Director of Public Prosecutions v Kypreos
[2019] VCC 557
•26 April 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-00141
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANIEL KYPREOS |
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JUDGE: | HIS HONOUR JUDGE C RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 April 2019 | |
DATE OF SENTENCE: | 26 April 2019 | |
CASE MAY BE CITED AS: | DPP v Kypreos | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 557 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Aggravated burglary, causing injury intentionally and criminal damage – related summary offence – contravention of Community Correction Order – family violence related offending – serious examples of offending – early plea of guilty – appropriate vehicle for general and specific deterrence – cancellation and resentencing on Community Correction Order – new sentence imposed on charges upon indictment
Legislation Cited:
Cases Cited:
Sentence: Total effective sentence of 5 years and 6 months’ imprisonment with non-parole period of 3 years’ imprisonment. s6AAA declaration of 7 years and 6 months’ imprisonment with non-parole period of 5 years’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms A Upton | Solicitor for the Director of Public Prosecutions |
| For the Accused | Mr M Kozlowski |
HIS HONOUR:
1 Daniel Kypreos, on 8 April 2019, you pleaded guilty to aggravated burglary (Charge 1), causing injury intentionally (Charge 2) and criminal damage (Charge 3). In addition, you pleaded guilty to an unrelated summary offence of failing to comply with the conditions of the community corrections order imposed on you by the Magistrates’ Court sitting at Sunshine on 6 September 2017.
2 The community corrections order was imposed for the offences of criminal damage (two charges), unlawful assault and contravention of a Family Violence Intervention Order. The terms of the community corrections order were that it was for a duration of 12 months and conditions were attached to the order being:
(1)you perform 200 hours of unpaid community work;
(2)you be subject to supervision by the Secretary of the Department or his delegate; and
(3)you be subject to treatment and rehabilitation by attending behaviour programs directed at reducing your risk of reoffending.
3 You admitted your criminal record.
4 Tendered as Exhibit A and read aloud in court was the summary of prosecution opening upon plea. In summary, prior to separating from your victim in or around 2015, you had been in a relationship with her for a period of approximately 10 years. There are two children of the relationship aged five and three years. In March 2016, there was a family violence incident where you assaulted your former partner and as a result, you were arrested and spent three months in custody prior to being sentenced to a community corrections order. Your victim, in the belief that you had cleaned yourself up, permitted you to move back into what was for all intents and purposes, the matrimonial home. There was an intervention order on foot that restrained you from committing family violence upon your former partner. By November 2016, you were no longer living with your victim. However, there was another family violence incident which resulted in you slashing your victim’s car tyres. You eventually finally separated in February 2017.
5 At the time of your offending, pursuant to the access arrangements agreed between you and the victim, your two children were staying with you. In the early hours of 29 October 2018, there was an exchange of texts between you and the victim which included you asking the victim who was with her. You were informed by the victim that she was alone. Ultimately you sent a text to the victim telling her that you were coming over to her place and “Don’t bother locking the doors; I have tools, I can get in anyway”.
6 As fate would have it, whilst you were driving from your home to that of your victim, you were intercepted by police for a random check and despite this after having been permitted to drive on by the police, you continued to your victim’s home where you ultimately committed the crimes on the indictment.
7 You arrived at your victim’s home at approximately 2.30 in the morning and attempted to get in by the front door. You then walked down the sideway to find your way blocked by a locked gate. You returned to the front door and yelled, “Let me in”. Eventually your victim opened the front door and let you in. You were dressed in black wearing a black skeleton face mask and were holding a crowbar (or jemmy bar) and a chisel. You began searching through the house saying, “Who the fuck is here”. You searched every room and then went out into the back yard in furtherance of your search.
8 Your belief that someone might be in the victim’s home arose out of the text exchanges. Contained within that exchange is a reference to a man named Wilson, who I was informed on the plea, had previously stabbed you and to whom you bore animus. Your intent on entering the house was to assault any male therein and you anticipated the male would be Mr Wilson. (Charge 1, aggravated burglary)
9 After searching the house, you and the victim were in the kitchen together and you punched her to the right side of her mouth with your left fist. This split her lip and caused it to bleed. You also punched her about the head and body. Upon medical examination the victim presented with a swollen and bruised right side of the upper lip and some bruises were noted to her lower legs. There was also a note that “the teeth are not normal” (see page 99 of the depositions). In her statement for the hand-up brief, the victim complained of having a wobbly tooth. (Charge 2, causing injury intentionally).
