Director of Public Prosecutions v Duff & Marendaz
[2023] VCC 246
•17 February 2023
| IN THE COUNTY COURT OF VICTORIA AT GEELONG CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-00356 & CR-22-00362; CR-22-00364
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOHN XAVIER DUFF & JERAMIE PAUL MARENDAZ |
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JUDGE: | HIS HONOUR JUDGE WRAIGHT | |
WHERE HELD: | Geelong (Plea), Melbourne (Sentence) | |
DATE OF HEARING: | 25 January, 9 February 2023 | |
DATE OF SENTENCE: | 17 February 2023 | |
CASE MAY BE CITED AS: | DPP v Duff & Marendaz | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 246 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing
Catchwords: Plea of guilty – Aggravated burglary – Theft – Commit indictable offence whilst on bail – Common assault – Possess a firearm related item contrary to a firearm prohibition order – Relevant criminal history – Parity – Totality – Very good prospects of rehabilitation – COVID-19 pandemic.
Legislation Cited: Crimes Act 1958 ss 74, 77; Bail Act 1977 s 30B; Firearms Act 1996 s 112B; Sentencing Act 1991 ss 6AAA, 18, 44.
Cases Cited:Worboyes v The Queen [2021] VSCA 169.
Sentence: Imprisonment for a period of 9 months and following the period of imprisonment placed on a 2 year Community Correction Order (Duff) – Imprisonment for a period of 10 months and following the period of imprisonment placed on a 2 year Community Correction Order (Marendaz).
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr S Devlin | The Office of Public Prosecutions |
| For Mr John Duff For Mr Jeramie Marendaz | Ms K Foote Ms K Sheridan | Stary Norton Halphen Slink & Keating |
HIS HONOUR:
Introduction
1John Duff, on Indictment C2114617.1 you have pleaded guilty to:
a) one charge of aggravated burglary contrary to s 77 of the Crimes Act 1958 (‘Crimes Act’), which carries a maximum penalty of 25 years imprisonment (Charge 2); and
b) one charge of theft contrary to s 74 of the Crimes Act, which carries a maximum penalty of 10 years imprisonment (Charge 4).
2You have also pleaded guilty to the related summary charge of committing an indictable offence whilst on bail contrary to s 30B of the Bail Act 1977 (‘Bail Act’), which carries a maximum penalty of 3 months imprisonment (Summary Charge 4).
3Jeramie Marendaz, on the same Indictment, you have pleaded guilty to:
a) one charge of aggravated burglary contrary to s 77 of the Crimes Act, which carries a maximum penalty of 25 years imprisonment (Charge 1);
b) one charge of common law assault contrary to Common Law, which carries a maximum penalty of 5 years imprisonment (Charge 3); and
c) one charge of theft contrary to s 74 of the Crimes Act, which carries a maximum penalty of 10 years imprisonment (Charge 4).
4You have also pleaded guilty to the related summary charge of committing an indictable offence whilst on bail contrary to s 30B of the Bail Act, which carries a maximum penalty of 3 months imprisonment (Summary Charge 6).
5Further, on Indictment M11148168, you have pleaded guilty to one charge of possessing a firearm related item contrary to a firearm prohibition order, contrary to s 112B of the Firearms Act 1996 (‘Firearms Act’), which carries a maximum penalty of 10 years imprisonment (Charge 1).
6You have also pleaded guilty to one related summary charge of committing an indictable offence whilst on bail contrary to s 30B of the Bail Act, which carries a maximum penalty of 3 months imprisonment (Summary Charge 14).
7You have both admitted your prior criminal histories.
Circumstances of the offending
8In respect of each indictment, two prosecution openings were tendered on the plea and may be summarised as follows:
Indictment C2114617.1
9John Duff, you are 36 years old. You were 35 years old at the time of the offending.
10Jeramie Marendaz, you are 33 years old. You were 31 years old at the time of the offending.
11The victim in this matter is Ashley Campbell, who was 32 years old at the time of the offending and was residing at a unit in Corio. He was known to you both through social contacts.
12On 4 April 2021, the victim was at his home address in Corio. His unit is located at the rear of a block of units with a central driveway.
13At approximately 3.00 pm, you, Jeramie Marendaz, entered the unit. At some point after this, you were followed inside by you, John Duff. Both of you were known to the victim (Charges 1 (Marendaz) and 2 (Duff) - Aggravated Burglary).
14The victim was lying down on his couch in the front room.
15You, John Duff, walked into the front room and stood between the TV and the coffee table.
