Director of Public Prosecutions v Espenszid

[2014] VCC 361

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANTHONY ESPENSZID

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JUDGE:	HIS HONOUR JUDGE MURPHY
WHERE HELD:	Melbourne
DATE OF HEARING:	17 March 2014
DATE OF SENTENCE:	19 March 2014
CASE MAY BE CITED AS:	DPP v Espenszid
MEDIUM NEUTRAL CITATION:	[2014] VCC 361

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Flynn	OPP
For the Accused	Mr B. Johnston	Balmer & Associates

HIS HONOUR: 

1Anthony ESPENSZID you have pleaded guilty to one count of false imprisonment of Daniel Catherall, one count of intentionally causing injury to Mr Catherall, one count of burglary of a room occupied by Mr Catherall at Clayton, one count of theft of a number of items owned by Mr Catherall listed in the indictment and one count of obtaining property by deception, being a sum withdrawn from his account at the Westpac branch at Lynbrook. The maximum penalty for each of the offences is 10 years imprisonment.

Circumstances of the offences

2The circumstances of the offences were set out in the Crown opening which was read in open court earlier in the week and which I incorporate by reference, and sentence you on the basis of the Crown opening.  In brief summary, the complainant had been a mate of yours for some months and the two of you had been involved in socialising at the Crown Casino and ingesting the drug ice together.  You had met through your ex-partner, a female, Ms Francis, and the complainant had apparently been in a relationship with her at some stage, ending it about May 2013.  The two of you had been hanging out together for about a week before this using drugs, and you had been essentially providing him with food.  You had also gone to the Casino.

3For some reason you became hostile to him, and a few days before the relevant events which occurred on 29 and 30 July 2013, you had not slept for some time and neither had the victim due to your drug usage, and you accused him of installing or somehow or other tampering with software on your computer.  He agreed to provide you with his laptop to prove that that was not in fact the case.  There were frequent text messages between the two of you.

4Monday 29 July is when the events started.  You called him up and asked him to meet you.  You attended at his house in a car, he got into the car and then when you drove away, you stopped a short distance later and then Ms Francis joined the other two of you in the car.  From then you drove back to your own home and the count of false imprisonment commences at this point.

5You punched him in the car, he was punched in the car on the journey, and then you took his wallet, his iPhone and his house keys and drove back to your premises at Lynbrook.  Then, he was forced into the garage, was unable to leave, and you pulled down the roller door.  You then took out a chain and put it around his neck and I'm satisfied, tightened that chain and then proceeded to attach that to something in the garage, a blue car jack.  You then got out a small blow torch which was not lit at that point, in order to force him to provide the laptop passwords.  Ms Francis was present while all this offending occurred and at one stage the two of you were smoking ice.

6You got out the blow torch again and asked him for his internet banking passwords, and at that point you also had got his pin number for his Westpac card.  Ms Francis was given a knife and told to watch the victim.  You then left with another person who arrived and went to the Westpac bank and withdrew $430 which was all the available funds that was in the account.  That constitutes the obtaining by deception, Charge 5.

7You returned to the house and at this point Ms Francis asked him questions about their relationship, alleging that he had cheated on her.  Then she got out a cigarette lighter and proceeded to burn him on the arm.  You then got out a small blow torch, as apparently used in drug ingestion, and again heated up a fork and proceeded to burn him using that hot fork.  There was talk about branding the victim.  So in the course of this period back in the garage you proceeded to burn him using a hot fork and this blow torch, threw a shoe at him, told him that he had to bite the shoe like a dog and not cry out, and then at one stage you even videotaped on a mobile phone the events that were taking place, and that was exhibited in the court. 

8You demanded his details of his family and his address and threatened him and at one stage further on in the events you sprayed air freshener down his throat and forced him to put on mascara and eye makeup.  A friend of yours attended and grabbed the chain at one stage.  He was not allowed to leave the garage nor go to the toilet and there were threats made to his family.

9You then started to ask him about assets and property that he might have and he mentioned that he had a motorbike jacket and a helmet.  You left with him in the car to another premises where they were located and retrieved them, and you took possession of them.  Then you went back to his home, or the rooming house he was living in, and demanded his property.  Before that you even went to a car wash and forced him to wash your car.  All this involves a restraint on his liberty, it involves the offence of false imprisonment.  You went to the friend's house, picked up the black and silver motorcycle helmet and jacket, and then you went to his house and demanded you go into his room and picked a whole lot of items which are set out in the Count 4, the theft, virtually all his movable chattels that were of any value.  So there was the count of burglary for the entering into his house and the count of theft of all his chattels; keyboards, aftershave, canvas bag, Playstation, a safe, necklace, as set out.

