Director of Public Prosecutions v Gill

[2023] VCC 1005

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

CR-21-01652
CR-21-01653
Indictment No. C2114441

DIRECTOR OF PUBLIC PROSECUTIONS

v

BILLY GILL

DANIEL MANATOPOULOS-MAY

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JUDGE:	HER HONOUR JUDGE DAWES
WHERE HELD:	Melbourne
DATE OF PLEA HEARING:	25 May 2023
DATE OF SENTENCE:	01 June 2023
CASE MAY BE CITED AS:	DPP v Gill & Anor
MEDIUM NEUTRAL CITATION:	[2023] VCC 1005

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:   Aggravated burglary – person present; causing injury intentionally; theft

Cases Cited:Bugmy v The Queen (2013) 249 CLR 571

Worboyes v The Queen (2021) VSCA 169

R v Verdins [2007] VSCA 102

Sentence:  5 years’ 3 months’ imprisonment

NPP 3 years and 6 months

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms D. Manova	Office of Public Prosecutions
For the Accused Gill	Mr R. Backwell	Ann Valos Criminal Law
For the Accused Manatopoulos-May	Mr S. Ranjit	Papa Hughes Lawyers

HER HONOUR:

1Billy Gill and Daniel Manatopoulos-May, you are co-offenders and have pleaded guilty to the following offences:

Charge	Offence	Maximum penalty
Charge 1	Aggravated Burglary – person present	25 years’ imprisonment
Charge 2	Intentionally cause injury	10 years’ imprisonment
Charge 3	Theft	10 years’ imprisonment

2The circumstances of your offending have been provided in the Summary of Prosecution Opening.  It is agreed to be an accurate account of events.  A general summary of the facts is as follows. 

3The victim is a 62-year-old male pensioner.  At the time of the offending, you, Gill, were 39 years of age and you, Manatopoulos-May, were 32 years of age. 

4On 4 February 2021 at approximately 2.00 pm, you, Gill, and you, Manatopoulos‑May, attended at the victim's address.  You knocked on the door and when it was opened, you pushed your way into his house, intending to steal items. 

5Once you were inside, you both assaulted the victim to the head and body.  After he received the first blow, he stated, 'Please don't do that, I've got cancer, you don't need to'.  The victim tried to get away from you both but was followed throughout the house, as you continued to strike him.  At one point, the victim tripped over.  You, Manatopoulos-May, inflicted further blows to the victim's chest, multiple times.  The victim fell unconscious. 

6You both rummaged through various rooms of the house and removed items from drawers and cabinets.  When you, Gill, were in the kitchen, you pulled a knife out of a knife block, which you waved at the victim as he laid on the floor.  This is an uncharged act that forms part of the narrative of your offending.

7After a short time, you were observed by neighbours as you left the premises.  You, Gill, carried two pillowcases that were filled with stolen property.  The neighbours were approached by the victim at around 2.20 pm.  He was observed to have blood on his face, head and clothing.  He asked them to call the police, who attended around 40 minutes later.

8The victim was treated by paramedics at the scene, before being taken by ambulance to the Sunshine Hospital.  He sustained the following injuries, being lacerations to his face and scalp, a broken nose and multiple broken ribs.

9No victim impact statement has been made.  There is no information about any residual difficulty that your conduct has caused.  In two statements that he made to the police at the time, the victim said that he was 'sore all over his body'. He described that he was 'shattered' by your offending and that he worries that someone will break into his home again.  In light of him having cancer, he stated that he 'didn't need this' in his life.

10The offence of aggravated burglary is serious.  For the victim to be confronted by two offenders, as you forced your way into his home, must have been terrifying.  His perception of safety and security must have been affected.  The incident occurred during daylight hours, appears to have been of relatively short duration and was not sophisticated.  You were not disguised, nor were you armed with any weapons.  The fact that this offence was committed in company with each other is an aggravating feature.

11The charge of intentionally cause injury does not overlap the charge of aggravated burglary.  It is a separate offence, although all of the offending occurred as part of a single sequence of events.  You both committed the assault which continued, after the victim said that he suffered from cancer.  You, Manatopoulos-May, were more active in assaulting the victim, as you provided multiple blows to his chest after he tripped over.  While I accept that you, Gill and you, Manatopoulos-May, were complicit in committing the offence of intentionally cause injury, my view is that there is a reduced level of parity in relation to this charge, in light of the ongoing assaults committed by you, Manatopoulos-May.  By that, I mean that I consider that you, Manatopoulos-May, are slightly more criminally culpable than you, Gill, for the intentionally cause injury offence.

