Director of Public Prosecutions v Guy

[2022] VCC 956

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
 Not Restricted
 Suitable for Publication

Case No. CR-21-01941

DIRECTOR OF PUBLIC PROSECUTIONS

v

Toni GUY

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JUDGE:	His Honour Judge Moglia
WHERE HELD:	Melbourne
DATE OF HEARING:	27 May 2022
DATE OF SENTENCE:	24 June 2022
CASE MAY BE CITED AS:	DPP v Guy
MEDIUM NEUTRAL CITATION:	[2022] VCC 956

REASONS FOR SENTENCE

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Subject:Criminal Law – Sentence upon plea of guilty

Catchwords:              Sentencing – home invasion with intention to steal – theft – possess a drug of dependence – where home invasion occurred while victim’s family present including young child – theft of personal items – theft of victim’s car – car cleaned of evidence that might link accused to theft – history of drug abuse and relevant offending – early childhood neglect – moderately serious example of home invasion – specific deterrence – general deterrence – reasonable prospect of rehabilitation – custody with low non-parole period.

Legislation Cited:      Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)

Cases Cited:Verdins v R (2007) 16 VR 269; Brown (aka Davis) v The Queen [2020] VSCA 60; Worboyes v The Queen [2021] VSCA 169.

Sentence:Total effective sentence 2 years 6 months with a non-parole period of 1 year 7 months. 498 days pre-sentence detention. s6AAA: 3 years 6 months imprisonment with a non-parole period of 2 years and 6 months.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms C Paganis	OPP
For Ms Guy	Mr A Patton	Haines & Polites

HIS HONOUR:

1Toni Guy, you have pleaded guilty to offences of home invasion and theft committed on 8 February 2021 and possessing a drug of dependence on 11 February 2021.

2The maximum penalty in relation to charge 1 is 25 years, to charge 2 is 10 years and to charge 3 is 1 year.

Summary of offending

3The agreed basis for your guilty pleas is set out in the summary of prosecution opening dated 14 February 2022. You are to be sentenced based on those facts, which I summarise and make findings about as follows.

4On 8 February 2021 about 6:30 AM, you and a person I will call SH drove a Ford Territory to the house on Landsdowne Avenue, Mickleham, where Satveer Uppal and Sukhdeep Tattla lived with their 2-year-old son.

5The owner of the Ford Territory had given it to you to drive since December 2020.

6Ms Uppal and her son were at home asleep at the time. SH jumped the side fence and unlocked a gate to let you into the backyard. You tried to open sliding doors at the rear of the house unsuccessfully before you both entered the house through an unlocked garage pedestrian door, as alleged in charge 1.

7You both rummaged through personal belongings in the front room of the house before returning to the garage. You stole keys to a Toyota Camry, a Canon printer, a Dyson vacuum cleaner, small hand tools, cleaning products, a drill bit set, extension cords and a storage container, as alleged in charge 2.

8You both loaded these items into the Toyota Camry, which you drove away, as alleged in charge 2. SH drove away in the Ford Territory.

9Within 15 minutes, you both returned and entered the house again. You quickly left, however, without taking any further items. You again drove away in the Camry. Your second entry into the home is incorporated in charge 1 and the second time you drove away in the stolen vehicle is incorporated in charge 2.

10After you had fled, Ms Uppal called her husband who left work and drove home immediately and called 000.

11Meanwhile, you drove to a service station in Greenvale where, at about 7.20am, you purchased cleaning products and attempted to clean the vehicle of any evidence that might link the theft to you. You transferred the stolen items from the Camry to the Ford Territory driven by SH and departed with him, abandoning the Camry. You later called the service station anonymously to advise them that the car had issues and that a man would come by to collect it later in the day.

12Police located the Camry at about 2.50pm and seized it.

13On 11 February 2021, police arrested you in Craigieburn. You were carrying a plastic bottle that contained 1, 4-Butanedial, as alleged in charge 3. It is not alleged that you had that drug for the purpose of trafficking, and I so find.

14The next day, 12 February 2021, police located the Ford Territory in Craigieburn. It contained the stolen Canon printer.

15There is no victim impact statement in this matter.  However, I accept that being at home and finding that you had been broken into not once but twice in the early hours of the morning when you were vulnerable and asleep must have been a terrifying experience.

Procedural history

16Following your arrest and interview, you were remanded in custody where you have remained to date.

17Police interviewed you and you answered their questions. You admitted to driving the stolen Camry to Greenvale but denied involvement in the home invasion and related thefts.

18You conducted a contested committal hearing on 7 September 2021 where your counsel cross-examined the informant only. You pleaded not guilty at that stage of the proceeding. You nevertheless settled the case within weeks and pleaded guilty in this Court on 19 October 2021. I regard the timing of your plea as being neither early nor late, which I will reflect in your sentence.

19Your guilty plea is of benefit to the victims who have thereby been relieved of the need to give evidence at trial. It also benefits the community who is saved the time and expense of a trial. Your plea indicates your willingness to facilitate justice and an acceptance of your responsibility for this offending. It suggests some degree of remorse.

Personal circumstances

20You are the youngest of six children and report a positive upbringing in spite of your mother being an alcoholic and regularly violent. Your parents separated when you were 13. You stayed with your father and you still enjoy a supportive relationship with him. Your mother treated you less favourably when you visited, seemingly because you had decided to stay with your dad.

21You attended school until year 10 when you commenced an apprenticeship and then worked casually until about 2018 and have been on benefits since.

22Your history of drug use started when you were about 20 years old, and your first serious long-term relationship revolved around drug use and nightclubs. What followed was your introduction to methylamphetamine and GHB when you were around 25. This set the context of your earlier offending.

