Director of Public Prosecutions v Garside
[2023] VCC 2246
•2 November 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR 22-00810
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOSHUA GARSIDE |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 July 2023 | |
DATE OF SENTENCE: | 2 November 2023 | |
CASE MAY BE CITED AS: | DPP v Garside | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2246 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – Sentence
Catchwords: aggravated burglary – handling stolen goods – robbery – obtaining property by deception
Legislation Cited: Sentencing Act 1991; s5(4C)
Cases Cited:Worboyes v The Queen [2021] VSCA 169; Boulton v The Queen [2014] VSCA 342
Sentence:Convicted and sentenced to eight months and 28 days and ordered to serve a Community Corrections order for a period of two years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms V. Worrell | The Office of the Director of Public Prosecutions |
| For the Accused | Ms S. Joosten | McNally & Gleeson Lawyers |
HIS HONOUR:
1Joshua Garside, on 5 July 2023 you were at the County Court of Victoria here at Melbourne, you pleaded guilty to the following charges on indictment no.M11700291.
Charge 1, was obtaining property by deception. This charge has a maximum penalty of 10 years' imprisonment.
Charge 2, was robbery. This charge has a maximum penalty of 15 years' imprisonment.
Charge 3, is handling stolen goods. This charge has a maximum penalty of 15 years' imprisonment.
Charge 4, aggravated burglary. This charge has a maximum penalty of 25 years' imprisonment.
Charge 5, robbery. This charge has a maximum penalty of 15 years' imprisonment.
Charge 6, obtaining property by deception. This charge has a maximum penalty of 10 years' imprisonment; and
Charge 7, handling stolen goods. This charge has a maximum penalty of 15 years' imprisonment.
2On 5 July 2023, I deferred sentence to 2 November 2023.
3You admitted a prior criminal history as follows:
·In 2012 at the Ringwood Magistrates' Court you were convicted and fined $2,000 for charges of driving in a manner dangerous and failing to stop on a police request.
·In 2018 without conviction, you were ordered to pay $500 to the court fund for making a threat to kill and unlawful assault.
·In January 2019 at the Ringwood Magistrates' Court on two occasions you contravened a family safety notice persistent contravention of family violence orders and unlawful assault and you were fined and placed on an 18-month CCO.
·In August of 2019 at Ringwood, you breached that CCO and served 21 days imprisonment.
·In September 2019, at a bail and remand court you were convicted and fined a thousand dollars for possession of methylamphetamine and contravening a family violence intervention order.
·In February of 2020, there was contravention of the 2018 adjourned undertaking and contravene a family intervention order, unlawful assault and damage to property and you were sentenced to two months' imprisonment.
·In September 2020 at Ringwood, a breach of bail, theft, possession of a weapon, family violence intervention order contraventions, unlawful assault and you were placed in imprisonment for 45 days.
·Your final appearance was in July of 2021 at the Ringwood Magistrates' Court for persistent breach of a family violence intervention order, bail offences, and you were sentenced to a hundred and eight days and a 15 month CCO. It took you one week from that court date to commence your offending on indictment which occurred between 19 July 2021 and 4 August 2021, a period of 15 days.
4Clearly the experience of a hundred and eight days imprisonment had no deterrent effect on you, or your criminal behaviour.
The circumstances of your offending
5The prosecutor tendered a Summary of Prosecution Opening on Plea which was dated 20 June 2023. It was Exhibit “A”. The prosecutor read the opening into the record of the court.
6At the time of the offending you were 28 years of age. You are now 30. Your offending was committed with two co-offenders; Richard James Haire and Mitchell Clark.
Charge 1
7On 19 July 2021, Willem Temple left his wallet upon the front seat of his unlocked Nissan Utility. Sometime between 7 am and 9 am the wallet was stolen by an unknown person. At 9 am on the same day, you used Mr Temple's CBA credit card to purchase two packets of Peter Jackson cigarettes, valued at $109.90 from Jefferies supermarket in Croydon. At 9.15 am, you used Mr Temple's CBA credit card again to purchase three packets of cigarettes valued at $157.90 from Lincoln Road Milk Bar in Croydon.
