Director of Public Prosecutions v Konias

[2019] VCC 1866

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 19-00791

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOEL DEAN KONIAS

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	12 November 2019
DATE OF SENTENCE:	13 November 2019
CASE MAY BE CITED AS:	DPP v Konias
MEDIUM NEUTRAL CITATION:	[2019] VCC 1866

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr R. Hammill	Office of Public Prosecutions
For the Accused	Mr T. Christin	Victoria Legal Aid

HIS HONOUR:

1Joel Dean Lataslavic Konias, you have pleaded guilty to two charges of theft, one charge of armed robbery, four charges of obtain property by deception, and one charge of possess a drug of dependence.  Those crimes carry maximum penalties of 10 years, 25 years, 10 years and five years, respectively.

2You are a youthful offender, still being only 22 years of age; you were that age when the offending occurred.  The offending all occurred within the space of about six hours.  You pleaded guilty at the earliest reasonable opportunity and have expressed appropriate remorse.  You must also get the utilitarian benefit of that plea of guilty.

3In this particular situation, you, whilst making full admissions to the police about your conduct, also made a confessional statement.  In that statement, you identified the co-accused, and that information was crucial in the Crown apprehending that co-accused; you must get a demonstrable and significant discount in this sentencing process for that alone.  It is not a situation where you have undertaken to give evidence, but of course there is no need to do that because the co-accused, as I understand it, pleaded guilty in the ultimate.

4So far as parity is concerned, I make it clear from the outset that your co-accused was dealt with in the Children's Court and was dealt with for a significant number of matters.  I have now had the opportunity of looking at the co-accused's criminal history, and he was given an aggregate sentence of nine months, youth justice, but it was for far more matters than what is simply contained here.  Accordingly, so far as parity is concerned, it seems to me to be of virtually no significance.  He also had a more significant criminal history than you do. 

5You do have a criminal history, most of which is in the Children's Court, and it is bearing in mind the nature of your background, it is surprising that your criminal history is not even greater.  It is obviously a matter of concern, but in this particular situation, understandable, and does not really detract from your position.

6A summary of the offending is, and as I have said, it occurred over about a six hour period.  On the night of Thursday, 15 November 2018, you were using methamphetamine.  During the night, 16-year-old co-offender, arrived in a stolen car.  You had known him for about 12 months.  He had stolen that car around about a day beforehand from a driveway in Darnum.

7You went with him, and the pair of you drove to Warragul.  You were aware that the vehicle had been stolen, but of course had nothing to do with the original theft.  That gives rise to the charge of theft of the motor vehicle.  On that charge, any licence to drive a motor vehicle is suspended for one day. 

8During that evening and into the early hours of the next day, the two of you drove around residential streets looking for unlocked vehicles.  By that stage, you were driving, and walking, looking into vehicles.  In Warragul, at one stage, he entered an unlocked Honda CRV which was parked in a driveway, he stole a wallet containing $60 cash and assorted cards; that is the Charge 2, of theft.

9At approximately 3 am - this is the most serious charge - the pair of you were driving past a medical centre car park in Warragul.  By that time, your co-offender was driving the vehicle and you were in the front seat.  As you drove past, you observed the victim sitting in a vehicle, it was parked in the northern section of the car park.  He had been visiting his partner who lived in a nearby unit and returned to the vehicle to retrieve her wallet.

10Your co-offender then drove the vehicle into the car park, put the headlights on high beam and stopped within a few metres from the front of that vehicle.  You got out of the vehicle, carrying an iron bar and a torch.   You approached the victim, who was seated in the drivers seat, shone the torch directly into his face and says, 'What have you got for me?'

11He believed he was being checked by a police patrol and produced his driver's licence.  It was at this time that the co-offender approached him, stood between him and the open driver's door.  Your co-offender was in possession of a large hunting or butcher's type knife, which he held within 30 centimetres of the victim's face.

12Your co-offender made the demands for cash and threatened to stab the victim, and whilst this occurred, you were standing nearby, clearly both aiding and abetting and, in fact, holding an iron bar.  Your co-offender snatched a wallet that had $5 and various cards in it. 

