Director of Public Prosecutions v Haluska

[2015] VCC 8

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-01328

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHARLIE HALUSKA

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JUDGE:	HIS HONOUR JUDGE MONTGOMERY
WHERE HELD:	Melbourne
DATE OF HEARING:	21 January 2015
DATE OF SENTENCE:	21 January 2015
CASE MAY BE CITED AS:	DPP v Haluska
MEDIUM NEUTRAL CITATION:	[2015] VCC 8

REASONS FOR SENTENCE
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Subject:
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Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr A. Albert
For the Accused	Mr M. Gumbleton

HIS HONOUR: 

1Charlie Haluska, you have pleaded guilty to one charge of theft.  You have admitted your criminal history, which comprises of an appearance at the Bacchus Marsh Magistrates' Court on 16 June 1995 on eight charges of theft and burglary and for which you received a community based order.  You were then aged 24.  You breached that order and were charged with that and dealt with on 24 September 1996 at the Sunshine Magistrates' Court when you were placed on a suspended sentence.  Your counsel, Mr Gumbleton, briefly outlined the facts of those prior convictions.

2The facts of this case are set out in Exhibit 1, which will be placed on the court file.  They are not disputed by the defence and I will not repeat them.  Any reader of these reasons can refer to the file to place the sentence in its full factual context.

3Briefly stated, you were the acting warehouse manager for Qantas Courier and in a planned and calculated way, stole 155 computer iPads from your employer.  You sold over a hundred of them for $300 each.  In January 2012, Qantas Courier discovered the iPads were missing.  You attempted to cover up your theft  for details of that, see Paragraphs 19 to 21 of Exhibit 1.

4On 24 October 2012, in a record of interview you denied the offence, you lied to the police and said that the iPad found at your home, you had in fact bought at a swap meet.  A co-accused, Mr Ilijevski, on 13 February 2014, made admissions to the police and undertook to give evidence against you.  It was dealt with in the Magistrates' Court on 15 May 2014 on a charge of recklessly deal with the proceeds of crime and perjury and he received a four month suspended sentence.

5A four day committal was booked in for you.  The case against you comprised some 4,300 odd pages of depositions and 110 witnesses.  No committal was held, as on 25 July 2014, after discussions with your counsel, you offered to plead guilty and this was accepted by the prosecution.

6The prosecutor here seeks an immediate custodial sentence, but conceded that a combined sentence and community corrections order pursuant to s.44 of the Sentencing Act was an available sentencing option to me.  In support of this submission, the prosecutor relied on generally:

- That fact that you were in a position of trust;

- The degree of planning and effort taken to commit the offence and cover it up;

- He categorised your actions as greed fuelled by resentment;

- On the issue of delay, accept that it was relevant but only as to the issue of   rehabilitation;

- He submitted you have shown little remorse;

- He relied on the seriousness of the offending.

7On your behalf, your counsel, Mr Gumbleton, filed written submissions, tendered medical reports and character references.  I have considered all of those and taken them into account.

8You are supported in court by your wife, family and friends.  Mr Gumbleton submitted that either a community corrections order or a combined short sentence and community corrections order in the alternate are available sentencing options to me.  He relied on your background as set out in the report of Patrick Newton and the circumstances surrounding the commission of the offending.

9Mr Newton, in his report, dated 11 October 2014, set out your personal history in which you described a chaotic and abusive family background.  You attended school to Year 10.  You left to commence an apprenticeship as an electrical fitter but you did not finish it.  Since then, you have worked primarily in the field of freight and logistics.  You are currently working as a truck driver.  You have been married twice and with your current wife since 1993.  You have one daughter to that marriage.  There is no history of alcohol or drug abuse.