Charges 2, 3, 4 and 5
8These four charges occur over a four day period and the focus of your offending was against Paul Triantafyllopoulos, hereafter referred to as Mr Trian. Mr Trian was the partner of your associate Adam Benson.
9On 27 July 2021 at 2.50 am, you attended at Mr Trian's apartment on Inkerman Street in St Kilda. Mr Trian was keeping the vehicle owned by the mother of Mr Benson at that address. You attended and asked Mr Trian for permission to retrieve an item from the car. It was a 2010 Ford Fiesta. You went with Mr Trian and took stolen registration plates, ending 104 from that car and placed them in the storage cage 205 of the apartment block. That is the offence of handling stolen goods, Charge 3.
10You then asked Mr Trian if you could stay with him for a while. Mr Trian agreed.
11At approximately 3 am you informed Mr Trian that you were going out to purchase some cigarettes. You went downstairs and let the co-offenders Haire and Clark into the apartment complex. All three of you then entered Mr Trian's apartment. Mr Clark ordered Mr Trian to sit on a couch and hand over his mobile phone. Mr Haire told him not to call any person for help or assistance and Mr Trian complied. Mr Haire told Mr Trian that Mr Benson had an outstanding debt of $10,000 and if he didn't source these funds, Mr Benson and his two dogs would all be harmed, meaning Trian's and Benson's dogs.
12Mr Haire told Mr Trian he knew Mr Benson hid the money in the apartment and said to him, 'Do yourself a favour and tell me where the cash is?' Mr Trian stood up from the couch and Mr Clark pushed him back down, while you closed the interior blinds. Mr Trian informed them that there was no cash in the apartment and Mr Haire said that he would have to give them stuff equal to the value of the outstanding debt.
13It is then Charge 2 occurs which is robbery. You have taken the following items:
·Two televisions;
·15 bottles of after shave without descending to the brands;
·Five original abstract oil paintings;
·a PlayStation;
·Apple iPad;
·Xbox;
·Gold wedding band and other jewellery;
·Power tools;
·a drone;
·a set of keys to the apartment itself;
·a hairdryer, hair straighteners and scissors. I interpose here and note, Mr Benson was a qualified hairdresser.
14You then placed these stolen items in a 2010 Ford Fiesta Sedan. All of the items could not find in that vehicle so you ordered Mr Trian to organise and pay for a Uber driver, tell to transport the property to Sandgate Avenue in Croydon.
15Mr Haire organised for a fourth person, named Braydon Cannon to attend the apartment and assist in moving the property. At around 7 am, Mr Cannon arrived in his white Subaru, and parked in the basement of that car park and assisted in the taking of the items I have just referred to.
16The three of you have then left the apartment with the abovementioned items and the 2010 Ford Fiesta. You threatened Mr Trian, that if he reported the incident to police you would organise for Mr Benson to be harmed whilst he was in the Melbourne Remand Centre. They also threatened harm to Mr Trian and the two dogs. Mr Trian believed they would carry out these threats, so he did not report the incident to the police.
17On 28 July 2021, the next day, Mr Clark entered Mr Trian's apartment followed by Mr Haire and yourself. You had entered Mr Trian's apartment using the stolen set of house keys. Mr Clark raised a handgun and pointed it towards Mr Trian's head and said, “Do you fucking take us for a goose? In this apartment there is money and you've got to fuckin' tell us where it is?” Mr Clark then raised his hand as if he was going to pistol whip Mr Trian, but Mr Haire stopped him by grabbing his arm and yelled at Mr Clark, “What the fuck do you think you're doing?”
18Mr Clark then pointed a gun directly at Mr Trian's face and demanded that he show them how much money was in his account and transfer those funds. Mr Trian used his mobile phone and showed Mr Haire, yourself and Mr Clark that he had the princely sum of $280 in his ANZ Bank account. Mr Haire then ordered Mr Trian to contact Mr Benson's mother, Alison and get her to transfer $2,500. After that transfer had taken place, you told Mr Trian they would release him.
