Director of Public Prosecutions v Makrogiannis
[2023] VCC 1263
•21 July 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-02301
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KON MAKROGIANNIS |
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JUDGE: | HER HONOUR JUDGE BLAIR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 July 2023 | |
DATE OF SENTENCE: | 21 July 2023 | |
CASE MAY BE CITED AS: | DPP v Makrogiannis | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1263 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – SENTENCE
Catchwords: Armed Robbery – Possession of a drug of dependence – Firearm – Plea of guilty – Worboyes – Parity
Legislation Cited: Sentencing Act 1991 (Vic); Criminal Procedure Act 2009 (Vic)
Cases Cited:Worboyes v The Queen [2021] VSCA 169
Sentence: 2 years and 6 months imprisonment with a non-parole period of 1 year and 6 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms E. Rutherford | Office of Public Prosecutions |
| For the Accused | Mr M. Sturges |
HER HONOUR:
1
Kon Makrogiannis, on 19 and 26 June 2023 you sought a sentence indication on one charge of armed robbery, one charge of possess a drug of dependence and two summary related offences, one of commit indictable offence whilst on bail and the other driving whilst disqualified. On 30 June 2023, pursuant to s207(1)(a) of the Criminal Procedure Act2009,[1] I indicated that if you were to plead guilty, I would impose a term of imprisonment with a head sentence of 2 years and
6 months and a non-parole period of 1 year and 6 months. On the basis of this indication your matters resolved and you were arraigned on 10 July 2023 on indictment C2114557.2. You pleaded guilty to the charges subject of the sentence indication.
Circumstances of the offending
[1] Criminal Procedure Act (Vic) 2009 s207(1)(a).
1The agreed factual basis of your offending is contained in the Summary of Prosecution Opening for Plea dated 16 July 2023. This document was tendered at your plea and what now follows is a summary of the offending for which you are to be sentenced.
2At the time of your offending you were 37 years old and lived at 1903/20 Rakaia Way, Docklands. Your co-offenders are Daniel Austin, Jarrod Grossman, Alex McDonald, Ricky Clegg and Jake Biddlestone.
3On Wednesday 28 July 2021 at approximately 12.00 pm the victims, Mr Andree-Jansz and Mr James, travelled to Melbourne from Albury to meet with you to discuss a debt of $34,000 owed by you to Mr Andree-Jansz.
4Austin and Clegg travelled to Melbourne and arrived at Grossman’s apartment at 5.45pm. At 7.11pm you rode a motorbike and also went to Grossman’s apartment. Mr Andree-Jansz attempted to contact you on numerous occasions and finally spoke to you at 8.27pm. At that time, you told him you would be home at around 10pm.
5At 9:19pm, you exchanged several text messages with an unknown person. The purpose of these text messages was to source a firearm. The exchange is outlined as follows:
(a) At 9.19pm you sent a text message stating, “need a shooter”;
(b) At 9.21pm you received a text message asking, “As in bang bang?”;
(c) At 9.21pm you sent a text message stating, “Yeah”;
(d) At 9.25pm you received a text message stating, “Person to do it or equipment to use”;
(e) At 9.36pm you sent a text message stating, “Equipment”;
(f) At 9.40pm you received two text message stating, “Okay leave it with me?” and “Also anything??”;
(g) At 10.25pm you received a text message stating, “Double b?”;
(h) At 10.28pm you sent two text messages stating, “yes please” and “How long u think”;
(i) At 10.40pm you received a text message stating, “He’s going to call me back in 5”;
(j) At 10.49pm you sent a text message stating, “Hey my mate just pulled up within a Glock sorry can u cancel please I’m so sorry”;
(k) At 10.52pm you received two text messages stating, “Don’t be silly I will call him now” and “Did you need any help”;
(l) At 12.25am you sent a text message stating, “got a few of the boys here with me should be right na none left”.8
6Mr McDonald and Mr Biddlestone arrived at Mr Grossman’s address at 10.01pm. Mr McDonald had a gun concealed in a black bag.