10In the section headed, "Mild anxiety and depression," he said that your anxiety was primarily related to your current legal predicament.  At Paragraph 27, he came to the view that you had good intelligence.  At Paragraph 30, he said that you would benefit from the provision of ongoing professional assistance.  He said you had, in his opinion on p.6, ongoing depression and anxiety arising as a direct result from the current prosecution.  He said those symptoms were sufficient to warrant a diagnosis of an adjustment disorder with depressed mood.  He suggested that your mental status could be dealt with by way of ongoing counselling.  You have, in fact, done something about that and further reports were tendered from Dr Matthew Bath and a treating psychologist, Dr Qusai Hussain. He said that you attended for five counselling sessions from December of last year to January of this year.  You have been engaged and motivated in treatment and had been applying some of the strategies discussed to reduce your symptoms.  You have made a further appointment.

11Mr Gumbleton says this was not a case of greed, but that of a disgruntled, resentful employee.  In your mind, you were promoted to a higher position in the company without receiving the appropriate salary.

12You are now aged 42, married with a mortgage.  For the last three years, you have not reoffended and have worked as a driver for Total Marine Supply and Logistics.  A conviction here will mean a changed position for you in the company, as you will not be eligible to drive to Victorian docks because of that conviction.

13Mr Gumbleton said your prior conviction was committed 20 years ago and apart from the years 94 to 95, you have worked all of your life.  He described you as a hardworking person and a loved man.

14He relied on, as a mitigating factor, the three year delay in this case.  He relied on your plea of guilty.  The two factors of that being a utilitarian factor and remorse.  He submitted that you have favourable prospects of rehabilitation because of the matters outlined in his plea.

15Considerable discussion occurred during the plea concerning the recent Court of Appeal guideline judgment of Boulton v The Queen, Clements v The Queen, Fitzgerald v The Queen [2014] VSCA 342. After a consideration of that case and the pleas made here, and all of the submissions, I asked for a community corrections assessment.

Sentencing decision and reasons.

16As indicated in discussion, I have read the judgment in the case of Boulton & Ors.  As the Court of Appeal states at Paragraph 35, "Sentencing is an inherently difficult task."  Paragraph 45, the Court of Appeal emphasised that if a court imposes a community corrections order, the court should explain the reasons for so doing.

17At Paragraph 74, the Court of Appeal said:

"Parliament has this equipped sentencing courts with an unprecedented capacity to fashion a sentencing order, which will address the underlying causes of the offending."

18At Paragraph 106, The Court quoted from a New South Wales Court of Appeal case of Mainwaring v Regina, in which it stated that imprisonment is the last available punitive resort in any civilised system of criminal justice.

19At 107, the Court of Appeal here went on to say:

"Importantly, for present purposes, these features of the restrictive prison environment also had the consequence that the opportunities and incentives for rehabilitation are very limited.  For example, there is no access to sustained treatment for psychological problems or addiction.  Access to anger management and sex offender treatment programs is rationed and such programs are often unavailable to those sentenced to short prison sentences.  In addition, imprisonment is often seriously detrimental for the prisoner and hence for the community.  The regimented institutional setting introduces habits of dependency which lead, over time, to institutionalisation and to behaviours, which render the prisoner unfit for life in the outside world.  Where still the forced cohabitation of convicted criminals operates as a catalyst for renewed criminal activity upon release.  Self-evidently, such consequences are greatly to the community's disadvantage."

20The Court did canvass the option of a short prison sentence combined with a community corrections order.  In Paragraph 113, the Court said:

"The availability of the community corrections order dramatically changes the sentencing landscape.  The sentencing court can now choose a sentencing disposition which enables all of the purposes of punishment to be served simultaneously, in a coherent and balanced way, in preference to an option (imprisonment) which is skewed towards retribution and deterrence."

21At Paragraph 116, the Court said:

"The Attorney submitted the community corrections order has the robustness and flexibility to be imposed in a wide variety of circumstances."

22The Court said, "We agree."

23And it is interesting to note that in the appearances in that case, apart from the parties and the DPP, appearances were entered and submissions made on behalf of the Attorney-General, Victoria Legal Aid and the Sentencing Advisory Council.

24In Paragraph 125, the Court said:

"In the most obvious respect, as we have said, the CCO is less punitive than prison.  There is no incarceration.  In other important respects, however, the CCO is a very significant punishment.

