Director of Public Prosecutions v Espagne
[2022] VCC 2168
•6 December 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-01384
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DALTON ESPAGNE |
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JUDGE: | HIS HONOUR JUDGE GEORGIOU | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 November 2022 | |
DATE OF SENTENCE: | 6 December 2022 | |
CASE MAY BE CITED AS: | DPP v Espagne | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2168 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Pleas of guilty – theft of dog – blackmail – intentionally cause injury – possess of methylamphetamine – youthful offender – parity – guarded prospects of rehabilitation – COVID-19.
Legislation Cited: ss 18, 6AAA Sentencing Act 1991 (Vic).
Cases Cited:R v Mills (1998) 4 VR 235; Azzopardi v The Queen [2011] VSCA 372.
Sentence: 11 months’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms C. J. Duckett | Office of Public Prosecutions |
| For the Accused | Mr J. Karitzis Mr J. Milides | Valos Black and Associates |
HIS HONOUR:
1Dalton Espagne, you have pleaded guilty to the following charges:
Charge 1 – that at Benalla on 21 December 2021, you stole a golden retriever dog belonging to Bree Jones[1];
Charge 2 – that at Benalla on 21 December 2021, with a view to gain for yourself, you made an unwarranted demand with menaces;
Charge 3 – that at Benalla on 21 December 2021, you possessed a drug of dependence, namely methylamphetamine; and
Charge 4 – that on 12 November 2021, without lawful excuse you intentionally caused injury to Angus Peterson[2].
[1] A pseudonym
[2] A pseudonym
2You also agreed to have me deal with a related summary offence, being Charge 6, committing indictable offences, namely theft, blackmail, possessing methylamphetamine and intentionally causing injury, while on bail. This is a rolled‑up charge.
Circumstances of offending
3The circumstances of your offending are outlined in the prosecution opening upon plea. The opening was accepted by your counsel as accurately reflecting your involvement in the offences.
4On 6 December 2021, your co‑accused in Charge 4, Jye Werkowski (“Werkowski”), was arrested by police. Police investigators accessed the media files on his telephone. A video file dated 11 November 2021 was found showing you in a house in Amos Avenue, Benalla, holding a crowbar and moving the victim, Angus Peterson, to the centre of a room.
5Werkowski could be heard telling you to take the phone and continue recording what was happening. You picked up the phone and you followed Werkowski and Mr Peterson into a lounge room. Werkowski was heard telling Mr Peterson that he is going to shoot him if he ever does anything to Stephanie again. As he was saying this, he was striking Mr Peterson multiple times to his body with a black handled hammer. On one strike to Mr Peterson’s left forearm, a cracking sound could be heard. This strike broke Mr Peterson’s arm.
6Werkowski then told Mr Peterson to get on his knees. He was holding a torch with its strobe function activated. This caused Mr Peterson to become disorientated. When Werkowski turned off the strobe light, Mr Peterson was seen bleeding from the right side of his head and holding his left arm in pain.
7You were interviewed about the matter on 21 December 2021 and admitted being present during the incident and filming it.
8Mr Peterson attended the Wangaratta Hospital where his broken arm was treated. He was spoken to by police but refused to provide a statement.
9On 21 December 2021, Bree Jones, Sophie Wood and Angus Peterson were at Ms Jones’s residence in Benalla. While there, they saw a dark blue Holden Commodore drive past the house on a number of occasions. Approximately 30 minutes later, all three heard Ms Jones’s golden retriever barking. When they looked outside, they saw the same dark blue Commodore drive up the street and park across the driveway. Three men got out of the car and tried to kick in the front door of the house but were not able to do so. Mr Peterson armed himself with a knife and went outside to confront the men. When he opened the door, he saw Ms Jones’s dog being put into the back of the Commodore by you, your brother Hayden, and Lee Armstrong. Another male got out of the car holding a pistol. When Mr Peterson saw this man armed with the pistol, he ran back inside the house.
