Director of Public Prosecutions v Green
[2023] VCC 1815
•9 October 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case Nos;
Bird: CR-22-00522
CR-22-01620
Green: CR-22-00521
CR-22-01619
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SIMON JOHN GREEN LUKE BIRD |
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JUDGE: | HER HONOUR JUDGE WILMOTH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 August 2013 | |
DATE OF SENTENCE: | 9 October 2023 | |
CASE MAY BE CITED AS: | DPP v Green & Anor | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1815 | |
REASONS FOR SENTENCE
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Subject: Criminal law - sentence
Catchwords: Both pleaded guilty to aggravated burglary, unlawful assault, possession of drug of dependence
- gained unauthorised entry to apartment block - masked – carrying concealed gun – no actual threat to public – minimal damage – similar offending, criminal histories and drug use
Cases Cited:Bugmy v R [2013] HCA – DPP v Phillips & Spowers [2021] VCC 1393 – Sentencing Snapshot No 262
Sentence: 9 months imprisonment for aggravated burglary – 2 year CCO - concurrent 1 month unlawful assault - $500 possession
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms J. Piggott | Office of Public Prosecutions |
| For Offender Green For Offender Bird | Mr C. Nikakis Ms M. Walker | Haines & Polites Melinda Walker Criminal Law |
HER HONOUR:
1Luke Bird and Simon Green have both pleaded guilty to a charge of aggravated burglary, which occurred on 30 June 2021. On separate indictments each accused has also pleaded guilty to possessing a drug of dependence, which occurred on 5 July that year.
2Both men have pleaded guilty also to one charge of unlawful assault.
3The plea in relation to Mr Bird was heard by me on 30 August 2023 and was adjourned part-heard until 12 September. On 30 August Mr Nikakis who appeared for Mr Green, applied for an adjournment which was granted.
4On 12 September I heard the plea for Mr Green.
5A third accused man, Fiamate Siaosi, was also charged with offences arising out of the same incident on 21 June, but he has been charged separately, and his plea will be heard on 17 November.
The offending
6Green and Bird are charged with aggravated burglary on a complicity basis.
7On 30 June 2021 at about 10 pm Green, Bird and Siaosi went to the front of an apartment building at Victoria Street, Brunswick. The prosecution summary described them as having loitered at the rear and at the entry of the property for about 40 minutes, captured on CCTV.
8Bird can be seen trying unsuccessfully to enter the building by forcing open the front door. All three then walked away from the front door and continued to loiter at the rear and the front of the building.
9At about 10.35 pm Green can be seen on CCTV putting on a fake red beard, while at the front of the premises footage shows, a short time afterwards, a resident from the apartment building walking out of the front door and causing the secure doors to remain open for a short time. The footage then shows Green walking into the building at 10.39 pm, through the open front door. Then the resident walked back in a short time after Green.
10A minute later CCTV footage shows Bird stopping the automatic doors from closing and shows him entering the building. Bird was carrying a pizza box, and he opened the front automatic door for Siaosi. That is the charge of aggravated burglary, on the first indictment.
11The three men then made their way down to the basement of the building, forcing entry through secure doors requiring swipe cards for access, using a jemmy bar.
12Metal compliance tags taken from fire extinguishers were located in the door catches to prevent the interior doors from locking.
13CCTV footage from inside the building shows the three men searching through the tray of a Ford Ute, registered to the victim. Green was holding a firearm in his left arm at this time, later identified as a sawn off .22 rifle.
14The men then walked up to the ground floor from the basement, gaining access to the fire escape by forcing the door open to Level 1.
15On level 1, the three men entered apartment number 102 via the unlocked front door. The victim and a female occupant were seated in the living room of the apartment and saw the three men walk into the apartment.
16The victim was known to Bird from their time in prison together.
17The three men were each wearing face coverings to conceal their identity. Green was carrying a firearm and wearing a fake red beard.
18The victim stood up to confront them, grabbing the firearm held by Green, leading to a short struggle in which the wooden grip and metal tubing from the firearm broke off and fell onto the floor.
