Director of Public Prosecutions v Klestadt

[2016] VCC 188

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-01386

DIRECTOR OF PUBLIC PROSECUTIONS

v

EDWARD KLESTADT

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JUDGE:	HER HONOUR JUDGE CAMPTON
WHERE HELD:	Melbourne
DATE OF HEARING:	10 February 2016
DATE OF SENTENCE:	26 February 2016
CASE MAY BE CITED AS:	DPP v Klestadt
MEDIUM NEUTRAL CITATION:	[2016] VCC 188

REASONS FOR SENTENCE
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Subject: Armed robbery, burglary, theft, obtaining property by deception
Catchwords: Armed robbery, no prior offending
Legislation Cited:
Cases Cited: Boulton v R [2014] VSCA 342
Sentence: Community Corrections Order for 3 Years

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms M. Williams QC	Director of Public Prosecutions
For the Accused	Mr S. Bayles	Stary Norton Halphen

HER HONOUR: 

Charges

1Edward Klestadt, you pleaded guilty to one charge of burglary, two charges of theft, one charge of obtaining property by deception and one charge of armed robbery.  The maximum penalty for burglary, theft and obtain property by deception is 10 years.  The maximum penalty for armed robbery is 25 years.

Circumstances of offending

2The circumstances with respect Charge 1 of burglary and 2 of theft are that in January 2015, you were residing in Fourth Avenue Altona North.  Sometime between 24 and 27 of January, you broke into your next door neighbour's house when he was overseas.  You gained access to his property by climbing over the fence and entering the house via the back door.  You ransacked the house and stole a Microsoft Xbox console, two Tiffany rings, one Tiffany necklace and one Neo necklace. 

3Charge 3 of theft relates to the theft by you of your neighbour's Range Rover.  You took it from the garage attached to the house and parked it at a nearby street intending to use it at a later date.

4Charge 4 of obtaining property by deception relates to your actions on 27 January 2015 when you attended at EB Games which is located in the Altona Gate Shopping Centre and sold the Xbox console controller stolen from your neighbour's house, obtaining the grand sum of $65.05 from that sale.

5When your neighbour returned from his holiday on 9 March 2015, he noticed that the house was messy and his car was gone as were his car keys.  Items were missing and a window out to the backyard had been smashed.

6Charge 5 for armed robbery relates to your actions on Sunday 22 February 2015.  On that date at around 6 pm, Leanne Robinson commenced work at the Erotica Night Adult Store located in Williamstown where she worked alone.  At approximately 7.30 pm, she received a phone call inquiring as to whether the store sold Orange Mojo synthetic cannabis and she replied in the affirmative.  At 7.45 pm, you went to the store dressed in a dark grey coloured duffle coat, black gloves, dark jeans and dirty runners.  You had a black backpack and your face was coloured with a black T-shirt.  You were wielding a large bolo knife.

7You went behind the staff counter and commenced stealing a large quantity of Orange Mojo.  You were confronted by Ms Robinson who had been out in the storeroom.  You raised the knife and pointed it towards her and said, "If you know what's good for you, you'll stay back and you won't follow me out."  You then left the store via the front door.

8At the time you confronted Ms Robinson with the knife, she thought it was a steel item like a crowbar. The CCTV footage captured the incident and images of you driving the stolen Range Rover in the vicinity of the store.

9On Tuesday 19 May 2015, investigators executed a search warrant at your property in Fourth Avenue Altona North.  You were arrested and a search was conducted of your house.  During the search, investigators located clothing worn by you during the armed robbery, the knife used during the robbery and the keys belonging to the stolen Range Rover.  You made full admissions in your record of interview and you assisted the police by detailing where you had left the stolen Range Rover and where you had sold the Xbox games and consoles. 

