that you were carrying a baseball bat. He did not recognise you.
7 Mr Jaladi quickly closed and locked the door to the main house. You attempted to open the door, but Mr Jaladi held it closed by the handle. You started striking the door with a baseball bat, causing it to crack. Mr Jaladi ran to his bedroom where he took shelter with his wife. You continued to strike the door, causing fragments of wood to fall across the floor and a large hole to form in the middle of the door. You then reached through the hole and unlocked the door from the inside and subsequently entered the main hallway. You moved into the house.
8 When you arrived at Mr Peios' bedroom, you attempted to open the door, but you were unsuccessful as it was locked. You struck the door with a bat again, causing a hole in the middle of the door. Ms Bakthav, who heard your screams amongst the banging, screamed back at you saying she was going to call Triple 0.
9
You looked into Mr Peios' bedroom and saw that the lights were off and that he was not at home. You turned around and exited the premises. Your entry and damage to both doors resulted in shards of wood from the garage door being scattered across the hallway floor. At 9.30 pm, Ms Bakthav called
Triple 0 and reported the incident. You were arrested the next day and made yourself available for police questioning.
Arrest and interview
10 In your record of interview with police, you admitted the events above as I have just read out. You stated that Mr Peios had some mental health issues which you were aware of. You found him, you said, to be particularly negative that evening. You became annoyed at his lack of respect for all that you and your family had done for him. It is noted that you had assisted Mr Peios when he was charged with a criminal offence of indecent assault and offered him a room to stay in in your family home. In the circumstances of your children residing in the home, this was perhaps a naïve, but well-meant gesture.
11 It was in these circumstances that you and he argued; you indicated that your patience with him had evaporated. You told police that Mr Peios responded to your injunction to him by saying, 'Fuck you and your family'. You were also apparently annoyed that he had taken a bottle of alcohol from your restaurant. You told police that on returning home after that conversation, you ruminated and decided, in that state of mind, to return and let him know that his response was unacceptable to you.
12 You made full admissions to the police. You were arrested. It is accepted that your admissions were at the earliest possible stage. Unfortunately, this matter has taken considerable time to get to this stage of the sentence and I will refer to that further.
Sentencing considerations
13 In addressing the court on the concept of this charged offence, the prosecutor submitted that aggravated burglary is 'a serious offence which warrants condign punishment'. He submitted that as such offending causes great disquiet in the community and undermines the community's sense of security that people should feel in their homes. This is an uncontroversial submission. The prosecutor concluded that, therefore, the only appropriate punishment is a custodial sentence.
14
The concept of condign punishment does not mean that the only appropriate punishment for a serious offence must always be imprisonment. It is a concept of appropriate punishment to fit the crime and the perpetrator of that crime. This is not a novel concept. The court must be careful to assess the objective seriousness of the offending behaviour and then fashion a sentence that is appropriate to personally punish an offender in such a way that will still address each of the relevant purposes of sentencing. Imprisonment is not the only punishment that results in a deterrent or a punishment effect.
Boulton’scase[1] makes this point far more eloquently.
[1]Boulton v The Queen [2014] VSCA 324.
15 The prosecution further submit that the court would be persuaded by statistics which apparently show that over 90 per cent of such offences resulted in a custodial sentence being imposed in the past five years. There is no doubt that the offence of aggravated burglary is a serious offence. That is why it carries such a substantial maximum penalty. However, in my respectful view, quoting from cases such as Hogarth, a 2012 case, and Hope, a 2021 case, with the submission that they are similar, misses the point of those cases.
16 In Hogarth's case, the applicant pleaded guilty to an aggravated burglary based on acting in concert. The joint criminal enterprise was to enter and steal after convincing the victim to tell them the location of a safe, and they did that by tying the victim's ankles together and hands together and then promising not to harm her provided she answered questions relating to the location of the safe. They stole items to the value of $25,000. That, in my view, is hardly comparable to this matter.
17 In Hope's case, the offender was intoxicated and began performing burnouts in the vicinity of his residence and those of his neighbours. Two neighbours recorded his conduct. He stopped his vehicle, ran straight at them, and punched one of them numerous times. He subsequently assaulted both neighbours in their respective homes in front of their partners and children. In one home, plaster was damaged due to the applicant forcing the front door open with his hip and shoulder.
18 In both cases, custodial sentences were imposed. Neither case is remotely comparable to your circumstances. In any event, sentencing statistics are useful, but not an overwhelming consideration, even in a charge such as this. The starting point must always be the individual circumstances of the offending behaviour. It is trite to note that each case is different.