19Siaosi then pushed the victim into the bedroom and onto the bed. That is the summary charge of unlawful assault. The female victim took this opportunity to run out of the apartment. She went to a friend’s house and called the police. Bird followed Siaosi and the victim into the bedroom, and at some point his wallet fell from his pocket onto the bedroom floor. Green remained in the living room. Siaosi and Bird told the victim not to call the police, or words to that effect, and the three men left the apartment.
20Just after midnight, by then the 1 July, police went to the apartment and located in the bedroom a wallet containing ID documents belonging to Bird, and items broken off a .22 sawn off rifle. They also found a pizza box and metal compliance plates wedged into the door.
21A statement was taken from the victim, who said he knew Bird and that Bird had done 'the wrong thing' by him recently and owed him $50. He said he had been in contact with Bird several times recently, including around midday the previous day.
22Green was arrested on 5 July in Preston and was transported to his home address in Mill Park, where a man who opened the door was identified as Fiamate Siaosi. A search warrant was executed there and items were found including a knife, and a parcel with the victim’s name on it. In Green’s bedroom police found a round of ammunition, two mobile phones belonging to the victim, a fake red beard, and a pair of grey and green Nike runners, matching those worn by Green on the 30 June. Police also found there some power tools and other tools belonging to the victim. In the BMW car driven by Green police found a zip-lock bag of cannabis weighing 7.2 grams.
23Siaosi and Green were then interviewed at the police station.
24Green stated that he had not done anything wrong and denied that it was him in the still CCTV images he was shown. He denied possessing a firearm.
25Later that day police went to 21 Pinewood Drive, Thomastown, and arrested Bird. At that address they found clothing and shoes consistent with those Bird was seen wearing on 30 June, and a zip-lock bag of cannabis weighing 22.8 grams.
26Bird was interviewed at the police station later that day, making no comment.
27Police later tested the firearm with the cartridge located in Green’s bedroom, and the two were found to be compatible.
Gravity of the offending
28The prosecution sought to characterise this offending as at the high end of seriousness, describing it as planned and quite brazen, committed in company, with disguises used to avoid recognition under CCTV cameras, being armed, at night, seen loitering around the entrances, and in a residential building. These features of their presence constituted a possible risk to the public.
29The contrary view advanced by Mr Nikakis who appeared for Mr Green, was that the entry to the building suggested it was unplanned and opportunistic, in following a person through the door, with the firearm hidden, and no members of the public in the vicinity.
30An objective view is that the incident was certainly planned up to a point, with an opportunity for entry to the building arising from the entry of the person the men followed through the door. The fact that the firearm was hidden suggests that at the point of entry there was no actual threat to anyone and nothing to suggest that there would have been. The behaviour of the men at this point was not confrontational.
31The offending was not at the highest end of seriousness, nor even very high; it was probably closer to mid-range, and it is difficult to be more precise. Once inside the apartment the firearm was not used in any manner and the assault against the victim was in the form of a push.
32The seriousness of any aggravated burglary is demonstrated by the maximum penalty available, which is imprisonment for 25 years. It is recognised that there exists a wide range of possible examples of the crime.
33For the other charges the maximum penalties are as follows:
·for unlawful assault, three months,
·For the offence of possessing a drug, the maximum penalty is five penalty units, if the possession was not for trafficking purposes. There is no evidence that it was in this case, and it was a small amount
34The case against Bird was resolved on 23 May 2023 and Green a week later. Both were arraigned and pleaded guilty on 13 June.
35The matter of Siaosi was resolved on 11 June and he was arraigned and pleaded guilty on 26 June.
Mr Bird’s personal background and circumstances
36I turn now to personal matters relevant to Mr Bird.
37Mr Bird, as I have said you pleaded guilty on 13 June. The procedural background is that a committal was held on 15 March 2022 but the victim was reluctant to give evidence and his statement was withdrawn from the brief of evidence. Despite that, some matters that were in his statement have been included in the prosecution opening and through your counsel you have taken no issue with that.
38It appears that the victim would likely have been unavailable for any trial, and after an unsuccessful application for discharge, on 1 April you and the other accused were all committed for trial.
39It is clear that your plea was made on the basis of complicity with Green, who had the firearm, and that the aggravated burglary is put on the basis of entry into the building rather than the apartment.