10You then left him at that point.  It is not clear what time it was, it was probably late in the evening of 30 July, making it a round total of about 24 hours that you had restrained his personal freedom.  That constitutes the offence, Count 1, false imprisonment.

11He contacted his mother, went to her house and showed her the various burn marks.  He was examined by Dr Odell, forensic medical practitioner, on 2 August, which is a couple of days later.  He noted a series of injuries set out in Paragraph 23 of the Crown opening which included a number of bruises, a number of burns including a couple of deep burns, burns on his back, burns on the back of his wrist, burns on his legs, as well as a number of different bruising and scabs, abrasions on his arms and on his leg.  Now those injuries which were intentionally caused, are the roll up count, Count 2 of intentionally causing injury.  It is put on the basis that it encompasses all the injuries caused to the victim from the time you punched him in the car to in the garage during the period of false imprisonment.

12Police were then notified and they searched your property.  All the property was found at your premises and taken back, and there was a record of interview undertaken at the Oakleigh Police Station where you admitted you knew the victim.  You admitted that you had been taking drugs together and spending time at the Casino.  You referred to disputes about your own phone, whether it had been broken by the complainant, whether the victim had stolen ice and whether the complainant had in fact been sleeping with Ms Francis, and how you admitted you demanded his computer to see what was on it.

13You admitted that you had taken the victim's Playstation, and admitted that you found photos and videos of Ms Francis on his computer.  You admitted picking him up and then involving Ms Francis in the matter, and punching him in the car.  You admitted that the whole thing was pre-planned with Ms Francis.  You admitted using the small blow torch to heat the fork and restraining him with the chain.  You admitted that you required him to chew like a dog, a shoe.  You basically admitted most of the matters that the complainant mentioned in his statement to the police.

14You said that the two of you had consumed about two grams of ice over the period that he was at the house and that you wanted to, "Blow your stack", at the victim.  You admitted withdrawing the money and said you did not really think the hits hurt the victim, you found he was faking it, but you admitted you burned the victim to obtain the truth about his relationship with Ms Francis.  You admitted taking the money out and claimed that he owed you close to $1000 for drinks, cigarettes and food, but you denied that you forced him to stay in the house.  You denied falsely imprisoning the complainant.

15So essentially there were admissions in the record of interview, although some denials, and in the final question in the record of interview, very close to the end of it you made some sort of apology to the complainant, saying, "Do you wish to say anything to answer the charge?", "I do, I do feel like I should apologise to Daniel about the burning with the fork, cause once I did say that I didn't think that was right".

16Before considering the seriousness of the offending here I must consider the victim impact statement.

Victim impact statement

17Not surprisingly, given the serious offending, Mr Catherall has filed a victim impact statement testifying to the significant impact of your offending on him. He indicates that his overall view of everything has changed completely and he has developed a level of paranoia.  All his friendships and relationships have been affected, and he no longer views things the same way.  He views everyone as a potential threat, he takes nothing at face value.  He is hesitant to trust everyone and relives moments in nightmares.  He has anxiety attacks and has found it extremely hard to go about his day-to-day tasks.  He says:  "I feel it may be a very long time until I am even close to the person I used to be.  I fear I never will be the same and it kills me to know that humans are even capable of such actions and I will probably never trust them as a collective ever again".  He says he still has five permanent scars as a result of your actions.  He is incurred expenses in moving house, he has not had his goods returned to him, he has joined a gym to improve his personal safety and is taking anti-depressant medication that he gets from a doctor who he has to see each month.  He does not know whether he will recover from the impacts of your offending and he hopes that you will never put anyone in the awful position that he was in ever again.

18So it is clear that your offending has had a significant impact and profound impact on Mr Catherall.  That goes to increase the seriousness of the offending and this must be recognised in the sentencing process.

Seriousness of the offences

19The offending here involves a course of conduct that spanned around 24 hours.  The Crown put the false imprisonment as commencing when you induced the complainant to enter your vehicle, went around the corner and picked up your co-offender Ms Francis, and then took him into your garage until late the following evening when he was left at his own house.  Over that period he was not free to go about and choose his own freedom.  Within that period he was subject to the restraint in the garage by the use of the chain and your coercion of him, as well as your conduct in inflicting the burns and the physical and psychological humiliation of him.

