Director of Public Prosecutions v Mak

[2019] VCC 180

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 18-01702

DIRECTOR OF PUBLIC PROSECUTIONS

v

DEAN MAK

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JUDGE:	HIS HONOUR JUDGE COISH
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	21 February 2019
DATE OF SENTENCE:	21 February 2019
CASE MAY BE CITED AS:	DPP v Mak
MEDIUM NEUTRAL CITATION:	[2019] VCC 180

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Moore	Office of Public Prosecutions
For the Accused	Mr J. Venhoeven	Stephen Peterson Lawyers

HIS HONOUR:

1Dean Mak, you have pleaded guilty to one charge of aggravated burglary.  This offence carries a maximum penalty of 25 years' imprisonment.  It is unnecessary for me to recount the facts of the matter in detail as they are on transcript and contained in Exhibit 1 the summary of prosecution opening for plea.

2That opening was accepted by you through your counsel.  I proceed to sentence you on the basis of the facts as opened by the prosecutor which I shall now briefly summarise.  On 26 February 2018 at about 12.30 am you and your stepson, Michael Dunstan, attended at 21 Alamein Street, Morwell.

3The victims, Mark Gleade and Steven Parsons, were in the loungeroom of this house.  Michael Dunstan was armed with a metal pole.  There was a violent altercation involving the victims and the co-accused, Michael Dunstan.  You did accompany your stepson to this property and you did enter the premises and stepped into the fray, albeit for a brief moment.

4It appears you were struck during a further violent altercation and you and the others were involved in mutual pushing of a door.  You and your stepson were eventually forced out of the premises.

5As a result of police investigations you were arrested on 28 February 2018.  You initially denied any involvement in the offending.  As further evidence involving DNA and a recorded conversation came to light you entered a plea of guilty at a committal hearing on 22 August 2018.

6I state to you that I have taken into account the following matters in mitigation of sentence.  You have pleaded guilty.  You are entitled to have that fact taken into account in your favour and I do so.  The community has by your plea been spared the time and cost of a trial, witnesses have been spared the ordeal of giving evidence upon your trial.

7You pleaded guilty at a relatively early stage.  I accept from your plea of guilty and the other matters put on your behalf during the plea hearing that you are genuinely remorseful.

8I have been told something of your personal circumstances.  You are 46 years of age having been born on 10 July 1972.  Your partner, Kate Dunstan, is the mother of the co-accused.  You are a plumber by trade but you have not been able to work for many years following injuries you sustained in a transport accident.  You now take the medication Lyrica for these injuries.

9You have been in custody on numerous occasions in recent years.  Having regard to your extensive prior history and the general circumstances of this offence I assess your prospects of rehabilitation as being cloudy.

10Against these matters in mitigation however your actions were very serious indeed.  You attended the victim's premises in company with your stepson in the early hours of the morning.  You did participate in an altercation to some extent at least although you did state you were trying to grab your stepson in order to remove him from the house.

11There is a victim impact statement from Mark Gleade dated 7 September 2018.  He describes the emotional impact of this offending.  It has affected his personal enjoyment of life.  He has experienced significant anxiety and concern following this offending.  I have had regard to the victim impact statement but it must not overwhelm other relevant sentencing considerations.

12You have admitted before me numerous prior convictions.  There are approximately 18 court appearances in New South Wales and Victoria between 18 May 1993 and 4 April 2017 involving convictions for a range of offences including numerous offences for violence.

13The nature of some of these prior convictions, particularly the recent matters on 5 March 2012 when you were sentenced to six months' imprisonment suspended for two years for intentionally causing injury at the Magistrates' Court at La Trobe Valley, 22 September 2016, an aggregate sentence of six months' imprisonment for offences of dishonesty and an offence of violence at the Magistrates' Court at La Trobe Valley and 4 April 2017 on appeal 28 April 2017, an aggregate sentence of 18 months with a non-parole period of ten months in respect of numerous counts of burglary, attempted burglary and theft is highly relevant to my task of sentencing you today.

14In considering your role I accept the prosecution's submission that the main offender was your stepson.  You have committed an aggravated burglary but there are particularly unusual circumstances in respect of your limited involvement.

15It is agreed that the pre-sentence detention is 358 days.  As well as the matters to which I have referred I must also take into account the need for general and specific deterrence.  Specific deterrence is highly relevant having regard to your extensive and recent criminal history.  General deterrence is also of considerable importance in a case such as this.

16Superior courts have consistently emphasised that this type of offending must be discouraged. I am called upon by the Sentencing Act to manifest the community's denunciation of your conduct and generally to impose a just punishment.

17Your counsel submitted that I ought to impose a custodial sentence of "time served".  It was submitted on behalf of the prosecution that a head sentence and non-parole period was required.  I agree with this submission.  I have, however, taken into account what I have already described as being the somewhat unusual circumstances of this offending.

18I have structured what I consider to be an appropriate sentence involving a head sentence and non-parole period.  Having regard to all relevant facts and appropriate sentencing principles I sentence you as follows.

19On one charge of aggravated burglary you are convicted and sentenced to 30 months' imprisonment.  That is two years and six months.  The non-parole period is the minimum term that justice requires you to serve having regard to all the relevant circumstances that exist.  For that reason it cannot be fixed automatically.  All relevant factors and sentencing principles are to be taken into account.  I have to consider when you should be eligible for mitigation of confinement and in turn rehabilitation under conditional supervision.  In all the circumstances I direct that you serve a minimum term of 15 months before becoming eligible for parole.

20As prescribed by s.18(4) of the Sentencing Act I declare that the period of time you have spent in custody is 358 days which is to be reckoned as time already served under the sentence.  I direct that such be noted in the records of the court.

21Pursuant to s.6AAA of the Sentencing Act I state that the sentence and non-parole period I would have imposed but for the plea of guilty is a head sentence of three years and six months' imprisonment with a non-parole period of two years' imprisonment.

22Does that cover all the formalities?

23MR MOORE:  It does, Your Honour.

24HIS HONOUR:  Thank you.  I will stand down.

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