Director of Public Prosecutions v Geere

[2020] VCC 1084

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-19-00736

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOHN GEERE

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JUDGE:	HIS HONOUR JUDGE LAURITSEN
WHERE HELD:	Melbourne
DATE OF HEARING:	21 July 2020
DATE OF SENTENCE:	22 July 2020
CASE MAY BE CITED AS:	DPP v Geere
MEDIUM NEUTRAL CITATION:	[2020] VCC 1084

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Lee	Office of Public Prosecutions
For the Accused	Ms C. Hollingworth	Giorgianni and Liang Lawyers

HIS HONOUR:

Introduction

1Mr Geere, I will address these remarks to you, because these are my sentencing remarks.  You have pleaded guilty to these offences:

(a)a burglary of a building at 150 Brunswick Street, Fitzroy on

18 October 2018. The maximum penalty for this offence is 10 years' imprisonment;

(b)on the same date and at the same place, stealing mail. The maximum penalty is also 10 years' imprisonment;

(c)again on the same date and place, arson of various items. The maximum penalty is 15 years' imprisonment; and

(d)committing an indictable offence while on bail. The maximum penalty is a fine of up to 30 penalty units or three months' imprisonment.      

Circumstances

2Exhibit A is the summary of the prosecution opening on the plea. Its contents were accepted as correct by your counsel. 

3150 Brunswick Street is a five storey building containing 153 apartments and about 350 tenants. It is owned by the Department of Health and Human Services.

4At about 5.40 am on Thursday, 18 October 2018, you and another person went to the building. You did not live there. You went there to visit a friend, who was a tenant. You entered through an open door after another tenant had left. This comprises the charge of burglary.

5Once in the foyer, you and your companion got into mail boxes in the mail room and stole items of mail. Your initial purpose in examining the mail was to determine where your friend lived, having forgotten the number of his flat. However, you then stole items of mail. This comprises the charge of theft. 

6You returned to the front of the building. You stood in the doorway which prevented the doors from closing. You then used a lighter to burn an access control keypad, damaging it significantly. This is part of the charge of arson.  

7You and your companion entered a lift but could not get out at any floor because you did not have a fob key. While in the lift, you burnt a sign by using your lighter. Your motive in setting fire to the access control pad and the sign was to set off the fire alarm. In your mind, this would unlock the lifts, enable you to use them and find your friend. This is also part of the charge of arson.

8At about 6.05 am, you entered the bin room. You set fire to three skip bins and a set of mattress bases. This was another attempt to set off the fire alarm and unlock the lifts.  This is also part of the arson charge. These fires set off the alarm. It caused about 350 tenants to flee the building. These fires caused $30,000 worth of damage.

9The fire brigade and the ambulance service attended. Five people were examined for smoke inhalation. One was taken to hospital with minor breathing difficulties. She suffered from asthma.

10In the early afternoon, you were arrested outside the same building. You were taken to a police station but were assessed as unfit to be interviewed by the police as you were so affected by drugs. You were also very affected by drugs when you committed these offences. 

11There are no victim impact statements.

Criminal history

12Apart from your appearance in court in 2019, you had appeared in a court on eight occasions and found guilty of 54 charges.

13The most significant sentence was imposed in this Court on your appeal from the Magistrates’ Court. On 17 June 2011 you were sentenced to 13 months' imprisonment with a non-parole period of seven months for recklessly causing injury, intentionally damaging property and contravening both a family violence safety notice and a family violence intervention order. A suspended sentence of imprisonment was also restored.  

14On 28 September 2015 at the Magistrates’ Court at Melbourne you were convicted of 24 charges, including contravention of a community correction order, and sentenced to 120 days imprisonment and an 18 month community correction order.

Pre-sentence Detention

15Your present time in custody is the longest you have ever spent. As of today, it is 643 days. For the purposes of a declaration of time already served, there are 353 days.

16However, on 5 August 2019, you were sentenced in the Magistrates’ Court at Moorabbin to a total of three months' imprisonment. For some reason, the magistrate declared 290 days as the period of imprisonment already served rather than three months. At that stage you had already spent 291 days in custody.

17I will take the 200 days of pre-sentence detention to which s.18 of the Sentencing Act 1991 does not apply, into account in the exercise of my sentencing discretion[1]. The only appropriate way of using my discretion in this case is to treat the 200 days as though they were time already served for these offences.  

[1] R v Renzella (1997) 2 VR 88 at 98.

Personal Circumstances

18You are now 39.

19You are one of two children. However, your younger brother died many years ago.

