Director of Public Prosecutions v Godino

[2020] VCC 419

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-01760

DIRECTOR OF PUBLIC PROSECUTIONS

v

COREY GODINO

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JUDGE:	HIS HONOUR JUDGE PARRISH
WHERE HELD:	Melbourne
DATE OF HEARING:	10 March 2020, 25 March 2020
DATE OF SENTENCE:	8 April 2020
CASE MAY BE CITED AS:	DPP v Godino
MEDIUM NEUTRAL CITATION:	[2020] VCC 419

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW
Catchwords:             Sentence – one charge of burglary – one charge of theft of firearm
Legislation Cited:     Crimes Act 1958; s 74AA; s76; Sentencing Act 1991

Cases Cited:Phillips v R [2012] VSCA 140; R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269; Andrick v R [2010] VSCA 238; Postiglione v R (1997) 189 CLR 295; Bugmy v R (2013) 249 CLR 57; Brown AKA Davis v The Queen [2020] VSCA 60; Sazimanoska v The Queen [2020] VSCA 66; Nguyen v The Queen [2020] VSCA 76.

Sentence:Total effective sentence of 12 months imprisonment; 228 days pre-sentence detention reckoned as time already served under this sentence; 2 year Community Correction Order with various conditions; 6AAA declaration – 20 months’ imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Roper	Office of Public Prosecutions
For the Accused	Mr C. Terry	Patrick Dwyer & Associates

HIS HONOUR:

1Corey Godino, on 10 March 2020 you pleaded guilty to the following offences on Indictment K10289439.  Charge 1, that you at Tullamarine in Victoria on
1 October 2018 entered as a trespasser a building situated at 14-257 Melrose Avenue, Tullamarine, with the intention to steal therein. 

The offence of burglary is contrary to s.78 of the Crimes Act 1958 and carries a maximum sentence of 10 years' imprisonment.

2Charge 2, that you at Tullamarine in Victoria on
1 October 2018 stole five firearms belonging to Dominic Sciglitano and his wife, Annette Scaracino (“the complainants”). 

The offence of theft of a firearm is contrary to s.74AA of the Crimes Act 1958 and carries a maximum penalty of 15 years' imprisonment.

Circumstances of the Offending

3Counsel for the prosecution tendered a document headed, 'Summary of Prosecution Opening on Plea', dated 23 February 2020 (Exhibit 1) and I was informed by your counsel that you agree with the contents of such document.  In particular, I note the following:

·You are presently 32 years old, having been born on 5 December 1987.  At the time of the offending you were 31 years old, residing at 97 Churchill Avenue, Tullamarine, and was casually employed as a carpenter.

·At about 5.30 am on 1 October 2018 you broke into the, 'Hamper Creations', factory outlet at 14/257 Melrose Avenue, Tullamarine, which is co-owned by the complainants.

·The complainants were notified of the break-in via an alarm but dismissed it as false at the time and they discovered the break-in upon attending the factory later that day.

·The front door of the factory outlet was found by police to have been forced by an angle grinder or similar implement, which had been used to cut through the locks of the front door.  Inside a forklift had been used to ram into a narrow vertical firearms safe, ripping the safe door open, enabling the theft of five long arm firearms (two rifles and three shotguns) belonging to the complainants.

·Several blood stains were found by police on the door of the firearms safe as well as on the nearby compound that had housed a first aid kit.  Preliminary analysis of those blood samples indicated a positive match to you.  Three blood swabs located on the firearms safe and one blood swab found on the first aid cover were later analysed by a forensic scientist and also returned a strong match to you.  There is no CCTV of the break-in as the CCTV footage had been removed by the burglars.

·On 19 October 2018 one of the stolen firearms was located by police in Shepparton.  An individual was charged with possession of firearm without a licence and handling stolen goods, but who is otherwise unconnected with the matter.  The remaining four stolen firearms have not been recovered.

·You were arrested on 1 February 2019 at Noble Park railway station as a result of a police whereabouts and conveyed to the Dandenong police station.  When formally interviewed you denied any involvement with the offences.