12The items that were stolen are outlined in the charge of theft.  The value of the property has not been provided, but it was not insubstantial.

13It is conceded by both of your counsel that the offences you have committed are serious.  Further, you both have an extensive criminal history.  Neither of you have provided a specific explanation for your offending conduct, other than you were both affected by drugs at the time.  At the sentence indication hearing, you both indicated that you had been to the victim's home, prior to this incident. 

14You were both charged in February 2021 and remanded into custody.  A contested committal was conducted in August 2021, where witnesses including the victim were cross-examined.  You were committed to stand trial and entered pleas of not guilty. 

15In September 2022, a pretrial hearing was conducted, which determined that contested DNA evidence led against you, Manatopoulos-May, was admissible.

16Your trial was listed on 25 May 2023.  As a result of a sentence indication that was heard on 8 May 2023, an updated indictment was filed and you both then pleaded guilty.  Your pleas were heard on the same date that your trial was due to commence.

17The evidence against each of you has been clear for a long time.  Although your guilty pleas have been entered at a late stage, they still have a utilitarian benefit.  You have saved the court and community the time and expense of running a trial.  You have also prevented the victim from being required to give evidence and cross-examined again.  Your pleas of guilty facilitate the efficient administration of justice and you are entitled to a benefit for that.  The utilitarian benefit of your pleas of guilty are to be enhanced by the fact that the Worboyes[1] considerations are engaged.  This results in a more pronounced amelioration of sentence than at another time.

[1](2021) VSCA 169

18Your pleas of guilty also demonstrate that you have finally now accepted responsibility for your offending.  Manatopoulos-May, you expressed regret for your actions to a psychologist in April 2023.  While I accept that a plea of guilty is consistent with remorse, your belated expression of regret is no more than that.  It is not specific evidence of remorse in this case.

Billy Gill ꟷ Personal circumstances

19You were born in January 1982 in Sunshine, being one of three children.  You are now 41 years of age.  Your home environment was subjected to domestic violence by your father towards your mother, when you were young. Your parents separated when you were 10 years of age and you were then raised by your father.  You had little contact with your mother from that time until you were aged 17.  Fortunately, you now maintain the support of both your parents.  Your mother was present at court for the sentence indication and your plea hearing.  Your plan is to return to live with your father, upon your release from custody. 

20You are not currently in a relationship.  You have two adult children who were raised by their maternal grandmother.  You have not had much contact with them throughout their lives, although you have recently resumed your relationship with your daughter, who is now aged 18 years. 

21Your daughter has written a letter to the court and confirms that she has been in regular contact with you over the past two years.  You have started to build a strong relationship and she looks forward to you becoming part of her life when you are released from custody. 

22You were educated in Hoppers Crossing and left school at the age of 15, after completing Year 9.  You then commenced employment on the wharfs as a forklift driver.  It was in that workplace that you were introduced to drug use, which ultimately resulted in the loss of your employment and brought you into contact with the criminal justice system. 

23Prior to your most recent remand, you were employed as a forklift driver.  You have employment available for you as a concreter, upon your release from custody.

24Your lengthy history of drug addiction, involving both heroin and methylamphetamine use, commenced when you were 18 years of age.  At the time of the current incident, you were using methylamphetamine daily.  Your history of criminal offending is drug related.  You are now in enforced remission, due to your incarceration.

25You have a lengthy and highly relevant criminal history.  You have admitted approximately twenty-five prior court appearances since 1999, including a plea of guilty in the County Court in 2012 to three charges of armed robbery, one charge of robbery and one charge of intentionally cause injury. 

26On 16 February 2012, you were sentenced for these offences.  I have read the sentencing remarks of Judge Lacava.  The motivation for the current offending and these earlier offences is not dissimilar.  Judge Lacava described that your offending was 'driven by your drug habit' and that you were under the influence of drugs at the time.

27Judge Lacava was told that you intended to make good use of your time in custody in 2012.  However, he stated that judging from your past record, he had little confidence that you would learn from your past mistakes.  Further, that you continued to reoffend because of your drug addiction.

