Director of Public Prosecutions v Magro (a pseudonym)
[2022] VCC 1413
•16 August 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
DRUG AND ALCOHOL TREATMENT COURT
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KIERAN MAGRO (A PSEUDONYM) |
---
JUDGE: | HIS HONOUR JUDGE D. SEXTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 August 2022 | |
DATE OF SENTENCE: | 16 August 2022 | |
CASE MAY BE CITED AS: | DPP v Magro (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1413 | |
REASONS FOR SENTENCE
---
Subject:CRIMINAL LAW
Catchwords: Aggravated Burglary; Theft; Unlawful Assault
Legislation Cited: Sentencing Act 1991
Cases Cited:Worboyes v The Queen [2021] VSCA 169.
Sentence:Drug and Alcohol Treatment Order
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr L Harrison | Solicitor for the Office of Public Prosecutions |
| For the Accused | Ms J Hughes | Papa Hughes Lawyers |
HIS HONOUR:
Introduction
1 Kieran Magro[1], you have pleaded to: one charge of aggravated burglary which carries a maximum penalty of 25 years imprisonment. One charge of theft which carries a maximum penalty of 10 years imprisonment, the related summary offence of unlawful assault which carries a maximum penalty of three months’ imprisonment or 15 penalty units.
[1]A pseudonym.
2 You have also admitted your criminal record.
Circumstances of the offending
3 The circumstances of your offending was set out in the summary of prosecution opening dated 3 June 2022, Exhibit 1 at your plea hearing. That document contains an agreed factual basis of the offending for which you now fall to be sentenced.
4 Your offending can now be briefly summarised. At approximately 2.50 pm on 23 November 2021, you approached a property located at St Albans. At the time, you were unemployed and residing in St Albans. At this time, Walter Fagen[2] and Thien Le[3] resided at the St Albans property. You entered the garage attached to Unit 2 via the unlocked roller door that was closed at the time. You walked through the garage into the rear and entered the premises through an unlocked window on the western side of the house, which was attached to Mr Fagen’s bedroom. Your entry in these circumstances forms the basis of Charge 1 on the indictment, aggravated burglary. Entering a building as a trespasser with intent to steal whilst armed with an offensive weapon, namely a knife.
[2]A pseudonym.
[3]A pseudonym.
5
Once inside, you looked through different rooms of the house and located various documents and items belonging to Mr Fagen including his passport, his Commonwealth Bank debit card, another debit card and a
Tommy Hilfiger watch. You also located his overseas ID card and various other forms of identification. You also rummaged through the bedroom of Mr Le and took a Samsung mobile phone belonging to Mr Le, a smartphone and a Toyota car key and fob.
6 The items stolen by you were set out in the schedule to Charge 2 on the indictment. Your conduct in relation to the theft of these items forms the basis of Charge 2, theft.
7
Shortly after you had entered the premises, Mr Fagen arrived home, entering through the front door. He observed you inside the home, standing in his bedroom. You exited through the bedroom window and Mr Fagen gave chase. Once in the rear yard, Mr Fagen grabbed you by your jacket in an attempt to stop you fleeing. You turned to Mr Fagen and produced a knife and attempted to stab Mr Fagen’s hand, with Mr Fagen jerking his hand away to avoid being stabbed. Your conduct in this regard forms the basis of the related
summary charge of unlawful assault.
8 As you attempted to flee, running through the garage and ultimately to a neighbouring property, Mr Fagen approached you at which point you threw two mobile phones belonging to Mr Le on the ground, stating that was all you had. Mr Fagen then returned back to his home in possession of the phones and contacted Triple 0 whilst you fled.
9 Soon after, police observed a male matching the description given to them by Mr Fagen. Police gave chase and ultimately located you in the rear of a property in St Albans attempting to flee. Police ultimately located the knife in your possession which was used in connection with the earlier incident. Police also located various identification materials belonging to Mr Fagen in your possession.
10 You were later interviewed by police where you made various admissions to entering the property, taking various items and being in possession of the knife and producing it when approached by Mr Fagen. You were remanded in custody on 23 November 2021 and have remained in custody ever since, a period of 266 days.