Motivation for offences

10Dealing firstly with your motivation for committing these offences, in his plea on your behalf, your counsel submitted that your purpose and motivation were related to your drug addiction.  I accept this submission as it is consistent with the admissions you made in your record of interview and your background history which was provided to the court.  Unfortunately, such motivation is not uncommon in offences such as yours.  It is not a mitigatory factor but it offers some explanation as to why you have committed these offences.

Nature of Offending

11As to the nature of your offending, your counsel accepted that the offences were serious.  In particular, the offence of armed robbery given that the female shop assistant was alone and in a vulnerable position.  However, your counsel sought to distinguish the armed robbery from many other instances of this offence in the following ways.

12You had waited until the store attendant was out the back of the store before entering.  You entered the store and commenced to steal the synthetic cannabis in the absence of any person.  When the store attendant came back into the store, you directed her to stay back - she was some distance away from you and at no stage was she close.  In your record of interview you had said that you had used the knife as a visual deterrent and you would not have used it.

13These circumstances were submitted to distinguish your offence from cases where the victim of the armed robbery was forced at knifepoint to hand over money or goods.  In sentencing you on the armed robbery, I accept that you used the knife as a visual deterrent and that you would not have used it on the store attendant.  I accept that the armed robbery can be distinguished from those in which the victim is forced at knifepoint to hand over money or goods.

14While I have taken these matters into account in sentencing you, they do not detract from the fact that you had a weapon when you entered the store, the store attendant was alone and in a vulnerable position and she was not aware that you did not intend to harm her.  I commend her on having the courage to read her victim impact statement to the court.  I have no doubt that your actions caused her to fear for her safety and that the impact of your offending continues to affect her to this day.

Personal History

15Your personal history was contained in the outline of plea submissions prepared by your counsel and further details were contained in reports from your treating psychiatrist, Dr Enshan Ramika dated 5 February 2016 and Dr Patrick Newton, forensic and clinical psychologist dated 4 February 2016.  There was also a letter from your mother, Mary Klestadt. 

16You were born in Melbourne on 14 September 1986 so you are now 29 years old.  You are an only child and you grew up in the Williamstown area.  Your father is a magistrate and your mother works in events management.  On p.1 of his report, Dr Ramika described you as presenting with “a longstanding history of emotional instability, frequent anger outbursts, low self-esteem, self-loathing tendencies and recurrent suicidal ideation since you were aged 14”. 

17In her letter to the court, your mother says that you have struggled with mental health issues since you were diagnosed with Attention Deficit Disorder in primary school.  She said that you experienced difficulties in school from prep onwards and that you were prescribed the drug Ritalin from about 8 years old to 13.  Apparently you were bullied at school for your behaviour and learning difficulties and got into a lot of fights.  As a result, you were asked to leave your prep school in Year 7.

18At around 15 years old, you were admitted to the Albert Road private clinic for depression as an inpatient for three months and subsequently as an outpatient for a further six months.  You were medicated on Zoloft.  In the meanwhile, you continued to struggle with school, attending two high schools before successfully completing Year 12 at Linden Hall Community College.  During these teenage years, you continued to engage with mental health experts on a weekly basis and you were medicated consistently with antidepressant medication from the age of 12 to 18.

19After leaving school, despite your difficulties you managed to commence an advanced diploma in computer systems engineering at Victoria University.  You completed the first year of that course and then left to commence full-time employment.  You work as a computer systems technician for AVG, an anti-virus company for some two and a half years and you went to RMIT to finish the advanced diploma in computer systems engineering.

20You then worked for some four years at My Telecom as an internet service provider progressing to the position of team leader. After leaving this job you worked as a senior systems engineer for about three years for two other companies.  Your last job was with the National Bank for a matter of about three months.

21With respect to your substance abuse issues, Mr Newton reported that you began to drink heavily from about the age of 18 and that by the age of 20 you were drinking half a bottle of spirits on a daily basis.  You started using cannabis when you were aged about 20 to control your feelings of anxiety and you started smoking the synthetic cannabis for the same reason about three years ago.