20I accept the Crown submission that the aggravating factor here was that there was some pre-planning, you acted in company with Ms Francis, and at one stage another co-offender, and the conduct was protracted.  It involved a physical restraint and denial of even toilet facilities.  It involved protracted violence that almost merits the description of torture.  Your conduct also involved threats to obtain information as to his parents' address, as well as filming him and forcing him into degrading conduct.

21Your counsel did not dispute that this was serious offending that called for a term of imprisonment.  He conceded that it was bizarre offending.

22Your explanation for the offending was that you were intoxicated from the use of the drug ice.  You at one stage and the complainant were using ice during the period of the offending.  In addition, you had been awake for some days. As Mr Cummins, forensic psychologist, noted, paranoia is often a feature of the use of this drug.

23In your record of interview you claimed that Mr Catherall owed you around a $1000 for food and drugs.

24You also made allegations that he somehow had tampered with your computer, and there were allegations about material on your computer relating to a possible relationship with Ms Francis.

25Neither of these matters, any of these matters, provide any justification or excuse for your criminal conduct.

26I am satisfied that your drug intoxication does not provide any basis for any reduction in your moral culpability.  During your plea your counsel properly withdrew an earlier submission which I have marked as D1, that sought to have your moral culpability ameliorated on that basis.

27In terms of the individual offences, the offence of false imprisonment here was a serious example of the offence.  You were older than the complainant.  The offending was over an extended period, and you acted in company with a much younger co-offender, who is going to be dealt with in the Magistrates' Court, and facilitated in particular her conduct recorded on the mobile phone.

28As the Crown prosecutor also submitted, there pre-mediation in that when the restraint first occurred you had arranged for Ms Francis to be present to be collected.

29Further, you used a chain to restrain the complainant, had your co-offender participate in what in effect was torture of the complainant, as well as humiliating acts by making him pretend to be a dog on a leash.

30You were able to record some of that conduct on your mobile phone which also adds to the humiliation, and also when the complaint was under restraint you coerced him to provide the address of his family.

31You also obtained his password and either you or a co-offender attended at the Westpac Bank to take out everything in his account out.

32You then went to a friends of his location to get possession of the motorbike helmet and jacket, and then proceeded to his own house where effectively you entered without permission, thus amounting to the offence of burglary, and then forced him to give you a large volume of personal possessions which are the subject of the theft count.

33Overall, the duration of the false imprisonment, the use of the chain for part of it and the humiliating conduct you perpetrated on the complainant makes this a serious offence.

34The offence of intentionally causing injury is separate offending here.  This is a rolled up count relating to all the injuries listed in the Opening.

35While some of the injuries listed involve superficial burns or bruising, as the complainant indicates in his Victim Impact Statement he has five permanent scars as a result of your offending.  The pain associated with your conduct in the deliberate use of a burner must have been excruciating.

36This offending is separate from and not encompassed in your conduct in falsely imprisoning the complainant.

37The other offences are of a less serious nature, and to an extent are wrapped up in the unlawful restraint imposed on the complainant. You forced him to provide the password and then took all you could from his bank account.

38The next offence of burglary was part and parcel of your domination of the complainant during the 24 hour period. He had no choice but to let you into his room to allow you to help your self to his possessions to repay money allegedly owed to him.

39That was burglary followed by the theft set out in the count.

40Prior convictions

41

You are now aged 28 and have a considerable criminal record dating back to when you are aged 20.  The record commences on 26 September 2006 when you were before the Dandenong Magistrates' Court for offending including driving whilst suspended for which you received a two month suspended sentence.  You were back before that court on 10 January 2007 when on counts of burglary, theft, theft from a motor vehicle and theft from a shop and going equipped to steal, you were placed on a 12 month community-based order.  On 19 April 2007 you were before the Frankston Magistrates' Court on counts of theft, trespass on land and tamper with a vessel and you were placed on a further 12 month community-based order.  On 3 January 2008 you were dealt with for failure to comply with each of those orders and placed on a three months aggregate sentence suspended for 12 months.  On the same date on offences of driving while suspended, three counts, theft, theft of a motor vehicle and burglary, you were sentenced to 3 months imprisonment on an aggregate sentence.  It appears that your total effective sentence was four months prison.  On 2 July 2009 you were dealt with for breach of a suspended sentence which was imposed on 3 January 2008 and the sentence was wholly restored.  On the same date you were sentenced to one month imprisonment on counts of unlawful assault and behaving in an offensive manner.  That sentence was appealed to this court and on

