Director of Public Prosecutions v Dirbass

[2017] VCC 890

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01708

DIRECTOR OF PUBLIC PROSECUTIONS

v

JASON DIRBASS

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JUDGE:	HER HONOUR JUDGE DAVIS
WHERE HELD:	Melbourne
DATE OF HEARING:	22 June 2017
DATE OF SENTENCE:	30 June 2017
CASE MAY BE CITED AS:	DPP v Dirbass
MEDIUM NEUTRAL CITATION:	[2017] VCC 890

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW
Catchwords:  Plea – Aggravated Burglary – Theft  
Legislation Cited:  Sentencing Act 1991 (Vic)
Cases Cited:
Sentence:  Imprisonment for a period of 3 years and nine months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Buckland	Office of Public Prosecutions
For the Accused	Mr G. Davis	Danos Lawyers

HER HONOUR:

1Jason Dirbass, you have pleaded guilty to one charge of aggravated burglary, for which the maximum penalty is 25 years' imprisonment, and one charge of theft, for which the maximum penalty is ten years' imprisonment.  The circumstances of your offending are set out in full in the Summary of Prosecution Opening that was tendered on the Plea, and I sentence you on the basis of the facts set out in that document.  I summarise those briefly here.

2At about 3.30 am on 16 February 2015, knowing or being reckless as to whether a person would be present in the house, you attended at the victim's new home in St Kilda carrying a jemmy bar with intent to steal.  You forced entry to a side glass door using the jemmy bar, searched the house downstairs and went upstairs to an area where the victim, Mr Harwood, was sleeping.  You found both sets of keys to Mr Harwood's Mercedes, worth around $50,000.  You loaded household property to the value of approximately $30,000 into his car before driving the car away. 

3On 2 March 2015 police found you sleeping in the doorway of a home in
St Kilda and located the Mercedes car keys in your possession.  The Mercedes was located by police on 27 March 2015 in Avondale Heights.  The keys taken from you opened the car.  You were arrested at your home address on 20 May 2015 and provided fingerprints and a DNA sample to police.  Forensic examination of items taken from the vehicle included a packet of cigarettes containing a fingerprint said to match yours.

4You pleaded guilty to the charges on 19 June 2017, being the first day of the trial.  Not including today, there are 375 days of pre-sentence detention. 

5The prosecution tendered a Victim Impact Statement from Rob Harwood, dated 29 May 2017.  He did not want this read out in court.  At the time of your offending, he was living at home with his wife and two young sons, one of whom was only eight weeks old.  Fortunately his wife and children were not at home on the night of your offending.  However, Mr Harwood has been psychologically affected by your actions and he remains convinced his life would have been threatened if you had not retreated downstairs when the sensor light went off as you approached his bedroom.  Mr Harwood has suffered poor sleep and nightmares in his new home, and fears he will never feel comfortable sleeping in it.

6Your counsel tendered a number of documents on your behalf and I have considered them all.  They include a CISP report concerning your successful participation in that program between September and December 2015.  They also include certificates relating to courses such as legal education, drug and alcohol treatment, access to vocational pathways and general education that you have completed while in custody.  Finally, you have also provided a number of negative urine screens which were obtained in September and December 2016 and March and April 2017.

7Your personal circumstances were outlined by your counsel and set out in the psychiatric report of Dr Leon Turnbull, dated 27 October 2016.  You are now 42 years old.  You are an only child and lived in housing commission flats in Flemington with your parents.  You completed Year 11 at school.  You worked as a motor trade assistance between the ages of 11 and 17 but were sexually abused by your employer.  You started using heroin at the age of 18 or 19 and were asked to leave home by your parents because of your drug use.  Since then you have remained largely addicted, unemployed and homeless.  You have abstained from drug use for periods of up to 18 months and have undertaken three different periods of inpatient rehabilitation for a total of 12 months.  According to your counsel, you ceased using heroin in 2015 when you turned 40, although I note that according to the history taken by Dr Turnbull, you have relapsed four or five times in the last two years. 

8You have been treated with antidepressants for ten years, although Dr Turnbull noted that there was no past diagnosis of mental illness and concluded that you were not suffering from any mental illness.

9You are currently on methadone.  You successfully completed a CISP program in 2015 and one of the reports included in Exhibit A showed that you engaged well with addiction counselling.

10Your counsel made a number of submissions on the plea.  While conceding that a custodial sentence is warranted in this case, he submitted that the aggravated burglary committed by you was a relatively minor example of this type of offence for a number of reasons.  Firstly, it involved an intent to steal rather than intent to assault and/or cause damage.  Secondly, there was no allegation that you were armed with an offensive weapon at the time of entry.  Third, it involved a single intruder.  Fourth, there was no confrontation with the occupant of the premises.  And finally, it involved little minimal planning and premeditation.