4Counsel for the prosecution listed the key procedural dates as follows:

·filing hearing -15 February 2019;

·committal mention - 12 April 2019;

·bail application (which was granted) - 13 June 2019;

·committal - 2 September 2019;

·initial directions hearing (adjourned for resolution discussions) - 3 September 2019;

·bail revocation application (granted) - 19 September 2019;

·Adjourned initial directions hearing  -1 October 2019 when the matter resolved and the accused arraigned.

5There was no issue that you were on remand from 1 February 2019 to
12 June 2019 when a bail application was granted and bail continued until
3 September 2019 when bail was revoked due to new offending.  You have continued to be on remand to date.

Your Criminal Record

6Your courtroom record, dated 22 January 2020, was not tendered by way of oversight and accordingly I will order that that record be tendered and marked as Exhibit 2.  I note the following:

(a) on 28 August 2008 in the Korumburra Magistrates' Court you were convicted of two charges of burglary and one charge of theft and sentenced to a community-based order for nine months, commencing on 28 August 2008 with a special condition that you perform 40 hours of unpaid community work;

(b) on 21 July 2009 at the Broadmeadows Magistrates' Court it was found proven that you failed to comply with the community-based order on 28 August 2008 and you were re-sentenced to a further community-based order for 12 months with a special condition that you perform 50 hours of unpaid community work;

(c) on 4 November 2009 at the Melbourne County Court you were convicted of recklessly causing serious injury and sentenced to 15 months' imprisonment, 10 months of which sentence was suspended for
25 months, pursuant to the then s.27 of the Sentencing Act 1991;

(d) on 20 November 2014 at the Heidelberg Magistrates' Court you were convicted of theft of a motor vehicle, theft and obtaining a financial advantage by deception and were convicted and sentenced to an aggregate 16 months' imprisonment, such sentence was partially suspended pursuant to the then s.27 of the Sentencing Act 1991, and you served a period of incarceration of three months. Also on that date you were convicted of contravening a family violence intervention order and were fined $500;

(e) on 24 October 2016 at the Melbourne Magistrates' Court variation was made to your contravention of a family violence intervention order and you were sentenced in default of a payment of $500 to perform 17 hours' unpaid community work;

(f) on 9 February 2017 at the Melbourne Magistrates' Court it was proven that you contravened your unpaid community work order and you were convicted and sentenced to a fine of $500.

Other Offending

7I was informed that on 14 May 2019 (at which time you were remanded in custody) you pleaded guilty to 14 charges in the Magistrates' Court and were sentenced to 106 days' imprisonment, such time being the then pre-sentence detention.  By agreement between the parties, I was subsequently forwarded a preliminary brief statement made by the informant, Snart, who was the informant in relation to a series of offences occurring between 26 March and
28 March 2018, involving thefts, burglaries and other dishonesty offences.

8The Court has also been supplied with a preliminary brief statement made by the informant, Gimson, which sets out details of alleged offending by you over the period from approximately July 2019 through to 23 August 2019.  There are numerous offences involving theft, making a false report, obtain property by deception, affixing false number plates, committing an indictable offence whilst on bail, and burglaries.

9On 10 March 2020 I was informed that these matters were listed for hearing before a Magistrates' Court on 25 March 2020 and there was ongoing discussion between the parties with a likelihood that there would be pleas of guilty to at least some of the charges.  When this matter came back for further plea on 25 March 2020, I was informed that the Magistrates' Court hearing would be adjourned until such time as the sentence has been handed down in this matter.  As best I understand the matter, there has been no pleas of guilty in relation to any of the subsequent offending at the time of hearing the plea.

Your Education, Employment and Social Background

10Your counsel tendered the following material:

(a) outline of defence plea submissions (Exhibit A);

(b) your letter of apology dated 28 February 2010 (Exhibit B).  Your counsel submitted that you were not advised by your solicitor to write such a letter of apology but, rather, you enquired whether you could do this, and was assisted by the solicitor only in relation to matters of format and content.  I refer to some of that letter wherein you state:

'I'm writing you this letter to acknowledge my actions and take full responsibility for my offending and choices.  I have had the time and opportunity to clean up and reflect on my behaviour prior to being arrested.  It's becoming very clear that I need help and I was too proud to ask for it and come clean about my addictions and offending.  My substance abuse grew and in turn it led me down the wrong path and into the wrong circles.  Since coming clean to my family and partner they have been amazing in showing me I am not alone and have the support I need.  That's given the strength and positivity to really work hard to my rehabilitation.  I don't want to let my loved ones down or ever go back to being the person I let myself become.  I have become very proactive in signing up and completing drug related courses to learn an acquire the skills I need to stay honest and on the right path once again'.