7At approximately 11pm you, Mr Austin, Mr Clegg, Mr Grossman, Mr McDonald and Mr Biddlestone left Mr Grossman’s address. At 11.09pm you entered the carpark at your address riding a motorbike. Mr Clegg was driving a vehicle and entered the carpark behind you. Mr Austin, Mr McDonald and Mr Biddlestone arrived at your address at approximately 11.40pm. Mr McDonald had the large black sports bag containing the firearm at this time. Mr Grossman arrived shortly after.
8
A few hours later, that is in the early hours of 29 July 2021, Mr Andree-Jansz and Mr James went to Caravel Lane, Docklands. Mr Andree-Jansz parked his car and phoned you, advising you he was waiting outside. You and your co-offenders left the apartment and you met up with Mr Andree-Jansz and both of you sat on a bench outside the Rakaia Way, Docklands address to discuss the debt. You were approximately 50 metres away from where Mr Andree-Jansz’s car was parked.
Mr James remained seated in the passenger seat of Mr Andree-Jansz’s car.
9Some 15 minutes later a car driven by Mr Clegg exited the secure carpark of the Docklands residence. In the front passenger seat of the car was Mr McDonald, in possession of the black sports bag and in the backseat were Mr Austin, along with Mr Grossman and Mr Biddlestone. Mr Clegg stopped the car alongside Mr Andre-Jansz’s car in Caravel Lane. Mr Clegg yelled out to Mr James, who was seated in the car, ‘are you Shane?’ He said no and Mr Clegg performed a U-turn, and returned again to Mr Andree-Jansz’s vehicle.
10Mr Austin, along with Mr McDonald and Mr Grossman, exited the vehicle and yelled at Mr James, ‘get the f out of the car’. Mr James exited the passenger seat of Mr Andree-Jansz’s car. Two of the men ran towards Mr James.
11
Mr McDonald, who was holding the sports bag, removed the firearm from the bag. The firearm was described by Mr James as a ‘Winchester 30/30 lever action’.
Mr McDonald pointed the firearm at Mr James whilst Mr Austin along with
Mr Grossman yelled, ‘shoot him, shoot him’.
12
Mr Andree-Jansz heard the males yelling and returned to Caravel Lane where his car was parked. At this time, you ran the other way and took no further part in the offending. Mr Andree-Jansz chased Mr Biddlestone away before returning to help Mr James. Mr James yelled to Mr Andree-Jansz, ‘watch it he’s got a gun’.
Mr Andree-Jansz noticed that Mr McDonald and Mr Austin were brandishing weapons.
13While being chased, Mr Andree-Jansz tripped and fell to the ground and attempted to cover his face with his hands. Mr Austin held Mr Andree-Jansz on the ground with a knife to his throat, and stated, ‘I’m going to fucking stab ya, gimme all your fuckin gold’. Mr McDonald pointed the firearm directly towards Mr Andree-Jansz’s face. Mr Grossman struck Mr Andree-Jansz' legs with a baseball bat and yelled, ‘get his gold, get his gold’.
14Mr Austin, along with Mr McDonald and Mr Grossman, took a gold Tommy Hilfiger brand watch, a gold linked chain and three gold diamond rings from Mr Andree‑Jansz. Mr Austin ran back to Mr Andree-Jansz’s vehicle and entered the driver’s seat and stole the car. The car was later located dumped in Summerhill Road, Craigieburn.
15Mr McDonald and Mr Grossman left the scene in the car driven by Mr Clegg.
16Subsequently, Mr Andree-Jansz and Mr James called Triple 0 for help.
17Police attended the scene and conducted a patrol. You were located laying on the ground near the Berth restaurant. You told police that you take epilepsy medication that caused you to sleepwalk and that you lived close by. You were photographed by the police and then walked back to your apartment block.
18You were seen to attend another address in your apartment complex where Bertram, Scotty and others were present. At 4.35am Grossman contacted you via text asking, 'WBU'. You responded shortly after “Everyone ok cops everywhere crime scene is there”.
19At 9.05pm on 29 July 2021 the police executed a search warrant at your address. You were present at the time and you were arrested. The police located and seized mobile phones, a black jumper and cannabis. You participated in a record of interview and gave a version of events.