19Mr Trian called Ms Benson's mobile phone whilst on ‘speaker’, Mr Haire said; “your son owes us money, he has to pay, we are not letting Paul go until he receive the money.” Ms Benson advised that she could only afford $1,000 and transferred this amount to Mr Trian's account. He has then transferred all of what was in his account, that is $1,280 to Mr Haire's Bank of Melbourne account. After this transfer, Mr Trian was informed that the full amount of $2,500 was to be paid and that you, Mr Clark and Mr Haire would return to obtain the additional funds.
20The next day, 29 July 2021, Mr Trian’s wages of $909 were credited to his account. After receiving these funds from work, Mr Trian transferred a further $340 to Mr Haire’s account. That was the basis of Charge 4, aggravated burglary.
21Relevantly, it is not alleged that you Mr Garside had knowledge or was involved in the use of the firearm in relation to this offence.
22On 31 July 2021, you returned to Mr Trian's apartment with an unknown male. On this occasion, Mr Trian let you and the unknown male into his apartment as he believed you were returning Mr Benson's work laptop. You and the unknown male spent approximately 14 minutes searching through the apartment to steal further items, and you stole a tool bag containing miscellaneous tools.
23Whilst you were at the apartment, you called Mr Haire. Mr Trian stated that Mr Haire was angry with you returning to the apartment, and Mr Haire ordered you to return the key to the 2010 Ford Fiesta to Mr Trian. You did so.
24Mr Trian, the unknown male, and yourself then went into Inkerman Street where the vehicle was parked for you to retrieve your personal items out of the car. Whilst you were at the car, the unknown male placed his arm around Mr Trian’s neck and started to choke him. You retrieved the car keys and pushed Mr Trian to the ground. The two of you then drove off in the Ford Fiesta. Mr Trian observed the vehicle as displaying different registration number plates. That is the basis for Charge 5, robbery.
Charges 6 and 7
25On 4 August 2021, the police observed the same Ford Fiesta parked in the driveway of Angela Woods residence in Kilsyth. The police observed this vehicle was displaying stolen number plates. Police executed a warrant and located you. You were arrested by police. At the time the police had no knowledge of the incidents which related to the 27th, the 28th and 31 July 2021, as it had not been reported at that stage.
26
You were in possession of the following stolen items belonging to an
Anthony Lupinowhen you were arrested; Carrera sunglasses, a Oppo mobile phone, a wallet containing bank cards in the name of Anthony Lupino. The Ford Fiesta was also seized and the property was examined inside the car. There were a number of items in there and I will not go through them all. That is Charge 7, handling stolen goods.
27The items belonging to Mr Lupino and Ms Wells, stolen from their motor vehicles between 3 and 4 August 2021. Prior to your arrest on 4 August 2021, you used Mr Lupino's stolen Commonwealth Bank card to purchase cigarettes and a drink valued at $32.90 from the BP service station at Box Hill. That is Charge 6, obtain property by deception.
28You were then interviewed by police on 4 August 2021 in relation to the stolen registration plates and the stolen property. When you were interviewed on this occasion, police spoke to the registered owner of the Ford Fiesta Alison Benson and she informed police, this car had been stolen from Mr Trian. The police were unaware of the full circumstances of this theft.
29You stated in your interview with Police that:
·Mr Trian had leant you the Ford Fiesta and you denied stealing the vehicle.
·You went to Mr Trian's residence with another person to have a coffee during the day, and Trian leant you the car, so you could move your personal possessions.
·When you borrowed the vehicle it was already fitted with stolen registration plates.
·In relation to the stolen property belonging to Mr Lupino, you said you were walking the streets of Box Hill on the morning of 4 August 2021 and you located a backpack in the bushes containing Mr Lupino's items.
·You returned to Kilsyth after locating these items, with the intention to return them to Mr Lupino.