10Ms Jones dialled 000 and while speaking to the operator she looked out the kitchen window and saw you. You said to her “pay me my money”. You and the others returned to the car and drove away with the dog.
11After searching for her dog, Ms Jones telephoned you. You confirmed you had her dog and stated you wanted $2,000. This conduct is the basis of Charge 2, blackmail. While speaking to Ms Jones, she heard your co‑offender, Armstrong, say “I want my money as well”.
12Ms Jones drove to your residence in Riverview Road, Benalla. When she arrived, your brother and Armstrong were standing out the front asking that they each be paid $2,000. Ms Jones said she wanted to see her dog before she transferred any money but was told “transfer the money now”. Ms Jones continued to demand that she see her dog before transferring the money. Your brother told her, “You’re going to pay now, or I'm going to slit your throat”. Eventually, you walked down the side of the house with the dog. When Ms Jones saw that her dog was not injured, she attempted to transfer $2,000 but was not successful. She returned to her residence without her dog. When she arrived home, police officers were in attendance.
13Throughout that day Ms Jones and Mr Peterson telephoned and sent messages to you and Armstrong. During the conversations, Armstrong threatened to harm the dog. At 2.43 pm, Ms Jones successfully transferred $2,000 into Armstrong’s bank account. Following payment, Armstrong contacted you and your brother advising that he had been paid. At approximately 3 pm you, your brother and Armstrong drove to an ATM in Benalla and withdrew the $2,000. Approximately 10 minutes later Armstrong returned the dog to Ms Jones.
14You were arrested at approximately 4.45 pm that day. A small plastic box containing three deal bags of methylamphetamine and $1,100 were located in your possession. You were interviewed by police and during that interview you allowed police access to your mobile phone which showed contact between yourself and Mr Peterson about the return of the dog. In the course of that interview, you made a number of admissions. The methylamphetamine found in your possession you said was for your personal use.
15You have been on remand since the day of your arrest on 21 December 2021.
16At the plea hearing I was informed that Mr Armstrong pleaded guilty to one charge of blackmail, a charge of theft, a charge of committing an indictable offence on bail and possessing cartridge ammunition without a licence or permit. He was sentenced to 4 months’ imprisonment and a 12-month Community Correction Order. He was aged 46 years at the time of the offending and had some prior convictions, perhaps the most serious of which was a charge of recklessly causing injury in 2003 which, on appeal, he was convicted and released on an undertaking for a period of 2 years.
Personal circumstances
17You were born 12 July 2000 and were 21 years of age at the time you committed the offences before me.
18Your parents separated when you were three years of age and you remained living with your mother. You had intermittent contact with your father up until the age of six but none after that. Your father committed suicide when you were aged 12.
19You have an older brother, an older sister and two younger half-sisters. You have a positive relationship with all siblings, particularly your older brother. You also report a positive relationship with your mother.
20Your mother re-partnered when you were four. Your relationship with your stepfather was initially good but deteriorated from when you were about 15 years of age. Your stepfather was physically violent towards your mother and brother. You witnessed that violence. You also became the target of your stepfather’s violence from about the age of 17. As a result of the violence, you left the family home.
21You completed Year 11 at Benalla High School. You worked initially as a concreter before commencing an apprenticeship as an arborist. However, your apprenticeship was terminated in 2019 after you returned a positive urine drug screen. Save for two months of work at a vineyard in 2020, you have not worked since and have principally relied on Centrelink benefits.
22You returned to live with your mother after your stepfather was jailed for family violence matters. In June 2021, you left your mother’s home to give her and your sisters respite from your police and drug involvement. You returned after some two months. Your mother, maternal grandparents, and siblings are your main sources of support.
23Tendered on your behalf was a psychological report of Sandra Cokorilo, dated 23 June 2022.
24You reported to Ms Cokorilo that you commenced using alcohol from the age of 13, ecstasy from the age of 14, amphetamine from the age of 16 and cocaine from the age of 17. From the age of 18 you were a regular user of methylamphetamine, smoking approximately 1.5 grams per day up until the time of your remand. You also reported near daily use of GHB since 2021 and have also, from the age of 16, used benzodiazepines on a regular basis.
