Director of Public Prosecutions v Dossi
[2022] VCC 376
•22 March 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-01595
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TERRANCE DOSSI |
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JUDGE: | HIS HONOUR JUDGE DEMPSEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 March 2022 | |
DATE OF SENTENCE: | 22 March 2022 | |
CASE MAY BE CITED AS: | DPP v Dossi | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 376 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence.
Catchwords: Theft – Plea of guilty.
Legislation cited: Sentencing Act 1991 ss 6AAA, 18.
Cases cited:Worboyes v The Queen [2021] VSCA 169.
Sentence: 192 days’ imprisonment – Section 6AAA declaration: 12 months’ imprisonment, with a non-parole period of 6 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr S Devlin | Office of Public Prosecutions |
| For the Accused | Mr M Reardon | Victoria Legal Aid |
HIS HONOUR:
1Mr Dossi, you have pleaded guilty to one count of theft of $2,300 from Steven Morrison on 21 May 2019. The maximum penalty for that offence is 10 years' imprisonment. The summary of the offending is set out in the Summary of Prosecution Opening for Trial dated 8 May 2020 with necessary modifications to reflect the manner in which this case resolved.
2By way of background, you were 39 years old at the time of the offending. You were staying temporarily at Room 7 at the Alexander Inn and Apartments located on Mount Alexander Road, Essendon. You provided a proof of ID card in your own name and paid cash for two nights of accommodation at that Inn for 19 and 20 March 2019.
3You were driving a white Holden Commodore with Queensland registration 644 MAV that I will simply refer to as the Commodore. The victim in this matter, Steven Morrison, was 45 years of age at the time of the offending.
4On St Patrick's Day 2019 at 6.25 am, you advertised on Facebook for the sale of the white Holden Commodore for $3,500. On 20 March that same year at 8.08 pm, you posted another advertisement for the white Commodore for $3,200. Mr Morrison saw the advertisements on the afternoon of 20 March 2019 and sent a message through Facebook asking, 'Is this car still available?' and you exchanged messages, negotiating the sale price of the car.
5I note that Mr Morrison required a car for his expanding family at that point in time.
6On 21 March 2019 at about 1.15 pm, you contacted Mr Morrison and said that you and your partner were about to be evicted from your hotel room in Essendon and you needed the next night's rent for the room paid. You and Mr Morrison discussed the purchase of the Commodore and agreed that he would pay you $2,300 in cash plus the cost of the accommodation of the hotel for the night. Mr Morrison gave his credit card details over the phone to the hotel manager and you sent a picture of the receipt of the transaction to him that was for the sum of $88.
7Mr Morrison and you agreed to meet near the Melbourne Cricket Ground in Richmond to effect the sale of the car. On his way to meet you, Mr Morrison took out money from the bank. He was accompanied by his partner Jamie McCormack. They were driving a blue Laser. When Mr Morrison got to the city, Mr Morrison realised that a football game was on and traffic was bad. He and Ms McCormack drove to the Coles Express petrol station in Hoddle Street, East Melbourne. Ms McCormack shared their location with you through the Facebook Messenger app at 5.54 pm.
8Minutes after you arrived at the Coles Express in the Commodore, Mr Morrison and Ms McCormack saw there was a male and a female occupying the car. You were clearly the driver. You parked the Commodore so that the two passenger side windows were next to each other. You offered for Mr Morrison to test drive the car, however, he was not licensed and so he asked you to drive him. Mr Morrison sat in the rear passenger seat behind your female passenger. You drove in a big block with Ms McCormack following in the blue Laser.
9After double parking near Fitzroy Gardens, Mr Morrison gave you $2,300 in $50 notes as agreed earlier for the purchase of the Commodore. You said you would sign a receipt and the female was preparing it. Mr Morrison opened the passenger door, put one foot on the ground and turned to get the receipt. He dropped the piece of paper as he got out of the car. You drove away in the car with the female and the cash.
10Ms McCormack found Mr Morrison at the corner of Albert and Clarendon Street. He said his money had been stolen. They drove around looking for you. He sent a message to you which read: 'You are fucked, dog.' At 6.35 pm, you sent Mr Morrison a text message saying, 'No, no, it was a shit show' and advised that the car would be left outside an address in Greensborough ending with the message 'Sorry'.