23From mid-2018 until early 2019 you committed a significant number of thefts and other dishonesty offences as well possessing drugs (GHB and methylamphetamine), driving unlicenced and offending on bail. You received a combined sentence of 119 days imprisonment (time served) and a CCO in July 2019. You breached that CCO, including by further similar offending and were sentenced to a further 4 months (time served) and another CCO in December 2019, which you completed.

24On your release, you returned to live with your father in Heathcote. You started work in an auto-repair business and a new relationship that was drug-free. It was a period of social stability. Sadly, by the end of 2020, you broke up and returned to Melbourne seeking solace in your former partner and drugs.

25In custody, you have maintained contact with your father; indeed, he has been able to visit face to face on one occasion, otherwise online due to COVID. You have had limited access to courses and programs whilst on remand and this has made time in custody harder.

26You have no significant medical history or involvement with mental health professionals. In 2019, however, you saw Consultant Psychologist Warren Simmons (report dated 4 December 2019; exhibit 1) who assessed you as not presenting with significant antisocial personality traits. In light of your most recent offending, however, I would not accept such a view. He said you met the criteria for a substance use disorder relating to both methylamphetamine and GHB and you were in need of assistance to recover. Importantly, he saw your conflictual relationship with your mother as important and that you would be assisted by cognitive behavioural strategies to deal with your emotional turmoil. He found it likely that without some type of intervention, the driving factors for your substance use will remain unchanged and therefore lead to further offending. He was proven right.

Sentencing issues

27Home invasion is a category 2 offence as defined by the Sentencing Act 1991. Whilst section 5(2H) of the Act limits the making of anything other than a parole type imprisonment sentence, you do not resist the imposing of such a sentence, and I will do so.

28This case is a moderately serious example of home invasion. People are entitled to be safe and undisturbed in their own home. The importance of this is underscored when young children are present and the time of day sees a family sleeping and vulnerable. Your role in the offending was not subordinate to SH. You were an active participant in the offence – you tried to gain entry to the home while SH stood back and you drove away the family car. Your moral culpability in this case is substantial and it is not reduced by the context of your drug use. You conceded that you were not ignorant of the purpose of your attendance at the house, nor of the possibility of people being home. I do not find your offending to be less serious because someone else may have suggested the house as a fruitful target or that you were invited to participate by SH. Your criminality is demonstrated by what you did and that you did it willingly.

29Deterring others from engaging in such offending, denouncing your actions and punishing you for them are important sentencing considerations in your case.

30Your criminal history is relevant, but I accept that the seriousness of this offence far outstrips your past. Your character is not beyond redemption, and I aim to impose a non-parole period that will enhance your chances. I do not find specific deterrence or community protection to call for heightened consideration in this case, albeit they are relevant to a degree.

31Your counsel submitted that an aggregate sentence would be appropriate as between the home invasion and the theft. I disagree. I find that the act of taking not only household items but also the family car to reflect separate criminality that should be reflected in the sentence.

32You have been in custody since 11 February 2021. The COVID-19 pandemic has rendered your time in custody more burdensome. You have been subjected to 23-hour lockdowns, restricted movements, reduced access to rehabilitative and vocational programs, and limited access to psychological treatment. You have had almost no in-person contact with your family. I will moderate your sentence accordingly.[1]

[1] Brown (aka Davis) v The Queen [2020] VSCA 60, [48].

33I find you to have reasonable prospects of rehabilitation. In 2019 you demonstrated your capacity to comply with the CCO which you completed. You have worked in horticulture at the prison since your remand and upon your release and return to Heathcote you will be able to rely on the supports which have enabled you to live a stable prosocial life in the past. The concerns for your future hinge on your willingness and ability to engage with drug counselling and to deal with the issues arising out of your relationship with your mother.

34The prosecutor submitted and your counsel conceded that a term of imprisonment attracting a non-parole period is the only available sentence. I agree. However, that is not to say you should not have the opportunity to prove yourself on parole. I have endeavoured to focus on your rehabilitation in the community as much as is possible consistent with the requirement to impose a non-parole period representing the minimum period of time that justice requires must be served.

35I sentence you as follows:

(a)   On charge 1, home invasion – 2 years and 3 months;

(b)   On charge 2, theft – 8 months;

(c)   On charge 3, possess a drug – 1 month.

(d)   I order that 3 months of the sentence on Charge 2, which includes the theft of the car, be served cumulatively upon the sentence on Charge 1.

(e)   The total effective sentence is 2 years 6 months.

(f)    I fix a non-parole period of 1 year 7 months.

(g)   I declare that you have served 498 days and direct that this be reckoned as a period already served under this sentence.

36In accordance with section 6AAA of the Sentencing Act 1991, but for your plea of guilty I would have imposed 3 years 6 months and fixed a non-parole period of 2 years 6 months.

Ancillary orders

37Pursuant to s 89(4) of the Sentencing Act 1991, having been convicted of stealing a motor vehicle, I cancel any driver licence you hold and disqualify your from obtaining one for 3 months from today.

38I decline to make a finding pursuant to section 89C of the Act that your being under the influence of alcohol and/or a drug contributed to any of your offences.

39I am satisfied that the available documents in this case provide a sufficient basis upon which to determine the application for compensation under section 86(1) of the Sentencing Act 1991. The prosecutor seeks such an order in relation to you. They rely upon oral submissions setting out Ms Uppal’s loss of a brand-new Dyson vacuum cleaner worth $1,299. You consent to the making of the order. In these circumstances, I will make the order as sought.

40By consent, I also make a forfeiture order in accordance with section 33 of the Confiscation Act in relation to a glass breaking implement.

41And by consent, I make a disposal order in accordance with section 78 of the Confiscation Act in relation to a plastic bottle containing liquid.

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