Objective seriousness
19 In considering the sentence to be imposed, the purposes of sentencing are each important considerations to a greater or lesser extent. As is often the case, the purposes of sentencing pull in opposite directions. The first step in assessing the sentence to be imposed is an assessment of the objective seriousness of the offending. The first of the damage encompasses a serious set of circumstances aggravated by the fact that the damage was caused in a private house at night. There were people in the house which you ought to have understood, would have been frightened by your behaviour.
20 It is submitted that the burglary was confrontational in nature. The concept of aggravated burglary anticipates the presence of a person. The concept of assault can coexist within the intention to seriously frighten a person especially when armed as you were. It was submitted by the prosecution, now withdrawn, I note, that a physical assault was intended, but this cannot be found to the required standard when considering the contents of your police interview.
21 I find that your intention was to frighten Mr Peios. Instead, in the course of damaging the door, you managed to terrify two people who had nothing to do with your anger towards the other resident. This does not assist you. At the time, you knew that other people were present as Mr Jaladi had opened the garage door and had tried to stop you from opening the inside door. There is, however, no evidence that a physical assault was intended against either the Mr Jaladi, Ms Bakthav and intended victim.
22 You left as soon as you realised the intended victim of your threat was not present. This is of small assistance to you. There is no indication as to how long the entire event took. The prosecution opening suggests minutes at most. This must be considered when assessing the objective seriousness of both offences. The prosecution submit that your confrontational intentions made the offending more serious.
23 Curiously, however, your actions were very confrontational in the first few seconds or minutes at most of the offending and this is the part of your behaviour which attracted the charge of criminal damage. You bashed the door leading to the house with sufficient force to make a hole in it. You were aware a resident was on the other side of the door. That is the gravamen of that charged offence. There was further damage inside, but it is not suggested that anyone present was thereby threatened.
24
While the events of the first charge, that is, the damage, led to the
second charge, that is, the aggravated burglary, it is not correct to conflate the aggravating circumstances of the first offence with the second. That is to say, the confrontational nature of the first act of damage cannot be conflated with the second act, namely, the entering of the house, armed, with the intention to cause Mr Peios to experience fear.
25 In the second offence, that is the aggravated burglary, your action as a trespasser was to reach in through the hole you had created in the door in order to open it and enter the premises. Prior to that, you had been allowed into the garage area by an occupant, admittedly, by mistake, but without any deception by you. You walked into the house carrying the offensive weapon. There is nothing to suggest you threatened the occupants who were there with it. You then walked to Mr Peios' room, committed further damage, saw that he was not there, and you immediately left.
26 Therefore, the objective seriousness of the aggravated burglary is towards the lowest end of the scale. The criminal damage offence is about midrange but not higher considering the actual damage was not objectively great. As said earlier, in the circumstances of how these offences have been charged and pleaded to, it is not correct to conflate the aggravation of one charge into the other when assessing aggravating matters.
27 In answer to the expected submission already given that the court ought to consider the entirety of the offending, this is accepted. However, the prosecution chose to separate the offending. The court is entitled to, and indeed required, to consider a sentence for each charged offence as well as the totality of the offending. In the circumstances of these charges, it is not appropriate to consider it as one charge. Sentence considerations can be more imaginative than simply requiring an imprisonment sentence for a serious offence. Acts of Parliament give the court other options for good reason. Condign punishment requires that each offence be sentenced according to the charge laid, the circumstances of that offending and the circumstances of the offender.
Personal circumstances
28
I now turn to those personal circumstances. Your biographical details are as set out in the report of psychologist Carla Lechner. You are now, I am told,
45 years of age and supported by your family - including your parents, your wife, and now your oldest son, who is in court today. I am told that, earlier, you had not told your own children of this offence. The recent CCO report and the presence of your oldest son indicates that you have now done so. No doubt, it was an appropriately embarrassing experience for you.
29 I note you were educated to Year 11 and after a start in the hospitality industry as a younger man, you worked very hard over the years to be in a position where you now operate two successful restaurants. I am told that your restaurants employ up to 70 personnel. I am also told, and accept, that your work hours are long, and the stressors associated with running a hospitality business during the COVID restrictions have been significant.
30 There is evidence in your past criminal record, and in the observations of both your wife and psychologist, that your inappropriate manner of dealing with stressors has been in existence for many years. It is observed that your wife reported to Ms Lechner that you were known to have 'a short fuse'. This is not a badge of honour. It is a feature of your personality that is relevant to the offending.
31 You spoke to Ms Lechner of a normal childhood, marred perhaps by bullying from your brother, which resulted in you leaving home at age 16. As a result, you apparently still carry some resentment towards your parents for not protecting you. This may not be significant, but you report that from your point of view, this drove your desire to ensure that Mr Peios was supported through his difficulties with the justice system and thereafter. There is no doubt in my mind that you tried very hard to support Mr Peios in every way by giving him employment and a place to live. There is no doubt in my mind that Mr Peios did not always respond in the way you had hoped.