25You have attended court mandated alcohol and other drug counselling in 2020 and 2021. Alarmingly, you told Ms Cokorilo that the counselling sessions did not help as they made you want to use more drugs. You also reported a family history of methylamphetamine use with your brother, sister, mother and stepfather all using that drug.
26You have also completed alcohol and other drug programs in custody but again, you have not found them helpful. You have been using buprenorphine on an almost daily basis while in custody.
27On psychological testing, your results were indicative of a moderate level of depression and anxiety. Based on clinical considerations, your self-report, psychometric assessment and clinical presentation, Ms Cokorilo diagnosed you as suffering from a generalised anxiety disorder, stimulant use disorder in early remission in a controlled environment, and a sedative, hypnotic or anxiolytic use disorder in early remission in a controlled environment. She noted that antisocial personality traits were also present. She assessed your risk of re-offending as high.
28Notwithstanding your earlier failed attempts at drug rehabilitation, you expressed to Ms Cokorilo a desire to attend a residential drug rehabilitation program with a view to minimising your illicit drug use. You identified your unemployment and drug use as key factors to your past and current offending. It is your hope to obtain a driver’s licence and employment upon release.
29Also tendered on your behalf were certificates of achievement in completing the Ice and Me program and the Alcohol and Me program. I have also received references from Sharon Davis, your mother Patricia Zerbato, Celeste Lowen, and letters from Leigh Booth of the Nexus Program and Amy Devries, Youth Justice case manager with the YMCA Bridge Project. I have had regard to each of those documents.
30Mr Booth states that upon release from custody, the Nexus Program will provide you with intensive case management to assist you in transitioning back into the community. Such support is provided on a voluntary basis, meaning you must want to engage with what is offered.
31The Bridge Project operates within Ravenhall Correctional Centre and is able to offer training, employment and support to young offenders. You have been receiving pre-release support from the Bridge Project since April 2022. You state you are committed to continuing to address your drug use through appropriate counselling upon release. There is opportunity for employment on the Bridge Project’s social enterprise, YMCA Rebuild.
32Your mother speaks to you each day and you have discussed with her your hope for employment upon release. All three of your character referees speak of your good qualities, your commitment to your family and your engagement in pro-social activities such as football, camping and fishing.
33A copy of your criminal history was provided to me at the plea hearing. On 12 August 2020, in respect of five charges of contravening a conduct condition of bail; two charges of driving whilst your authorisation was suspended; two charges of using an unregistered motor vehicle on a highway; one charge of attempting to commit an indictable offence; two charges of driving whilst disqualified; three charges of committing an indictable offence whilst on bail; eight charges of theft; 10 charges of burglary; three charges of going equipped to steal; one charge of handling stolen goods; one charge of trafficking methylamphetamine; one charge of drink-driving; and one charge of exceeding the speed limit, you were placed on a Community Correction Order for a period of 12 months with various conditions including treatment for drug and alcohol abuse, supervision and judicial monitoring. You breached that order and on 3 August 2021, at Benalla Magistrates’ Court, the breach was found proven and you were placed on a Community Correction Order for a further period of 12 months. The offences before me occurred soon after you were placed on that order and in fact breach it.
Sentencing considerations
34The seriousness of your offending may be gauged by the maximum terms of imprisonment that may be imposed in respect to each of the offences. Theft carries a maximum term of imprisonment of 10 years’ imprisonment; blackmail, a maximum term of 15 years; intentionally causing injury, a maximum term of 10 years; possessing methylamphetamine, 1 year imprisonment; and committing an indictable offence on bail, 3 months’ imprisonment.
35As to Charge 4, although you may not have struck Mr Peterson with the hammer, you were nevertheless complicit in the brutal attack upon him, which resulted in him sustaining a broken arm amongst other injuries. I consider this to be a serious instance of the offence. It was not made clear to me why you engaged in such conduct. I was not informed of anything that would reduce your level of moral culpability. To the extent that you were drug affected, that does not in any way reduce your moral culpability or provide you with an excuse.