You also pointed out that prior to your substance abuse you were operations manager at a small fit-out company and it was something you had worked your entire life to achieve.  I also note that you are excited about going back to your trade as a carpenter upon release from prison.  You ultimately note that:

“Jail is a horrible place to be.  As much as this place is horrible, it has probably saved my life.  The penny has dropped for that.  I can't help but feel thankful.  I have a new appreciation for life and respect it and others.  I am truly remorseful for what I've done and so sorry for how my poor judgment and actions affected the victims as a result of this.  I am sorry for all the hurt I caused”;

(c) a letter from your girlfriend, Ms Anna Zabowski, dated 25 February 2020 (Exhibit C).  In her letter, Ms Zabowski states she works for the ANZ Bank as a quality assurance analyst and has a degree in social science counselling.  She has been your girlfriend for four and a half years.  She notes that you are very remorseful for your actions and have expressed to her on countless occasions in custody and out of custody you understand these actions have consequences, not only to you but to your victims.  In particular, she states:

“During his time on remand he has made significant changes to better himself as a person and learn from his wrongdoings.  He wants to be a role model to others, form better habits, has done a lot of self-help as he wants to leave this unfortunate part of his life behind him.  He has enrolled in many classes at prison.  In terms of his work ethic Corey is extremely hardworking and is passionate in what he does.  He is very personable, he's always polite and has the ability to work with all kinds of people, as he is a people person.  He has worked within the building industry for 16 years and has proven his capabilities for being promoted to project manager at his previous workplace”;

(d) a reference from Mr Greg Robotis, dated 26 February 2020.  Mr Robotis, being the managing director of one of your former employers (Exhibit D).
Mr Robotis notes that he met you in 2016 when you were working for Construct, completing head office renovations.  He describes you as a wonderful person and has a lot of respect for you and has no doubt you would be feeling regretful, remorseful and disappointed for the actions you have taken;

(e) urine test samples, dated 10 May 2019, 22 November 2019, and
21 February 2020, all of which were negative (Exhibit E);

(f) various course certificates completed by you during the period of your incarceration (Exhibit F).  I have perused all such documents and note that you have been involved in a significant variety of courses relating predominantly to drug use and a variety of other matters including various courses with educational organisations;

(g) psychological reports from Ms Gina Cidoni, who interviewed you on
10 May 2019, (see a report of same date), and on 14 February 2020 (see a report of same date) (Exhibit G).

11Partly based on various submissions made by your counsel and on material to which reference has just been made, I note the following.

·You were born and raised in Melbourne by your mother and for a short time your biological father, who abandoned the family when you were aged two.  Apparently your father currently lives in Queensland and you have no contact with him.

·Your mother, Rhonda, entered into a relationship with your stepfather for approximately ten years, during which time your mother and stepfather had serious addictions to heroin.  Furthermore, your stepfather had a long term diagnosis of schizophrenia and a significant criminal history.

·You have two sisters, one of whom is 34 years of age, and the other, who is a half-sister, is 16 years of age.

·You attended Belfield Primary School and later the Latrobe Secondary School in Macleod until partway through Year 9.  On leaving school you successfully completed a four year carpentry and joinery course at a trade school in Heidelberg.  You completed the apprenticeship and became a qualified carpenter by 19 years of age.

·You worked in an uncle's business, Dallas Building and Maintenance, for
11 years from the age of 14 to 24, during which time you built your own home at the age of 19, which was later sold at age 21.

·From about 2010 you commenced subcontracting for various companies and, in particular, were also employed during this time by a construction company where you were employed in roles of lead carpenter, sight foreman and operation manager, performing high end fit-outs for the company.  You have also been contracted out to Mr Greg Revitas.  As I have already recorded, Mr Revitas is one of your referees.

·You also worked for MB Plastering in September 2014 for some time, working five days a week, constructing frames which MB would plaster.  You have always had employment up to six months before your initial remand in custody.