22In February 2014, you were admitted to the Malvern Private Hospital for drug and alcohol rehabilitation and you stayed there for 30 days.  After leaving the hospital, initially you managed to maintain abstinence and you regularly attended meetings of Narcotics Anonymous.  However in mid-February 2014, you broke up with Crystal, your partner of some nine years, and this caused you to relapse into heavy alcohol and synthetic cannabis use.

23You instructed your counsel that you engaged in extremely self-destructive behaviour with complete disregard for your own health, safety and life.  During this period of your life, you were living alone, you were unemployed and your connection with your family and friends was minimal.  You were in a downward spiral and in the grip of your drug and alcohol addiction when you committed the offences that you have been charged with.

24On a more positive note, there has been no further offending since you committed these offences in early 2015.  You have undergone further treatment for your drug and alcohol addiction.  On 20 May 2015, you were bailed to the Arrow Health Residential Drug and Alcohol Rehabilitation Facility at Montserrat and you participated in a six-month residential program and spent approximately two and a half months in transitional housing. 

25As well as providing a report on your progress, Ms Lieber, a counsellor with Arrow, attended court to give evidence on your behalf.  She reported that initially you took an oppositional perspective to the therapeutic community treatment provided.  She gave evidence that it was difficult to gain your trust, you were suicidal and struggled with overwhelming shame and guilt about your offending.  However during the six-month treatment plan, you showed insight into the extent of your substance abuse problem and you were willing to continue with treatment to deal your issues.  You had two relapses, one involving alcohol and the other one alcohol and allegedly the presence of cannabis in your room while you were in transitional housing. However given your mental health issues and the extent of your addiction, Ms Lieber regarded these relapses as not being unusual. 

26On p.2 of his report, Dr Ramika was under the impression that your longstanding abuse problem was interconnected with your mental health issues and he was of the view - on a positive note that you had achieved periods of long-term abstinence in the past two years.  He also described you as appearing to be sufficiently motivated to stay away from drugs and alcohol at present, and a being insightful into your psychological difficulties and recognising the harmful effects of substances.

27However on p.30 of his report, Patrick Newton considered that your insight into the risk of drug use and heavy drinking was limited and that as such you remained at a high risk of relapse to severe substance-related problems.  Continued drug use and/or heavy drinking constituted the most significant criminal risk factor in your case.  Accordingly, he strongly recommended your participation in intensive supervised drug education and counselling.

28In her letter to the court, your mother referred to your arrest seven months ago as being a watershed for you.  She said you realised that you had a significant problem and that professional help over the long-term would be required for you to address your mental health issues.  Your parents are supportive of you and they are encouraged to have seen the significant improvement and change in your attitude towards seeking help and support for your mental health and addiction problems.  Your mother said that she was confident, given your high level of intelligence and innate good sense and caring personality, that the outcome would be positive. 

Plea Submissions

29In his plea on your behalf, your counsel submitted that a community corrections order was within sentencing range.  In making this submission, he relied on the distinguishing features of the armed robbery which I referred to earlier in this sentence.  However, the main thrust of his plea was with respect to the importance of rehabilitation in a case such as yours.  In essence, it was submitted that your history of mental health issues were long-standing. They commenced in your early childhood and your substance abuse problems were interconnected with your mental health issues. Consequently, treatment for your mental health issues together with rehabilitation for drug and alcohol use were intricately connected with your prospects for rehabilitation in the criminal sense. 

30Your counsel relied on your participation in drug and alcohol treatment and treatment for your mental health issues as demonstrating that you have a significant willingness to deal with your issues.  He submitted that I should be satisfied that you had demonstrated good prospects of rehabilitation.  This was reinforced by the fact that you had no prior criminal history and a solid work history, you had shown remorse for your actions which was demonstrated in your early plea of guilty and your record of interview.

31In her submissions regarding sentence, the prosecutor accepted that you pleaded guilty at the earliest opportunity and that you had no prior convictions.  However, general deterrence was submitted to be a primary sentencing consideration in particular with regard to the armed robbery given its prevalence in the community and the fact that a vulnerable victim had been targeted.