11It was submitted that your extensive prior history of property related offending has been a product of your drug addiction, unemployment and homelessness, and that your last relevant prior offending occurred many years ago in 2005.  The first relevant prior offending was an aggravated burglary, person present, for which you were sentenced on 5 December 2000 by the Magistrates' Court to an aggregate term of nine months' imprisonment, three months of which was suspended. 

12The second relevant prior was an aggravated burglary involving the use of an offensive weapon, for which you were sentenced on 25 March 2003 by this Court to two years' imprisonment.

13The third relevant prior offending was an aggravated burglary, person present, for which you received a sentence of three months' imprisonment in the Magistrates' Court on 10 March 2005. 

14According to your counsel, your current offending was part of the cycle of drug addiction, homelessness, offending and incarceration, which has dominated the past 20 years of your life.  You have few supports in your life and need a great deal of support to maintain your abstinence from drug use and assist you in finding stable accommodation. 

15Your counsel submitted that your current offending would have been capable of being dealt with summarily had it not been for the argument between the parties over the trial indictment, which alleged possession of a weapon at the time of entry.  That dispute led to the matter being resolved at court on the morning of the trial.  Your counsel submitted that if that issue had been resolved at committal, there was a potential for the matter to be dealt with summarily and thus attract a maximum two year penalty. 

16Your counsel also relied on your plea of guilty and on the fact that there was a limited committal with cross-examination of the informant only, without any civilian witnesses being called.  In the light of all these circumstances, your counsel submitted that a disposition equivalent to time served would be appropriate.

17The prosecution submitted that in the light of your relevant prior convictions, your offending ought to be seen as mid-range in seriousness, that general and specific deterrence, as well as protection of the community, are the major sentencing considerations, and that in the absence of significant mitigatory factors apart from your plea of guilty, a substantial custodial sentence is warranted.  It was submitted that you entered the property during the night, knowing that it was likely to be occupied, spent quite a bit of time there while loading up the car, and stole a $50,000 car as well as $30,000 worth of goods.  You were carrying a jemmy bar, which created a level of danger.

18In the light of your prior convictions, it was submitted that it was highly unlikely that your matter would ever have been dealt with summarily.

19In terms of the gravity of your offending, I accept that you went there alone with the jemmy bar with intent to steal, and that you had no contact with the victim.  However, you invaded a private home in the middle of the night when residents were likely to be at home in bed.  You spent some time there searching rooms, going in and out of the house, and filling the victim's car with items taken from the house.  I am unable to say that this was a spontaneous home invasion but I accept that there was no sophisticated planning.

20You have three prior convictions for aggravated burglary, one of which involved a lengthy custodial disposition from this court.  In the circumstances, I consider that your offending lies in the midrange of seriousness for this kind of offence.  The theft of the car and items together, to the value of $80,000, is also serious offending.  I am mindful, however, of the need to avoid double punishment in respect of the two offences for which you are being sentenced.

21The seriousness of the offence of aggravated burglary is reflected in the penalty imposed by Parliament.  On the authorities, the principal sentencing considerations for that offence are those of denunciation, just punishment, general and specific deterrence and protection of the public.

22I accept that by your plea of guilty, made on the first day of trial, you accept responsibility for your actions and are entitled to a discount in the sentence imposed.  I note, however, that there is no other evidence of remorse on your part.  I accept that as an adult you lived in a cycle of addiction, unemployment and homeless, punctuated by periods of incarceration following your offending.  Your most recent aggravated burglary conviction was in 2005, some 12 years ago.  In the light of your current offending, your prospects of rehabilitation must be viewed as guarded, although your engagement with CISP in late 2015 demonstrates that you have some capacity to engage with the various supports you will need to assist you when you are released. 

23In all the circumstances, I consider it appropriate to impose the following sentence.  Would you please stand, Mr Dirbass.

24On Count 1, aggravated burglary, I convict and sentence you to three years and three months' imprisonment.  This is the base sentence.

25On Count 2, theft, I convict and sentence you to 15 months' imprisonment.

26While being mindful of the need to avoid double punishment for these offences, I consider that a measure of cumulation is required.  I direct that six months of the sentence on Charge 2 be served cumulatively on the sentence imposed on Charge 1.  The total effective sentence is therefore one of three years and nine months' imprisonment with a non-parole period of two years and six months. 

27I indicate pursuant to s 6AAA of the Sentencing Act[1] that but for you plea of guilty I would have sentenced you to five years and four months' imprisonment.

[1] 1991 (Vic)

28The prosecution has sought a disposal order for a number of items and I note that through your counsel you have consented to the orders being made and if they are handed up I will sign those orders now. 

29Are there any other matters?

30MR DAVIS:  No, Your Honour.

31MR BUCKLAND:  Your Honour mentioned the pre-sentence detention, but I don't know if you've actually expressed that as part of that sentence, that's all.

32HER HONOUR:  I direct that the three hundred and seventy-five days of pre-sentence detention be reckoned as time served and be entered into the court records. 

33MR BUCKLAND:  As Your Honour pleases.

34HER HONOUR:  Thank you. 

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