32 Added difficulty arose when your children were apparently questioned in relation to Mr Peios' sexual assault matter. You then understood how precarious the safety of your family was and the potential the person whom you had assisted had to threaten the welfare of your family in some undefined way. You decided he could no longer reside there with you, but you continued to offer assistance.
33
In your understanding of his statement, 'Fuck the family and fuck the children',
Mr Peios had threatened your family. In the context of his offending, this threat may have taken on added significance. That explanation does not excuse the actions you took after, but it does, however, place your subsequent loss of control in context. You perceived the words as a threat to your family. I accept your intention was to frighten him away from your family and from your business.
34 Why you felt the need to do so with a physical threat has more to do with your lack of problem-solving capabilities. This is alluded to by Ms Lechner in her report who, in addition to observing what she has said about your personality, observed what she described to be an adjustment disorder. Another way of describing an adjustment disorder is as an unhealthy or excessive emotional or behavioural response to a stressful event or a change in a person's life. Your response to Mr Peios was out of proportion, and criminal.
35 You spoke to Ms Lechner of other personal stressors over the past two years, including your wife's cancer diagnosis and difficulties with a teenage son. Your life stressors are significant. In summary, your counsel does not seek to excuse your behaviour, but places it in the context of your life events at the time. I accept that your life events placed you under unusual stress for a period in excess of two years.
36 I accept that the combination of a number of significant adverse life events, combined with what you probably, understandably, perceived to be a threat to your family's welfare, resulted in you acting in a way that was uncharacteristic. At the very least, it was uncharacteristic since you became an adult with adult responsibilities. Again, that is no excuse, rather, a contextual explanation.
Delay
37
I indicated earlier I will refer to the issue of delay and I will do that now. I note you were committed for sentence in June 2021. Before that, you attended
four anger management sessions which I am told utilised cognitive behaviour principles. That is a useful and well accepted learning process for something defined as an adjustment disorder. COVID or other administrative delays meant that the matter was not listed for sentence until January of this year. You sought an adjournment on that date to obtain a psychological report. I do not know why one was not sought earlier and it was not completed until
7 June this year.
38 In some cases, an offender can convince the court that the delay in time has been usefully spent addressing any issues causally related to the offending, that is, convincing the court that in your case, an imprisonment sentence may be counterproductive to rehabilitation.
Anger management
39 In your case, anger management attendance was a good start. It would have, I observe, been useful if that was followed up with some regular therapy sessions to reinforce the learning. I do not perceive that your lack of progress to address these issues is a lack of acknowledgement of them, but rather, your perception that other matters in your life are of a greater priority.
40 You cannot claim that you have made major progress towards addressing your issues thereafter, at the conclusion of four sessions. Further counselling to address your responses to problem solving is in order. Referral via a GP mental health plan will be recommended.
41
The sentence plea hearing and your subsequent discussion with
Corrective Services has hopefully convinced you of the urgency of addressing those needs. The greater need is the community's need for safety. The court can address that requirement by ensuring that appropriate rehabilitation is mandated so that you do not reoffend. On a more personal level, working out how to better respond to life's stressors without you resorting to having a tantrum, because that is what it was, is essential for you and your family’s benefit.
Financial means
42 I have been told about your financial circumstances after discussions with counsel earlier today. I understand, at one level, that your commitment to your job, to earning money and to maintaining three mortgages is important to you. On the other hand, it is also important that you attend what you are required to attend in order to manage all of life's stressors. These stressors will continue, Mr Dimitriadis, they will continue.
43 You will need to work out better ways of dealing with these stresses without committing criminal offences which began in 1997/1998. It is time you stopped. I have also been told, and accept, that your business, while successful, is running at a profit, but not an amazing profit. I accept that.
Contributions to the community
44 I have also had access to a number of character references, all of which attest to your personal and business contributions to charities and community organisations. These contributions have either been financial and/or made in the form of your time. I note that you have also been personally supportive of friends in times of need. You supported Mr Peios in significant ways by attending his court proceedings and by providing accommodation to your detriment. You did your best for him. His failure to live up to your expectations is a different issue.
45 It is the case that when a person has contributed in such significant ways, which I accept you have, to the benefit of the community at large, they are entitled to draw on that benefit of that prior good character in their favour. The fact that the event occurred when you were experiencing really difficult domestic circumstances again puts this in context.
46 That being said, good character and community contributions do not excuse criminal behaviour although they may convince the court that such behaviour was out of character. This is so in your case. Your contributions represent further evidence of your good prospects of not reoffending in this way or in any other way again.