Sentencing Remarks

32In sentencing you, I have taken into account both general and specific deterrence.  The armed robbery in particular was a serious crime and it is important that others be deterred from committing such crimes on soft targets.  As I said earlier in this sentence, it was apparent from the victim impact statement that the store attendant was greatly affected by the armed robbery and your offending must be condemned by this court.

33However given all the circumstances of your case, I believe that both general and specific deterrence can be achieved in imposing a community corrections order.  As the Court of Appeal said in the guideline judgment in Boulton v R [2014] VSCA 342, the community corrections order is intrinsically punitive and depending on the length of the order and the nature and extent of the conditions imposed, it is capable of being highly punitive.  The mandatory conditions to the order affect the offender's liberty.  Contravention of any condition is an offence punishable by three-months imprisonment.  Contravention of a community corrections order also carries with it the prospect that the offender will be re-sentenced on their original offence.

34In deciding to sentence you to a community corrections order, I have taken into account all the mitigating factors referred to by your counsel.  I have given you a discount for your plea of guilty which I accept demonstrates your remorse for your offending.  Despite Mr Newton's reservations concerning your insight into your drug and alcohol addiction, I am satisfied that you demonstrated insight into your problems by participating in drug and alcohol treatment.  While there have been hiccups during the treatment process, you are prepared to continue down this path and you have the support of your parents in this endeavour. 

35I am satisfied that the main factor in your offending was the drug addiction.  As you have already commenced the process of rehabilitation, I consider that it is in the best interests of the community that this process continues.  The community corrections order will enable you to maintain your rehabilitation with the support of your family and to benefit from the support they provide.  I am satisfied that your prospects of rehabilitation are reasonably good given your lack of priors and work history. 

Sentence

36So on the charges on the indictment, you are convicted and sentenced to a community corrections order for a period of three years.  The order will contain core conditions and these are that during the period of the order, you must report to and receive visits from the Secretary, you must notify the Secretary of any change of address or employment, you must not leave Victoria without the Secretary's permission, you must comply with directions given by the Secretary and you must not commit an offence punishable by imprisonment.

37The special conditions of the community order are that you perform 200 hours of community work, that you attend for treatment and rehabilitation for both drugs and alcohol, treatment and rehabilitation for mental health issues, programs to reduce offending and you will be supervised.

38I must tell you that if you were to commit an offence - another offence punishable by imprisonment during the period of the community corrections order, this could lead to the imposition of three severe penalties.  There would be a penalty for the offence itself, a penalty for the contravention of the community corrections order and there would be sentencing again on the original offence for which you have received the community corrections order and that would be likely to be a sentence of imprisonment.

39In relation to the charge with respect theft of the motor vehicle, it is mandatory that you are disqualified from obtaining a licence and I will disqualify you from obtaining a licence for a period of three months.  I understand he does not have a licence, is that right?

40MR BOYCE:  Yes, Your Honour.  I'm instructed that at present the accused is not the holder of a licence or a permit ‑ ‑ ‑

41HER HONOUR:  It is a three-month mandatory period, is it not?

42MR BOYCE:  And it's a three-month mandatory minimum by virtue of s.89(5).

43HER HONOUR:  All right.  6AAA, four years and eight months to serve three years and eight months. 

44MR BOYCE:  6AAA, Your Honour?

45HER HONOUR:  6AAA, but for his guilty plea.

46MR BOYCE:  6AAA, yes, I - just bear with me, I'm just wondering whether it applies in the incidence of a community corrections order imposition thereon.

47HER HONOUR:  It does.

48MR BOYCE:  It does?

49HER HONOUR:  Indeed it does.  Because one of the benefits of his plea of guilty is he gets the community corrections order.