·You initially stated you did not use any of Mr Lupino's credit cards, but later admitted that you had used it to buy cigarettes and a drink.
30You were not interviewed in relation to the wallet containing the stolen cards.
31On 8 August 2021, Mr Trian made a statement about your offending against him. CCTV from the apartment building confirmed your attendance set out on the 27th, 28th and 31 July 2021. Your Facebook entries confirmed your involvement in the robbery concerning the Ford Fiesta on 31 July 2021.
32On your second arrest on 12 August 2021, you exercised your right to make a no comment record of interview.
Personal circumstances
33At the time of the offending, you were 28, you have recently celebrated your 31st birthday. You acknowledge that you have grown up in a stable and loving home environment free of drug use or violence. Your parents, Kate and Shane, were in court on the day of your plea which was 5 July 2023. They're here again today. Your mother gave evidence on the first day about your efforts and your achievements in respect of your rehabilitation from drug use, in particular, methylamphetamines and opioids. She stated that she would not have allowed you back in the home if she had any doubt about your rehabilitation and abstinence from drugs. She confirmed that evidence today.
34
Your mother summed up the effect your drug addiction and criminal ways has had on your family and these are her words, 'He stole our life.' As families do, yours have forgiven you, and received you back into the family fold on the basis you have to date, overcome your illicit drug use. You have two younger brothers, one a plumber with his own family to care for, and the youngest brother who's an Olympic boxer. You have in the past been a successful sports person as captain at
Kilsyth Football Club.
35You are educated to Year 9 level. At the age of 15 you started an apprenticeship with your father as a roof tiler. You remained employed as a roof tiler until you were approximately 23 years of age. Your father terminated your employment because your drug use was problematic in the workplace. You then worked as a plasterer and general labouring until your first custodial term. By the time of the offending in this case you were homeless, living out of your car and out of control with drug use.
36You have had one serious relationship of 10 years' duration. You were engaged to be married. Your fiancé terminated your relationship because of your drug addiction and your life spiralled out of control as a result. Your subsequent relationships were short-term, chaotic, violent and abusive, leading to police and court interventions and loss of liberty.
37When you were a teenager you experienced psychotic symptoms, including auditory hallucinations. More recently you have been treated for psychosis, anxiety and depression by Dr Jimmy Lee, reported in Exhibit 4. You were on medications for these conditions.
38After your arrest for the charges before this court, you were remanded in custody. You remained in custody for 278 days before being released on bail on 17 May 2022. Your parents drove you from Port Phillip Prison to Maryknoll Therapeutic Centre known as MTC, to engage in Windana Rehabilitation Program. You remained as an inpatient of MTC until October 2022.
39Since leaving MTC you have received drug rehabilitation support from Windana, as set out in Exhibit 2, John Silvester from EACH, which was Exhibit 3, and who provided a further report for today’s hearing, and of course your General Practitioner, Dr Jimmy Lee. Your rehabilitation treaters are satisfied that you have been drug free since May of 2022.
40You obtained work with Macca's Moves and Storage as a removalist on 19 June 2023. Your employer’s reference which was Exhibit 5. Mr Grinberg hired you knowing about your drug use history and the charges that you faced at court. Your mother gave evidence in how you got that job, she stated you were helping her in moving your grandfather from his home, and the removalist company was Macca's. You were offered the job there and then.
41
You have made significant efforts and steps to deal with your drug addiction and re-enter the workforce. I deferred your sentencing hearing on 5 July 2023 to allow you to prove yourself both in employment and maintaining your abstinence from illicit drugs over a longer period. You have returned to court here on
2 November 2023.
42In the interim you have maintained your employment, graduating to full-time work. Mr Grinberg, your employer is glowing in his reference about your progress at work. Mr Silvester from EACH has set out your continuing drug rehabilitation and progress from methadone medication to injectable Buprenorphine. Your mother in her evidence said, you were going well at work, integrating with your family and drug-free as far as she could tell, and I suspect she would know straight away.