40Your first offer to the prosecution to resolve the case was accepted and so your plea can be regarded as having been made at the earliest opportunity. If the trial had proceeded the female occupant of the premises would have been available to give evidence, but there would have been pre-trial issues relating to the likely absence of the victim. In that context the plea has considerable utilitarian value and warrants a discount on your sentence. Generally, the expense and inconvenience to witnesses and others has been avoided. Until very recently the backlog of cases due to the pandemic was still being overcome by the court, and that has added to the value of a plea. Accordingly, you are entitled to an appropriate discount on your sentence. I accept it also as an indication of remorse and acceptance of responsibility for your offending.
41You are a 45-year-old man, born to parents who separated when you were aged 13. Your early childhood years were marred by parental alcohol abuse and exposure to family violence. You have described your father as distant and at times physically violent towards your mother. You remember your mother as nurturing but after the separation you lived with your father and had to take on responsibility for your younger sister, as your father was often away from the house working long hours.
42I digress from this history to note that it was around the age of 14 that you first came to the attention of the police, when you were caught swimming in the school pool when the school was closed. This was at a time when you had little parental supervision or attention and you were probably left to your own devices. You were not in trouble again until you were 17, which marks the beginning of your criminal history.
43After your parents’ separation your mother began drinking alcohol heavily, and sadly she died from liver failure in 2006, five days after you were released from prison.
44Around the time of your parents’ separation, you began using cannabis, and when your sister later became a heroin addict you attributed it to her exposure to your drug use, but of course her childhood deprivation, like yours, would have contributed to that.
45You recall having done well at school in the primary years, but your behaviour deteriorated at secondary school and in the absence of parental supervision you often truanted.
46You left school with a Year 9 pass and after doing odd jobs you obtained a permanent position as a factory worker. You remained there for four months and then worked in various labouring jobs.
47According to a psychological report dated 11 June 2013, you continued to use cannabis almost daily since you were 14, and over the years you added benzodiazepines, amphetamine, alcohol and ecstasy, all used to varying degrees.
48That report was furnished by Mr Peter Stanislawski, whom you consulted initially in 2008 for assessment purposes. He assessed you as suffering from anxiety and depression, stemming primarily from the time of your mother’s death You returned to see Mr Stanislawski for counselling and saw him three times in 2013, but then ceased attending, perhaps due to funding problems.
49Mr Stanislawski considered that you were quite motivated to have treatment and that you attended a drug rehabilitation program that year. You revealed to him that as a boy you had identified with your uncles who were engaged in criminal activities and had antisocial attitudes.
50Although these two reports are very dated, they are useful in describing your drug history in the context of your background, which suggests potential for rehabilitation, indeed for redemption.
51After the committal hearing on 1 April 2022 you were bailed but on 25 April 2023 you were remanded in custody for other matters, mainly charges of burglary and theft, due to be heard very soon, as pleas of guilty in the Magistrates Court.
52While on bail for just over a year you were on the CISP program until October 2022, and during that time you arranged for a new NDIS provider, through which you were previously supported, and this continued while you were in custody. The NDIS package, which is ready to be implemented on your release, is provided on the basis of impairment through an acquired brain injury and post-traumatic stress disorder, conditions which result in the difficulties you experience in trying to organise your life without structural support.
53That suggests that the current offending may be an example of your poor decision-making in the context of a dispute of the type that you apparently had with the victim.
54While on bail, and later in custody, you attended drug awareness programs and you were able to obtain housing, which is being held for you pending your release. Previously you lived with your father which was problematic because of his drinking and an unworkable relationship between you.
55Ms Walker, on your behalf, submitted that the principles in the case of Bugmy [1]apply, given your deprived childhood. I take into account that your particular childhood deprivation has continued to affect your life, as demonstrated by your long-standing drug addiction and your dysfunctional relationship with your father. Mr Stanislawski described your drug and alcohol use as a means of reducing anxiety.
[1] Bugmy v R [2013] HCA
56You have had chances before, given to you in the form of a Community Correction Order and parole, and Ms Piggott for the prosecution, while submitting that regardless of these chances you have continued to offend, acknowledged the possibilities for redemption, albeit not encouraging.