Victim impact
11 No victim impact statement was provided in this matter though it can be reasonably assumed that your victim was adversely impacted by your offending. Encountering a stranger in his bedroom upon his arrival home, particularly upon being confronted with a knife once outside the property as he pursued you from his home.
Nature and gravity of your offending and your role in it
12 The gravity of your offending is of course reflected in the maximum penalties, in particular 25 years imprisonment for the crime of aggravated burglary. This offence in particular involves invading the sanctity of one's home. The prevalence of such behaviour requires any penalty to reflect the important sentencing purposes of denunciation, general deterrence and community protection. I accept in your case that you entered the premises with an intention to steal items ultimately for the purpose of acquiring funds to support your long-standing drug habit.
13 You entered unoccupied premises during the day and, upon seeing Mr Fagen, you fled rather than confronting him. Nevertheless, by this time you had acquired a not insignificant quantity of items which no doubt caused considerable inconvenience to your victims due to them being stolen. Your conduct once outside the premises in confronting a pursuing Mr Fagen is concerning, in my view, and given your drug addled state, objectively dangerous.
14 Overall, I accept that there is no evidence of any planning, organisation or sophistication and I am ultimately of the view that your offending was relatively spontaneous and drug motivated.
15 The prosecution did not take issue with your counsel's submission that the offending falls between the low to mid range of seriousness, in relation to the aggravated burglary offence. The most serious offence faced by you in this case. I agree with this description.
16 I will turn shortly in detail to your motivation for the offending, however in general, the fact that you were motivated by a desire to support your drug addiction in no way reduces your moral culpability for this offending. In all the circumstances, I regard your culpability as being high.
Personal circumstances
17 Your personal circumstances were set out in some detail in your counsel's written submissions together with a case management assessment report of Megan Kew dated 18 July 2022. You are now 49 years old. You were born and raised in Melbourne and have never resided outside of Victoria. Your parents are of Ukrainian and Polish heritage separated when you were young. You report a good relationship with your mother. You have recently connected with your father, a man with a history of problematic alcohol consumption and gambling and have reported that he is a big supporter of you currently. You have essentially resided in St Albans, where you grew up, your entire life.
18 You have an older sister who works as a hairdresser and, given the different trajectories of your lives to date, you are not as close as you were growing up, though you have reported that she remains supportive of you. You were educated to Year 9 at St Albans Tech. Since your schooling ended, you have held various employment positions in the area of labouring. Though you hold no formal qualifications. The last employment in the community in a formal sense, was approximately 15 years ago.
19 You have a long-standing substance use history dating from the age of 14 when you commenced smoking tobacco and consuming alcohol. You first smoked cannabis at the age of 15 and smoked 2 grams per day until the age of 27 or 28 when you reduced your use due to increased use of other drugs. You started using speed at the age of 14 or 15, snorting or drinking it almost daily for three to four years from that age. You ceased using speed at the age of 25 or 26. Heroin has, historically, been your primary drug of concern.
20 You commenced using this substance at the age of 25, smoking for some five or six years before progressing to intravenous use in your early thirties. Excluding periods of incarceration, you have injected this drug at the rate of .5 to 1 gram per day until approximately four years ago. After this time, you have reported only occasional use of heroin and none in the three months preceding your arrest. You first tried ice on one occasion but commenced regular use approximately six months prior to your most recent arrest. You were introduced to this substance by a then intimate partner, but that relationship ended soon after and you continued using ice regularly from then. You were reportedly smoking one point daily prior to your arrest.
21
You have reportedly attempted various forms of drug rehabilitation over the years, including a five month stay at Odyssey House approximately four or
five years ago, together with four or five occasions of residential withdrawal, most recently through DASWest Drug Health Services in Footscray. You have been prescribed various kinds of pharmacotherapy for much of the last 10 years. You have reported an inability to identify any sustained periods of abstinence other than episodes of residential treatment or those enforced by incarceration.
