Director of Public Prosecutions v Lunedei

[2016] VCC 1455

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01282

DIRECTOR OF PUBLIC PROSECUTIONS

v

MATT LUNEDEI

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:	27 September 2016
DATE OF SENTENCE:	27 September 2016
CASE MAY BE CITED AS:	DPP v Lunedei
MEDIUM NEUTRAL CITATION:	[2016] VCC 1455

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms N. Burnett
For the Accused	Ms B. Fanjic

1HIS HONOUR:  You can stay seated, Mr Lunedei.  Matt Lunedei, you have pleaded guilty to one charge of aggravated burglary, one charge of burglary and one charge of theft.  They carry maximum penalties of 25 years, 10 years and 10 years respectfully.

2Firstly, pursuant to s.464Z of the Crimes Act, I make an order that you provide a saliva sample for DNA purposes. That order having been made, should you refuse to provide police with such a sample, they may use reasonable force to take it from you, and that order is made and handed down.

3You are 26 years of age.  You have pleaded guilty at the earliest reasonable opportunity in my view, even though you did a no-comment record of interview.  I accept that you must get the utilitarian benefit of such a plea of guilty, and on the material before me, I accept that you have displayed appropriate remorse insofar as your own family is concerned and, according to one of the character references at least, insofar as complainants are concerned.

4You do have a criminal history, it is not of long duration and did not commence until you were in your early 20s.  I am told that criminal history began with amphetamine use.  I have no reason to doubt that.  Concerningly, in this particular situation, whilst you have no priors of actual violence or assault, you do have priors for having weapons, one of which is for knuckledusters which is of significance.  I will summarise this matter in a moment.

5Firstly, I point out that all your co-accused have not as yet been dealt with, and accordingly, parity is not an issue. 

6The offending occurred whilst you were in breach of at least one CCO.  That certainly does not aggravate the matter, but is a cause for some concern. 

7A summary of offending is basically as follows.  You at the time, as I said, were – are now 26 and were 25.  You had been in an on-off relationship, as I understand it, with a Ms Noble.  She is the ex-partner of the victim in the matter, a Mr Beltin.  He had been breaching apparently an intervention order and you were contacted. 

8Your other co-accused were a Michaela Godwin, who was 21, and a Sebastian McNeill, who was 23 years of age.  On the material before me, it would appear that he was the supplier of the major weapon that was used in the course of this offending.

9In any event, on 1 April 2016, Ms Noble used her mobile phone to contact you.  She then left her home, which is in Doreen, at about 6.40 pm.  She met up with you in the car park of a 7-Eleven. You were in the company of McNeill and Godwin. 

10She made multiple phone calls to the victim and arranged to meet him at his home.  You all travelled in her vehicle, a silver Peugeot, to the home in South Morang.  He had left apparently, the victim, his property open for Noble to go inside while he was visiting his sister.

11The group of you entered the home, on the material before me, with McNeill carrying a sawn-off double-barrelled shotgun in his backpack.  Obviously, by reason of the plea, you acknowledge that you were aware of its presence.

12You, McNeill and Godwin hid in one of the bedrooms while Noble waited for the victim in the rear yard.  She called him again and enquired about his whereabouts.  It was clearly a determination to lure him to the premises.

13In any event, at approximately 7.15 pm, he arrived home.  Noble was in the rear yard and took him inside.  You, McNeill and Godwin burst out of the bedroom.  McNeill was wearing a mask and Godwin was wearing a bandana over her face.  There were other means of identification which I do not need to go into here.  You, on the material, were not wearing a disguise, but you later on threatened the victim.

14In any event, you brandished a sawn-off shotgun and pointed it at the victim.  You yelled at him to sit down and demanded that he empty everything out of his pockets.  He placed his wallet, phone and keys on the coffee table.  McNeill then rifled through his belongings and placed the items in his backpack. 

15Godwin, at that stage, armed herself with a large knife from the kitchen.  You are not indicted for armed robbery and, accordingly, you do not get sentenced for that.  The real problem here is the use of the sawn-off shotgun in this aggravated burglary.

16You gave the shotgun to McNeill while you went through the cupboards and placed other items in the backpack.  While that was occurring, the victim asked McNeill not to point the shotgun at him and not to take his property.  McNeill gave the shotgun back to you and punched the victim in the face with knuckledusters.  The proposition here is that you all went around there just to give him a bit of a scare.  Certainly sufficient armoury would suggest that that might not be quite right.

17In any event, you all left and you said to the victim to stay there for ten minutes.  "Don't call the police, otherwise you'll get it."  A number of items were stolen but, again, you are not charged with armed robbery or even theft.

18The victim was clearly terrified by all this, unable to sleep and carried out various identifications which I do not need to go into.  In any event, the police were informed.

19Subsequently, on 8 April 2016, you attended at your co-accused's home. That is Ms Noble.  You forced your way into the house and stole various items.  You were captured on CCTV footage and your fingerprint was later located. 

20You, I am told, went there to see if there was a record of interview to see whether your co-accused had, a colloquialism, "Tipped you in".  I accept that that probably was the case, but nevertheless, it remains a burglary and has occurred.