57Indeed, you have an extensive criminal record, beginning when you were just within the adult jurisdiction, but with no previous convictions for aggravated burglary. You began serving prison terms in your early twenties, and later, when given chances to avoid prison, you failed.
58Now a middle-aged man, you face a dismal future if you are unable to avoid offending. Ms Walker submitted that you have reached a stage of accepting personal responsibility for your offending and are motivated to change.
59You have already been in custody for these matters for 430 days - that is subject to any correction - much of it in lockdown due to the pandemic and at a time when the chances of infection in prison were potentially high.
60Your counsel has submitted that an appropriate sentence would be a combined prison term and a Community Correction Order. In determining if that is warranted, I have considered the importance of general and specific deterrence. The effect of the principle in the case of Bugmy is that your moral culpability is somewhat reduced, which in turn reduces the need for the sentence to reflect general deterrence.
61As for specific deterrence, like general deterrence it has a considerable role to play, but it is to be assessed proportionately in the light of your motivation to change as demonstrated by your efforts in custody and on bail, and the structured support to be expected from the NDIS package.
62Your further offending while on bail brought you back into custody in April this year, as I said earlier. This was after you had successfully completed CISP and while it appears that you were in the process of arranging your accommodation and moving out of your father’s home. Since then you have spent a further six months in custody.
Sentence - Bird
63Notwithstanding that, there are compelling mitigating factors justifying your release from custody in the form of a combined imprisonment and Community Correction Order, for which you have been assessed as suitable.
64Would you stand for a moment please, Mr Bird.
65I sentence you to nine months' imprisonment for aggravated burglary and one month for the summary charge. For possessing a drug, I impose a fine with conviction of $500.
66For the charge of aggravated burglary, I also impose a two-year Community Correction Order, which will commence when you are released from custody. There will be a conviction recorded. You will be under supervision and must perform 200 hours of unpaid community work. You must also be assessed for drug and alcohol treatment.
67Any hours spent in programs can be credited to your community work hours.
68I declare that you have already spent nine months in pre-sentence detention, to be reckoned as already served. This leaves about six months of undeclared time. I shall cause the nine months pre-sentence detention to be noted on the court record.
69Now Mr Bird, do you agree to be bound by the conditions of this order?
70OFFENDER: Yes, I do.
71HER HONOUR: You must understand that if you were to breach the order by non-compliance, or by reoffending, you will have breached the order and you will have to return to court to be resentenced.
72You must attend the Corrections office at the Melbourne Justice Centre within two working days of your release.
73If you had pleaded not guilty to these charges, I would have sentenced you to three years' imprisonment with a non-parole period of two years.
74You can be seated now, thanks Mr Bird.
75MS WALKER: As the court pleases.
76MS PIGGOTT: As Your Honour pleases.
Mr Green’s personal background and circumstances
77I now turn to you, Mr Green. You are aged 55 and you are the father of three small children, two boys aged four and a half and three who have been in your care for a year, and an 18-month-old girl since February this year.
78Their mother suffers from what would appear to be a serious drug addiction and the children had been in State care or with their grandmother. After taking part in Children’s Court proceedings the children were eventually placed with you. In order to achieve this, you were subject to various services to satisfy the relevant department that you are free of drugs, involving urine analysis and other obligations.
79Like Mr Bird you have an extensive criminal history beginning when you were 18. At 19 you were placed on a Community Correction Order for aggravated burglary and intentionally causing injury. After that and until this matter all your offending was at a relatively low level and was dealt with in the Magistrates Court. In June 2021, a few weeks before the offending in this matter, you appealed against a sentence of imprisonment for a large number of driving offences. A judge of this court allowed the appeal and imposed a Community Correction Order requiring you to perform 600 hours of community work. You were remanded in custody for these matters on 6 July 2021, and when released on bail on 1 April 2022 Corrections allowed you to continue with the Corrections order and you completed the 600 hours.
80You were placed on strict bail conditions, which included obeying all lawful directions of the Department of Families Fairness and Housing in relation to your children, not to use drugs and to engage in treatment and follow all recommendations as to treatment. It is well-known that this is a difficult program to fulfil to the satisfaction of the Department.