20Your parents separated when you were 11. Your father drank excessively and was violent to you and your mother. After separation, your father was mainly responsible for your upbringing even though, as a merchant seaman, he was away for long periods and you would then be left alone or stay with your grandmother who lived nearby.

21You ran away from home at 13 and lived on the streets for about a year. You then lived with your aunt for another year before living again on the streets.

22Your father died in 2017. Your mother is alive and your wish to live with her in Bentleigh East after you are released from custody.

Education

23You attended four secondary schools. You were either asked to leave or were expelled from these schools. Consequently, you received little secondary education, completing only Year 7.

Employment

24

After leaving school, you had several low-end jobs. At 19, you completed a drug detoxification programme and worked in pizza shops, which you managed. Your parents helped you to buy a pizza business when you were about

20 or 21.

25In 2001, you were assaulted and severely injured. After discharge from hospital, you could not leave your home for fear of further assault. The pizza business failed and was sold.

26You last worked as a courier in 2005. After that job, you have received a disability support pension.

Relationships

27You had a relationship with Jenny and you have a child, Lilly Rose, who is now eight or nine. You have not seen Lilly Rose since her birth.

28About 2012 you met another Jenny. You and she have two children, John, aged five, and Riley, aged four. Your relationship has been difficult with her. Your criminal record has numerous contraventions of family violence safety notices and intervention orders relating to her. Nevertheless, she took the children to see you in custody until the COVID-19 restrictions.

29At 14, you started using cannabis. At 16, you started with heroin. At 19, you successfully completed a drug withdrawal programme. Unfortunately, at 21, you were seriously injured in an assault, after which you used cocaine heavily, together with heroin and amphetamines. The injuries you received did not include an acquired brain injury despite you thinking so.

30When you were 25, you were kidnapped and tortured for over three days. 

31You have attempted suicide more than once.

32You wish to stop using drugs after your release so you can have a better relationship with your children. You are currently taking methadone. 

Verdins

33

Your counsel does not rely upon any of the propositions in the case of

R v Verdins[2]

.

34However, she brought to my attention the diagnosis of Warren Simmons, an experienced psychologist, that you are suffering from a recognised psychiatric disorder, a post-traumatic stress disorder. The dominant aspects of this disorder for you are the symptoms relating to anxiety and depression.

35Mr Simmons assessed you on 7 March 2018. You had been charged with contravening community correction orders and other charges. He took a detailed history from you. He diagnosed a post-traumatic stress disorder due to the traumatic events in 2001 and 2005. He noted the presence of anxiety and depression.

36Although Mr Simmons considered you suffered from an acquired brain injury, someone better qualified to do so had said in 2016, in effect, that you do not.

37On 9 March 2016, James Gooden, a clinical neuropsychology registrar, assessed you. He administered a series of standard tests. He did not attribute your cognitive and other issues to the head injury you sustained in 2001. Despite your average intelligence, the neuropsychological assessment revealed severe reductions in the speed of your information processing, inefficient and disorganised learning and recall of verbal and visual information, difficulties in aspects of executive functioning including planning, self-monitoring, verbal fluency and divided attention. He noted other background difficulties.

38Dr Gooden attributed these difficulties to your psychological symptoms due to depression, anxiety and the post-traumatic stress disorder and your long history of substance abuse.

39

You were assessed as eligible for acceptance into the Assessment and Referral Court List. A plan of treatment was developed. You entered the ARC List on

8 May 2018. There were progress reports. I have been given the fourth of such reports, dated 4 October 2018. As an interim report, it is not positive, the author noting the need for you to attend appointments and increase your level of participation to gain benefit from the List. I presume you attended Court on

11 October 2018 and your involvement ended when you were taken into custody on 18 October 2018.

40This was a missed opportunity for the ARC List has considerable success in changing the criminal behaviour of certain offenders. 

41Subsequently, on 5 August 2019, you were sentenced for the offences which saw you in the ARC List. You were sentenced to a total of three months’ imprisonment for possessing heroin, two charges of unlawful assault and three charges of contravening a family violence intervention order.     

Guilty Plea

42You were charged with these offences in October 2018. There was a committal hearing on 13 April 2019. A trial date was set for 30 March 2020. However, on 24 February 2020, you indicated an intention to plead guilty to these charges. These pleas of guilty have come relatively late in the process but you are still entitled to a significant discount on the sentence I would have imposed if you had not pleaded guilty to these offences.