50MR BOYCE: Well, I only raise it - I defer obviously to Your Honour. 6AAA, if there's - 1(a) in sentencing an offender, a court imposes a less severe sentence than it would otherwise have imposed because the offender pleaded guilty to the offence; and the sentence imposed on the offender is or includes an order under Division 2 of Part 3 of the Sentencing Act - now that is Part 3, Division 2, sentences of imprisonment do not include a community corrections order. To a fine exceeding 10 penalty units; or (iii) an aggregate fine exceeding 20 penalty units, the court must state the sentence and the non-parole period, if any, that it would have imposed but for the plea of guilty.

51I must say, Your Honour, I'm a little taken by surprise, I don't know if anything further - I'm sure if Your Honour does make an order under s.6AAA(1) of this - the sentence, but I was just concerned that - as CCO is not an order under Division 2 of Part 3 or a fine or indeed an aggregate fine exceeding 20 penalty units but I'll - can I just check that, Your Honour, if I may?

52HER HONOUR:  You may.

53MR BOYCE:  Thank you, yes.

54I'm instructed - I think the correct position is you're not obliged to make it but if Your Honour does make it, it won't vitiate the sentence.  Thank you, Your Honour.

55HER HONOUR:  All right, well I suppose I would say that it is common practice to ‑ ‑ ‑

56MR BOYCE:  Yes.

57HER HONOUR:  ‑ ‑ ‑ to make it in cases where the disposition handed out is less than that would have been applied ‑ ‑ ‑

58MR BOYCE:  Yes.

59HER HONOUR:  ‑ ‑ ‑ if there had not been a plea of guilty.  So there is no harm in indicating that is what I would have done?

60MR BOYCE:  No.  No indeed.  I'm indebted to Your Honour.

61HER HONOUR:  All right, thank you, and thank you for referring me to that section, I'll have another look at it.

62MR BOYCE:  Your Honour's well pleased, thank you.

63HER HONOUR:  Thank you.  All right, we need the community corrections order to be shown to Mr Klestadt and his counsel can approach the dock.

64MR BAYLES:  Thank you, Your Honour. 

65(Community corrections order signed and acknowledged.)

66MR BOYCE:  Your Honour is exactly right and I'm terribly sorry if I've misled you, subsection (3):  In the case of a sentence other than a sentence referred to in subsection (1)(b), the court may state the sentence that it would have imposed - so it's discretionary.

67HER HONOUR:  I was sitting here thinking I've been doing it for X number of years and ‑ ‑ ‑

68MR BOYCE:  Yes, I'm terribly - I'm terribly ‑ ‑ ‑ 

69HER HONOUR:  No, no, I'm thinking to myself - I was thinking to myself, gosh, there's a possibility I've got it wrong.  How does ‑ ‑ ‑

70MR BOYCE:  No, I'm terribly sorry, Your Honour, I didn't ‑ ‑ ‑ 

71HER HONOUR:  Doesn't matter, it's fine. 

72MR BOYCE:  Thank you, Your Honour.

73HER HONOUR:  It's fine.

74MR BOYCE:  Sorry, Your Honour, there is one other matter.  Obviously enough I wasn't the - previously but ‑ ‑ ‑

75HER HONOUR:  Yes.  No, no.

76MR BOYCE:  ‑ ‑ ‑ Ms Williams was, but I'm told by my learned friend that there may have been an application for a disposal order?

77HER HONOUR:  Disposal.  I'm pretty sure that that is right.

78MR BOYCE:  But I'm now instructed that that's not pursued.

79HER HONOUR:  Right, it's not pursued.

80MR BOYCE:  No.

81HER HONOUR:  All right.  Yes, all right.  In that case - thank you.

82MR BOYCE:  And I don't think there are any other ancillary orders that were ‑ ‑ ‑

83HER HONOUR:  No.  No, there weren't.

84MR BOYCE:  Yes, thank you, Your Honour.

85HER HONOUR:  All right, thank you.  Are there any other matters?  All right, thank you.  We'll adjourn the court.

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