Victim Impact
20In his victim impact statement Mr Andree-Jansz speaks of the serious impact of your offending. Since the incident he has suffered from heightened emotions and irritability. It has placed pressure on his family and relationships and he feels like he is ‘no longer the same person’. He also suffers a range of ongoing issues, including headaches, difficulty sleeping and increased anxiety. I have taken into account the impact of your offending on Mr Andree-Jansz and, as discussed at the plea hearing, the relevant parts of his victim impact statement.
Gravity of the offending
21Armed robbery is a serious offence, as reflected by the prescribed maximum penalty. Deterrence, denunciation and community protection are paramount sentencing purposes.
22Armed robbery with a firearm in company is also a Category 2 offence per s5(2H) of the Sentencing Act 1991 (Vic),[2] mandating a term of imprisonment. It was not seriously contended by your counsel that I should find a special reason that would allow the court to impose any alternative sentence.
[2] Sentencing Act 1991 (Vic) s 5(2H).
23The prosecution put that the offending is aggravated by the type and number of weapons used, namely, a firearm, a baseball bat and a knife; the number of co‑offenders who together committed the offending; against an unarmed and retreating victim; the degree of planning and preparation involved in committing the offending in concert; the value of the property stolen; the degree of force used on the victim and the severity of his injuries.
24Ms Rutherford submitted that you planned and organised the offending and as such you were to be categorised as the “principal” offender. In my view it is difficult to assign a specific hierarchy and to isolate one person who was the “principal” offender. This is so because each co-offender had a different but important role. Mr McDonald, Mr Austin and Mr Clegg have each been sentenced as principal offenders. It was Mr McDonald who pointed the gun at Mr Andree-Jansz and it was Mr Austin who held a knife to his throat at the time the demands for his gold jewellery were made. Mr Clegg was the “getaway” driver. Your role was that of organisation and planning, it was you who had the connection with Mr Andree‑Jansz.
25It is conceded by the prosecution that when the action started you immediately fled the scene. Further, it is conceded that you had no knowledge of the presence and use of either the baseball bat or knife.
26In her written submission on the plea Ms Rutherford submitted you had sourced the firearm. I am not satisfied of this fact to the requisite degree. The text messages and the timing of the text messages reveal an interpretation that mitigates against this suggestion. That is, you were actively trying to source a firearm from an unknown person because you were not aware that Mr McDonald had one in his possession. I accept that you became aware that Mr McDonald had a firearm, as you cancelled your own request.
27
Again, in her written submissions, Ms Rutherford submitted that I should have regard to the fact that the victim attended your address under the assumption he was going to discuss money that you owed him. At the sentence indication
Ms Rutherford disavowed a submission that this represented a breach of trust. Properly categorised this was a drug debt you owed to Mr Andree-Jansz and as such your offending must be seen in this context.
28I accept that you planned the offending over a period of approximately four hours. However, I accept the submissions of Mr Sturges that the planning could hardly be described as sophisticated or well thought out. The offending occurred very close to your address, there were a significant number of CCTV cameras, the co-accused used their own vehicle and you were known to Mr Andree-Jansz. In these circumstances the likelihood of detection was very high as evidenced by your prompt arrest.
29It is my view that you are to be sentenced in a comparable way to Mr McDonald and Mr Austin. Whilst your role was that of organiser you were not present for the violent offending that unfolded. They were not sentenced on the basis that they were involved in the planning and organisation of the offending. As I have said you each had a different but important role in the offending. In the circumstances I accept that your moral culpability is high.
Parity
30I must consider the principle of parity in relation to your case. The sentencing principle of parity is an aspect of equal justice. It requires that like should be treated alike, but that due allowance must be made for relevant differences between co‑offenders. I have given careful consideration to the principle of parity in your case.
31
Mr McDonald pleaded guilty to armed robbery, prohibited person possess firearm and commit an indictable offence whilst on bail. He was sentenced in the County Court Drug Court to a 3 year Drug Treatment Order on 14 November 2022. For the charge of armed robbery Mr McDonald was sentenced to 2 years and
6 months.