·You currently are in good physical health, although you did have a shoulder reconstruction for injuries suffered in a motor vehicle accident when you were aged 24.  Furthermore, you have had a laceration to your arm six months prior to your remand which meant that you were unable to work and was the catalyst for the offending before the courts at present.

·You always enjoyed going to the gym and you are interested in bodybuilding and had previously won some bodybuilding competitions in 2012.

12You were exposed to your mother's drug use and that of her partner, your stepfather.  You were neglected by your mother and abandoned by your father, as a result of which you developed gambling issues and using ice and subsequently lost savings. 

13You have instructed your counsel that you were diagnosed with depression in your teenage years and saw a psychologist but never was put on any medication.  Furthermore, you report previous gambling issues as well as mental health and significant drug issues.  The mental health issues are said to arise out of a turbulent and disadvantaged childhood. 

14You used cannabis in your teenage years but did not really like that drug but used methylamphetamines for approximately eight months prior to your initial remand in custody.  Unfortunately, after being released on bail on or about
12 June 2019 you eventually relapsed into drugs and committed further offending which are subsequent to the matters on the indictment, and those matters are the ones yet to be dealt with by the Magistrates' Court.

The Evidence of Ms Gina Cidoni

15The consultant psychologist, Ms Gina Cidoni, interviewed you on two occasions, the first being for two and a half hours on 10 May 2019 when you were at the Metropolitan Remand Centre; and on the second occasion, being for an unknown period on 7 February 2020, when you were at Ravenhall Corrections Centre.

16In particular, Ms Cidoni recorded how your mother suffered chronic hepatitis C and then reportedly developed liver cancer.  Your mother was gravely ill when you were serving your last prison term and died in 2010, some four or five days before you were released. 

17Ms Cidoni, during her first interview of you, performed various psychological tests.  One of the tests indicated that you had some mild anxiety with tension and nervousness, reflecting a level of immaturity and impressionability.  She also noted there was some indication of post-traumatic stress with some re-experiencing an arousal in avoidance behaviours.

18After her first interview Ms Cidoni was of the opinion that you had suffered a traumatic upbringing where your father was absent and your mother suffered a heroin addiction.  You were exposed to considerable negative input and that continued through your formative years.  Your earlier offending was linked to immaturity and binge drinking of alcohol, and imprisonment in 2014 had a sobering effect upon you.  In particular, she noted that you are very remorseful and had access to programs in prison in order to avoid drugs in the future.

19Ms Cidoni considered your intellectual memory functions to be intact and you do not have a major mental health problem, which augurs well for your rehabilitation.  In particular, she notes that you freely accept that during the period of offending you were a regular user of methylamphetamine. 

20When seen on the second occasion Ms Cidoni noted that after you were bailed on 13 June 2019 you and Ms Shabowski had rented a property together in Narre Warren, largely to avoid an unhelpful peer group.  Unfortunately, her grandfather in Poland fell ill and she travelled to care for him, being gone from Australia for more than a month.  Ms Cidoni notes that by the third week you relapsed into methylamphetamine abuse, which gave rise to the more recent offending.

21In her second report, Ms Cidoni noted that your major problem is drug use and that you have weak coping skills and she recommended that you participate in professional, ongoing counselling to build up your coping resources.  Your counsel disclaimed any reliance on the so-called principles enunciated in The Queen v Verdins, Buckley and Vo [2007] 16 VR 269.

Mitigating Factors Relied on by Your Counsel

22Your counsel submitted that both the offences of burglary and theft of firearms were neither “particularly serious examples” nor “particularly trivial examples” of the respective offences.  Both offences contain certain aggravating features but also lack significant features which would be expected in more serious examples of the respective offending.  In this respect it was submitted:

(a) whilst the burglary must involve at least some pre-planning (as evidenced by the method of entry), it occurred at a commercial premise where the likelihood of any person being present was quite remote;

(b) there is no evidence that the firearms stolen were there particular targets of the burglary.  It is equally likely that the offenders broke in and then turned their attention to the safe, as they would most likely have items of value in them;

(c) in relation to the theft charge, although it is accepted that the fact that multiple firearms were stolen makes this a more serious offence than an offence where a single gun was taken - however, there is no evidence that the stolen guns were taken with intent for them to be used in any particular or specific crime.