28Regrettably, his assessment of your prospects was accurate.  There does not appear to have been a significant change in your lifestyle while in the community, over the past decade.  The current offences were committed within a few months of your release from custody.

29You were arrested on 7 February 2021 and have been on remand since that time.  While in custody, you have engaged in educational and vocational courses, as well as counselling.  You have served 839 days of pre-sentence detention.

30You have worked in the role of a 'peer listener' at the Barwon Prison for some time.  In a letter prepared for court by Corrections Victoria, you are described as a credit to the peer listener team and continue to provide support to others in custody.  This role indicates that you are viewed as a respectful and well-behaved prisoner, who is trusted by the prison authorities. 

31Your current progress over the past two years in custody, in combination with your future employment upon your release, your family support and the development of a relationship with your daughter, suggests that your prospects may have improved.  It is in your own interest to continue on this path when you return to the community.  Clearly, remaining drug free is a critical factor when considering your capacity to rehabilitate.  If you relapse into drug use, I find that your prospects are guarded.

32While you are not to be punished again for your past offending, your criminal history is an indicator of your moral culpability, your prospects of rehabilitation, your need for community protection and the increased importance of specific deterrence.  I am satisfied that the principles of general deterrence and punishment are clearly of relevance in the sentencing mix.

Daniel Manatopoulos-May ꟷ Personal circumstances

33You were born in June 1988 and are now 34 years of age.  You are the oldest of two children and grew up in the areas of Ascot Vale and Flemington with your mother and stepfather.  You learnt that your stepfather was not your biological father when you were in custody, when aged in your twenties.  Coincidentally, your biological father was undergoing a sentence for armed robbery at the same time that you were incarcerated and you got to know him for the first time.

34You maintain a positive relationship with your mother and intend to reside with her upon your release.  Your mother, your aunt and your brother were all present at court at your plea hearing.  You have previously been involved in a relationship which has now ended.  You have an 11-year-old son, although you have not had contact with him for a number of years.

35Your childhood was marred with violence, drug use and deprivation.  You were exposed to abusive behaviour from your stepfather, who was a heavy drug user.  You and your family were all subjected to his physical and emotional violence.  The violence towards your mother was sometimes so severe that police intervention was required.

36Your parents would regularly use heroin in front of you.  Your stepfather would steal items from the home to fund his substance abuse, leading to distress and frustration at home.  At times, you also observed your stepfather and your mother being handcuffed and taken into custody.  

37You completed Year 9 at Debney Meadows Secondary School.  You had increased difficulty in maintaining your attention and engaging in school.  You then worked for a brief period at a fruit and vegetable store.  You have a limited history of employment, however, as a result of your drug addiction.  Your primary source of income throughout your life has been Centrelink payments.

38You commenced using cannabis when you were 13 years old.  By the age of 15, you injected heroin daily, using up to half a gram per day.  Your drug use escalated when you were 17, when you used heroin and/or methylamphetamine daily.  Throughout your life, you have used cannabis, heroin, methylamphetamine, GHB, MDMA and cocaine.  While you have undergone a number of periods of abstinence from all substance use, primarily while in custody, you have relapsed into drug use when in the community.  You report that you used methylamphetamine daily at the time of the current incident.  You are now in enforced remission from drug use, due to your incarceration.

39Your criminal history is highly relevant with numerous prior convictions for dishonesty and several prior convictions for assault-related offending.  You have regularly appeared in the Magistrates' Court every year, since 2008.  You were first sentenced to immediate imprisonment in 2010 and have spent approximately 10 years in custody since that time.  In a report prepared by Ms Alison Mynard, psychologist, dated 26 July 2019, she opined that you had become 'somewhat institutionalised in custody'. The current offences demonstrate an escalation in the seriousness of your criminal conduct.

40You have persistently breached therapeutic court orders in the past, including a Drug Treatment Order that was imposed in 2017 and cancelled in 2018.  You were released on a Corrections order in December 2020, after spending 80 days in custody.  The current incident occurred two months after the CCO commenced, which is an aggravating feature of your offending.

41You were arrested on 24 February 2021 and have served 827 days of pre‑sentence detention.

42You have completed a number of educational and vocational programs, including a 24-hour alcohol and drug treatment program, while on remand for the current matters.  You describe this as being helpful and hope to remain abstinent from illicit substance use when you return into the community.  You are currently working in custody as a recreation support worker in the gymnasium.  You have enjoyed this position and hope to continue on this path on your release.

