Director of Public Prosecutions v Dussi
[2024] VCC 102
•16 February 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-02228
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ADRIAN DUSSI |
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JUDGE: | HIS HONOUR JUDGE TRAPNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 January 2024 | |
DATE OF SENTENCE: | 16 February 2024 | |
CASE MAY BE CITED AS: | DPP v Dussi | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 102 | |
REASONS FOR SENTENCE
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Subject:Criminal Law
Catchwords: Sentence – Contravention of community correction order – Contravention by non-compliance and further offending – Community correction order expired – Earlier sentence set aside – Resentenced on original charge of aggravated burglary – High moral culpability – Extent to which offender complied with order taken into account – Serious reoffending against domestic partner – Prospects of rehabilitation highly problematic – Totality in respect of sentence on unrelated offending currently being served
Legislation Cited: Sentencing Act 1991
Cases Cited:R v Mangelen (2009) 23 VR 692
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr L Winter | Ms Abby Hogan, Solicitor for Public Prosecutions |
| For the Accused | Mr T Glass | Theo Magazis & Associates |
HIS HONOUR:
1On 2 November 2018, I sentenced you on one charge of intentionally damage property (Indictment Charge 1), one charge of aggravated burglary (Indictment Charge 2), three summary charges of unlawful assault (Summary Charges 4, 5 and 9) and one summary charge of failure to answer bail (Summary Charge 11).
2On the aggravated burglary charge I sentenced you to imprisonment for 12 months, together with a community correction order (‘CCO’) for a period of three years with a number of treatment and rehabilitation conditions, including that you perform 600 hours of unpaid community work during that time. I note 267.3 hours of unpaid community work are yet to be completed by you and the CCO expired on 30 December 2022.
3On the charge of damaging property I convicted and sentenced you to 1 month’s imprisonment, and on the summary charges I convicted and sentenced you to 45 days’ imprisonment on Summary Charge 4, 1 month’s imprisonment on Summary Charge 5, 1 month’s imprisonment on Summary Charge 9 and 7 days’ imprisonment on Summary Charge 11. Orders for cumulation and concurrency added 32 days’ imprisonment to the sentence of one year’s imprisonment imposed on the aggravated burglary charge. I declared 32 days pre-sentence detention. Accordingly, you had twelve months to serve and would then commence the CCO.
4Pursuant to s 83AD(1) of the Sentencing Act 1991 (‘the Act’), it is now alleged you have contravened the CCO without reasonable cause as follows:
(a) You failed to perform unpaid work as required on the four occasions listed in the schedule to the charge and summons (‘the schedule’).
(b) You failed to undergo treatment and rehabilitation as required on the four occasions listed in the schedule.
(c) You failed to be supervised, monitored and managed as directed on the 13 occasions listed in the schedule.
(d) You have been convicted of further offences during the operational period of the order. These are listed in the schedule and relate to a hearing at this court on 18 December 2023 before His Honour Judge Carmody, where you were convicted of rape, making a threat to inflict serious injury and intentionally cause injury. You were sentenced to a total effective sentence of 11 years’ and 6 months’ imprisonment with a non-parole period of eight years and three months.
5You admit these contraventions. Accordingly, I find the charge under s 83AD(1) of the Act proven.
6Having found the contravention proven, pursuant to s 83AS of the Act I must make one of the orders set out in sub-section (1) of that section. I accept the recommendation contained in the community corrections report dated 27 December 2023, as well as the submissions of both the prosecutor and your counsel, that you should be resentenced on the original charge. I note, as mentioned earlier, the CCO has expired and cannot be cancelled.
7Accordingly, I must now set aside the original sentence I imposed on you for aggravated burglary and resentence you on that charge. I will confirm all the other sentences and orders for cumulation and concurrency I made on 2 November 2018. Clearly, given the sentence you are presently undergoing, the only available sentencing disposition on the aggravated burglary charge is further imprisonment.
8The circumstances of your offending conduct, particularly in relation to charge 2, are set out in my reasons for sentence of 2 November 2018 (‘Reasons’) at paragraph [11].[1]
[1] [2018] VCC 1786 (‘Reasons’).
9While no victim impact statement was supplied at the time of the original sentence, I have still had regard to the impact of your crime on the victim, Emily Taylor, which I set out in my reasons at paragraph [18].
10As I observed when sentencing you in November 2018, aggravated burglary is a very serious criminal offence, indicated by the maximum penalty of 25 years’ imprisonment, which is the highest fixed maximum penalty in the criminal calendar. This indicates the seriousness with which the legislature, on behalf of the Victorian community, views this offence.[2] Your counsel accepted the seriousness of your offending conduct.