Sentencing considerations
43The basic purpose for which a court may impose a sentence are just punishment, deterrence both specific and general, rehabilitation and denunciation of your actions, and the protection of the community. In sentencing you I must have regard to a range of factors such as the seriousness of your offending, your culpability for it and your personal circumstances.
44I am also required to balance the interests of the community in denouncing your criminal conduct with the interests of the community and seeking to ensure as far as possible, that you as an offender are rehabilitated and reintegrated into society.
45I am also required to take into account current sentencing practices in fixing your sentence. That enquiry is directed particularly, but not exhaustively, to the kinds of sentences imposed in comparable cases and the statistics for those sentences at the time. I have considered the statistics and current sentencing practices, mindful of each case must be considered in the light of its own particular circumstances and many of the cases would be distinguishable from yours as indeed they are from one another. Of course, current sentencing practices is one of the considerations that I must take into account.
46I am also mindful of the provisions of the Sentencing Act and in particular s5(4C) which directs a sentencing court to consider whether a Community Corrections Order can achieve the purpose for which this sentence is to be imposed.
47I have reviewed the case of Bolton in considering if a Community Corrections Order would be appropriate in your case and as you know I ordered an assessment and you have been assessed as suitable for a Community Corrections Order. Of course, that is not the end of the matter.
48You have pleaded guilty to the charges. Your plea of guilty was indicated after the committal stage of the process. Your plea does have a utilitarian value of allowing for the orderly and effective administration of justice. There is a certainty of outcome and resolution of the substantive issues raised by your offending. Your plea also allows for the preservation of court and police resources to deal with other matters. Your plea vindicates a public confidence in the legal process set up to protect the community.
49Your plea also is a clear acknowledgement by you that you accept responsibility for your criminal conduct on these occasions. Your plea also recognises you are willing to facilitate the course of justice in the community and I accept that your plea of guilty to these charges indicates and demonstrates some remorse on your part.
50Whilst Mr Trian was subjected to cross-examination at the committal. It has allowed for the resolution of the charges, and Mr Trian has not been required to give evidence at a trial. No doubt, to his great relief.
51I accept that your plea is entered whilst you are on bail, or have been on bail and that your plea has avoided the necessity of a trial when the court has lengthy backlogs due to the COVID-19 pandemic. The Court of Appeal in Worboyes' case, stated that a plea in COVID-19 pandemic circumstances is to be attended with at a demonstrable amelioration of sentence. That consideration applies in your case.
52I accept that your time in remand between August 2021 and May 2022 was attended with visit limitations from family and extended lockdowns at Port Phillip Prison resulting in the custody time you have served as being more onerous than in normal times.
53It was submitted on your behalf that you had been abstinent from illegal drug use since your incarceration in August 2021. I am satisfied that you have been drug free since your release on bail in May 2022. You have made significant efforts to rehabilitate by your attendance at Windana followed by your continued treatment by EACH and Dr Lee. The rehabilitative advances made by you cannot be over-estimated, but can easily be sabotaged. It is for you to maintain your drug rehabilitation one day at a time.
54On the principal charge of aggravated burglary, your co-accused Mr Haire was sentenced to two years imprisonment. You other co-offender Mr Clark was not even charged with this offence, he was the man with the gun. The Crown accept you had no knowledge or forewarning that Mr Clark had a gun until he produced it thereafter to Mr Trian. I find that your role in the aggravated burglary was a minor role of the three and limited to being the person to gain access to the premises and be physically present when the co-offenders, Mr Haire and Mr Clark entered the apartment.
55At the time of sentence by Judge Hogan on 16 February 2023, Mr Haire was still in custody and had demonstrated only limited rehabilitation. At the time of his sentence for these charges, he was charged and sentenced for similar offending committed after these offences. The difference in role for these offences and the rehabilitation path distinguishes you from Mr Haire in respect of the parity in sentencing.