22 You have a lengthy and concerning criminal history. Clearly, for many years, you have been in the grips of a significant drug addiction with accompanying criminality and incarceration. Of note, on 2 February 2001, you received a total effective sentence of two years and nine months imprisonment for armed robbery and handling stolen goods. On 9 September 2008, on appeal, you received a total effective sentence of seven years and six months imprisonment with a non-parole period of five years and six months for offences including aggravated burglary and false imprisonment. On 23 July 2009 you received a sentence of 12 months imprisonment for recklessly causing serious injury, burglary and theft.
23 You have been dealt with on many occasions for the offence of burglary. You have received multiple court orders, many of which have been breached. The breadth and extent of your criminal history, in my view, exposes you to the risk of institutionalisation. You have, though, in more recent times managed to navigate a period of parole and a Community Correction Order.
24 You reported to the Drug and Alcohol Treatment Court clinical advisor, Harry Howe, as evidenced in his assessment report dated 19 July 2022, that prior to your latest arrest, you had been in the community for some three years, the longest period that you have been in the community between incarcerations since you were aged 17. You had coped well for the two and a half years, occasionally using heroin but not to the level of dependency and you had maintained your pharmacotherapy. Your substance use apparently escalating in the six months prior to your arrest after you commenced an intimate relationship and you began smoking ice with your partner.
25
Mr Howe outlined the substance use in the period leading to your arrest at
page 2 of his report. Mr Howe concluded that you would have satisfied the diagnostic criteria for the diagnosis of stimulant use disorder at the time of the offending and opioid use disorder, historically.
Sentencing factors
26 Turning now to sentencing factors. The Sentencing Act 1991 (The Act) requires me to have regard to various factors, purposes and principles in formulating an appropriate sentence in your case. I have already referred to the nature and seriousness of your offending and your level of culpability for it, the maximum penalties, and your previous character. I have also had regard to current sentencing practices as just one of the relevant factors. I am satisfied that a sentencing discount is warranted due to your early plea of guilty, entered prior to a committal commencing, evidencing your acceptance of responsibility and willingness to facilitate the course of justice.
27 The utilitarian value of your plea of guilty is enhanced by virtue of it being entered in the context of the COVID-19 pandemic and its unprecedented impact upon delays experienced with the finalisation of particular contested proceedings in this court.[4] I am satisfied in the circumstances, that your plea of guilty is capable of demonstrating your contrition, given the degree to which you cooperated with police in your police interview and made admissions to your offending. A further discount based upon your remorse is therefore warranted.
[4]Worboyes v The Queen [2021] VSCA 169.
28
You have spent the entirety of your period in custody to date for this matter in the context of the COVID-19 pandemic. It is now well established that
COVID-19 has created significant adversity within the custodial setting. With restricted freedom of movement, restricted access to in person visits with loved ones, and restricted access to employment, educational activities and therapeutic activities. I was informed and accept that, in your case, your time in custody has been particularly onerous as you have been placed in isolation six times when moved to various prisons, often in the context of medical investigations regarding tremors or shakes that you have been experiencing. A mitigatory allowance is warranted.
29 Notwithstanding your hardship in custody, I was informed and accept that you are currently employed as a billet, cleaning the gym, kitchen and other places within the prison as required. In that sense, you have kept yourself busy in difficult circumstances.
30 According to Drug and Alcohol Treatment Court manager, Megan Kew, in her reported dated 18 July 2022, whilst in custody, you have been urine tested twice and breath tested once. All results returned negative screens except for your prescribed medications. You have been in receipt of Methadone as an opioid replacement therapy. You have reported to Drug and Alcohol Treatment Court clinical advisor, Harry Howe that you have been recently experiencing blackouts and falls and some medical investigations have been taking place. Mr Howe also refers to a Forensicare report documenting a mental health history, including various diagnoses related to mental and behavioural disorder due to harmful use and dependency to opioids, alcohol and methamphetamines. I note in that regard that you are currently in receipt of Gabapentin, a drug used in the treatment of seizures.