23Your counsel submitted that the following matters are relevant in mitigation of any sentence to be imposed on you by your offending:

(a) the plea of guilty, which although not early in time, has utilitarian value when considering such a plea obviated the need for a trial which would have involved time and cost;

(b) you have relatively “limited prior convictions”;

(c) you have demonstrated insights and remorse, as set out in your letter, and as noted by the psychologist, Ms Cidoni, and indeed, some of your referees;

(d) you had a severely disadvantaged upbringing which had a profound ongoing effect of childhood deprivation and trauma.  A reference was made to Bugmyv The Queen [2013] 249 CLR 571. In particular, it was submitted that the High Court acknowledged that the effects of profound child deprivation may compromise a person's capacity to control their impulses, and that they do not necessarily diminish with the passage of time. That may reduce an offender's moral culpability to some degree. The precise weight to be afforded the effects of social deprivation in an offender's youth and background requires individual assessment in each case;

(e) the concept of totality is relevant in two senses;  firstly, that there should be significant concurrency between the two charges on the indictment, and in this respect reference was made to Andrick v The Queen [2010] VSCA 238 at 36 where Weinberg AJ upheld an appeal in relation to, amongst other things, a burglary which had been committed in order to effect a theft. His Honour stated:

“There was one further specific error, in my view.  I have considered that sentences imposed on Count 3, burglary, and 4, theft, ought to have been totally concurrent.  These offences were part and parcel of a single transaction.  They were committed at the same time, at the same location and with the same end in mind.  The burglary was a precursor to the theft of the cheque forms, (which incidentally was itself a precursor to the fraud, which was the intended purpose of the entire exercise)”.

24Although it was conceded that the facts of Andrick (op cit) can be distinguished from those in this matter to some extent, it is ultimately submitted that any cumulation between the two charges on the indictment should be very modest.  Secondly, the totality principle requires the court in sentencing an offender for multiple offences to ensure that the aggregate term imposes “a just and appropriate measure of the total criminality involved”.  (Reference was made to the High Court decision of Postiglione v The Queen [1967] 145 ALR at 408).

It was submitted that the subject offending was committed in circumstances where you had committed other similar offences at and around this time and for which you pleaded guilty and were sentenced by the Magistrates' Court on
14 May 2019.

25Ultimately it was submitted taking into account the absence of any particular aggravating factors and the presence of the stated mitigating factors that a, “combination” sentence of both imprisonment and a community correction order would be an appropriate disposition. 

26It was submitted that you do not have an extensive relevant prior criminal history but, rather, you are a man who has demonstrated that you are capable of working hard and earning an honest income.  In this respect it was noted that notwithstanding a difficult upbringing you obtained an apprenticeship, completed it over four years, then had the wherewithal to purchase and/or build a house with your savings.

The Prosecution Response

27Counsel for the prosecution accepted that “totality” was relevant to the disposition of this matter in both ways submitted by your counsel.  Furthermore, counsel for the prosecution accepted that there was some prospects of rehabilitation if you can remain off drugs.  Counsel for the prosecution submitted that it would be open to the court to impose a, 'combination', sentence involving a period of imprisonment followed by a community correction order.

Community Correction Order

28Arrangements were made for you to be assessed for a Community Corrections Order.  That was undertaken on 18 March 2020.  I note that Community Correction Services assessed you as being, 'high risk', of reoffending according to the Level of Service Risk Assessment Tool.

29It was also noted that you had previous involvement with Community Correction Services, having been subject to two community work orders and two fine default orders.  You only successfully completed one out of four community-based dispositions.

30The Community Corrections officer noted that you presented as “willing and able to comply with a Community Correction Order” and that you could not identify any factors which would impact on your inability in completing the requirements of an order.  You advised the Community Corrections office that you had had a successful life, namely that you have been employed, and travelled and had a supportive friendship group.

31Unfortunately, as you made clear to the Community Corrections officer, you commenced using methamphetamine to manage emotions associated with the loss of your mother, and consequently you lost employment, which gave rise to antisocial behaviours.  In particular, the Community Corrections officer noted you expressed significant remorse for your behaviours and he acknowledged that it was significantly impacted by your substance abuse. 