13The two of you immediately returned to the vehicle and drove out of the car park.  The victim obviously feared he was going to be assaulted or killed.  There is no victim impact statement before me. 

14At approximately 3.20, the two of you attended BP service station and - arrived, at the next couple of hours, a number of service stations were attended to - sorry, were attended at, and various items were bought; mainly, it would appear, cigarettes and the like.  They give rise to the property by deception charges, the greatest of which is about $140, as much as I can ascertain. 

15In any event, the situation was that you were arrested not long after that, and admitted to all the offending.  When police searched your house, they found some liquid steroids.  As I have indicted, you were very cooperative with police and provided the investigators with the confessional statement that implicate both yourself and your co-offender; and I have already indicated the benefit that you must receive from that. 

16Firstly, pursuant to s.464ZF of the Crimes Act, I make an order that you provide a saliva sample for DNA purposes.  That order having been made, I must advise you that should you refuse to provide such a sample, police may use reasonable force to take it from you. 

17So that, in essence, is the offending.  The deceptions and the car thefts would not come into this jurisdiction, but for the armed robbery.  Armed robbery is, in its very nature, a very serious crime, and the normal course of events calls for the application of general and specific deterrence, as well as denunciation and appropriate punishment.  Custodial sentences are extremely common where armed robberies are concerned.

18Each case, however, has to be looked at in the circumstances pertaining to it, and in your particular situation, a chronology is, I think, important.

19The first matter to be dealt with is that you had a very difficult childhood.  You were raised in a very tense and disadvantaged family environment, and it is clear from the materials that your father was a heavy drug user.  He, in fact, has spent time incarcerated, particularly when you were in Grade 4.  And your stepmother, who clearly did not treat you well, refused to continue to care for you.  You were sent to live with various family members, and clearly had a very disrupted life. 

20In Year 7, you went to Queensland, you could not fit in and you were bullied 'mercilessly', according to your counsel, because of your stuttering.  You started to abscond and fell into a group engaging in crime.  Ultimately, you were sent back to Victoria.  You went to your father, who had just been released from custody, and the two of you were living a chaotic couch-surfing type of lifestyle. 

21Your father relapsed back into heavy drug use and became erratic and increasingly violent.  You were introduced to drug use by your father, initially using cannabis, then amphetamines and ice, and you were using that regularly at the time of this offending.  You left home at around about 15, with no supports.  Eventually, a friend's family took you in for six or seven months, you moved in there and remained there for two years.  You undertook and completed a number of TAFE courses. 

22The history in terms of your background is contained in a report from the neuropsychologist, Ms Scott, and I direct that that report remains on file.  That, essentially, in more detail, outlines the background that I have just described. 

23You were able to complete a number of TAFE courses, which shows that you are not an unintelligent person, and I think that in the long-term, you should be able to work.  You have worked in abattoirs, and it would seem that your problems have really arisen because of the ongoing effects of your childhood and your introduction to drugs.  It is clearly a situation which, in my view, calls into play the matters outlined in Bugmy and Murrah, and decisions such as that.  Again, I do not think I need to go into all that detail. 

24What is, in my view, very important in your situation is that you were held in custody for 16 days.  That time clearly enabled you to straighten out and get your head clear.  I accept that that period of custody has had a very salutary effect upon you. 

25You, in December 2018, were granted bail to comply with the court integrated services program, CISP.  With them - and I have a report from them that I will refer to in a moment - you went to a Dr O'Donahue, who is a GP - development of a mental health plan and management of your medications.  You, as well, saw a psychologist and received treatment from him. You sought treatment or assistance from a counsellor, Sachi Balle, in regard to alcohol and drug counselling. 

26You were able to successfully complete your period with CISP and, very much to your credit, you have continued to engage with Dr O'Donahue.  You are also seeing a psychiatrist, a Dr Keith Addie, as a result of referral from the psychologist, Mr Huson.  Since completing the CISP program, you have also completed the therapeutic day rehabilitation program provided by Latrobe Community Health Service, and that is a six week programs, which involves attending four days a week to engage in rehab whilst residing at home.

27It is very much to your credit that you have been able to engage in those programs and shows that your attempts to rehabilitate are indeed genuine.  And it would appear from all the materials before me, proving effective. 