21In circumstances where this matter was pending, I do not know what the order of everybody being arrested was, but simply treat it as a burglary on a private property with property being taken.

22There were a number of you, the victim was clearly outnumbered.  Two of you were armed at the time of him entering the premises.  Another weapon was obtained and it has to be regarded, in my view, as a very serious example of an aggravated burglary.  Aggravated burglaries with sawn-off shotguns, whether they be loaded or not, a very dangerous thing to do, must invoke appropriate punishment.

23It is a situation that calls clearly for the application of general deterrence.  In your particular situation, I do not think specific deterrence is that important.  You are going to get a significant sentence in any event, but it is really up to you.  Denunciation and appropriate punishment must also play a significant part.

24A significant gaol sentence is inevitable in my view.  The Crown's submission was that a combination sentence was outside the range and I agree with that.  I then have to work out what is the appropriate sentence for you.

25As I have said, you are still only 26.  Your prior history started at a later age, that being in your early 20s, and there is nothing specifically of violence or anything of this sort of seriousness.

26Your father gave sworn evidence on your behalf and references were tendered.  You were apparently a young person with ability academically.  You, however, left school in Year 10.  You had some difficulties with hyperactivity, but there was no cause for concern. 

27Around about the age of 19, and you had been working up until that point in time, you entered a relationship which lasted for about two years.  At the completion of that relationship, where you were, I accept, devastated, you began using methamphetamine.

28I am told from the Bar table that other than a tiny dabbling of perhaps marijuana, you had not used drugs prior to that.  As is so often the case in these situations, addiction followed and that addiction has proved so far very, very difficult to eliminate.

29You have attempted rehabilitation on at least one occasion for a period of time, but relapsed back into drug use.  It was in the context of that drug use that you offended in the period of 2014 and the prior history was established.

30Around about the time of this offending, you were using 1 gm per day and apparently in the preceding time had been injecting.  You had at one stage fallen out with your family, as again is so often the case in these matters, and your work ethic, which I accept has always been good, started to fail as you were unable because of your addiction to attend work.

31You have a number of qualifications.  You have done an apprenticeship in carpentry, which is very much to your credit, and you also have tickets for a number of other skills which enable you to earn a significant income. 

32There is no reason why upon your ultimate release you should not be able to obtain such work and be a useful member of the community.  All those matters clearly I have taken into account, including your father's sworn evidence about you.  It has always been my view in these situations that for an accused to sit in the box and watch a parent have to go through that experience should be the most salutary effect that it could ever have on you.  If nothing else rehabilitates you, that should.

33The matters put before me are that when you are ultimately released you will have stable accommodation, you will have employment available to you, you will have strong family support.  Since you have been in gaol, you have become physically healthier.  Your attitude your father says, and I accept, says seems to be back to normal and you have a genuine desire to put drugs behind you.

34You are clearly sorry for what you have put your family through and all those matters assist.  One of the aspects is that you appear to have matured to a level in custody and I am told there has been shame and remorse in relation to all this.

35You have been in Fulham with less visits than might otherwise be the case.  There is not much I can do about that.

36In the end, I think the prospects of your rehabilitation are clearly, as they always are in these matters, up to you.  There is nothing to suggest that you could not rehabilitate, you are still a young man.  If you do rehabilitate, bearing in mind that you did not offend until your early 20s, the risks of you re-offending should be limited.

37I have taken into account the references tendered on your behalf and, obviously, as I have indicated, evidence given by your father.  The trouble in matters such as this is that aggravated burglary is a serious offence, as I have indicated.  Doing it with a sawn-off shotgun just cannot be tolerated, unfortunately, for all those concerned.

38Accordingly, taking all those matters into account and working on the basis I think a longer than usual period of parole will be beneficial for you, you are sentenced as follows.

39On the charge of aggravated burglary, four years and six months; on the charge of burglary, 12 months; and on the charge of theft, three months.  Because they happened on the day there's total concurrency, where we make six months of the sentence imposed upon Charge 2, cumulative upon the sentence imposed upon Charge 1.  That gives a total effective sentence of five years. 

40I direct that you serve a period of two and a half years before becoming eligible for parole, and I direct that a period of 152 days be reckoned as having been served under this sentence. 

41In these particular circumstances where you did plead guilty early, despite the no-comment record of interview, it is important that you understand the benefit that you received from that plea of guilty.  Accordingly, I tell you that but for your plea of guilty in these matters, that is if you had taken it to trial and lost, you would have been sentenced to imprisonment for a period of seven and a half years with a minimum term of five.

42Are there any other orders that I have to make, ladies?

43MS BURNETT:  Your Honour, just in respect of the pre-sentence detention, it should be 151 days, with today being the first date of the sentence.  I have included today in the calculation.

44HIS HONOUR:  Yes, all right, it is today anyway, so 151.

45MS BURNETT:  Thank you, Your Honour.

46HIS HONOUR:  All right, no other orders?

47MS FANJIC:  No, Your Honour.

48HIS HONOUR:  All right, thanks for that.  Thanks ladies.

49MS FANJIC:  As Your Honour pleases.

50MS BURNETT:  As Your Honour pleases.

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