32It was considered that you were suitable for a Community Correction Order and beyond the core conditions, there should be further conditions in relation to the treatment and rehabilitation of drug use (s.48D(3)(a) of the Sentencing Act 1991); treatment and rehabilitation in relation to programs for reducing offending (s.48D(3)(f) of the Sentencing Act 1991); supervision (s.s48E of the Sentencing Act 1991); and judicial monitoring (s.48K of the Sentencing Act 1991).

Conclusion

33The offences of burglary and theft are serious offences as is made manifest by their respective maximum sentence of 10 years' imprisonment and 15 years' imprisonment.  In particular, the legislature has seen fit to have a specific offence of theft of a firearm -no doubt recognising the danger of firearms being spread through the community illegally.  Your offending involved stealing firearms, consisting of two rifles and three shotguns, of which only one has been recovered. 

34The subject offending was also in the context that you had a prior conviction for burglary and theft in 2008 and also a conviction for, among other things, theft of a motor vehicle in 2014.  Furthermore, on 14 May 2019 you were effectively sentenced to then time served, 106 days, for what may be generally referred to as “dishonesty offences”, including burglaries and theft.

35Of course, you are also facing charges relating to burglaries and theft which mostly occurred after the subject offending and which are to be determined by a Magistrates' Court.  Although there was some indication by your counsel you were intending to plead guilty to at least some of those offences, I understand the situation to be that no plea has been entered in relation to any of those offences.

36Generally, where subsequent offending has been dealt with, the fact of further offending, although clearly not a prior conviction, can give some indication as to the prospects of rehabilitation. In all the circumstances, I do not consider that anything can be said more than you face similar offences to those on the Indictment, for which there is yet to be a determination of your guilt or otherwise.

37I do accept that when you burgled the premises at Melrose Avenue, Tullamarine, on 1 October 2018, you had no knowledge of the five firearms being held in the safe at the premises and you only became aware of those firearms after you forced open the safe at the premises.  I also accept that the burglary was undertaken when it was unlikely you thought people would then be present at the time of the burglary, and this, of course, also suggests a degree of pre-planning.

38I do accept that for most of the time you were committing the subject offences and, indeed, the earlier offences, you were under the throes of methamphetamine.  Furthermore, I also accept that you have made some real effort to overcome the causes for your offending, and to this end have undertaken many courses in prison concerning drug, mental health and training for the future.  However, as Ms Cidoni states, and I accept, your major problem in the past has been drug use brought about by weak coping skills, as demonstrated during your period of bail in 2019, during which time you relapsed into drug use and are now facing similar or further charges, rather, yet to be determined.

39Because of your efforts and determination to overcome such problems your counsel characterises your prospects of rehabilitation to be, 'excellent'.  I consider it early days yet and also note that the Community Corrections officer assessed you as being a “high risk” of reoffending.  In all the circumstances I would characterise your prospects of rehabilitation as “promising” but you will have to learn after your release from prison to cope better with the day to day stressors that have in the past caused you to resume your drug habit.

40In mitigation I do accept that, as described by Ms Cidoni, you have suffered a traumatic and disadvantaged upbringing, where your father was absent and your mother suffered a heroin addiction.  Furthermore, your stepfather physically abused you.

41I again accept that you were diagnosed with depression in your teenage years, having experienced significant drug issues from your teenage years, initially cannabis and later methamphetamine.  Such background with its likely attendant difficulties of controlling impulses has the potential to reduce your moral culpability.  In the circumstances of this matter, I do consider your moral culpability is reduced to some extent because of this horrific background.  However, it is to be noted that you have clearly demonstrated periods where you have been able to work successfully, build a house and live a drug free life.