16You, Jeramie Marendaz, walked to the edge of the couch, stood over the victim and said, ‘You think you’re a tough guy now aren’t ya?’ The victim didn’t respond.
17You, Jeramie Marendaz, stepped closer to the victim and punched the victim twice with your right fist. The first punch hit the victim’s mouth and the second hit his chin.
18The victim received a cut lip and bruising (Charge 3 (Marendaz) – Common Law Assault).
19The victim’s wallet and keys for his house and car were on the coffee table. You, John Duff, took the victim’s wallet and keys from the coffee table.
20The victim’s mobile phone was on the couch. You, Jeramie Marendaz, took the victim’s mobile phone.
21You both ran out of the unit through the front door with the victim’s wallet, keys, and mobile phone (Charge 4 – Theft).
22The victim followed you both outside. He saw the two of you running down the driveway. You both got into a waiting car, an orange VE SS Commodore with a black stripe down the side. You, John Duff, got into the back seat. There was a third unidentified person driving the car.
23On 6 April 2021, at 11.05 p.m., the victim received a message on his Facebook page which said, ‘Hey pal it’s Duffy. If you want your wallet ya phone and keys back it will Cost ya. Small fee of $250 cash.’
24On 3 June 2021, a search warrant under s 465 of the Crimes Act was executed at 80 Whitehorse Road, Moolap, which was at the time your address, Jeramie Marendaz. You were present at the address. You were arrested and cautioned. An orange SS Commodore sedan, registration 1NF3EE, was located during the search.
25You, Jeramie Marendaz, were interviewed in relation to the matters and made a no comment Record of Interview.
26On 23 August 2021, you, John Duff, were arrested. You were interviewed in relation to the matters and made a no comment Record of Interview.
27At the time of the alleged offending, you were both on bail (Summary Charge 6 (Marendaz) and Summary Charge 4 (Duff) – Commit indictable offence whilst on bail).
Indictment M11148168
28On 7 May 2020, a Firearm Prohibition Order under Part 4A of the Firearms Act was served on you, Jeramie Marendaz. The Order expires on 7 May 2030.
29On 3 June 2021, you were living in Moolap. At approximately 6.35 am, on 3 June 2021, members of the Geelong Crime Investigation Unit, Western Region Crime Squad attended at 80 Whitehorse Road, Moolap to execute a search warrant under s 465 of the Crimes Act.
30You were present at the property when police attended.
31A search of your residence was commenced. Among other items, a single .22 round of ammunition was located in the first bedroom. The ammunition was located inside a cap on the bed (Charge 1 – Possess firearm related item contrary to a firearm prohibition order).
32You were interviewed in relation to the matters and made a no comment Record of Interview.
33At the time of the offending, you were not the holder of a licence under the Firearms Act or a permit under section 58A.
34At the time of the offending, you were on bail (Summary Charge 14 – Commit indictable offence whilst on bail).
Nature and gravity of the offending
35Aggravated burglary is by its nature a serious offence, reflected in the maximum penalty of 25 years imprisonment.
36In this instance you were both know to the victim and I was told at the plea hearing that there was some unresolved grievance one or both of you had with the victim. This appears to be your motive for attending at his home. Nonetheless, you both entered uninvited and you, Jeramie Marendaz, immediately approached the victim and punched him twice to the head while he was lying down on the couch. You, John Duff then took the victim’s keys and wallet while you, Jeramie Marendaz took his mobile phone.
37The aggravated burglary charge in relation to you John Duff, is particularised as entering with an intent to steal, while in relation to you Jeramie Marendaz, the intent is particularised as assault. You both entered the unit in daylight hours, there was no forced entry and you were not carrying weapons. However, in my view, while the intent on entry may be different, you acted together, and as such, on the aggravated burglary charge, in the circumstances, you are both equally culpable.
38As to you, Jeramie Marandez, once the aggravated burglary was completed, you proceeded to gratuitously assault the victim. You both then took items belonging to the victim and left the premises.
39It is self-evident that your intention was to somehow punish the victim in relation to some previous grievance one or both of you had with him. However, the victim was in a vulnerable position in his own home, where he is entitled to feel safe, and the conduct of both of you, while relatively unsophisticated, is still serious offending.
40In relation to both of you, when you committed the aggravated burglary you were on bail, and in relation to you Jeramie Marendaz, when you committed the firearm offence you were on bail adding to the seriousness of those respective offences.
Personal circumstances
John Xavier Duff
41John Duff, you were born and raised in Geelong, and you are now 37 years of age. You had a stable upbringing, and report a close relationship with your mother, father, and two brothers. Your mother is currently a carer for your father, who recently became paralysed.