11Mr Morrison and Ms McCormack drove around Greensborough looking for the Commodore for three hours but could not find it. At 10.53 pm, Mr Morrison sent a text message to you advising that he would report the matter to police. At 11.45 pm, he and Ms McCormack attended the front counter of the Greensborough police station.
12On 21 March 2019, you paid $915 in cash for seven nights' accommodation at the Arrow on Swanston Apartments, 488 Swanston Street, Carlton, and you drove your Commodore into the car park. The next day at 11.20 am, police attended Arrow on Swanston. The Commodore was located in the car park. At approximately 11.40 am, police observed you and a female approaching the Commodore. You were identified as the accused. The female was identified as Diana Resetar. You were both arrested and transported to Melbourne West police station for interview. At the time of the arrest, you had a thousand dollars on you.
13You were interviewed under caution and stated the following: You had advertised the sale of a white Holden Commodore on Facebook Marketplace and other places associated with Facebook. You thought that your Facebook profile was under the name Terry Dossi. You stayed two nights in a motel in Essendon under your name. You paid cash for two nights at the hotel in Essendon. You were contacted by a man who offered to pay part cash, part drugs for the car. You asked the man to pay for one night's accommodation at the motel. You had all agreed to meet and sell the car in St Kilda or Richmond, somewhere where there was a football game and the traffic was ridiculous; that you ended up meeting the man at the Shell service station on Punt Road. The man put the money on the centre console. The man wanted to buy the car for $2,000 and was aggressive and when you refused to sell it for that, you drove off.
14You admitted stealing $2,000 from the man but you denied any armed robbery or that any demands had been made by you. This is important in the context of this case because you were charged and initially remanded on charges involving armed robbery.
15Next, you said the man was out of the car when you drove off. You said that you paid around $800 in cash for the Arrow in Carlton for seven nights. You acknowledged what your mobile phone number was. You told the man the car would be in Greensborough but that was a lie. You just wanted to get away from him.
16There is no victim impact statement. There is a compensation order for the sum of $2,300 that I will make in the terms sought by the Prosecution. A number of pre-trial admissions were sought which I am told were admitted. I will return to this in due course.
17In terms of matters personal to you, I was assisted by the provision of your biographical details concisely and crisply by Mr Reardon. You are now 42 years of age and you were 39 at the time of the offending. You are presently engaged in home duties. You live in Runaway Bay, Queensland.
18Your life has sadly been marred by substance abuse, offending, punishment including drug treatment orders, suspended sentences and terms of imprisonment. This spiral commenced when you were aged just 16 when you were a labourer at a time where you might not feasibly know what damage heroin would do to you. As I said, this has been a blight on your life, disturbing your work and progress as a forklift driver amongst other things.
19I am told that your addiction never progressed to other substances although there is a question mark in my mind as to whether gambling plays any role in your dysfunction.
20You admit an unenviable number of prior convictions that are simply too many for me to count. They are overwhelmingly dishonest in character. I am told that you offended essentially to pay for your prodigious drug habit. You have been to court on innumerable occasions between 1997 and 2020 and had dispositions imposed upon you ranging between bonds to terms of imprisonment with a non-parole period. Ordinarily, such a record would tell very strongly against your prospects for reform.
21Importantly though in this case, this sequence is relevant. The offending occurred on 21 March 2019. Your last prior occasion of offending was on 29 November 2018 which was dealt with in Queensland on 24 April 2020. You were remanded on this matter on 22 March 2019. As early as 11 June 2019, you offered to plead guilty to a charge of theft consistent with those admissions you made in your record of interview.
22On 12 August 2019 at the committal, you again offered to plead guilty to the charge of theft. That offer was refused. On 30 September 2019, having served 192 days in custody prior to the pandemic, you were ultimately bailed. Again, on 20 May 2020, you offered to plead guilty to the charge of theft which was again refused. Interspersed with this chronology are the following trial dates that came and went because of the strain on the criminal justice caused by the COVID-19 pandemic. Trial dates came and went on 27 July 2020, 5 July 2021 and 30 November 2021.