43At the request of your solicitor, you participated in a psychological assessment in April 2023, undertaken by Mr Austin Campbell.  In a report prepared for court, dated 18 May 2023, Mr Campbell provided a detailed account of your personal history and mental health background.  He also had access to a previous psychological assessment report from July 2019 and a neuropsychological assessment report from December 2010.

44Mr Campbell confirmed that you underwent a challenging upbringing which involved experiences of abuse and trauma, as well as exposure to maladaptive behaviours, such as substance abuse and antisocial behaviour.

45Mr Campbell's opinion is that:

·        You have limited insight into your emotional experiences and avoided acknowledging the presence of distress, when discussing previous challenging experiences.

·        You have a limited insight into your mental health history.

·        You were diagnosed with ADHD in December 2010 by Dr Linda Borg, neuropsychologist.

·         Mr Campbell conducted an assessment which confirmed that your results were consistent with an ADHD diagnosis.  Your symptoms of ADHD have remained consistent over many years.  You continue to experience issues with inattention and impulsivity that impair your functioning to a considerable degree.

·        Your drug use from a young age precipitated the development of a substance use disorder.  It has consistently been present in your life, with some periods of abstinence, primarily occurring in a controlled environment. 

·        Challenging events in your life have precipitated the development of symptoms of psychological distress.  These symptoms are likely to impact your functioning, although they remain unacknowledged and unaddressed by you.

·        Your substance use issues and subsequent engagement in offending behaviour are likely perpetuated by the ongoing impacts of ADHD.  You have relied on substances to cope with distress for the majority of your life.

·        You would benefit from psychological intervention which focuses on addressing the factors perpetuating your abuse of illicit substances, impulsivity and avoidant coping styles.  Therapy such as a Dialectical Behavioural Therapy would be beneficial.

46Your counsel has submitted that your childhood deprivation is a significant factor to be taken into account.  You were exposed to drug use by your parents at an early age, to the violent conduct of your stepfather and underwent a challenging upbringing.

47I accept that your disadvantaged childhood was traumatic and had an impact on your personal development, which reduces your moral culpability and is a mitigating factor.  The relevance of trauma does not diminish over time, notwithstanding your criminal history.

48I accept that the principles of Bugmy v R[2] are enlivened in your case and that this is a mitigating factor on your plea.  The prosecution does not dispute this submission.  Your moral culpability should be reduced accordingly.  The principles of deterrence, denunciation and just punishment should also be moderated, although they are still relevant and not entirely eliminated.  This is counterbalanced, however, by the need for community protection, which remains a relevant sentencing consideration, particularly in the context of your criminal history.

[2] (2013) 249 CLR 571

49Your counsel has submitted that your diagnosis of ADHD, where you continue to experience issues with inattention and impulsivity that impair your functioning to a considerable degree, enlivens the fifth limb of Verdins.  The prosecution agrees that this can be taken into account and the effects of ADHD may mean that a custodial sentence will weigh more heavily on you than on other prisoners with normal mental health.  I note that your diagnosis of ADHD was included in the material and relied on, for consideration when the sentence indication was given.

50I accept that Limb 5 of Verdins[3] is relevant, as are the sentencing principles of Bugmy.  While I am required to take these mitigating factors into account, I am still required to impose a sentence that is proportionate to the gravity of your offending.

[3] R v Verdins [2007] VSCA 102

51You have now been offered employment at 'Fruit 2 Work', upon your release.  In a letter dated 15 May 2023, the general manager writes your work will include pick packing and other roles.  As part of your employment, you are required to undergo random drug screens and participate in an educational program.  Your brother works at the same business.  He, too, has a criminal history and has managed to turn his life around, maintaining employment and abstaining from drug use.  You have indicated to the author that you want to contribute to society and get your life back on track.

52Your counsel has submitted that considering the treatment and employment that you have undergone while in custody, in combination with the stable accommodation and the offer of employment available upon your release, that your future prospects are now somewhere between good to fair.

53The prosecution does not agree, saying that your prospects are guarded.

54Mr Campbell described that in his opinion, your prospects for rehabilitation remain positive as a result of your engagement in a recent AOD treatment while in custody.  You are prepared to take medication to assist in maintaining your abstinence when in the community, which would reduce your risk of recidivism.  The opinion of the psychologist is not binding on the court and I do not accept it.

