Director of Public Prosecutions v Greto
[2023] VCC 943
•5 June 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 21-02125
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PAUL GRETO |
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| JUDGE: | HIS HONOUR JUDGE LAURITSEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 5 June 2023 |
| DATE OF SENTENCE: | 5 June 2023 |
| CASE MAY BE CITED AS: | DPP v Greto |
| MEDIUM NEUTRAL CITATION: | [2023] VCC 943 |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Charges of Theft, Handle Stolen Goods, Conspiracy to Commit an Indictable Offence and related summary offences – offending committed whilst on bail – significant criminal history – CISP engagement – high moral culpability – plea of guilty – hardship in custody – positive prospects of rehabilitation – parity
Legislation Cited: Sentencing Act 1991
Cases Cited:DPP v Weybury [2018] VSCA 120; Worboyes v R [2021] VSCA 169
Sentence: Total effective sentence 30 months' imprisonment. Non-parole period of 18 months' imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms M. Zammit | Office of Public Prosecutions |
| For the Accused | Mr A. Pyne | Angus Cameron Lawyers |
Introduction
1On 5 April 2023, I gave you, Mr Greto, a sentence indication, which was accepted.
2What I propose to do now is to sentence you to a total effective sentence of imprisonment of 30 months and set a non-parole period of 18 months and I will declare your 238 days of your pre-sentence detention as time served under my orders, my sentences.
3You have now pleaded guilty to four charges of theft, two charges of handling stolen goods, a charge of conspiracy to commit an indictable offence and the related summary charges of driving while disqualified, committing an indictable offence on bail, failing to state name and producing licence and driving without number plates attached.
4The circumstances of your offending are set out in the document entitled 'Prosecution opening for plea', which is Exhibit A. You admit its contents.
Circumstances
Charge 1 – Theft of a Bobcat
5On 27 March 2020, CCTV footage depicts a person alleged to be you stealing a S185 Bobcat loader valued at $45,000 from a construction site at Grevillea Road in Kings Park. You arrive at the site at about 5.50 pm in a white Hino truck. The footage shows you wearing shorts and an orange fluorescent top, loading the Bobcat onto the back of the tow truck. This Bobcat was located on 4 June 2020 in Lance Road, Diggers Rest.
Charge 2 – Theft of the Shipping Container containing assorted tools and equipment
6On 19 April 2020, you drove a white Hino truck to a construction site on Civic Street in Diggers Rest. Your phone records place you in the Diggers Rest area at the time. CCTV footage depicts you arriving in the truck and then forcing entry through a cyclone fence. A shipping container is then lifted onto the back of the truck. It contains about $23,500 worth of construction tools and equipment.
Charge 3 – Retention of stolen goods, being a Hino Truck and Summary Charge 3 – Drive whilst Disqualified
7On 3 May 2020, you were intercepted by police driving a white Hino truck on Crinnon Road, Diggers Rest. The police followed the vehicle to this address, after observing you drive the truck earlier along Watsons Road, Sunbury. You immediately told police you were a disqualified driver, the truck was unregistered and the number plates on the truck were false. The police discovered the vehicle identification number recorded on the truck was in fact recorded to a different Hino truck which had been stolen from Laverton on 28 March 2019. The vehicle identification number plates had been removed from the truck and stolen, along with the ignition barrel and indicator stalks on an unknown date after 2009.
8After the truck was seized, phone intercepts were monitored between you and Mr Stankovski. The calls detail discussions about Mr Stankovski calling the police about the status of the truck and you wanting to obtain another smaller truck.
9Part of Summary Charge 3, driving while disqualified, involves the police following you as you drove from Wollert to Officeworks in Craigieburn where you met Mr Stankovski in the carpark.
Charges 4 & 5 – Conspiracy to commit an Indictable offence, namely theft; and theft of a brick elevator and vehicle identification numberplate
10On 22 July 2020, you called Mr Stankovski to advise you had received a call from a person who wanted to buy a machine. You agreed to look for one and sell it to this person. You then discussed with Mr Stankovski about stealing one from Kennards to sell.
11On 26 July 2020, another phone call occurred in which you and Mr Stankovski discussed stealing machines from a school where there are no cameras. You agreed a truck is needed and commence searching for one. A second phone call between you and Mr Stankovski discussed your attendance at the school and you planned to wear black clothes.
12At 10.40pm that night, you and Mr Stankovski attended Kennard Hire in Ravenhall and stole a Technique brand brick elevator, by wheeling it out of the yard. You also stole a vehicle identification numberplate from a Kubota excavator. These items were subsequently located at your residence on 25 August 2020.