42In further mitigation I take account of the following:

(a) your plea of guilty, although not early in time, does have utilitarian value;

(b) I accept you have shown insight and remorse in respect of your offending, as noted by the psychologist, Ms Cidoni, your letter and, indeed, some of your referees.  I tend to the view also that your strong desire to improve yourself is made manifest by the number of courses you have undertaken in prison again demonstrates insight and remorse to your offending.  I also take account of your willingness to potentially provide information and assistance to the police in certain matters;

(c) as I have already noted, I accept that you have demonstrated in the past that you are capable of working hard and are fortunate in having completed a carpentry apprenticeship, which gives you the ability to return to gainful employment.  Clearly enough, at one stage earlier in your life you had the ability to work hard and the wherewithal to purchase a house from your savings.  Furthermore, you are in a relationship with Ms Schabowski, who has attended this plea hearing and made plain that she is a stable and supportive, long term partner;

(d) I accept the submissions of your counsel that totality is relevant in the two ways submitted by him:

(i) firstly, it is to be noted that you were effectively sentenced to
133 days' imprisonment on 14 May 2019 in respect of the offending occurring in 2018.  Obviously enough, and ideally, if the subject offending had been part of that process, there would have been only modest cumulation;

(ii) secondly, I accept the submission (as do counsel for the prosecution), that there should only be modest cumulation in relation to the offences of burglary and theft, but clearly enough, they are two distinct offences.  However, given the close proximity of the occurrence of the burglary and the theft, I do accept cumulation should be “modest”.

43I consider that the relevant sentencing factors to include general deterrence, protection of the community, denunciation of such offences and, indeed, to some extent specific deterrence given your record in the past, notwithstanding your clear determination to overcome that, I take into account all of these matters and, indeed, the mitigating matters to which I have reserved.

44I also consider that the COVID-19 pandemic has potential relevance to your sentence.  To date the Court of Appeal has been hesitant to express a general statement of principle in relation to sentencing practices.  I refer to Brown AKA Davis v The Queen [2020] VSCA 60, a decision of Priest and Weinberg JA, delivered on 23 March 2020, Sazimanoska v The Queen [2020] VSCA 66, a decision of Priest and Weinberg JA, delivered on 26 March 2020, and
Nguyen v The Queen [2020] VSCA 76, a decision of Niall JA and Croucher JAA, delivered on 1 April 2020.

45In particular, the court in Brown at paragraph 48 stated:

'With regard to the COVID-19 pandemic and the submission put forward on behalf of the applicant in that regard, we readily acknowledge that this is a matter that is certain to come before the court again in the immediate future.  In the absence of any adequate material concerning the impact of the virus upon the Corrections system, as matters stand, and given that the situation is one that is rapidly evolving, we are hesitant to express a general statement of principle regarding how this court and others should deal with this crisis as regards its effect upon relevant sentencing principles.  We do accept, however, that the situation is causing additional stress and concern for prisoners and their families, as it is for every member of the community.  The extent to which that maybe taken into account, if at all, will be a matter to be resolved in the particular facts of any individual case'.

46As noted by the Court of Appeal, it is difficult to make a statement or principle when information continues to evolve and, indeed, precisely how Corrections will react to the changing circumstances.

47Of course one must not speculate but general terms I do take into account the following:

(a) in a prison population where social distancing may well be significantly more difficult than in the general community, and accordingly, the risk of contracting the disease does give some basis for asserting that prison adds a greater hardship in relation to the virus than others in the general community;

(b) that the situation generally results in greater periods of lockdown, varying between total lockdowns or extremely severe lockdowns which in many prisons is occurring now;

(c) furthermore, because of social distancing issues and the like, contact with families and loved ones is decreased or in some cases are terminated until this disease has been properly dealt with.

48I am prepared to take these matters into account as matters which make your period of imprisonment more difficult than normal because of the disease and greater than one would experience in the outside world.

49I intend to convict you of both offences and sentence you to a period of imprisonment followed by a Community Correction Order of two years.  Beyond the core conditions there will be orders consistent with the recommendations made by the Community Corrections officer. 

50Please be upstanding. 

(a) in relation to Charge 1 on Indictment K10289439 you are convicted and sentenced to six months' imprisonment;

(b) in relation to Charge 2 on Indictment K10289439 you are convicted and sentenced to 10 months' imprisonment.  This is the base sentence;

(c) I order that two months of the sentence in relation to Charge 1 be served cumulatively upon the sentence imposed in relation to Charge 2.  The total effective sentence is 12 months' imprisonment;

(d) I declare that you have served - do I take it to be right, 228 days?

51MR TERRY:  I thought it was 230.