42You attended St Joseph’s College in Geelong, and completed Year 12. You entered the workforce as a forklift driver and warehouse hand and you were then offered a position as a scaffolder in the mines in Western Australia when you were 24. You spent 5 years employed in this position until a rockfall at your worksite resulted in the site being deemed unsafe, and all employees were made redundant.
43Around this time in Western Australia, you report being introduced to methamphetamine, and you became addicted.
44Upon returning from Western Australia around 2017 you retrained, completing certificates III, IV and an advanced diploma in fitness, ultimately becoming a personal trainer. At this time, you stopped taking drugs. However, following a series of relationship breakdowns, you relapsed back into drug use and criminal offending shortly followed.
45Upon your most recent release from custody, you were offered accommodation with a partner in Melbourne. After this relationship ended, you returned to Geelong, where you began using methamphetamine again.
46At the time of this offending, you report using a gram of methamphetamine a day. You began stealing as a means of funding your addiction.
47In October 2019 you were diagnosed with type 1 diabetes, and you were hospitalised at the Werribee Mercy Hospital for about a week in intensive care. You are currently medicated for diabetes, and also for asthma.
48In early June 2022 you tested positive for COVID-19 while in custody. You report you are still recovering from this infection.
49You have a relevant and not insignificant prior criminal history, including prior theft and dishonesty offences, and contraventions of community correction orders and bail conditions.
50You have completed courses in custody, including the VicRoads drink and drug driving program, ATLAS programs which you also ran as a peer support person, and courses offered through Caraniche. You held a position as peer listener for six months and you are currently working in the chemical billet.
51You have been engaging with a clinical psychologist, Ms Tess Ryan weekly since 27 July 2022. Ms Ryan provided a letter of support, confirming you had completed three hours of the AOD and Relationships program. Ms Ryan also writes you attended all 12 sessions of the 24-hour Drug Treatment program and reports you were punctual throughout and provided meaningful and thoughtful contributions.
52You have been on the methadone program for approximately 12 months and you have reduced your intake to 4 mls daily.
53You have had family support during your time in custody. Your father, Wayne Duff, has provided a character reference. Your father describes your close relationship with your family, and affirms you have their continued support. He describes your contributions to your community through sport, and that you realise your reputation in this community has been impacted due to your offending.
54You are motivated to secure housing with the assistance of the ReStart Program. Mr Xavier Smith, a forensic case worker at ReStart, provided a letter for the court in which he confirmed he had discussed with you transitional supports in the areas of housing, mental health, alcohol and other drugs, employment, and independent living skills. Mr Smith confirms upon your release you will have outreach support for 3 months from ReStart. You have completed a resume in custody and you feel positive about being abstinent from drug use.
Jeramie Marendaz
55Jeramie Marendaz, you are 33 years old and you were raised in Highton, in Victoria. You have an older brother and a younger sister, and you clashed with your parents growing up. Your brother is currently incarcerated.
56Until you were remanded on these matters, you lived with your partner, with whom you share a son. Your partner also has a daughter from an earlier relationship, whom you have acted as a father figure for.
57You attended Montpellier Primary School and Belmont High School, and you left school after completing Year 9. You report being bullied at school, and having to defend yourself physically. You were suspended frequently. After leaving school you worked as a concreter for 11 years. You were unemployed for two to three years due to drug abuse, and then you returned to concreting employment. You are still currently employed in that field.
58You report a heavy use of alcohol from your late teenage years. You have used methamphetamine since 2015, and report using one gram a day. You assert you have not used methamphetamine since being remanded on these offences. You were also involved in an altercation in 2016 that resulted in you being beaten with a baseball bat and placed into the boot of a car.
59A report was prepared by psychologist, Dr Aaron Cunningham, who found during his assessment with you that there was an indication of an impairment in verbal comprehension and reasoning. Dr Cunningham also opined you present a moderate risk of future violent offending, and if you were to maintain your current stability this would reduce your risk. Dr Cunningham also notes if you were to relapse into drug abuse, this would undoubtedly increase the risk.
60You reported to Dr Cunningham that at the time of this offending, your partner had left you for a friend. You instructed Dr Cunningham that you did not take this well, and got together with the friend’s own ex-partner. You informed Dr Cunningham that your new partner began sleeping with the victim in this matter, and you attacked the victim for sleeping with your partner. You report you were abusing methamphetamine at the time, and you did not consider the repercussions of your behaviour.
61A referral letter from Dr Shahiduzzaman Khan, General Practitioner, dated 16 June 2020 was tendered. Dr Khan writes in the referral that you have been suffering from PTSD. Dr Cunningham reports however, that at the time of his assessment, you did not meet the full criteria for this disorder.