32The case for Mr Clegg resolved as a plea of guilty on 24 February 2023. Mr Austin had a sentence indication hearing on 27 April 2023. Both Mr Austin and Mr Clegg pleaded guilty to one charge of armed robbery and a related summary matter each. Mr Clegg also pleaded guilty to a charge of possess a drug of dependence. The plea for Mr Austin and Mr Clegg was heard on 26 May 2023 and they were each sentenced on 7 June 2023.
33Mr Clegg was sentenced to 1 year and 11 months with a non-parole period of 1 year and 1 month. The sentencing Judge took into account his limited role in the offending, essentially he was the getaway driver. He was not aware of the firearm until it was produced. Further, there was evidence that he had significant cognitive deficits and other matters relevant to mitigation.
34
Mr Austin was sentenced to 2 years and 8 months imprisonment with a non-parole period of 1 years and 8 months. The sentencing Judge took into account that
Mr Austin was armed with a knife and was not aware of the gun until it was produced. Further Her Honour took into account that a background of deprivation and dysfunction that had been experienced by Mr Austin in his formative years.
35It was also a part of the case against Mr Austin that he stole the motor vehicle, although that was not one of the charges to which he had pleaded to on the indictment.
36All co-offenders have extensive prior histories. Mr McDonald was on a CCO at the time of the offending and yourself and Mr Austin were on bail for other matters.
37While the principle of parity applies and is a very important principle, the Court must take care to differentiate the roles, moral culpability, charges, criminal histories and personal circumstances of each offender, as well as all other relevant sentencing considerations, when performing the instinctive synthesis.
38A disparate sentence may be justified in some circumstances, however, I am not satisfied that I should impose a wholly disparate sentence in your case. While I must avoid an unjustifiable disparity between sentences, I am still required reflect the nature and gravity of the offending and impose an appropriate sentence.
39
As I have detailed above your role was planning and organisation and you had the connection with Mr Andree-Jansz. You were not involved in the actual armed robbery but rather ran the other way once the action started. Mr McDonald,
Mr Austin and Mr Clegg were sentenced on the basis of their participation in the armed robbery itself, they had very limited, if any, involvement in the planning and organisation of the offence.
Procedural history
40A chronology of relevant dates was annexed to the prosecution opening. Your case was initially listed for committal mention on 22 October 2021. For a variety of reasons it was not until almost a year later that your matter proceeded to a committal hearing on 19 October 2022. The committal hearing took place over several days and you were finally committed for trial to this court on 7 December 2022.
41There have been several procedural hearings in this court. Your matter then proceeded as a sentence indication before me over 3 days on 19, 26 and 30 June 2023. On the last of those dates you indicated that you would plead guilty. You were arraigned on 10 July 2023. Your plea hearing proceeded on 19 July 2023.
Plea of guilty
42A trial date was set for 15 August 2023. In this context your plea can not be seen as an early one. However, you have spared the victim the need to give evidence again which no doubt would have been a harrowing experience for him. Further, your plea has spared the court what would have been a relatively lengthy trial and in doing so you have freed up valuable court time. In these circumstances your plea has a significant utilitarian value and I accept that you have foregone an arguable defence and as such you have demonstrated your desire to facilitate the course of justice. Accordingly, I will allow a significant sentencing discount for your plea of guilty.
43Further, despite having come through the pandemic the courts are still caught in the grips of the backlogs it created. In line with the principles enunciated in the case of Worboyes,[3] your plea will attract a greater amelioration of sentence.
[3] Worboyes v The Queen [2021] VSCA 169.
Personal Circumstances
44You are a 39-year-old man who was born in Melbourne and grew up in Avondale Heights and Hoppers Crossing. Your mother is of Greek descent and is in her sixties. Your father, who passed away in 2015, was of Greek Egyptian descent. Your father was a fitter and turner, and your mother at one stage ran a delicatessen and together they later managed a chicken shop. Your parents were together when your father passed away, and you have two younger sisters, both in their late thirties.
45You grew up in a good home, and your family was close. Your family managed well financially, and you never went without. Your family did activities together, including travelling to Adelaide to visit family friends, and Queensland and Greece to visit family. You were close to your extended family and saw them often until your parents moved.
46You were also engaged in several different sports and were encouraged to socialise. You attended Greek school and accordingly speak Greek. Your family is Greek Orthodox and attended church at Christmas and Easter.
