Director of Public Prosecutions v Incze, Roger

[2013] VCC 649

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

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-09-01567

DIRECTOR OF PUBLIC PROSECUTIONS

v

ROGER INCZE

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JUDGE:	HIS HONOUR CHIEF JUDGE ROZENES
WHERE HELD:	Melbourne
DATE OF HEARING:	17 April, 16 May 2013
DATE OF SENTENCE:	21 May 2013
CASE MAY BE CITED AS:	DPP v Incze, Roger
MEDIUM NEUTRAL CITATION:	[2013] VCC 649

REASONS FOR SENTENCE
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Subject:  

Catchwords:             Breach Suspended sentence – delay – youth – Verdins – exceptional circumstances

Legislation Cited:    
Cases Cited:            
Sentence:                No further order made

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms C Duckett	Office of Public Prosecutions
For the Accused	Mr D Dann	Littleton, Lachford & D’Alles

HIS HONOUR:

1       Roger Incze, on 19 January 2010 you were sentenced in this court to 18 months’ imprisonment wholly suspended for 2 years, on one charge of aggravated burglary and on a charge of theft sentenced to be released on a community-based order for a period of 18 months with conditions.

2       The facts giving rise to the imposition of the suspended sentence were detailed by Judge Pilgrim in his reasons for sentence and can be briefly summarised as follows.  You were recruited by a friend to assist in the recovery of a drug debt. You drove the other two to an address in Caroline Springs.  You were armed with a baseball bat, the others had a handgun and a samurai sword. There was no-one at the premises and you stole certain items.  You were apprehended by police on the way home and arrested. His Honour found that you had been “inveigled upon” and were not part of the planning or involved in the drug scene.  He also said that he was inclined to “accept the submission of Mr Dann (who also appeared for you on that occasion) … that you will not re-offend having encountered this serious and unpleasant set of circumstances”. Additionally, whilst the report received from the Community Corrections Services in support of the CBO was positively encouraging as to your prospects of rehabilitation, you have not lived up to those expectations.

3       On 30 May 2011 you were dealt with for a breach of the community-based order, which breach was found proven, and you were fined $100.

4       On 13 September 2011, whilst the suspended sentence was still operational, you were detected driving a motor vehicle, and, when intercepted by police, were found to have $2689 concealed in your underpants, together with three grams of methylamphetamine.

5       This gave rise to your appearance at Dandenong Magistrates’ Court on 30 May 2012 where you were convicted on one charge of dealing with property suspected of being proceeds of crime and one charge of possession of a drug of dependence, for which you were sentenced to an aggregate fine of $800.  That conviction constitutes a relevant breach of the suspended sentence imposed on 19 January 2010.  I am required by law to restore the sentence of imprisonment held in suspense unless I am of the opinion that it would be unjust to do so in view of any exceptional circumstances which have arisen since the making of the order suspending your sentence.

6       In addition to the breaching offences Mr Dann quite properly disclosed that you have other convictions which demonstrate that you have continued to engage in conduct which attracts the attention of law enforcement and brings into question the confidence that a court may have in your prospects of rehabilitation.   

7       You are now 24 and were merely 19 when the index offences were committed. You live with your mother and a 26 year old brother. You have no contact with your father. The marriage ended in 2007. Your father was a violent alcoholic and you experienced and witnessed extreme family violence. There was a siege and you father was imprisoned. You re-experience the abuse through distressing nightmares and recollections.

8       Your maternal grandparents lived with you and your mother and you played a role in caring for them until they both died. You completed year 12 and have a good and consistent history of employment.  Your failure to perform under the Community Based Order which resulted in the first breach was attributed to the trauma surrounding you grandmother’s death and the commitment you had to her care. I note the penalty imposed was only a fine of $200.

9       Dr Aaron Cunningham, Forensic Psychologist, in his report dated 15 April 2013, Exhibit 1, diagnosed you as meeting the DSM-IV criteria for Post Traumatic Stress Disorder (PTSD). He said you were predisposed to the development of PTSD by the significant abuse and violence in your childhood environment and says that your substance abuse was an attempt to cope.  He said that you had family support, stable accommodation and insight into your conduct and had ceased the use of methylamphetamine.

10      There were four character references, exhibit 2 which spoke of your remorse, shame, good moral character and your desire to take responsibility and make something of yourself.

11       Mr Dann referred to 6 factors that he said in combination constituted exceptional circumstances.  First he said that your youth was still a relevant consideration.  You are only 24 and the index offence was committed when you were 19.  Next the delay between that offending and the present is 4 and a half years and 3 and half years since the sentence was imposed and the fact that the operational period of the sentence has long finished. He relied upon what he called the Verdins considerations. That is your PTSD, your methylamphetamine addiction and the fact that your detention in custody would be more burdensome having regard to your mental state.  He next relied upon your family circumstances, the fact that your uncle had been murdered recently and your grandparents, to whom you had a strong affection, had died.  Then he said that I should regard the breaching offences as quite different although he conceded that there was an element of drug trafficking in both. He submitted that whilst the index offence was most serious, the breaching offence was relatively not so serious.  He pointed out that it only resulted in the imposition of a fine of $800 and pointed out the incongruity of an $800 fine triggering a prison sentence of 18 months duration. Finally he pointed to your changed living arrangement, and the fact that you are in a relationship.

12      The basic purposes for which a court may impose a sentence are punishment, deterrence (both specific and general), rehabilitation, denunciation, and protection of the community.  In sentencing, I must have regard to a range of matters such as the seriousness of the offence, your culpability for it, your personal circumstances and those of the victim if any.  I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that as far as possible offenders are rehabilitated and reintegrated into society. 

13      There is a strong expectation that an individual who had been permitted to remain in the community under a suspended sentence and has breached it by the commission of a further criminal offence will have that sentence restored. It is clear that the circumstances which would justify a departure from that strong expectation must be clearly unusual or quite special, or distinctly out of the ordinary as these expressions indicate the circumstances cannot fall within the range of normally anticipated consequences, behaviours or exigencies.  It is not an easy test to satisfy.

14      In your case it is only by the very thinnest of margins that I have come to the conclusion that the combination of the factors outlined by Mr Dann constitute exceptional circumstances.  The decision could have gone either way but in the end your relative youth and the effluxion of time since the imposition of the sentence have tipped the balance in favour of not returning you to custody.  You should appreciate that you have received a second (if not third) chance today and that is highly unlikely if not completely impossible to be offered to you again.

15      I propose to make no further order in relation to the breach of suspended sentence.

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