62You see a psychologist, Dr Paul Grech, as needed. You have engaged in this counselling before and after these offences.
63You have a relevant and not insignificant prior criminal history, including prior theft, burglary, attempted burglary and firearm offences.
64During your time in custody at Margoneet Correctional Centre, you participated in the Narcotics Anonymous and Alcoholics Anonymous meetings on a weekly basis from June to September 2021. The facilitator, Christopher Alie, provided a certificate of attendance and notes you demonstrated eager participation and you were a positive contributing member of the group. You have completed a number of other prison programs through ATLAS.
65You have been engaged with the Men’s Family Violence Intervention Centre, and an email dated 9 February 2023 was provided from a team leader, Rachel Morgan. She writes that you have completed 12 sessions, with 1 allowable absence. At the plea hearing, your counsel advised you had attended a further session since the receipt of that email.
66You were assessed by the Court Integrated Services Program (‘CISP’) on 6 October 2021, and you were recommended for case management at that time. In a Final Progress Report dated 8 March 2022, CISP case manager Brendan Hollis reported you successfully completed 21 weeks of CISP support. Mr Hollis writes that you consistently presented as polite and engaged, and demonstrated significant commitment and proactivity towards the supports and treatments.
67Five character references were tendered at the plea hearing. They speak to your positive change in behaviour after being released for a period on bail for this matter. Your partner, Tahini Weber, writes that after your release on bail you were a completely different person and you stepped up to your responsibilities as a parent. She writes that you are a positive role model for your son Judd, and stepdaughter Aria.
68Your mother, Debra Marendaz, writes that although you had the support of your family during the time of the offending, you chose to self-medicate with drugs and turned to the wrong people for help. She claims that since your release on bail, you have significantly grown up.
69Family friend Brad Degoldi echoes this point, writing that you were associating with people engaged in criminal activity, who were a bad influence on you. Mr Degoldi writes that he believes you spiralled out of control when your relationship with your partner deteriorated, and you lost contact with your son and stepdaughter.
70Your partner’s mother, Julie Harris, also provided a character reference in which she outlines that she obtained an intervention order against you six or seven years ago, but after seeing your changed behaviour upon your most recent release, Ms Harris had the order varied in October last year. She writes that you have shown to her genuine remorse for your past actions, and you have proven to be caring and respectful of her daughter.
71Your employer, Neville Creece, writes that he has employed you for the past four years to work as a concreter. Mr Creece writes that you are respected by all of your co-workers and refers to your reliability and enthusiasm.
Sentencing considerations
72I first take into account your pleas of guilty. In relation to each of you, your matters resolved in July 2022 but were unable to be reached in the second half of 2022. While you both conducted a contested committal hearing, your pleas have saved the court the time and expense of a trial and demonstrate your acceptance of responsibility. Your pleas carry additional weight which must be reflected in a further amelioration in sentence, as they were entered in circumstances where the pandemic has caused a substantial backlog of cases in the criminal justice system.[1]
[1] Worboyes v The Queen [2021] VSCA 169 at [39].
73Ms Foote who appeared on behalf of you John Duff, submitted that parity is a relevant consideration in that your conduct can be distinguished from that of your co-accused Jeramie Marendaz, as he committed the physical assault on the victim. As noted above, considering the aggravated burglary charge alone, in all the circumstances I am unable to draw a distinction between each of you. However once you had both entered, and the aggravated burglary charge was complete, in my view the conduct of you Jeramie Marendaz is able to be considered separately from that of you John Duff.
74The parity principle however must also take into account the personal circumstances of each accused. In your case John Duff, but for one minor matter in 2003, your criminal history commenced in 2018 and is clearly linked to the time when you became addicted to methamphetamine. Your criminal history contains dishonesty, assault and traffic offences. As to you Jeramie Marendaz, your criminal history began in 2010 and includes firearm and dishonesty offences, including burglary. I also take into account your respective personal circumstances and prospects of rehabilitation.
75Turning first to you John Duff.
76As to your prospects of rehabilitation, while your prior criminal history is not extensive, it contains relevant and recent matters, including a term of imprisonment in September 2020 for theft and assault matters. I was also told on the plea that in May of 2022 you were sentenced to a period of 299 days imprisonment in relation to a consolidated plea on matters which pre-date and post-date your offending on this matter. The offending included burglary, thefts, family violence and driving matters. Therefore, it may be argued that your prospects at this stage must be approached with caution. However as is evidenced in the materials tendered, it appears that while on remand on this occasion, you have taken significant steps to turn your life around. You have the support of your family and you have a solid work history which seems only to have been disrupted by your drug use. You have engaged in long term drug counselling on a weekly basis since July 2022. Thus in the circumstances, if you can remain on this positive path, in my view, your prospects of rehabilitation can be assessed as very good.