81You were required to report on bail daily, and with no driving licence you had to use public transport or bicycle or seek a lift from friends. You never breached these conditions.
82A Child Protection practitioner has provided a written statement as to your recent engagement with services dealing with both your and the children’s needs, and states that you have engaged positively. A Corrections report dated 14 July 2022 included the opinion of the writer that '…it is clear that his children are his biggest motivation to maintain change.'
83Even when your children were placed in your care, you continued to meet your obligations with Corrections, although that service did allow you some flexibility. The order does not expire until 12 March 2025. Fortnightly supervision is continuing, incorporating offence-specific discussions and development of case plan goals. A recent Judicial Monitoring report refers to the exceptional progress you have made in almost completing the 600 work hours, which you achieved by the time of the plea hearing. You are still engaging in several programs dealing with such issues as relapse prevention, parenting skills and community supports.
84On 30 August you appeared before me to answer your bail when Mr Nikakis applied for an adjournment of the plea hearing. You had been unable to engage your regular babysitter to look after the children, and so you called upon their mother. She came to your home to mind the children but fell asleep. The children got out of the house and were seen by a neighbour, who called the police, who in turn called the Department and the children were taken back into care.
85I am told you have now spent several days at the Children’s Court trying to have the children returned to you. You have since been allowed access with them. Your ultimate plan once the children return to you is to move to a location near Geelong, where your mother lives, so that she will be able to help you.
86Further material confirms that the children are now on an interim accommodation order and you have regular contact with them. Once again, you are subject to extensive conditions which you will have to fulfil before you can get the children back in your care.
87Your role in the offending was arguably more serious than that of Mr Bird, as you carried the gun and attempted a heavier disguise with the fake red beard, but given the complicity of all three of you, I do not intend to differentiate between you on that basis, in terms of an appropriate sentence.
88I have heard no details as to your early life other than your work as a truck driver, and the role of drugs in your life. Insofar as I can discern from your criminal history some aspects of your background, that history reveals serious offending, although of a different type to the current offending, and multiple driving offences, drug offences and dishonesty offences consistent with a drug-affected lifestyle. The prior conviction for aggravated burglary was committed when you were 19, more than 30 years ago, and a Community Based Order was imposed, indicating a low level of gravity at that time.
89Now in your mid-fifties and keen to continue with the responsibilities of caring for your children, your life is very different.
90Older offenders with many years of criminal behaviour and prison sentences defining their lives, can still be considered as worthy of being offered further chances that allow them to avoid imprisonment.
91As to the need for the sentence to reflect both general and specific deterrence, I make the same observations as in relation to Mr Bird. While the Bugmy principle does not apply to you, your personal circumstances are most unusual, which I shall address later in these sentencing remarks. The strength of parity in this case leads to a reduction in the sentence overall, and the application of the intuitive synthesis approach has a similar effect.
92In determining appropriate sentences for you both, I have taken into account the statistics set out in Sentencing Snapshot No 262 for aggravated burglary dated 16 December 2021, where the median length of imprisonment was three years, with terms ranging from 23 days to eight years.
93Ms Piggott referred me to the fairly recent case of DPP v Phillips & Spowers[2] in which two offenders, on multi-charge indictments, were sentenced to five years' imprisonment for aggravated burglary. The charges included a charge of extortion with a threat to kill, and one of the victims suffered minor injuries when punched and sprayed with bear mace.
[2] [2021] VCC 1393
94The offenders were armed and were disguised and caused minor damage to the premises. This was correctly described as a confrontational aggravated burglary, as the Court of Appeal found, and can arguably be distinguished from this case because the entry there was directly into the house, whereas your entry was at the entrance to the building. In addition, there was injury and damage caused in that case.
95The prosecution submission is that entry to the building itself (rather than the apartment in this case) renders the circumstances more serious, because of the potential exposure of members of the public. As I said earlier, Mr Nikakis submitted to the contrary, that in fact the only other person in the vicinity was the person who left the door open, and it would appear that they were unaware of the presence of the offenders. It was at a quiet period in the evening and not in a busy public area.