10 After assaulting your former partner, you started smashing holes in the walls with the crowbar and/or chisel. Your victim locked herself in the bathroom and stayed there for a few minutes until she thought you had left her home. She came out of the bathroom to find you in the kitchen and, armed with a spray can of Glen 20, sprayed you in the eyes and pushed you towards the front door, telling you to go.
11 You were arrested at 5.54 am and later an interview under caution was commenced, but was suspended to allow you to sleep. The interview was not resumed because of your attitude to the police after the break.
12 The maximum penalty for aggravated burglary is 25 years’ imprisonment, while the maximum penalty for causing injury intentionally and criminal damage is 10 years’ imprisonment. Upon finding the breach of the community corrections order proven, I have the power to resentence you which is the recommendation of the authors of the report from the Department of Justice and Regulation. (See Exhibit E). As I will be exercising the powers of a magistrate, the maximum penalty for all offences, save unlawful assault, is two years’ imprisonment. The maximum penalty for unlawful assault is three months’ imprisonment. I take into account your limited compliance with the order
13 You were remanded in custody on 29 October 2018 and, as at the date of your plea, had spent 161 days by way of pre‑sentence detention, not including the date of your plea.
14 In respect to the unrelated summary offences, the foundation for the Magistrates’ Court order, in respect to the offences to which I have already referred, were opened in court by the prosecutor. (See Exhibits C and D). On 28 November 2016, you attended at your victim’s home. At this time a Family Violence Intervention Order was on foot, prohibiting you from committing family violence upon the victim. The victim allowed you into her home and you became angry and verbally aggressive towards her. You became angry because the victim refused to give you money. You pulled the victim to the floor and then pulled her hair. As a result, the victim sustained a scratch under her eye. The victim left her home and called the police. Shortly thereafter, you left the victim’s home and on the way out, you stabbed knives into the rear bumper bar of the victim’s car and a front and rear tyre of her car was slashed, (unlawful assault, contravention of a Family Violence Intervention Order and criminal damage).
15 On 19 December 2016, you were apprehended near the Flemington Race Course with others, having used spray cans to graffiti trains stored at that location (criminal damage).
16 Tendered as Exhibit B on the plea was the Victim Impact Statement of your victim and estranged partner. As a result of your behaviour, she suffers from nightmares. There are days where she does not wish to leave her home. She lives in Melton where your parents’ home is located and although none of your family have “bothered” her, she feels “funny” going up the street in case she meets any member of your family. She is saving money on a fortnightly basis to pay for the damage that you caused to her home. The damage is a constant reminder to her of your conduct and has caused her problems with the real estate agent.
17 Mr Kozlowski of counsel, who appeared on your behalf, conceded that a sentence of imprisonment was the only appropriate disposition in your circumstances. His outline of plea submissions was tendered as Exhibit 1. You are 28 years of age and are the eldest of five siblings. Your mother and father separated at or about the time of your birth. You were raised by your mother who had a number of partners. One of these partners, Stephen Buckley, frequently physically abused you, as did some of your mother’s other partners. It was put on your behalf, that as a result of the abuse, you spent a good deal of time on the streets during your childhood and you witnessed acts of violence during that time.
18 In your late teens, you met with your father and a relationship developed with him that ultimately formed into a strong bond. In March 2018, your father died of a heart attack which may have been contributed to by his abuse of the drug methamphetamine. Prior to your father’s death, you spent a good deal of time with him and assisted him with domestic chores. Traumatically for you, it was you who discovered your father’s body some three days after his death.
19 You completed Year 10 at school, with your final year being a pre-apprenticeship year at a TAFE college. Thereafter, you commenced and completed an apprenticeship as a painter and worked at your trade for approximately two years after you qualified. You ceased working as a painter when you were about 22 years of age because you found that the paint fumes aggravated your asthma. Thereafter, you worked as a warehouse picker for approximately one year and at the age of 23 ceased work and have not worked since, a period of approximately five years.
20 You have been an abuser of alcohol, tobacco, cannabis and methylamphetamine as well, as at the time of your offending, Xanax.
21 You are currently in a relationship with Erica Yee, to whom you have a 10 year old daughter. This child was not born out of a relationship. However, your association with Ms Yee was rekindled some 18 months ago and has formed into a relationship. Ms Yee is a positive influence on you, as she is implacably opposed to the use of drugs and violence in any form. It was put on your behalf that your offending took place during a temporary break in your relationship with Ms Yee.