13On 27 July 2020, you and Mr Stankovski discussed over the phone that a person was willing to purchase a wheelbarrow for $10,000. You planned to attend the school later that night to steal the equipment you were going to sell. You further discussed the price that they, that is, you and Mr Stankovski, would sell it for. The police observed you leaving your house at 9pm on 27 July 2020 and drove to St Albans East Primary School. You drove slowly around the vicinity of the school. This is part of Summary Charge 3, driving while disqualified. You had another conversation on the phone after being unable to locate each other. You had a further discussion about planning to steal the equipment on 31 July 2020, and again on 2 August 2020 where you said you were to steal the equipment if you could get a trailer.
14On 25 August 2020, a brick Elevator which has been stolen at the same time as the vehicle identification numberplate, was located at your residence.
Charge 6 – Theft of a Dingo mini loader
15The phone call on 2 August 2020 also contains discussion that you located a Dingo mini loader, but that you and Mr Stankovski would need a trailer. You detailed to Mr Stankovski in the phone conversation that you were prepared to steal a Dingo mini loader if he (Mr Stankovski) can get you a trailer.
16On 3 August 2020, you drive his car with Mr Stankovksi, driving a Ute towing a trailer. You left your residential address (and this is again part of Summary Charge 3 - Driving while disqualified). Both cars returned to your address with a red Dingo mini loader being towed by Mr Stankovski. Mr Stankovski then drove away with the Dingo mini loader. A phone call occurred between you and Mr Stankovski later that evening, where you asked Mr Stankovski to check on the Dingo mini loader. The police seized the Dingo mini loader that night.
17A phone called between you and Mr Stankovski occurred on 4 August 2020, where Mr Stankovski advised you the police seized the Dingo mini loader. Mr Stankovski opined it was seized because you left the false numberplate on the trailer.
Charge 7 – Retention of stolen goods being numberplates, a bicycle, a refrigerator, two Sureweld ramps and a hydraulic lift.
18On 4 June 2020 a search warrant was executed at a property on Lance Road, Diggers Rest. During the search, police located a number of items subsequently identified as stolen. This included a Bobcat (the subject of Charge 1), and engine crane and a hydraulic lift. You were aware the stolen property was stored at this address.
19On 25 August 2020, the hydraulic lift, numberplates, two Sureweld ramps, a Giant bicycle, and a refrigerator were all located at your residence.
Summary Charge 46 – State False Name; and part of Summary Charge 3 - Drive whilst Disqualified
20On 21 August 2020, the police intercepted a driver who was driving a silver utility with registration plates ZKM 098. He stated his name was Mario Trimboli and the vehicle belonged to his boss. LEAP records were unavailable to the police at the time, so the man was permitted to continue driving. Five minutes later, LEAP records became available, the police determining the registration on the silver utility belonged to a Toyota Hilux. The name of Mario Trimboli did not match the physical appearance of the driver of the silver utility. The registration plates ZKM 098 were subsequently located at your residence on 25 August 2020. At the time of the intercept, you were on the phone to your partner. After driving away from the police, you told your partner you had been pulled over by the police, but you did not give them your name and was hiding in the back streets to avoid further intercept.
Criminal history
21Between 15 June 2020 and 23 February 1996, excluding appeals and variation applications, you have appeared in a criminal court on 20 occasions and have been found guilty or convicted of 96 charges. Many of the charges are traffic offences with many convictions for driving whilst suspended or disqualified. There are also many convictions for dishonesty offences. Your longest sentence of imprisonment was 13 months imposed on 17 February 2015.
Personal
22You are now 47. You were born and raised in Melbourne. You have two brothers and a sister. Each is employed and each has no criminal record.
23Until the age of 9, you lived with your parents. Then your eldest brother, aged 11, was killed while playing on the road near your home. This tragedy led to you living with your grandparents. They lived near your family home and raised you.
24Your secondary education was limited. You left school during Year 7. You were then apprenticed as a bricklayer. You completed your apprenticeship and have always worked as a bricklayer.
25You married at 31. You have two surviving children, now aged 14 and 15. The other child died within a few weeks of birth. You and your wife separated in 2013. Following this, you started offending and using methylamphetamine. For about 10 years, you had no contact with your children. In fact, since 2014, there have been family violence intervention orders preventing your contact. You have contravened those orders in the past.
26Your domestic life became more complicated. You had another relationship, which produced a son. During 2021, you and your partner lived together at your property. However, her drug usage led to you removing her from your property and finding somewhere else for her to live. Unfortunately, her behaviour to you was such that the police intervened and issued a family violence intervention notice. I do not know whether it became an order. Through all of this, you continued to have contact with your son. He is cared for by someone other than his mother through the involvement of the child protection system.