25"Necessarily, the punitive features of a CCO will require explanation.  The task of communication must begin with the sentencing court.  When it is concluded that a CCO sufficiently punishes the offender for the offence, the reasons for that conclusion should be clearly set out."

26At Paragraph 128, the Court said:

"As noted earlier, the Attorney-General submitted that there should be greater utilisation of CCOs and that they were perfectly capable of serving the purposes of punishment and deterrence.  Whether the CCO is utilised more widely, whether it can be seen to serve the purpose of general deterrence will, to a very large degree, depend upon there being an active and well-funded program of public communication.  Otherwise, the use of the CCO may attract the kinds of public criticisms which have characterised increasingly punitive debate about sentencing in recent years.

27"The question of specific deterrence is much more straight forward.  There are several reasons why, in our view, a CCO can very effectively serve the purposes of specific deterrence.  First, because it will be a real punishment, it should deter repeat offending.  Secondly, there is a mandatory condition attached to every CCO…potentially three penalties can follow from the imposition of CCO and the breach of it.  The penalty for the offence, if committed, that breaches it.  The penalty for the contravention of the breach and a resentencing of the offence for which the CCO is granted."

28The Court said:

"We agree with the Director's submission that these provisions in combination create powerful disincentives to reoffending, which last for the full length of the CCO."

29The Court in 131 said:

"It follows from what we have said that a CCO may be suitable even in cases of relatively serious offences, which might previously have attracted a medium term of imprisonment."

30And it lists a number of offences.  Interestingly, it does not list theft, but much more serious offences.

31The Court said:

"The sentencing judge may find that in view of the objective gravity of the conduct and the personal circumstances of the offender, a properly conditioned CCO of lengthy duration is capable of satisfying the requirements of proportionality, parsimony and just punishment, while affording the best prospects for rehabilitation."

32I have set out in some, albeit brief, detail some of the principles set out in the guideline judgment.  For anyone seeking to understand the principles of sentencing in this state, in my view, this judgment is essential reading.  It clearly explains the rationale and basis of sentencing.  It should be widely disseminated in the community.

33Much to my surprise, as I said yesterday, to this day, there has been very little discussion of it in the media.

34Appendix 1 of the judgment sets out in clear, readable English the community corrections order guidelines for sentencing courts.

35In deciding this case, I have considered the guidelines, all of the submissions made, s.5 of the Sentencing Act and the provisions in the Act relating to a community corrections order.  I have considered the sentencing principles of general deterrence and specific deterrence, just punishment and your circumstances.

36The offending here is a serious breach of trust by an employee.  No matter how disgruntled the conditions at work are, this should not lead to theft from the employer.  You had a number of other options, leave the job, accept the job with the conditions that you had or move back to your other position in the firm.  Stealing from the firm is obviously no way to conduct workplace negotiations.  It was planned, calculated offending with no acknowledgment of responsibility or remorse until the entry of the plea of guilty.  When questioned you lied to the police.

37Your counsel seeks to distinguish your actions from those of a greedy offender.  I failed to see the distinction.  You sold over a hundred of the iPads for financial reward.

38However, in your favour, I take into account the following factors:

39Your plea of guilty.  It is an acceptance of responsibility by you for your offending.  Albeit, in the circumstances of this case, a late acceptance.  More importantly, it saves the court the time and expense of a lengthy committal and a protracted trial.

40The issue of delay.  I have looked at the principles of delay as set out in the case that Mr Gumbleton referred me to of Merrett v Piggott and in particular, Paragraphs 34 and 35.

41In Paragraph 34, the Court said:

"On a proper analysis, however, the significance of delays, the sentencing factor cannot depend on whether or not there is a satisfactory explanation for the delay."

42As there was in this case, the time to investigate the crime accounted for some of the delay.

43In Paragraph 35, the Court said:

"The relevance of delay lies rather in the effect which is in the lapse of time - however caused - has on the accused.  Delay constitutes a powerful mitagatory factor.  In particular, it focuses attention on issues of rehabilitation and fairness."