77It was also submitted on your behalf that totality is a relevant consideration. The 299 days that you have served in relation to other matters has consumed a significant portion of your presentence detention. You have in fact been in custody for some 543 days but as of today, the presentence detention that is able to be formally declared is 244 days. In the circumstances I accept that the principle of totality applies in this instance.
78Turning to you Jeramie Marendaz.
79As to your criminal history, your last recorded prior criminal matter was in June 2021 in relation to breaching a family violence intervention order. I note that you also have a prior matter for being a prohibited person in possession of a firearm in October 2018.
80You successfully completed the CISP program when you were bailed and demonstrated that you are able to commit to sustained counselling. You have not reoffended since your release on bail and you have been in full time employment. You also have the support of your partner, who was in court, and your family. In the circumstances I also assess your prospects of rehabilitation as very good.
81Deterrence, both general and specific are relevant sentencing considerations in relation to both of you. While this may have been a misguided way of retaliating in relation to a grievance you had with the victim, it was an invasion into the private home of an individual where he was entitled to feel safe. You then assaulted him and stole his personal property. Such conduct must be deterred and a message must be conveyed that those seeking to act in a similar way will be met with stern consequences.
82Finally I take into account that the time you have both served in custody, and any further time, will continue to be subject to periods of isolation and restrictions as a result of the ongoing impact of the pandemic.
83Submission were made on behalf of both of you that a combination sentence would address the relevant sentencing considerations. Ms Sheredin who appeared on your behalf Jeramie Marendaz, submitted that the time you have served before being granted bail, some 4 months, is sufficient when in combination with a community correction order. However taking into account the seriousness of your offending, which includes the addition assault charge and the second indictment, together with consideration of your circumstances, in my view warrants a further period of custody.
84Mr Devlin who appeared on behalf of the Director of Public Prosecutions, submitted that a head sentence and non parole period is the appropriate disposition in relation to both of you, however also submitted that a combination sentence is within range.
85I had you both assessed for a community correction order and you have both been found suitable. In my view, in all the circumstances, a combination sentence pursuant to s 44 of the Sentencing Act 1991 (‘Sentencing Act’) is able to meet the relevant sentencing considerations in relation to both of you.
Sentence
John Xavier Duff
86Mr Duff, would you please stand.
87John Xavier Duff, on Charge 2, aggravated burglary, you are convicted and sentenced to 9 months imprisonment. On Charge 4 theft you are convicted and sentenced to 2 months imprisonment to be served concurrently. On related summary Charge 4, commit an indictable offence whilst on bail, you are convicted and sentenced to 1 month imprisonment which is also to be served concurrently.
88Thus the total prison component of the combination sentence is 9 months.
Jeramie Paul Marendaz
89Mr Marendaz, would you please stand.
90Jeramie Paul Marendaz In relation to Indictment C2114617.1, on Charge 1, aggravated burglary, you are convicted and sentenced to 9 months imprisonment. On Charge 3 common law assault, you are convicted and sentenced to 3 months imprisonment. On Charge 4 theft, you are convicted and sentenced to 2 months imprisonment.
91On Indictment M11148168 on Charge 1, possessing a firearm related item contrary to a firearm prohibition order, you are convicted and sentenced to 2 months imprisonment.
92On related summary Charges 6 and 14, commit an indictable offence whilst on bail, you are convicted and sentenced to 1 month imprisonment on each charge.
93I direct that 1 month of the sentence imposed on Charge 3 on Indictment C21114617.1 be served cumulatively on the sentence imposed on Charge 1 on the same indictment, making for a total effective sentence of 10 months as the prison component of the combination sentence.
94Following the prison component of the sentence, upon release, each of you will be placed on a community correction order for a period of 2 years. The focus of the order is to assist you both in your continued rehabilitation. In addition to the standard conditions that apply to all community correction orders, you will both be subject to treatment and rehabilitation conditions in relation to drug use and your mental health. You will both also be subject to supervision.
95Pursuant to s 18 of the Sentencing Act, in relation to you, John Duff, I declare that 244 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today. In relation to you, Jeramie Marendaz, I declare that 139 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.
96Pursuant to s 6AAA of the Sentencing Act, in relation to both of you, if not for your plea of guilty, I would have sentenced you to a period of 3 years imprisonment with a non parole period of 2 years.
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