Custodial Conditions

43While in custody, you have completed a number of courses. Copies of your certificates were admitted into evidence. They include the successful completion of subjects in three Certificate II courses and the completion of a six-hour course entitled 'Ice & Me'.

44The draft affidavit of Jennifer Hosking, an acting assistant commissioner with Corrections Victoria, sets out what can and cannot be done by you since COVID-19 restrictions were implemented in the places of remand and prisons.

45Since 31 March 2020, you have resided in the Burnside Mainstream Unit at the Metropolitan Remand Centre. You were allowed out of your cell from 8.30 am to 1.45 pm and 1.45 pm to 6.30 pm on alternating days.

46Since 20 May 2020, you have worked an exercise yard billet or cleaner. This allows you more time out of your cell.

47It appears you are entitled to 76 emergency management days, which will be credited to you once you are sentenced. For sentencing purposes, I must disregard those days and that is due to s.5(2AA) of the Sentencing Act 1991.

48You have not been able to see your partner, Jenny, your two children or your mother physically. However, you have seen your children through an audio-visual link but not your mother.

Sentence

49Section 5(1) of the Sentencing Act 1991 sets out the purposes for which sentences may be imposed and s.5(2) a number of matters, where relevant, that I must have regard.

50Plainly, it is important to deter you from committing these offences in the future. As to deterring others from committing offences of the same or similar character, I doubt few would identify with you over the commission of these offences, especially the offence of arson. In a drug-affected state, you thought of the idea of setting fire to an access control pad, a sign and then bins and mattresses would somehow enable you to use the lifts. It was a bizarre plan, resulting from your befuddled, drug affected state.

51Nevertheless, the last of these fires caused considerable damage and the evacuation of the building. Fortunately, few persons were affected by the smoke but I dare say many were upset. There is a need to denounce these offences and to protect the community from you.

52Another purpose of sentencing is to establish conditions within which your rehabilitation may be facilitated. You have produced nine analyses of urine samples taken between 20 March 2019 and 19 May 2020. The analyses did not always test for the same drugs. Generally, the tests were for amphetamines, buprenorphine, methamphetamines, cocaine, opiates, benzodiazepines and cannabinoids. Occasionally there was testing for ethanol, barbiturates, non-opiate analgesics and something called, 'other drugs'. Except for methadone, which is your medicine, the analyses have not shown the presence of those drugs. For someone with a long history of drug usage, it is impressive that you have been drug free for at least 14 months. These results over such a long period, together with your active attendances at courses, gives me some confidence for the future. I say, 'some', because of your long history of drug usage and the psychological symptoms you suffer.   

53In sentencing you, I will treat the so-called period of 'dead time', namely 200 days, as though it is time served for these offences, even though it cannot formally be so regarded. That is, I am treating the period of 553 days as though it is time served although I will declare only 353 days as time served.

54Yesterday, I ordered Corrections Victoria to assess you for the purposes of a community correction order. They did so and assessed you as unsuitable for such an order. The author of the report gave two reasons for finding you unsuitable: lack of motivation; and lack of insight into the effect of your offending, specifically the charge of arson, as well as perhaps a third reason of your past performance on such orders. Although I could make a community correction order despite the adverse report, I will not do so and I will not do so for the reasons of the report’s author are strong reasons not to do so.    

On Charge 3, the charge of arson, I will sentence you to 27 months' imprisonment.

On Charge 1, a charge of burglary, I will sentence you to 10 months' imprisonment. 

On Charge 2, the charge of theft, I will sentence you to 10 months' imprisonment.

On Charge 4, the charge of committing an indictable offence while on bail, I will sentence you to one month's imprisonment.

[2] (2007) 16 VR 269.

55

The sentence on Charge 4 will be served cumulatively on the sentence on Charge 1. The sentences on Charges 2 and 3 will be served concurrently with the sentences on Charges 1 and 4. The total sentence of imprisonment is

28 months.

56I will set a non-parole period of 18 months.

57I declare that 353 days is treated as time already served under these sentences.    

Section 6AAA

58If you had not pleaded guilty to these charges, I would have sentenced you to a total of 35 months imprisonment with a non-parole period of 24 months.

Disposal Order

59I will make the disposal order sought by the Director of Public Prosecutions because you consent to the making of the order and it is in the interests of justice that I do so.

60Unless there is anything else I will have my tipstaff adjourn the court.

61COUNSEL:  Thank you, Your Honour.

62HIS HONOUR:  Ms Hollingworth, do you want to retain the link to speak to your client after I leave the Bench?

63MS HOLLINGWORTH:  Yes, Your Honour.  Yes, please, Your Honour.

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