44You have taken advantage of that delay, you have continued working and you have not reoffended.

45There is a 20 year gap between your previous convictions and this offending.

46Although I take into account and sympathise with your family history, it provides little understand of why you committed these offences.  As you have said to Mr Newton, this was an easy opportunity and you gave into temptation.

47You have the support of your family and friends.

48You have a good work record.

49You have engaged in counselling.

50The references tendered, and in particular, that from your employer.

51I find you have good prospects in the continuation of your rehabilitation.

52You have been assessed as suitable for a community corrections order.  In that assessment, it is stated that you have been assessed as a low risk offender according to the Victorian Intervention Screening Assessment Tool.

53Weighing up all those factors and bearing in mind the guideline judgment, I intend to impose a community corrections order for a period of four years.  I impose work conditions of 250 hours to be completed within two years.  I refer the conditions of supervision and mental health assessment.  The reasons why I have decided to take that course have just been set out in my recounting of the factors in your favour, and what is important to my mind is the gap between your other offending and this offending, and your behaviour since this offending.  You are in work, you have a family, you have pleaded guilty, I have taken into account all those factors and the other ones I have just mentioned.

54In my view, when looking at the guideline judgment, I am satisfied that the appropriate course is that community corrections order.

55Mr Gumbleton, the judgment also makes it clear that the accused must clearly understand what it is that has happened.  So I will adjourn for ten minutes while you explain it to him.

56MR GUMBLETON:  Yes.

57HIS HONOUR:  So there is no misunderstanding, particularly as to the effects of a breach and the three things that can happen.  If he were to reoffend, to breach and be charged for breaching as well.  So I will come back in ten minutes.  Will that be enough time?

58MR GUMBLETON:  Yes, that is plenty of time.  May it please the court.

59(A short time later.)

60HIS HONOUR:  I will just repeat it again, the order lasts for four years and ends on 20 January 2019.  There are mandatory conditions or terms.  It is a supervisory term for four years.  Undergo mental health assessment and treatment and 250 hours of unpaid community work within the intensive compliance period of two years.  Can I ask your client to sign that?  He has signed it already.  I will now sign it.

61Are there any other matters I need to look at or do?

62MR ALBERT:  Section 6AAA, Your Honour.

63HIS HONOUR:  Does that work for - I can sentence him to a term of imprisonment.

64MR ALBERT:  I think the situation, is it, where you may do it?

65HIS HONOUR:  I may.

66MR ALBERT:  I will just check that, Your Honour.

67HIS HONOUR:  It says in sentencing the offender, the court imposes a less severe sentence that it would otherwise have imposed.  It includes an order under Division 2, Part 3.

68MR ALBERT:  Community corrections orders are in Part 3A.

69HIS HONOUR:  Is that in Division 2?

70MR ALBERT:  Do you have any view on it, Mr Gumbleton?

71MR GUMBLETON:  No, I am hoping Mr Albert has the view.

72HIS HONOUR:  Just say that ‑ ‑ ‑

73MR ALBERT:  It does not appear that you must do it, Your Honour.

74HIS HONOUR:  Just in case we are all wrong, I will do it anyway.

75MR ALBERT:  It might be of assistance in this case, Your Honour, because if the trial proceeded, it would have proceeded for some time.

76HIS HONOUR:  Mr Haluska, could you stand up for a moment.  If you had pleaded not guilty and went to trial and you were convicted by a jury of this offence, I certainly would have gaoled you and you would have received at least a sentence of something in the order of three years with 18 months or four years with two years, if not more.  It is a bit hard to say, but that is generally it.  So because you saved the court a lot of time and money by pleading, that is one of the benefits you get.

77MR GUMBLETON:  If it pleases the court.

78HIS HONOUR:  Anything else?

79MR ALBERT:  No, Your Honour.  Those orders have been received, the penalty order and forensic sample.

80HIS HONOUR:  Thank you.

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