[2] Ibid [19]–[20].
11I also observed in my reasons this is a serious example of the offence of aggravated burglary. Your conduct was premediated, committed at night and, concerningly, it was committed against your former domestic partner and her male friend in the context of a relationship breakdown. I explained this in further detail at paragraphs [23] to [29] of my reasons. Accordingly, your conduct falls into the category of domestic violence.
12On the earlier occasion, I assessed your moral culpability for the offending as being very high and there is nothing that has occurred since to change my view.[3]
[3] Ibid [30].
13I have had regard to your personal circumstances as I outlined them in my reasons at paragraphs [32] to [55] and your circumstances since you were sentenced by me.
14I have also had regard to your prior criminal history at the time you originally fell to be sentenced for this offence, which I set out at paragraphs [56] to [63] of my reasons.
15I have also considered the relevance of your subsequent offending. These offences mostly were alleged to have been committed after the offending which gives rise to the present offending. I outline the circumstances of this conduct at paragraphs [54] to [70] of my reasons.
16I have also considered the additional materials which have been provided to me since I originally sentenced you for the present offence. These materials comprise:
(a) Contravention Package, particularly the ‘Contravention of Community Corrections Order by Conditions and Further Offences’ report dated 27 December 2023, prepared by Michelle Retra, Advanced Case Manager, and Madhvi Prasad, Supervisor of Court Case Management, at South Morang Community Correctional Services.[4]
(b) Submissions in relation to contravention hearing prepared by Jason Allen, solicitor at the OPP, dated 25 January 2024.[5]
(c) Brief outline of contravention hearing submissions prepared by Tim Glass, your counsel, dated 25 January 2024.[6]
(d) LEAP Report as of 29 January 2024.[7]
(e) Psychological Assessment Report prepared by Gina Cidoni, psychologist, dated 13 December 2023, following an assessment you had with her on 11 December 2023.[8]
[4] Ex P1.
[5] Ex P2.
[6] Ex D1.
[7] Ex P3.
[8] Ex D2.
17Finally, I have had regard to the oral submissions made on your behalf and those made on behalf of the prosecution.
Further offending
18In light of your offending conduct since I sentenced you in November 2018 and the seriousness of the offences you have committed since then in breach of my orders, I now consider your prospects of rehabilitation to be quite bad.[9] Moreover, greater weight now needs to be given to specific deterrence and protection of the community in sentencing you for the present offence. Importantly, the factors which motivated me on the previous occasion to impose a merciful sentence on you for this offence no longer apply.[10] You fall to be resentenced today in the currently existing circumstances.
[9] Cf Reasons [75]–[79] and [84]–[85].
[10] Ibid [86]–[88].
19Most significant is the fact that in December 2023, his Honour Judge Carmody sentenced you in this court on charges of rape, making a threat to inflict serious injury and intentionally cause injury, to which you had pleaded guilty. I have read and had regard to his Honour’s reasons for sentence.[11]
[11] [2023] VCC.
20The circumstances of that offending conduct are outlined by his Honour in paragraphs [7] to [26] of his reasons for sentence.
21His Honour regarded your conduct as a ‘very serious example of this offending’. I agree with that categorisation for the reasons his Honour gave at paragraph [50] of his reasons for sentence.
22In particular, it is extremely concerning that your further offending was against a former, albeit different, domestic partner, from the victim of the present charge. The victim of the offending before his Honour Judge Carmody is the mother of your three children. As I stated in my reasons for sentence in 2018, domestic violence, perpetrated mostly by males against their current or former female domestic partners, is an appalling blight on our society. Mr Dussi, your conduct in the present case must be denounced in the highest possible terms.
Mitigating circumstances
23I have had regard to the mitigating circumstances relied upon on the earlier occasion to the extent they remain relevant as set out in my earlier reasons at paragraphs [71] to [79]. However, my opinion regarding elements of these mitigating circumstances must be modified in light of more recent circumstances.
24On the earlier occasion, the prosecutor and your counsel submitted you had displayed a significant degree of insight and that your prospects for rehabilitation can be described as ‘good’ or ‘favourable’. In November 2018, I was prepared to assess your prospects as good, depending on your willingness and efforts to reintegrate into the community as a law-abiding citizen. At that time, I was also of the view that your risk of reoffending was relatively low, considering you had participated in a range of programs which treated your drug addiction, inappropriate behaviour and your grief. For those reasons, as I said earlier, I imposed a merciful sentence in your case. However, because of your failure to comply with all of the conditions of the CCO and your very serious offending that led to the breach, I no longer make that assessment.[12] Your prospects of rehabilitation can only be regarded as poor.