52HIS HONOUR:  230.  I declare that you have served 230 days in pre-sentence detention in relation to the subject offences and such period is to be administratively deducted from your sentence;

(e) furthermore, in relation to the charges on the indictment you are further sentenced to a Community Correction Order for a period of two years.  On release from imprisonment you must attend the Dandenong GSO or GSAS, 4650 Walker Street, Dandenong, within two days of being released.  In addition to the mandatory terms there will be the following terms:

(i) pursuant to s.48E of the Sentencing Act 1991 of the Act you are to be supervised, monitored and managed as directed by the secretary for the Department of Justice and Regulation for the duration of the Community Correction Order;

(ii) pursuant to s.48D(3)(a) of the Act you are to undergo assessment and treatment, including testing for any drug abuse or dependency;

(iii) pursuant to s.48D(3)(f) of the Act you are to undertake any program which addresses factors relating to your offending behaviour;

(iv) pursuant to s.48K you are subject to judicial monitoring and I direct that the first day for attendance for judicial monitoring be - - -

53What is the date we had this morning?  Look, just so you understand what - the meaning of this.  Allowing - it's approximately, I think, four months to go.

54MR TERRY:  Four and a half I think, Your Honour.

55HIS HONOUR:  Yes.  So coming out I will arrange for a judicial monitoring in - I am away in October.  I will arrange some date in November, so we will organise that now.  Monday, 9 November.  I declare, pursuant to s.6AAA of the Act, that save for your pleas of guilty in relation to the indictable offences, I would have ordered a sentence of 22 months' imprisonment.

56Mr Godino, I do not know if you took that all in.  What it effectively means is this.  That your overall sentence is 12 months.  You have done about seven and a half months of that, nearly eight.  So you've got about four months to go and then you come out and then you obviously will live at large but you will be subject to this Community Correction order, and that is going to run for two years, but what you have to understand is several things.

57The first thing is a Community Correction Order is a sentence of the court like any other sentence, and if you breach it you are back before me and I can, if I so chose, re-sentence you, and that can include more prison in the worst case, but the second thing you have to understand is what in your case the Community Order has no punishment aspect because the punishment is the prison now, but the orders are to try to help you in your drug and mental health and trying to overcome these things, because clearly enough, as you have made plain, you are quite capable, once you are on the right track, you are capable of getting back to work and you are fortunate that you have a trade you can go back to and you have support from, clearly, a very staunch partner.  So these are very good things for you in the future but I just want you to understand the Community Correction Order, although it is an order or a sentence of the court, it is largely for your benefit, to help you in times where you might have difficulty and tempted about drugs or whatever.

58Now, that has to be said I know, in the context, and I have accepted in this sentence that you have made significant efforts to overcome the problems of the past, but unfortunately you have relapsed in the past also.  So it is very important, as I think you have made comment earlier, reflect on all these matters and when you do get released in a few months or four months' time or whatever it is, and you start the CCO, you have really got something to aim for.  When you get back to work and get on with life the CCO will go very quickly but you have to make that decision, which I think you are pretty well there now, but you have to really turn your mind to that and work through that.  Do you understand?

59OFFENDER:  Yes, I do, thank you, Your Honour.

60HIS HONOUR:  And the other thing I have ordered is what is called a judicial monitoring.  What that means is a couple of months after you have started your CCO I will bring you - that date counsel will have taken - that date will be, you will have to come back here and it is a bit like, if I call it reporting to the headmaster and see whether - a card as to see how you are going, and if Corrections say you are going well, that is great, but I can tell you I would get very annoyed if I thought that you were not participating in that order.  So that is a matter which I am sure you will participate in because it is for your own good.

61Yes, very well, do counsel want to raise anything?  Yes, just for your knowledge, Mr Godino, for the Community Correction Order using - when you are in the court, it is signed on the spot, it is going to be necessary that, this is happening in all cases now, you know, the CCO documentation will be sent to the prison.  You will have to sign that.  You will no doubt be told all about that though.  Yes, do counsel want to raise anything?

62MR TERRY:  Nothing, Your Honour.

63HIS HONOUR:  No?  Yes.  Very well, you are free to leave and we will call on the other matter.

64MR TERRY:  Thank you for collating the further plea in this matter.  It has been a bit protracted.  I am grateful to Your Honour for hearing the further plea in this matter.

65HIS HONOUR:  That is fine.  All right.  Yes, you are free to leave.

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