Risk of reoffending and rehabilitation
47 You appear to be sensible and responsive enough to the suggestions of taking action to alter your behaviour. Ms Lechner also concludes that you are at a low risk of reoffending based on your past presentation. This observation was confirmed in the recent Community Corrections report. I do not, however, accept Ms Lechner's submission that the welfare of staff who work for you is a matter to consider. Frankly, this is not an appropriate observation for a psychologist to make. It alters her position from being an objective psychologist to that of an advocate. I am disappointed that she had included it in her report.
48 I accept that an imprisonment term would cause all sorts of worries for a businessman in your position, but this is not an appropriate sentencing consideration and, as I said, inappropriate for Ms Lechner to so suggest. I am sure someone will tell her that. Ms Lechner also opines, through a diagnosis of 'close to a major depressive disorder', that your mental health is likely to suffer if imprisoned. In the Verdins sense, this is a consideration. That, together with the potential contribution of your background stressors, resulted in you behaving uncharacteristically. This will all be taken into account. That being said, these matters alone would not be sufficient to convince the court to avoid a disposition of imprisonment.
Community Corrections Order Assessment Report
49 I refer now briefly to the contents of the CCO report. It does not contain any information that surprises the court. I note a recommendation that you ought to continue with psychological intervention. I suggest you arrange this promptly. Ms Lechner refers to an adjustment disorder. I suggest and require you to take steps to obtain a referral for further psychological assistance and other personal issues. Your psychologist would ultimately be assisted by reading Ms Lechner's report. Such requirements will go far in reinforcing any learning from your previous anger management consultations, thus reducing your risk of reoffending in the future, and thus protecting the community.
Early plea of guilty & remorse
50 It is conceded that your early admission and plea entitle you to an appropriate discount. This can be effected either by an amelioration of the length of any sentence of imprisonment, if it were appropriate, or by other considerations. In your case, your early plea, your admissions, your explanation to police, your self-report to Ms Lechner and the observations of your referees, represent strong evidence of remorse.
51 Remorse in and on itself is an indication of the acceptance of responsibility. In your case, it is another step towards rehabilitation. You must understand that remorse alone, and a feeling of guilt about your behaviour, is just a good start. Understanding how you got to that unacceptable behaviour and learning how to avoid that response in the future is called rehabilitation. You are at the beginning of that process.
Sentence
52
In addressing the often competing claims of sentencing, I assess that specific and general deterrence are key considerations in this matter. You are a man of some means with, I accept, a very busy life, and a lot to manage. You ought, by way of punishment, give some of that up for the benefit of the community. Therefore, for the damage, I note that the maximum penalty is
10 years' imprisonment and/or a fine of over $190,000. I propose to record a conviction and impose a fine of $20,000. You will be required to compensate for the damage an amount of $990 and I understand you consent to that.
53 In relation to the aggravated burglary, I propose to record a conviction and impose a community corrections order for a period of two years' duration. The conditions of the order will include supervision as directed by Corrections, a requirement that you comply with a mental health assessment, a requirement that you undertake treatment and counselling. You will also be required to complete 150 hours of unpaid community service work. A third of those hours can be credited by you attending the psychological intervention or counselling that I have required.
54 Finally, a section 6AAA finding assumes that no remorse nor admissions had ever been made. Had it not been for your plea of guilty, I would have imposed a term of imprisonment of 30 months a non-parole period of 18 months.
55 All right. Anything else, counsel? Mr White?
56 MR WHITE: Nothing further, thank you, Your Honour.
57 HER HONOUR: Thank you. Mr Dann?
58 MR DANN: Nothing.
59 HER HONOUR: All right. We have prepared the CCO, have we not?
60 ASSOCIATE: Printed, Your Honour.
61 HER HONOUR: Printed. And your client can sign that now because he is being released today obviously. Now, the requirements of the CCO will be to report to - which one is it?
62 MR DANN: Cranbourne, Your Honour.
63 HER HONOUR: Pardon?
64 MR DANN: Cranbourne.
65
HER HONOUR: Cranbourne. Cranbourne Community Corrections within
two days, sir. To follow the directions of Community Corrections as and when required. You are not to leave the State of Victoria without the consent of your Community Corrections officer or those supervising you. You are, if you change address, to advise Community Corrections within two days of doing so. You are required to complete 150 hours of community service and a third of those hours can be undertaken by way of the counselling.
66 HER HONOUR: He understands?
67 MR DANN: Yes. Thank you.
68 HER HONOUR: All done. If there is nothing else?
69 MR WHITE: Nothing further, thank you.
70 MR DANN: Nothing further, Your Honour.
71 HER HONOUR: No. Thank you. Can I thank counsel for their submissions. They were very helpful. Thank you.
72 MR WHITE: If the court pleases.
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