28I have, before me, obviously the submission of your counsel, I have the neuropsychologist report, and also have the evidence from Ms James who, as I understand it, is in charge of the CISP program.  The neuropsychological report, again, I do not think I need to go into great detail with that. 

29However, it does point out that you have had a partner for some years, and you have two children together, aged approximately three and two.  That relation had been unstable, I suspect, largely because of drug use.  But in any event, the pair of you have those two children and endeavour to look after them well. 

30You have reported - and there is no reason to doubt - a loving relationship with those two children.  Your counsel informs me, and I accept it, that you now see them on a daily basis, even though you are not living together.  Your daily routine revolves around your children, and that is a very, very positive step insofar as your ultimate rehabilitation is concerned. 

31Insofar as the substance use is concerned, as far as such use is described in that report, I think I have summarised that.  Suffice to say, that you first smoked cannabis at 15, first used ice at 16, and became a regular user between the ages of 18 and 22.  You were using a significant amount of ice and were doing that at the time of this offending.  You reported the occasional use of other substances, but ice would appear to be the problem. 

32I then turn to the report form CISP, but I think it is an enlightening one. 
Ms James told me in open court that how well you had done in all this and that she is a person whose opinion in these matters I respect greatly.  At the conclusion of the program, she said that:

'Mr Konias' engagement within the program remain consistently positive.  Mr Konias has attended the vast majority of scheduled case management and treatment agency appointments, with all treating professionals observing him to be transparent in discussions and receptive to options surrounding his outgoing treatment needs.  This is evidenced by his consistent attendance with his GP, Dr O'Donahue, for review of medicant and mental state, his compliance with opiate replacement therapy, and engagement with psychologist, Mr Charles Huson.  Mr Konias has been observed in the action stage of change for the majority of CISP involvement, with a suggestion that Mr Konias' cessation of opiate use is significant in the context of his lengthy history of use of this substance. 
Mr Konias has reported the realisation that his previous use of illicit substances has not been a positive lifestyle choice and continues to assert his desire to get fully clean.  Mr Konias continues to identify he significance of his partner and children, and seeking employment, and ensuring his continued motivation and focus on treatment, and acknowledges the ongoing difficulties associated with maintaining a relationship with his father, because of his continued drug use and associated behaviours. 
Mr Konias acknowledges the potential toxicity of this relationship and the threat it has on achieving the goal of the drug free lifestyle.  He's informed the writer that he's commenced discussion with his father in the area of his behaviour and the negative impact it's had on the household.  Whilst
Mr Konias repots increased anxiety because of his need to confront his father, he's not shirked the responsibility.  He's identified that he felt empowered as a result.  Mr Konias has reported improved mental health since the commencement of medication and the cessation of regular illicit substance use and has identified on the occasions he's been exposed to substance using peers and family, he has removed himself from that environment.'

33I should add, at that particular point, that I am aware that your father has been in court on both occasions and endeavour, at least, to support you, and I hope he is taking these words on board.  She went on to say:

'It's the writer's opinion that Mr Konias has been active in creating and achieving positive change in the primary areas in which assistance was identified as required at program commencement.  It is suggested by the writer that Mr Konias' consistent response to formalised treatment is commendable in the context of his familial responsibility, and the instability that can result with significant life changes in the area of mental health and substance use have been encountered.  Mr Konias has identified program involvement has forwarded him the opportunity to gain a level of insight in relation to the problematic nature of his substance use and has expressed his view that continued access to supports to maintain change is required.'

34You have maintained those supports and, in fact, you have added to them, and that is, as I have already indicated, very much to your credit; and coming from the people at CISP, who have to deal with some pretty strange people at times, what is in that report is high praise indeed. 

35In any event, it seems to me that this is a situation where the prospects of rehabilitation are really up to you.  You have undertaken that rehabilitation in a very positive and very laudable way.  The risk of you reoffending is, of course, going to be totally dependent upon that rehabilitation and, hopefully in the long-term, it can prove to be low. 