96Given that generally the focus of aggravated burglary is on the immediate effect upon occupiers, who in this case were the victim and his friend, the entry at the door of the building can be regarded as less rather than more serious. Ultimately, however, it is an aggravated burglary that at the point of entry was not confrontational.[3]
[3] See paragraph 30
97In this case, the combination of lower-level offending and compelling mitigating circumstances open the way for more lenient sentencing than would otherwise be warranted. Ordinarily such an offence would attract a prison sentence close to the median, if not higher.
98The issue of parity is also relevant, as I have said. The circumstances of your participation on the one hand, and the mitigating factors on the other hand, should result in identical sentences. I see no reason to depart from that.
99As for the value of your plea, the circumstances are the same as for Mr Bird, and you are also entitled to a discount on your sentence in a similar way and I accept your plea as an indication of remorse.
100I have already noted that your offending was so similar as not to warrant any differentiation. As to your personal circumstances, you are both middle aged men with extensive criminal histories. Your lives have probably been affected similarly by substance abuse. I have already referred in some detail to Mr Bird’s circumstances.
101As to the matters in mitigation affecting you, Mr Green, the events of the last few years do reflect unusual circumstances, these being the completion of a distinctly onerous Community Correction Order at the same time as compliance with strict bail conditions and achieving the return of the children to your care.
102The needs of the children and your proven ability to qualify as their carer, subject to what happened recently, provide a solid motivation for your rehabilitation.
103Would you stand now please, Mr Green.
Sentence - Green
104For these combined reasons I sentence you to nine months' imprisonment for aggravated burglary and one month for the summary charge, to be served concurrently. For possessing a drug of dependence, I impose a fine of $500 with conviction.
105I declare that you have already served pre-sentence detention of nine months, and I shall cause that to be noted on the court record.
106For the aggravated burglary charge I also impose a two-year Community Correction Order, which commences today. There will be a conviction recorded. You will be under supervision and must perform 200 hours of unpaid community work. You must also be assessed for drug treatment, and for any other programs to which you might be directed. Any hours you spend in these programs can be credited to your community work hours.
107You must report to the Corrections office in Reservoir, at 909 High Street, by 4 pm on Wednesday 11 October.
108Mr Green, do you agree to be bound by the conditions of this order?
109OFFENDER: Yes, Your Honour.
110HER HONOUR: You must understand, as I have already explained to Mr Bird, that if you were to breach the order by non-compliance or by re-offending, you will have breached the order and you will have to return to court to be re-sentenced.
111If you had pleaded not guilty to these charges, I would have sentenced you to three years' imprisonment with a non-parole period of two years.
112The prosecution seeks orders for forfeiture and disposal of items listed on schedules, and subject to any objections I make those orders - - -
113MS WALKER: As the court pleases.
114MS PIGGOTT: If Your Honour pleases.
115HER HONOUR: Ms Walker, no objection? Thank you. My associate's got the orders there, would counsel like to accompany her to the dock for the signatures? I would just like to raise one thing. Are counsel content with the pre-sentence detention declaration of nine months or do you think that should be expressed in days?
116MR NIKAKIS: I think it would be best to be expressed in days, Your Honour.
117HER HONOUR: Yes.
118MS PIGGOTT: I agree with that, Your Honour.
119MR NIKAKIS: For Mr Green I note he was arrested on 5 July and probably charged on the 6th, but from 5 July to the day of his bail is 270 days, which is nine months.
120HER HONOUR: 270, all right. I think I recognise that number from somewhere.
121HER HONOUR: 430 days for Mr Bird?
122MS WALKER: 430 days, I don't seek that to be the pre-sentence detention.
123HER HONOUR: No. Well, it would be the same, I would declare the 270 days.
124MS WALKER: Yes.
125HER HONOUR: Yes.
126MS WALKER: It's 270, yes.
127HER HONOUR: And then the rest of the time is undeclared.
128MR NIKAKIS: Yes, Your Honour.
129HER HONOUR: That's the way it would work.
130MS WALKER: Yes, Your Honour, thank you.
131HER HONOUR: All right. Anything further?
132MR NIKAKIS: No, Your Honour.
133MS WALKER: No, Your Honour.
134MS PIGGOTT: No thank you, Your Honour.
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