[12] See Luu v The Queen [2018] VSCA 92 [27] (Ferguson CJ, Osborn and Beach JJA).
Application of sentencing principles
25I have reapplied the sentencing principles, with necessary modifications, which I set out in paragraphs [80] to [84] of my reasons.
26I have taken into account the extent to which you complied with the CCO, which includes you having completed 332.7 hours of unpaid community work, as I am required to do in accordance with s 83AS(2) of the Act.
27In relation to the charge of contravening the CCO, I have considered the circumstances of your offending conduct and your personal circumstances. At the contravention hearing, the prosecutor submitted that the gravity and nature of your contravention is quite high, as you were convicted of significant further offending, including raping your former partner. For this reason, the prosecutor submitted you should be sentenced to the maximum penalty of three months’ imprisonment on that charge. I do not consider this is an appropriate course to adopt in your case.
28The totality principle is highly relevant to my current sentencing exercise, particularly in light of the length of the sentence you are presently undergoing. In applying the totality principle I have had regard to the principles adumbrated by the Victorian Court of Appeal in R v Mangelen[13] and other cases.[14] I have moderated what would have been a longer sentence in light of the fact you are serving his Honour Judge Carmody’s sentence.
[13] (2009) 23 VR 692, 697–699 [27]–[36], 701 [42] (Redlich JA, Ashley JA agreeing).
[14] See eg Mohamed v The Queen [2022] VSCA 136 [4]–[7], [77] (Maxwell P, Emerton and Sifris JJA).
29Moreover, the totality principle has further application in your case, because when I first remanded you in custody for the present offending on 29 January 2024, you were undergoing his Honour Judge Carmody’s sentence. Accordingly, the time you have been in custody since then is ‘time doubly warranted’ for which I cannot declare PSD because you were undergoing another sentence.[15] Accordingly, I have moderated the sentence I would otherwise have imposed on you to reflect this.
[15] See Sentencing Act 1991 (‘the Act’) s 18(1); Nov v The Queen [2020] VSCA 11 [14]–[28], [30] (Maxwell P and Whelan JA).
30It will also be necessary for me to set a new single non-parole period pursuant to s 14 of the Act in respect of the sentence you are currently serving and this sentence.[16]
[16] See the Act s 14; R v Rich (No 2) (2002) 4 VR 155, 165-66 [103]–[106] (Brooking JA); R v Stares (2002) 4 VR 314, 320 [19] (Charles JA, Phillips CJ and Chernov JA agreeing).
Stand up Mr Dussi
On the charge of aggravated burglary (Indictment Charge 2) you are convicted and sentenced to 3 years’ imprisonment.
On the charge of contravention of a community correction order (Summary Charge 12) you are convicted and sentenced to 7 days’ imprisonment.
I confirm the sentences I previously imposed on you on 2 November 2018 on Indictment Charge 1 and related Summary Charges 4, 5, 9 and 11. I also confirm the orders for cumulation and concurrency I previously made in respect of those charges.
I order that the sentence I have now imposed on the charge of contravention of a community correction order be served concurrently with the sentence imposed on Indictment Charge 2 and the other sentences imposed in this case.
That makes a total effective sentence of 3 years’ and 32 days’ imprisonment.
I must now consider how that total effective sentence interacts with the sentences imposed by his Honour Judge Carmody which you are currently serving.
I order 2 years’ and 6 months’ imprisonment be cumulated on Judge Carmody’s total effective sentence of 11 years and 6 months’ imprisonment making a total head sentence of 14 years.
I fix a new single non-parole period of 10 years commencing from 18 December 2023, being the commencement date of his Honour Judge Carmody’s non-parole period.
It is my intention by my orders to add 30 months to your current head sentence and 21 months to you existing non-parole period. If my orders do not have that effect, I reserve liberty to apply to the parties to relist the matter to apply for these orders to be amended.
I declare pre-sentence detention to be 397 days calculated as follows:
32 days PSD declared by me on 2 November 2018, and the 12 months you served in prison in relation to the sentence I imposed on 2 November 2018.
I note I cannot declare as PSD the PSD previously declared by his Honour Judge Carmody on 18 December 2023 of 472 days, however that will also be deducted from the new single non-parole period I have just fixed in accordance with the decision of the Victorian Court of Appeal in R v Stares.[17]
[17] (2002) 4 VR 314, 320 [19] (Charles JA, Phillips CJ and Chernov JA agreeing).
Pursuant to s 6AAA of the Sentencing Act 1991 I declare that but for your pleas of guilty I would have sentenced you, on the charges before me, to a total effective sentence of five years’ and six months’ imprisonment with a non-parole period of three years and six months.
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