31 You have reported that upon your release, you would like to reside with your mother in St Albans. You have reportedly presented as being motivated with regard to the rigours of a Drug and Alcohol Treatment Order as you are essentially sick of the drug using lifestyle within which you have clearly been enmeshed for some years, with its consequential impacts upon your liberty.
32
Your extensive and concerning criminal history means that any penalty I impose must seek to specifically deter you from re-offending. Your criminal history also bears upon your prospects for rehabilitation which must, in my view, be viewed as guarded. However, you have been found suitable for a Drug and Alcohol Treatment Order by case manager, Megan Kew in her reported dated
18 July 2022 having considered all of the relevant matters, many of which I have already referred to. Likewise, clinical advisor Harry Howe indicates that the treatment and supervision component of a Drug and Alcohol Treatment Order would be an appropriate intervention to address your substance use disorder. There are no significant concerns regarding your capacity to participate in such an order.
33 The opinions of these individuals within the Drug Court setting constitute opinions of some significance, particularly having regard to s18X(2) of the Sentencing Act 1991. Pursuant to that section, if considering making a Drug and Alcohol Treatment Order, I must regard your rehabilitation and the protection of the community from you achieved through your rehabilitation as having greater importance than the other purposes set out in s5(1) of that Act. This is, in my view, a matter of considerable significance. That this provision essentially requires primacy in relation to the sentencing purpose of rehabilitation over the other sentencing purposes such as general and specific deterrence where I am considering a Drug and Alcohol Treatment Order.
Drug and Alcohol Treatment Order matters
34 Turning now to Drug and Alcohol Treatment Court matters and factors. I have already referred to the case manager and clinical advisor reports, both of which essentially indicate that you are a suitable candidate for a Drug and Alcohol Treatment Order. Your counsel have essentially submitted that all of the relevant factors in combination warranted the imposition of a Drug and Alcohol Treatment Order in your case. The prosecution essentially submitted that it was open to me in the circumstances of your case having regard to the relevant criteria, to impose a Drug and Alcohol Treatment Order.
35 In coming to my decision in this case, I have had regard to the particular purposes of a Drug and Alcohol Treatment Order set out in s18X(1) of the Sentencing Act 1991. In relation to the relevant criteria contained in the Sentencing Act 1991;
(i) I am satisfied that you are dependent on drugs.
(ii) I am satisfied that your dependence contributed to the commission of the offending before me. In that regard, I note by way of example that you indicated to case manager, Megan Kew, that on the day of the offending, you had been on your way to collect your Methadone prescription and you were about to return home to your mother's address where you were then residing. You had been abstinent for approximately two weeks beforehand, however on that day, you had used approximately $50 of methylamphetamine. In the context of your longstanding and highly problematic polysubstance issues, I am satisfied that the offending occurred in the context of your drug dependency and your desire to facilitate that dependence.
(iii) I am satisfied that otherwise it would be appropriate to impose an immediate sentence of imprisonment of no more than four years, having regard to all of the factors, purposes and principles to which I have referred and notwithstanding your extensive and relevant criminal history.
(iv) I am satisfied of all the other eligibility criteria set out in s18Z of the Sentencing Act 1991 with regard to the making of a Drug and Alcohol Treatment Order.
(v) Finally, I am satisfied in all the circumstances of your case that it is appropriate to make a Drug and Alcohol Treatment Order. I understand that you agreed to the making of the order and that you agree to comply with the treatment and supervision part of it.
36 Mr Magro, would you please stand.
Sentence to be imposed
37 In relation to the two charges on the indictment, together with the related summary offence of unlawful assault, you are convicted and placed upon a Drug and Alcohol Treatment Order.
38 A Drug and Alcohol Treatment Order consists of two parts. The treatment and supervision part, and the custodial part. The custodial part of a Drug and Alcohol Treatment Order consists of the sentence of imprisonment I must impose under s18ZD of the Sentencing Act 1991. The custodial part of this order is a term of imprisonment of two years and four months. This period is not to be served unless further ordered.
39 For the sake of clarity, the custodial part of this order is comprised as follows:
Ÿ On the Charge 1 on the indictment, aggravated burglary, two years imprisonment.