36The circumstances here are such as I refer, basically the Court of Appeal decision in Toumngeun, where the court referred back to the DPP v Leach:

'It is particularly important this court should not devalue or deny the right of a sentencing judge to act mercifully in a case where it seems to the judge to be an instance where an opportunity for reformation of an offender ought to be grasped.  That, after all, may be a decision which rebounds very much to the benefit of the community. 

And further, as the president said in the DPP v Tokava,

“A sentencing judge should be astute to investigate whether a non-custodial disposition is to be preferred, even in the case of a serious offence.  In the long-term, the community's interest will be best served by that court.  This court should seek to promote public understanding of the fact that apart from the interest in the individual whom sought to rehabilitate, important interest in itself is of (indistinct) community interest and maximising the prospects of rehabilitation of an individual who has been convicted of a serious crime.'

37Armed robbery is a serious crime.  Insofar as the level of its concern, it would appear that the prime mover in this was your co-offender; you, however, are as guilty as him.  In that sense, it is not the worst armed robbery I have ever seen, but that man was put in a terrifying situation, and the punishment involved has to reflect that. 

38The decision of Boulton, which is repeated ad nauseum in these courts, indicates that a community corrections order is a significant punishment, and one that can be applied in serious cases.  As I said, I think Toumngeun applies to this situation. 

39This is not, however, a situation where, in fact, imposing a straight CCO.  You have done a period of 16 days in gaol, that has had a salutary effect upon you.  You will realise that the community corrections order which I have had you assessed for, and which you have been found to be acceptable for, will be one which will include conditions as to treatment. 

40You must realise that if you fail to comply with CCO and breach it by offending or simply giving up, you will be brought back before me to be re-sentenced, and you will clearly understand that you are going to be brought back to be re-sentenced on an armed robbery, and I think you fully understand what the consequences of that would be.

41As I have said, your is an unusual situation.  You have done very, very well in terms of endeavouring to rehabilitate, and I think the community would not want me to put you in a situation where those attempts of rehabilitation were thwarted by an additional period of imprisonment.  You will be given the time served as a period of imprisonment, and a CCO will follow upon that.

42Accordingly, in these circumstances, on all of the charges on the indictment, you will be sentenced to imprisonment for an aggregate period of 16 days.  I direct that 16 days be reckoned as having been served under that sentence.  If you agree, you will then be placed on a community corrections order. 

43I have had you assessed, and counsel have and the opportunity of looking at that assessment report.  They recommend treatment and rehabilitation for drugs, mental health, they recommend treatment and rehabilitate programs to reduce re-offending and supervisions.  They say that you are statistically, at least, a high risk of re-offending. 

44In those circumstances, obviously, there is going to be a very significant amount of time that will be required and attendances by you, and that will have a punitive effect upon you.  You will be with conviction and it will be for a period of two years.  Yes, we can sign.  Would you mind going with my associate?

45All right, that is made.  So, pursuant to s.6AAA, which is absolutely meaningless int his situation because it could not have been defended, I will simply say that with all this plea material, had you (indistinct) a trial, I would have given you two with the one.

46COUNSEL:  Yes, Your Honour.

47HIS HONOUR:  And I make it clear in my sentencing remarks, I think that is an artificiality.  Just stand up for me for a moment, if you would?  All right, 16 days and that is served, and a CCO for two years and Christin will explain, you know what the conditions of that are, all right?  What you have done so far is really impressive, all right?  And it is not often that I can see someone standing there who has done as well as you have. 

48You would understand what is going to happen if you breach it.  But I will just say this to you, if things start to go astray, and sometimes they do, you have go to realise that you have got a whole bunch of people you can talk to, all right.  Now, and she will not mind me saying this, if things were going, go and see Jo, all right?

49OFFENDER:  Yes.

50HIS HONOUR:  She is a great woman and she obviously cares a lot about you for turning up here and she does not do that very often.  So, if things go wrong, go and see her.   You know, you have got the - you have got all sorts of people to talk to, all right?  So, you have done really, really well, and you are a dad and you have got two kids to look after, so you do your best you can, all right?

51OFFENDER:  Thank you.

52HIS HONOUR:  Yes, thanks, Mr Hammill, thanks, Mr Tom.  You can come out of there now.  Thank you.

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