23Finally, this trial commenced on 18 March 2022 almost exactly three years after the commission date of the offence. The matters resolved mid-trial where the Prosecution had finally accepted a plea of guilty to the theft in full satisfaction of your criminality.
24During this three-year period since the offending, you essentially lived in Queensland. You had not reoffended save for matters I have been told of today that involve you driving in contravention of the terms and conditions of your licence and with a prescribed substance in your system. I am told that you are placed on an equivalent of a suspended sentence coupled with a significant amount of community work that you have since completed.
25You have been on bail now with respect to this matter though for two and a half years. The conditions that you must abide by have included in the past residential conditions, curfew conditions, reporting conditions, attendance on Narcotics Anonymous. In short, there was a great degree of scaffolding and restrictions on your liberty for at least a period of two and a half years. I am told that you are now on suboxone.
26Delay is a factor that I am obliged to take into account. For three years, you must have had some real anxiety about your fate. I am to look at how you used that time between the offence and today when assessing your prospects for reform. Whatever motivated this offending — and I am not sure that you have been frank about it — it does not appear to me to be operating on you anymore.
27I can infer fairly comfortably that the six months that you served back in 2019 on remand for these matters specifically deterred you from dishonesty offending and your prospects I consider to be enhanced for that reason. I suspect part of the reason for your recent reform comes from the obligations that you have at home. You describe when you were arraigned as having home duties. Your partner is a senior administrator at a construction office on the Gold Coast who works five days a week and her name is Marney.
28You are the carer for your stepson who is 22 who has cerebral palsy and your son Lincoln who is 13. Tragically, you lost your former partner during the pandemic. That was a relationship that was over 10 years earlier. That is not to say it had no effect on you.
29The context of this offending relates back to Marney. You had driven from Queensland after a separation from her. You had a brief intimate relationship with your companion Ms Resetar. Upon realising that you had made a mistake and you wished to recommence your relationship with Marney, I am told that you decided to sell the car to get sufficient funds to return to Queensland.
30I wish to say this about the offending. The car for all intents and purposes was clean and appeared to be legitimately for sale. According to Mr Morrison, you were self-evidently in financial difficulty. The victim in this matter had paid for you to have a roof over your head for at least a night and you breached whatever small measure of trust that involved by thieving from him.
31I must sentence you on the basis that there were no threats implicit in getting Mr Morrison out of the car, but rather that he was agitated in the form that you articulate in your record of interview once negotiations had broken down over the purchase of the car.
32Mr Morrison's evidence was that what he observed in you were experiences he had lived himself: bordering on homelessness, having all of his possessions with him, sleeping during the day and on one occasion meeting you, being drug affected.
33I have been informed by your counsel that drug use had nothing to do with this particular offending. I find that difficult to accept. You self-admittedly have a long history of heroin use. Drug paraphernalia was found at the scene of your arrest.
34The sum of money would ordinarily be described as a modest one but I am able to infer from Mr Morrison that it was a substantial amount of money to him to buy an item that he was to use. It is regrettable in the two and a half years that you have been on bail that you have not made any effort to make good the debt to Mr Morrison. That is notwithstanding, I was told, that this matter would always proceed as a plea of guilty.
35There is a further unresolved matter that I cannot quite come to terms with and that is this. If the purpose of selling the car was to recoup enough money to get back to Queensland, then it begs the question: why did you remain in Melbourne after you acquired more than $2000 from Mr Morrison? You had then both the car and the money.
36Instead of returning to your love in Queensland, you remained in Melbourne and squandered a significant proportion of the money on Pokie venues and further accommodation in Melbourne.
37Whatever drove this offending, Mr Dossi, does not paint you in a particularly flattering light. Having said that, whatever drove the offending appears to have resolved in your life.
38I sentence you on the basis that this is an opportunistic theft with a value that is often dealt with in the Magistrates' Court because of its gravity. As I remarked to Mr Devlin, the quantum involved in this theft is some 50 times less than the jurisdictional limit of this court. In the ordinary course of events, I would expect a plea of this nature to be conducted in court of summary jurisdiction.