36In your interview with police you admitted to filming the assault upon Mr Peterson. You claimed not to know what the incident was about and that there were no discussions between you and Werkowski about what was going to happen. You stated that you just “rocked up on your pushbike” to see if Stephanie was okay.
37Your counsel, Mr Karitzis, submitted in respect to the theft of the dog, there was no suggestion of violence or force and that the charge of blackmail was short-lived, amateurish and was without the use of “stand-over tactics or weapons”. I do not accept those submissions. The dog was taken at approximately 3.30 am. Before this, three men from the Commodore had tried to kick in the front door of Ms Jones’s residence. As the dog was being put into the car, a fourth male produced a pistol, causing Mr Peterson to retreat into the house. The dog was not returned until sometime after 3 pm and only after $2,000 had been paid by Ms Jones. These are all matters set out in the prosecution opening which you did not dispute.
38In relation to the drug offence, Charge 3, it was submitted, and I accept, that the methylamphetamine found in your possession was for your personal use.
39You have pleaded guilty to each of the offences at a very early time and have thus saved the court and the community the cost and time of a trial. Furthermore, you have spared witnesses from having to give evidence at trial. You are entitled to the full benefit of your early pleas of guilty and co-operation. Furthermore, as was submitted by Mr Karitzis, a guilty plea entered during the COVID-19 pandemic, has a higher utilitarian value and warrants a “real and perceptible amelioration” of sentence.
40Your pleas of guilty and various admissions made during interview are indicative of some degree of remorse, but there is little other evidence of remorse or shame, as was submitted on your behalf.
41Although no specific submission was made as to your prospects for rehabilitation, having regard to a number of considerations, including your age, extensive history of drug abuse, clinical findings of Ms Cokorilo, and her assessment of your risk of reoffending, I can only conclude that, at best, your prospects at this time are guarded. Although you have the opportunity of professional support upon your release, much will depend upon how genuine you are in your desire to reform. I am not able to make any finding in this regard.
42This is your first experience of custody and although you have continued to use buprenorphine in custody, there have also been some positive aspects. You have been working as a billet, you have completed two alcohol and other drug courses, and you have also obtained a ticket in traffic management. The conditions of your remand have been made more onerous because of the COVID-19 pandemic and that is a matter to which I have some regard in sentencing.
43Ms Duckett, who appeared on behalf of the Director of Public Prosecutions, submitted that general and specific deterrence, just punishment, denunciation and protection of the community were relevant sentencing purposes. It was also accepted, given your age, that the sentencing purpose of rehabilitation was an important consideration.
44Your counsel accepted that some weight must attach to deterrence but it ought to be moderated given the well-known principles applicable to the sentencing of youthful offenders.[3] [AM(1] I accept that submission. Generally speaking, rehabilitation of youthful offenders is the primary sentencing consideration. In my opinion, in all the circumstances of your case, your rehabilitation is of primary importance.
[3] R v Mills (1998) 4 VR 235; Azzopardi v The Queen [2011] VSCA 372.
45Your counsel relied on the principle of parity in respect of Charges 1 and 2. The principle requires that like offenders be treated alike. I have had regard to the sentences imposed on Mr Armstrong. I was informed that your brother, Hayden, is contesting his charges.
46Mr Armstrong is a man who is much older than you, and his past offending dates back much further than does your own. As I have stated, on charges of theft, blackmail, committing an indictable offence on bail, and possessing cartridge ammunition without a licence or permit, he was sentenced to 4 months’ imprisonment and a 12-month Community Correction Order. He could not call in aid the sentencing principles that attach to most youthful offenders.