27While you were on CISP bail, you engaged with Ongoing Change, a weekly voluntary program for men with anger problems, returned to work as a bricklayer and saw this child. You returned to drug use after the end of the CISP condition.
CISP
28On 4 March 2021, you were bailed with conditions. One of the conditions was to comply with the Court Integrated Services Program. Your involvement lasted until August 2021[1].
[1] Final report dated 4 August 2021.
29You engaged well with a drug and alcohol counsellor, expressing a desire to remain abstinent.
30You undertook a mental health care plan which involved counselling with a psychologist, Paul Grech. While on bail, you believed your mental health had improved. This was so even though you suffered violence at the hands of an ex-partner, as I have already mentioned.
31An essential element of the Court Integrated Services Program is case management. A case manager had regular contact with you and organised certain referrals to other agencies on your behalf. You were subject to the CISP condition for about 22 weeks, which is about six weeks longer than normal. Having seen many of these reports over my years as a magistrate, her report about you is one of the most positive.
Discussion
32Section 5(1) of the Sentencing Act 1991 ('the Sentencing Act') sets out the purposes for which sentences may be imposed:
(a) to punish the offender to the extent and in a manner which is just in all of the circumstances;
(b) to deter the offender or other persons from committing offences of the same or a similar character;
(c) to establish conditions in which it is considered that the offender's rehabilitation may be facilitated;
(d) to manifest denunciation of the type of conduct the offender engaged in; and,
(e) to protect the community from the offender.
33Each of those purposes are engaged in your case. Section 5(2) of the Sentencing Act sets out several factors which I must consider in sentencing you, where they are relevant.
Maximum penalties
34The maximum penalties for these offences are:
(a) theft – 10 years' imprisonment;
(b) conspiracy to commit theft – 10 years' imprisonment;
(c) driving while disqualified – a fine of 240 penalty units or two years' imprisonment;
(d) committing an indictable offence on bail – a fine of 30 penalty units or three months' imprisonment;
(e) fail to produce licence and state false name – a fine of five penalty units or one month's imprisonment;
(f) driving without number plates – two penalty units.
Nature and gravity
35Given the variety of circumstances giving rise to the charges of theft and handling stolen goods, your counsel submitted it would be unhelpful to categorise your offending in terms of objective seriousness. For a different reason, this submission adopts the approach of the Court in the case of DPP v Weybury, where it said[2]:
'…it is best to avoid categorising cases as falling within a particular "range" and, instead, for sentencing judges to have regard to relevant comparable, and current, cases as "yardsticks"'.
[2] [2018] VSCA 120 at [34].
36That case dealt with the offences of dangerous driving causing death and dangerous driving causing serious injury, where comparable cases are easily identifiable. Although that may also be the case here, none has been identified. I daresay the parties simply relied on my experience of these types of offences, which if they did, is a reasonable assumption.
37Your offending was planned. It was persistent. To an extent, it was sophisticated. The property involved was valuable and you expected to profit from your offences.
Moral culpability and responsibility
38Your moral culpability for these offences is high. You and Mr Stankovski were equal partners in the offending, where there is an overlap.
Guilty pleas
39In terms of the timing of your pleas of guilty, they occurred in the second half of the process starting with the laying of the charges and ending with the verdict of a jury trial.
40in pleading guilty, you have accepted responsibility for your offending. From the perspective of the criminal justice system, it saves the time and expense of a lengthy jury trial. It allows other trials to be listed earlier than would be the case. Judging from the witness lists attached to the indictment, you have spared a very large number of witnesses the burden of giving evidence in a trial. Giving evidence is rarely easy, even for police witnesses.
41At the present time, a guilty plea deserves a greater discount on sentence than in other times. Why this is so was explained in the case of Worboyes v R[3], where the court said:
'As is abundantly clear, one of the pernicious effects of the current pandemic is that the lists of the criminal courts in this State have become severely congested. Unacceptable delay in the disposition of criminal cases is endemic. Indeed, it is not an overstatement to say that the system of criminal justice in this State is in crisis, requiring a response from the courts. We therefore consider that, whilst the courts of this State continue to labour under the adverse effects of the pandemic, a sentencing court should view a plea of guilty as carrying with it a greater utilitarian benefit than at other times and in other circumstances, and, concomitantly, as attracting an augmented mitigatory effect on sentence, simply because the plea will benefit the beleaguered administration of justice. Given the unhappy state of the courts' lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead. Such encouragement must come from an actual and palpable amelioration of sentence.'