39It is not so much that the amount of money was substantial that you took from Mr Morrison. It was the way that it was effected that was somewhat cruel. You did make admissions at the time of the offending and I must accept that for three years you have attempted to resolve this matter on the basis that theft was the only charge and the only offence you committed. I accept that not knowing your fate for three years has caused you anxiety and worry. Your offers to plead guilty prior to the pandemic in my view are significant.
40With conspicuous fairness, Mr Devlin noted the principles articulated by our Court of Appeal in Worboyes v The Queen[1] applied to this case. With respect, I agree. Mr Dossi, I can indicate that the discount that you will receive on this sentence will answer the description of both a perceptible and significant one.
[1][2021] VSCA 169.
41Sensibly, because of your unflattering history of dishonesty, Mr Reardon conceded that a term of imprisonment was inevitable for you. Importantly, he indicated that 192 days that you had already served would satisfy all sentencing considerations in this matter. He says the punitive aspects of a sentence of that magnitude have already taken effect. He indicates that general deterrence has been achieved by the amount of time that you have served; and specific deterrence can be de‑emphasised because of the behaviour you have engaged in over the past three years.
42I must see your prospects of reform now. That is to say, had this plea been conducted in 2019 it would be a very different plea with a very different outcome.
43Part of this question about what risk you pose to the community and do the community need to be protected from you is to what extent would I need to impose any further term of imprisonment on you or to what extent would I need to supervise or have you treated in the community.
44Another way of looking at it is what more could be offered as a protective measure by this court. I have concluded that the answer is nothing.
45Dispositions that would require you to remain in Melbourne would tie you to a jurisdiction where you have no obligations, no connections. In my view, that would be counterproductive and counterintuitive. It would increase your risk of reoffending in circumstances where I need not do that.
46Mr Devlin on instructions from the Crown Prosecutor submitted that a term of imprisonment was the only disposition available and to that extent he very much agrees with your barrister. I accept that this is not a concession that you have served enough time. Notwithstanding that that is a fairly opaque position for the Crown to take, I am of the view that you have served a sufficient amount of time in custody to satisfy all sentencing considerations. I find it difficult to see any further utility in sentencing you to a term of imprisonment now so long after this offending in this current environment. Further, I certainly cannot identify or articulate any legitimate sentencing objective that would be furthered by imprisoning you even now.
47As I said, had the Crown accepted your offer to plead guilty to a charge of theft three years ago, there would have been a significant saving of court time, to you, to the complainant and the system generally. This would have been in my view a fairly uncontroversial Magistrates' Court plea.
48Can you stand up please, Mr Dossi.
49On a single count of theft, you are convicted and sentenced to 192 days' imprisonment. I declare pursuant to s 18 of the Sentencing Act 1991 that 192 days are reckoned in full satisfaction of that sentence.
50But for your plea of guilty to that charge, Mr Dossi, I would be very likely to sentence you to a term of imprisonment of up to 12 months with a non-parole period of six months.
51I make orders for — is it compensation or restitution?
52MR DEVLIN: It is a compensation order, Your Honour.
53HIS HONOUR: Thanks. Is there a forfeiture order as well?
54MR DEVLIN: Yes, Your Honour. I believe both have been filed.
55HIS HONOUR: Yes, I do.
56MR REARDON: I am not instructed to oppose either order.
57HIS HONOUR: Thanks. I make the forfeiture order in the terms sought for the mobile phone handset — the ZTE mobile handset and the Optus mobile phone. And I make the compensation order in the sum of $2,300 as requested by the parties unopposed. Are there any other matters that I need to attend to?
58MR DEVLIN: No, thank you, Your Honour.
59MR REARDON: No, Your Honour. May it please the court.
60HIS HONOUR: Thank you. Good luck, Mr Dossi. I would very much hope not to see you again.
61OFFENDER: Thank you, Your Honour.
62HIS HONOUR: Can I thank counsel for your patience and endeavours in resolving this matter in the way that it has. And thanks for being patient with me this morning. Unless there are any other matters, I will adjourn the court and Mr Dossi is free to go.
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