47In regard to Charge 1, at the plea hearing I was informed by the learned prosecutor that efforts to find out Mr Werkowski’s sentence had been unsuccessful but were being followed up. On the 30 November my associate wrote to the solicitor at the Office of Public Prosecutions enquiring as to the outcome of Mr Werkowski’s charges. A reply was received stating, unhelpfully, that the Crown has been unable to determine the sentence outcome for Mr Werkowski. I find this response to be most unsatisfactory and I do not accept that no one responsible for prosecuting Mr Werkowski was able to assist. I was, however, provided with the criminal record for Mr Werkowski which shows that on 17 November 22, Mr Werkowski was dealt with for a number of offences and received a total effective sentence of 3 years' imprisonment with a non-parole period of 18 months. I note that in respect of an offence of intentionally causing injury he received a sentence of 2 years’ imprisonment. However, I am not able to find that that sentence related to the same incident as Charge 4, before me. I should add that Mr Werkowski is aged 24, has a more extensive criminal record than you, and has previously served terms of imprisonment.
48In determining an appropriate sentence I have had regard to current sentencing practice. It is one of a number of factors to which I must have regard.
49Mr Karitzis submitted that consistent with all applicable sentencing principles, the circumstances of your offending and your personal circumstances, I should impose a period of incarceration less than the time you have already spent on remand.
50At the conclusion of the plea hearing I requested a pre-sentence report to determine your suitability for a Community Correction Order. You were assessed on 21 November and have been found unsuitable for such an order. You have had the opportunity of two previous Correction Orders and have been breached once before. You were not compliant with the conditions of your orders. There is a breach proceeding listed in the Magistrates’ Court in December. You told the assessing officer that the offences before me were committed in the context of significant ice use, paranoia and mixing with the wrong people. In view of the assessment and the matters in the report, I do not propose placing you on a further order. I consider that the only sentence open to me, in the circumstances, is one of imprisonment. I come to this conclusion notwithstanding your youthful age, for which I have made significant allowance. I have also had regard to the principle of parity in respect of Charges 1 and 2.
Sentence
51Mr Espagne, please stand.
52On Charge 1, you are convicted and sentenced to a term of imprisonment of 2 months.
53On Charge 2, you are convicted and sentenced to 4 months’ imprisonment.
54On Charge 3, you are convicted and sentenced to 1 month imprisonment.
55On Charge 4, you are convicted and sentenced to 8 months’ imprisonment.
56On Summary Charge 6, you are convicted and sentenced to 2 months' imprisonment.
57Charge 4 is the base sentence. I direct that 2 months of the sentence imposed on Charge 2 and one month of the sentence imposed on the summary charge be served cumulatively on the base sentence and on each other. This makes a total effective sentence of 11 months’ imprisonment.
58Pursuant to s18 of the Sentencing Act the period of imprisonment already served under this sentence is reckoned at 11 months.
59Pursuant to s6AAA the sentence I would otherwise have imposed had it not been for your pleas of guilty is one of 18 months’ imprisonment with a non-parole period of 12 months' imprisonment.
60I will make the forfeiture and disposal orders as sought.
1MS DUCKETT: If the court pleases.
1HIS HONOUR: Thank you, Ms Duckett, for your assistance. Are there any other matters?
1MR MILIDES: No further matters, Your Honour.
1MS DUCKETT: They are the matters, Your Honour.
1HIS HONOUR: Can I just check with both counsel? I understood pre-sentence detention was 350 days. Have I got that wrong or - - -
1MS DUCKETT: That is correct.
1MR MILIDES: Yes, Your Honour.
1HIS HONOUR: Mr Milides, do you wish some time to speak to your client?
1MR MILIDES: If the court could grant that, Your Honour, I would be most grateful.
1HIS HONOUR: All right. You can have five minutes so that that can happen.
1MR MILIDES: Thank you, Your Honour.
1HIS HONOUR: Mr Espagne, I am going to allow Mr Milides to speak to you for some five minutes to explain the sentencing orders. All right.
1OFFENDER: Thank you.
1HIS HONOUR: Thank you. We will vacate the court. The recording equipment will be turned off so you can have privacy.
1MR MILIDES: Thank you very much, Your Honour.
1HIS HONOUR: Thank you. Please adjourn the court.
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[AM(1]I inserted citations for Mills and Azzopardi
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