Ÿ
On Charge 2 on the indictment, theft, 12 months imprisonment with
three months cumulation.
Ÿ On the related summary offence of unlawful assault, the maximum penalty being three months imprisonment, one month cumulation.
40 This makes a total effective sentence of two years and four months imprisonment for the custodial part of this Drug and Alcohol Treatment Order.
41
In relation to the custodial part of this order, I note that you have served
266 days pre-sentence detention. No declaration is made pursuant to s18(4) of the Sentencing Act 1991 about this time.
42 In terms of the treatment and supervision part of the order, all core conditions pursuant to s18ZF of the Sentencing Act 1991 must be attached to it. These core conditions will remain in place for two years and four months or until further order.
43 The core conditions of the order are as follows:
Ÿ You must not commit, whether in or outside Victoria, another offence punishable on conviction by imprisonment during the time the order is in force.
Ÿ You must attend the Drug and Alcohol Treatment Court when required by the court to do so.
Ÿ You must report to the Melbourne Drug Court House or other specified place within two clear working days after the order is imposed.
Ÿ You must report to and accept visits from a member of the Drug and Alcohol Treatment Court.
Ÿ You must undergo treatment for alcohol and drug dependency as specified in this order or by the Drug and Alcohol Treatment Court.
Ÿ You must give notice of any change of address at least two clear working days before the change to a specified Drug and Alcohol Treatment Court officer.
Ÿ
You must not leave Victoria without the permission of the
Drug and Alcohol Treatment Court.
Ÿ And you must obey all lawful instructions from the Drug and Alcohol Treatment Court.
44 Furthermore, in relation to the treatment and supervision part of the order, the following program conditions will operate for two years or until further order:
Ÿ You must submit to drug and alcohol testing as directed by the Drug and Alcohol Treatment Court team.
Ÿ You must submit to detoxification or other treatment specified in this order as identified by the Drug and Alcohol Treatment Court team.
Ÿ You must attend vocational, educational, employment or other programs as directed by the Drug and Alcohol Treatment Court team.
Ÿ You must submit to medical, psychiatric or psychological treatment as directed by the Drug and Alcohol Treatment Court team.
Ÿ You must adhere to a residential condition.
Ÿ
You must adhere to a curfew condition that you remain at
your place of residence between the hours of 9 pm and 6 am.
Ÿ You must adhere to an alcohol ban.
Ÿ You must do or not do anything else that the Drug and Alcohol Treatment Court considers necessary or appropriate concerning your drug or alcohol dependency or the personal factors that the Drug and Alcohol Treatment Court considers contributed to your offending behaviour.
Ÿ And, you must waive all rights of confidentiality of communication between the Drug and Alcohol Treatment Court and all treatment providers and government agencies, authorities and partners.
45 With regards to your residential address, I indicate to you that I acknowledge the proximity of that address to the offending for which you now fall to be sentenced. However, in my view, the availability of stable accommodation with your mother is protective, or at least more protective than the alternative, which in all likelihood would simply be emergency accommodation.
46 With regards to the curfew condition, that condition being opposed by you, I indicate to you that I have imposed the curfew condition because it is recommended by the case manager. It is necessary in my view on the issue of risk management and your prior offending, including in particular your most substantive prior matter, was committed at night time. In my view, the curfew condition is well and truly required in this case.
47 This Drug and Alcohol Treatment Order will remain in force for two years and four months or until further order.
48 This order commences today, 16 August 2022.
49 I will make the disposal order with regards to the glove and the knife as sought by the prosecution, that the making of this order not being opposed by you.
50 Finally, pursuant to s6AAA of Sentencing Act 1991, I declare that had you pleaded not guilty to these charges but been found guilty at trial, I would have imposed a total effective sentence of three years and four months imprisonment, with a non-parole period of two years and four months imprisonment.
51 Mr Magro, you can take a seat for a moment. Mr Harrison, any issues or ambiguity with regards to the sentence?
52 MR HARRISON: No, Your Honour.
53 HIS HONOUR: Ms Hughes?
54 MS HUGHES: No, Your Honour.
0
2
1