14 September 2009 the sentence was suspended for a period of 12 months.

42On 10 December 2009 on counts of forging an identifying number and failing to obey a stop sign and using an unregistered vehicle, you were fined a total sum of $1000. You were before the court at Melbourne Magistrates' Court on 18 February 2011 on counts of driving whilst disqualified, failure to answer bail, driving while suspended and other traffic offences, an account of possession of ammunition without a licence, and you were sentenced to four months aggregate imprisonment with three other driving offences.  You were also fined on that occasion for possession of amphetamine and possessing a controlled weapon without excuse.  On 16 December 2011 you were dealt with for failure to comply with the earlier intensive correction order and the five month order was varied.  You were before the Dandenong Magistrates' Court on 16 December 2011 on counts of driving while suspended, unlicensed driving and other traffic offences including possession of amphetamine, possession of a controlled weapon, possession of a dangerous article and on those offences you were sentenced to an aggregate sentence of 120 days imprisonment partially suspended with 55 days to be served.  You breach the intensive correction order imposed on 16 December 2011 and you also breached a fine default community order and that was converted into two short terms of imprisonment.

43While your overall criminal record does not contain offending as serious as the offending for which you are currently before this court, you do have prior convictions of burglary and theft as well as, it is clear that in general you have failed to respond to non-custodial dispositions.  As noted in the submission by your counsel you have been sentenced to two immediate terms of imprisonment, first in January 2008 for driving and dishonesty offences, and next in December 2011 for an effective term of 55 days for driving offences.  In addition you have been sentenced to other dispositions including community based orders, suspended sentences and an intensive corrections order.

44Although you have only one prior conviction for assault, you do have prior convictions for burglary and dishonesty offences and thus your prior convictions and previous involvement in the  criminal justice system lead to the conclusion that specific deterrence must be given more weight than if you were coming before the court for the first time.

Report of Mr Cummins

45Evidence was led from Mr Cummins forensic psychologist. Originally his report wherein he diagnosed that you are suffering from a polydrug use disorder, specifically an amphetamine–type substance abuse disorder  (severe) and having a chronic adjustment disorder with mixed anxiety and depressed mood which developed in response to your father’s death, and a diagnosis of persistent complex bereavement disorder were such as to reduce your moral culpability for the offending.

46Mr Cummins in his evidence stated that there was only an indirect link between your unresolved mental health issues following your father's death and your use of drugs in that he opined that you were self medicating on drugs, and in a drug influenced state you committed this offending.  He conceded that you understood the wrongfulness of your conduct.

47The Crown made a strong submission which I have placed on the file and marked P1, that your use of the drugs could not sustain a Verdins reduction in moral culpability.

48I accept that submission. As noted in a number of cases reduction in moral culpability on the basis of a mental or psychological state is available only in exceptional cases.  It does not appear here.  Indeed, having considered the phone footage, it appears that you had full control of your faculties as you engaged in your demeaning conduct against the complainant.

49Mr Cummins noted that you do not have an anti-social personality.  He also stated that you would benefit from mental health treatment that at this stage has not been provide in the prison system.

50Overall, while I accept that you have unresolved depression and anxiety as a result of the early death of your father, I am unable to accept that this is at a level that will result in prison being more onerous for you.  Your positive action in taking courses while on remand indicates that you are adopting a positive attitude whilst on remand.

Personal circumstances

51You are now aged 28 and your mother and stepfather were in court to support you on the plea, along with your sister.  You were also supported by family friends and your former employer.

52Your father passed away when you are aged 19 in 2005.  You left school during year 11 in 2002 and you obtained a position as an apprentice motor mechanic.  In 2009 you commenced a relationship with a Ms May and a daughter was born that year.  Although you are not in a relationship with the mother, you have been providing in the past, child support for your daughter.  Her mother has had drug problems but your child has been visiting you in prison.

53Your own mother has provided a letter to the court testifying to your remorse in relation to this offending, and also your attachment to your daughter.  That is a factor in your favour on your path to rehabilitation.

54You are currently single.

55You have had a reasonable work record.  You are a qualified motor mechanic.  After you are released from prison in March 2012 following imprisonment for the driving offences you were assisted by the Bridge program to obtain employment with Truckshield, a business in Dandenong South.  The principal of that business was in Court on the plea and has provided a very positive reference indicating that he would be prepared to re-employ you if a vacancy arises.

56Before me also was a reference from the Bridge program that indicated that you responded well to that program and they had obtained the position with Truckshield for you.