55I consider that your prospects present a complex picture.  Your capacity to remain drug free is a critical factor, to reduce your risk of re-offending.  You have continued to experience the ongoing impact of your ADHD, which was initially diagnosed in 2010.  You have not successfully managed your mental health in the past.  Mr Campbell opined that you would benefit from psychological intervention when you are released.  Nor have you successfully engaged with therapeutic court orders or parole, although your support compliance has improved while recently in custody.  It is in your own interests to continue on this path upon your release.  Clearly, compliance with the available support on parole will assist your rehabilitation.

56Your current progress over the past two years in custody, in combination with your employment that is available to you for the first time since your brief period of employment after you left school, as well as your family support, will be of some assistance to improve your prospects.

57However, I do not accept your counsel's rehabilitation submission, given the context of your personal circumstances and criminal activity.  I agree with the prosecution that your future prospects are likely to remain guarded. 

Both accused

58There is no dispute that the time you have served in custody is more onerous than for prisoners prior to the COVID-19 pandemic.  These conditions have added to your hardship in custody.  Regrettably, you both experienced the more onerous COVID-related conditions prior to this incident and they did not deter you from reoffending.  While additional restrictions are currently reduced, the evolving nature of the pandemic may result in future changes.  The hardship which has occurred as a result of the pandemic, including 14 days in quarantine upon your arrest, justifies a sentencing benefit.

59I have considered the principle of parity of sentence.  It does not amount to a mathematical equation and I am required to balance a number of factors in this case.  I have concluded that your roles in committing the offences of aggravated burglary and theft were similar.  While you were both involved in committing the offence of intentionally cause injury, Manatopoulos-May, your more consistent activity in the inflicting of injuries to the victim justifies a variation in parity for that offence.  You were also on a Community Correction Order at the time, which is an aggravating feature of your offending.  However, Manatopoulos-May, you have Bugmy considerations, which are enduring issues.  You also have an increased burden of custody, given your ADHD diagnosis.  These are mitigating factors.  Ultimately, I have concluded that the individual sentencing factors relevant to each of you, where different, operate to counterbalance between each other so that no distinction of sentence can sensibly be drawn between you.

60I do not accept that a slightly longer period on parole is appropriate for you, Manatopoulos-May.  Most of the matters that have been relied on were factored into the sentencing indication.  I consider that the sentence that I outlined, including a period of 21 months on parole, is appropriate.

61I take into account the maximum penalty for these offences and current sentencing practices.  The principles of totality also need to be considered.  I have taken care not to doubly punish you for the offences.  I have endeavoured to tailor your sentences to ensure that they are proportionate to your overall criminal conduct.  I have decided that there must be a level of cumulation of sentence, given the separate criminality between Charges 1 and 2. 

62Balancing all of these factors as best I can, I sentence you as follows:

Charge 1 – Aggravated burglary	You are both convicted and sentenced to 3 years and 9 months imprisonment	Base
Charge 2 – intentionally cause injury	Convicted and sentenced to 2 years’ and 3 months’ imprisonment	1 year and 3 months be cumulative
Charge 3 – theft	Convicted and sentenced to one year imprisonment.	3 months be cumulative upon the base sentence
Total Effective Sentence	5 years and 3 months’ imprisonment
Non-Parole Period	3 years’ and 6 months’ imprisonment
S6AAA	6 years’ and 6 months’ imprisonment with a non-parole period of 4 years’ and 8 months’ imprisonment
Pre-Sentence Detention – Manatopoulos-May	827 days
Pre-Sentence Detention – Gill	839 days

63Could I check, Ms Manova, were there any other orders sought?

64MS MANOVA:  No.  No, Your Honour, there aren't.

65HER HONOUR:  All right.  Before we adjourn the court, could I confirm that there were some summary offences that were transferred to the court when the accused were both committed to stand trial. I understand that they are all to be withdrawn.

66MS MANOVA:  That's correct.

67HER HONOUR:  All right.  I'll direct that the summary offences that remain on the court file are now withdrawn. I will leave the Bench.  I'm happy for Mr Ranjit and Mr Backwell to have a quick word to your clients when I leave the Bench.  I'll ask Ms Manova to leave the court when she's ready.  Thank you.