[3] [2021] VSCA 169 at [35]
42Even though this passage appeared in a 2021 judgment, it still remains applicable. This Court, and the other criminal courts, are still struggling to overcome the backlog of cases built up during the pandemic and the effects of the virus still affect the functioning of this Court, especially in relation to jury trials.
Hardship in custody
43You were in custody between 25 August 2020 and 4 March 2021 and have been in custody in relation to this matter since then. For persons in custody, this was a very restricted time. There were restrictions upon movement out of one's cells, limited opportunities to contact family and friends and limitations on the availability of programmes, educational and therapeutic.
Prospects of rehabilitation
44Your counsel emphasises your period of bail subject to a CISP condition. As I said, the final report was favourable, being one of the best I have read. You have definite underlying faults but this 22-week period produced gains in the context of your complicated domestic circumstances. Despite your remand in custody on other charges, I consider your prospects of rehabilitation are positive.
S 16(3C)
45Your offending occurred between March 2020 and August 2020. You were on bail during the entirety of your offending. This is an aggravating feature of your offending. The effect of the aggravation is set out in s16(3C) of the Sentencing Act, which provides:
'Every term of imprisonment imposed on a person for an offence committed while released on bail in relation to any other offence or offences must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term'.
46Provisions like this one weaken, but do not eliminate, the principle of totality. However, I must give it the appropriate effect in sentencing you and will do so, as I did with Mr Stankovski, by partially accumulating the sentences on the other charges on the indictment upon the base sentence.
47Moreover, your offending was committed while you were the subject to a community correction order. The Sentencing Act makes no specific provision for that fact, unlike bail. It is an aggravating factor because a term of community correction orders is not to commit an offence punishable by imprisonment. I cannot give too much weight to this factor because I daresay you will be the subject of contravention proceedings.
Parity
48I sentenced your co-offender, Mr Stankovski, last Thursday to a total effective sentence of 37 months' imprisonment and set a non-parole period of 25 months' imprisonment. This was the sentence on 4 charges of theft, 8 charges of handling stolen goods and 2 related summary charges. You have pleaded guilty to 4 charges of theft, 2 charges of handling stolen goods, a charge of conspiracy to commit an indictable offence and 4 related summary charges.
49You are 4 years older than Mr Stankovski. Your prospects of rehabilitation are much better than his - I think I described his as poor. You both have somewhat similar and extensive criminal histories. Both of you committed indictable offences while on bail. Both of you drove while disqualified with prior convictions for that offence and the offence of driving while suspended.
Aggregate sentence
50Your counsel submits I should impose a modest aggregate sentence with a modest non-parole period. Reading s9(1) of the Sentencing Act, the charges do not answer the description necessary to allow the making of an aggregate sentence.
Sentence
51On Charge 1, a charge of theft, you are sentenced to 12 months' imprisonment.
52On Charge 2, a charge of stealing a shipping container and its contents, you are sentenced to 12 months' imprisonment.
53On Charge 3, a charge of dishonest retention of a Hino tow truck, you are sentenced to 12 months' imprisonment.
54On Charge 4, a charge of conspiring to steal, you are sentenced to 12 months' imprisonment.
55On Charge 5, a rolled-up charge of stealing a brick elevator and a vehicle identification number plate, you are sentenced to 12 months' imprisonment.
56On Charge 6, a charge of stealing a Dingo mini loader, you are sentenced to 12 months' imprisonment.
57On Charge 7, a charge of dishonest retention of various stolen goods, you are sentenced to 12 months' imprisonment.
58On summary Charge 2, a charge of committing an indictable offence while on bail, you are sentenced to one month's imprisonment.
59On Charge 3, a charge of driving while disqualified, you are sentenced to 4 months' imprisonment. Any licence or permit you hold to drive a motor vehicle is cancelled and you are disqualified from obtaining a licence or permit for 6 months.
60On Charge 46, a rolled-up charge of failing to produce a licence and stating a false name, you are sentenced to one day imprisonment.
61On Charge 47, a charge of driving without number plates, you are convicted and discharge. In view of my sentences of imprisonment, fining you for this offence serves no useful purpose.
62The base sentence is the sentence on Charge 1. Three months on each of the sentences on Charges 2 to 7 on the indictment are to be served cumulatively upon themselves and the base sentence itself. The other sentences of imprisonment are to be served concurrently. The total effective sentence is 30 months' imprisonment. I will set a non-parole period of 18 months' imprisonment.
63I declare your 238 days of pre-sentence detention as time already served under my sentences.
S 6AAA
64Absent your guilty pleas, I would have sentenced you to a total effective sentence of 43 months' imprisonment.
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