57Overall your family and other support and work record are positive for your prospects of rehabilitation.

Other matters in mitigation

58Your pleaded guilty to these offences and you pleaded guilty at the earliest opportunity.

59I have taken that into account. You have facilitated the course of justice and avoided a contested committal and trial and spared the complainant from reliving the events.  This is a significant matter and you receive credit for that.

60Your conduct in taking responsibility for your offending is also evidence of your remorse.

61You made a partial apology to the complainant in the record of interview.  Mr Cummins, in his report and his oral evidence stated that you have both insight into your offending and victim empathy.  Those are matters I take into account in your favour and are evidence of remorse.  While in prison on remand you have undertaken a number of courses and are working within the prison system and that is relevant to your prospects of rehabilitation.  As I have indicated you have family support and a possible job upon your release.  Also significantly, Mr Cummins regards your risk of offending as low.  He supports the proposition that you have developed insight and have sought mental health treatment and will co-operate with that treatment if it is made available.  He regard your prospects of rehabilitation as good in the context that this is the first time you have reached such a low point in your drug use, and are thus in a position upon release to address your long-standing drug problems.

62Against this is the fact that on prior occasions you have been the subject of community based dispositions for driving and dishonesty offences which you have breached.

63Weighing the competing considerations on your prospects of rehabilitation, I regard the key issue in terms of your rehabilitation is whether you are able to cease drug taking.  If you are able to cease drug taking and avoid the company of drug users then you have reasonable prospects of rehabilitation.

64Given your family support, the efforts you have undertaken whilst on remand, the good references, and the opinion of Mr Cummins, I accept the submission of your counsel that your prospects of rehabilitation are reasonably good.  

Sentencing submissions

65Both counsel submitted a number of cases that were to assist the court to apply current sentencing practices.  I found them of some assistance however the circumstances of false imprisonment as they come before the courts differ widely.

66Your counsel did not dispute that this was serious offending and that a term of imprisonment of around three years for the count of false imprisonment would be within range.

67Your counsel relied on your prospects of rehabilitation to call for a longer than usual parole eligibility period given your prospects of rehabilitation.

68The non parole period must serve the ends of punishment as well as encouraging rehabilitation.  Given the positive support you have and the opinion of Mr Cummins I will provide for a period that will seek to encourage your rehabilitation.

69The Crown did not make any submission as to range in accordance with the recent High Court decision.  The Crown has submitted however, that some cumulation on the terms for each of the counts was called for, particularly given the injuries suffered by the complainant.

Purposes of sentencing

70The basic purposes for which a Court may impose a sentence are punishment, deterrence (both specific and general), rehabilitation, denunciation and protection of the community.  In sentencing, I must have regard to a range of matters such as the seriousness of the offences, your culpability for them, your personal circumstances and those of the victim.  I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society.

71In this case considerations of deterrence, both specific and general, as well as just punishment and denunciation are salient.

72Your conduct must be utterly condemned.  In company you restrained the freedom of the complainant for around 24 hours.  During that time you sought to humiliate him by both the use of a chain and your commands to him and by deliberately burning him to compound your conduct.  You also made him engage in degrading activity and filmed it.  The sentence of the court must reflect the abhorrence of the community at your conduct and vindicate the right of the complainant to his freedom and bodily integrity.

73Denunciation is important.  The community will not tolerate people taking the law into their own hands to recover money owed, even if it relates to alleged drug debts, as was partly the case here.

74This offending leaves you at a fork in the road in your life.  You must be punished, but it is in the community interest for you to be reclaimed as you do have prospects if you are able to free yourself from drug use.  Whether you can achieve that will ultimately depend on your own actions.

SENTENCE

75On the count of false imprisonment, you are sentenced to two years' and nine months' imprisonment

76On the count of intentionally causing injury, you are sentenced to two years' imprisonment.

77On the count of burglary, you are sentenced to three months' imprisonment.

78On the count of theft, you are sentenced to three months' imprisonment.

79On the count of obtaining property by deception, you are sentenced to three months' imprisonment.

80I direct that 12 months of the sentence on Count 2 be served cumulatively on the sentence on Count 1 making a total effective sentence of three years' and nine months'.

81I direct that you serve a period of two years' before being eligible for parole.

82I declare 229 days presentence detention including today.

83I make the compensation and forfeiture orders that were handed up on the plea.

84I declare pursuant to s.6AAA that had you not pleaded guilty I would have imposed a total effective sentence of five years' with a non-parole period of three years' and four months'.

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