56
Your offending is serious and occurs on three separation occasions involving
Mr Trian within a five day period. The objective features that are indicative of the level of seriousness are as follows;
(a), you had only been released on a CCO a week before this offending;
(b), the robbery of items was planned and executed on the premise of a drug debt to Mr Haire;
(c), a weapon, that is a handgun was used during the aggravated burglary by a co-accused who has not been charge;
(d), you had no knowledge of the handgun until it was shown to Mr Trian;
(e), on the third occasion you robbed Mr Trian of items in his car;
(f), you came to the apartment of Mr Trian with a co-offender;
(g), your co-offender assaulted Mr Trian; and
(h), on each occasion you did not personally inflict any physical force to Mr Trian.
57I am required to take into account the sentencing principles of totality. In this case, your offending occurs within a limited time period of approximately two weeks. I take into account your personal circumstances as outlined earlier in these reasons for sentence.
58The appropriate overall sentence in this case, is a combination of imprisonment and supervision in the community. Whilst confrontational, aggravated burglaries offences ordinarily result in lengthy terms of imprisonment, in your case the sentencing considerations of general and specific deterrence, just punishment and protection of the community to enhance and control rehabilitation, are satisfied by a lengthy CCO with conditions.
59The imprisonment sentence will be equivalent to your, effectively your pre-sentence detention. The ongoing sentence is your Community Corrections Order.
60I want to tell you this. A breach of the Community Corrections Order will mean you come back to this court to be resentenced on the charge of aggravate burglary. You will know what the result of that process will be for you.
61Would you stand please?
62On Charge 1, you are convicted and sentenced to two months' imprisonment.
63On Charge 2, you are convicted and sentenced to six months' imprisonment.
64On Charge 3, you are convicted and sentenced to two months' imprisonment.
65I will come back to Charge 4.
66On Charge 5, you are convicted and sentenced to six months' imprisonment.
67On Charge 6, you are convicted and sentenced to one month imprisonment.
68And on Charge 7, you are convicted and sentenced to two months' imprisonment.
69The cumulation is as follows. The base sentence is six months' imprisonment on Charge 2. To that are cumulated the following. Seven days from Charge 1 sentence, seven days from Charge 3 sentence, two months from Charge 5 sentence and 14 days from Charge 7 sentence, that is a total effective sentence of eight months and 28 days.
70I declare in respect of that sentence, you have served 278 days pre-sentence detention, which is a longer period. But for your plea of guilty, I would have sentenced you to four years and three months with a two-year nine month minimum.
71On Charge 4, you are convicted and placed on a two-year CCO with the following conditions:
72
Supervision, drug rehabilitation, 150 hours of unpaid community work to be performed within the first 12 months of the order and you have a judicial monitoring on 9 February 2024. You have obviously got to attend at the
Lilydale Correction Centre within two days
73Thank you. If you consent to a CCO then I'll have the paperwork prepared and you can sign it?
74MS JOOSTEN: As Your Honour pleases.
75HIS HONOUR: Thank you. I'll also make the forfeiture order and disposal order sought.
76MS JOOSTEN: Thank you, Your Honour.
77HIS HONOUR: You can take a seat.
78MS JOOSTEN: Thank you, Your Honour Mr Garside's signed that.
79HIS HONOUR: Thank you. Madam Prosecutor who found the gun? The handgun, the forfeiture order for?
80MS WORRELL: I don't know who actually found the handgun, Your Honour.
81HIS HONOUR: All right. That's all right. I just wondered. Thank you. Mr Garside I'm going to have a couple of copies of this Community Corrections Order printed. I'll give it to both barristers but also one for you, so that you can put it up on the inside door of your wardrobe at home. So everyday you go to open the wardrobe door to get your clothes out, you've got a reminder of what your responsibilities are for the next two years. You understand what I'm saying to you? You don't want to come back here on a breach. Officer, you can let him out of there, he's served his time.
82VOICE: Yes, sir.
83HIS HONOUR: Thank you. Counsel thank you for your assistance in this matter.
84COUNSEL: Thank you, Your Honour.
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