22 Mr Kozlowski informed me, that as far as you were concerned, your relationship with your victim ended in 2014, whilst your victim was pregnant with your oldest child. What follows from that is that some form of on-and-off relationship must have existed for your younger child to have been conceived. It was put on your behalf that overall, your relationship with the victim was good. However, it was marked by mutual drug use and what was described as “bi-directional violence”. Prior to being remanded in custody, the custodial arrangement for your children was split 50/50 between yourself and your victim. Since the offending, you have been on remand and have not seen your children.
23 It was put on your behalf that at the time of your offending, you were heavily affected by methamphetamine and Xanax, and that you had formed a belief that Mr Wilson, the man who had stabbed you, was at the complainant’s house.
24 Mr Kozlowski took me through the text exchange between you and the victim (Exhibit 4), in an effort to demonstrate the troubled relationship between you and your victim and to establish that immediately after the offending, you demonstrated remorse by apologising to your victim.
25 To my mind, the text exchange reflects adversely on you because any heat in the exchange arose from the victim realising that your contact with her was to her mind motivated by your desire to score some drugs. Thereafter your texts are both offensive and aggressive and to my mind, the victim in her responses was merely “returning fire”.
26 As to the expression of remorse in Exhibit 4, I view it as being no more than an expression of regret for what you had done, because from prior experience you were aware of the potential impact on you arising out of your conduct should the police become involved. (See pages 20 and 21 of Exhibit 4).
27 Whilst in prison, you have remained drug free and participated in a number of educational courses. (See Exhibit 3). You have the support of your grandparents and Ms Yee. Ms Yee plans to move to Ballarat and it is intended that you will join her when you are ultimately released from prison. Tendered as part of Exhibit 2 was a reference from Jason Summers, who will give you work in the Ballarat region upon your release.
28 You entered your plea at the earliest opportunity and are entitled to the benefits that flow to you from your plea being that it has utilitarian benefit and that it is some evidence of your remorse. However, you are an appropriate vehicle for the application of both general and specific deterrence.
29 I regard the offending the subject of the indictment, in all respects, as serious examples of offending of their kind. Whilst armed and masked, you entered your victim’s home searching for a male who simply was not present. Your intention in respect to the male was to assault him. You believed the male to be Mr Wilson, a man to whom your bore animus. Upon becoming frustrated with your lack of success in respect to the man that you expected to find at your victim’s home, you assaulted the mother of your children. You terrorised her by going about the house and damaging it with either the jemmy bar or chisel that you brought with you to her home.
30 Violence against women in our community is a cancer. You struck the mother of your two children. It is not the first time that you have assaulted your victim. Any sentence that I impose upon you must reflect our community’s attitude to violence towards women.
31 You are 28 years old. You have a lengthy criminal history including prior offending against your victim, the mother of two of your children. You have not worked for five years. You were affected by drugs at the time of your offending. Your offending must be denounced, and justly punished, and you and other persons must be deterred from committing serious offences of this kind.
32 As against that, you have remained drug-free whilst in prison, and additionally have undertaken some courses of study. You have the support of Ms Yee and have a home to go to and potential of work upon your release. Your pleas of guilty are early ones. I must look to your rehabilitation, the prospects of which I assess as guarded.
33 Doing the best I can, taking into account the objective circumstances of your offending, your personal circumstances, and applying sentencing principles, I sentence you as follows:
34 In respect to the indictable offences on Charge 1, four years imprisonment. On Charge 2, twelve months imprisonment and on Charge 3, twelve months imprisonment. I order that six months of the sentences imposed upon Charges 2 and 3 be served cumulatively upon the sentence imposed on Charge 1. This results in a total effective sentence on the indictment to five years imprisonment. On the charge of contravene a community correction order, I convict and sentence you to one month's imprisonment.
35 In respect to the unrelated summary offences, I cancel the community correction order and sentence you to an aggregate sentence of twelve months sentence. I order that six months of this sentence be served cumulatively upon the sentence imposed upon indictment. This results in a total effective sentence of five years and six months imprisonment and I order that you must serve three years imprisonment before you will become eligible for parole. I declare that you have spent 179 days by way of pre-sentence detention, not including today.
36 Pursuant to s.6AAA of the Sentencing Act 1991, I declare that but for your pleas of guilty, I would have sentenced you to seven years and six months imprisonment, with a non-parole period of five years imprisonment. You may be seated. The Crown have made application for a disposal order and for a forfeiture order and I have made those orders and hand down copies. Are there any other matters to be attended to?
37 MR LARKEN: No, Your Honour.
38 MR GRAY: No, Your Honour.
39 HIS HONOUR: Remove the prisoner.
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