47You were close to both parents, but you spent more time with your father. You had a very positive relationship with your parents, and indicated no physical discipline, or history of domestic violence.
48Regarding your schooling, you were a good student and had no issues with teachers or other students. Your father pushed education. You attended Victoria University and completed a Diploma of Legal Practice. You worked at Foxtel in debt collection, and as a legal associate with a large bank. You subsequently returned to Foxtel as it was more financially lucrative.
49You have had one significant relationship, with Desiree, who you met whilst working at Foxtel. You have described that as not being a positive relationship, and it lasted for almost a year until Desiree ended the relationship.
50You began using drugs at age 24, specifically taking ecstasy when attending nightclubs on the weekends with your cousin. At this age, you also started smoking amphetamines with friends. This continued until around the age of 30, although you have indicated it never increased beyond weekends.
51In approximately 2015, your father became ill and was diagnosed with cancer, you quit work. You later obtained your forklift licence and worked intermittently as a forklift driver, however you were sacked on occasion for not attending work. Up until this time you had led a largely law-abiding life, although you had used illicit substances on a recreational basis.
52
When your father became ill, your use of methamphetamine increased to daily. You continued to use the drug after your father’s death and had days where you were smoking methamphetamine all day. You have also engaged in the use of ketamine, cannabis and GHB, and typically used these substances when they were available. You experienced a significant overdose on GHB about 4 years ago and have stopped using that since. At your peak you were using in the order of
1.7 grams to 2.5 grams of methamphetamine daily. This continued until about
2 months before you were remanded into custody. You described a friend passing away from heroin use and your family’s feelings as significant motivators in trying to change your behaviour.
53Your drug use coincided with a period in your life where you were suffering anxiety, depression and significant grief. It would appear that you used drugs as a coping mechanism and a form of escapism.
54It was in the context of your huge drug use that you amassed a significant prior history. It is apparent that your prior history is directly drug related. It was also in the context of your drug use that you incurred a debt of $34,000 to Mr Andree‑Jansz.
55In terms of mental and physical health, as I have mentioned, you have been diagnosed with anxiety and depression. Such diagnosis was made in 2015 in the aftermath of your father’s passing. Whilst in the community you were prescribed anti-depressant medication but did not use it consistently. Further, you undertook approximately 20 sessions of counselling. This ceased as you were incarcerated for some of your prior offending. You were also diagnosed with focal onset epilepsy 7 years ago, which is treated with medication.
56Although you have served several terms of imprisonment in the past, your current period of remand by far exceeds any sentence you have previously received. Additionally, this period on remand has been served at a time where conditions in custody have been far more onerous as a result of the ongoing impact of the covid 19 pandemic. Further, there has been a significant delay in your case. This matter has been hanging over your head and it is in this context of uncertainty that you have served something in the order of 296 days.
57Whilst in custody you have settled on your medication and can now see the benefits of consistent treatment. You have been on an Opiate Substitution Therapy Program and have undertaken several drug and other courses. Importantly, you have mended your relationship with your mother that no doubt suffered as a result of your rampant drug addiction.
58You have family support, accommodation and employment waiting for you upon release. I am optimistic about your prospects for rehabilitation and consider that they would be best facilitated by the supervision and support that parole can offer. It is my view that you require assistance in your transition from custody to the community and the ongoing management of your mental health and addiction issues. While you have served a lengthy period on remand this should not be an impediment to your release with the support and supervision parole provides and the support and supervision that you very clearly require.
Sentencing principles
59I consider that the relevant sentencing principles that must be applied in this case are general and specific deterrence, denunciation, community protection and just punishment. Other sentencing principles that I must apply are parsimony and proportionality. I have also had regard to totality, particularly in regard to a sentence that was imposed at Melbourne Magistrates’ Court on 29 September 2022.
60I take into account the sentencing guidelines referred to in s5 of the Sentencing Act,[4] where relevant to your case. In particular, I have had regard to the sentencing landscape for the offence of armed robbery. Ultimately, the sentencing exercise requires that I balance all relevant factors and make a judgment as to the appropriate sentence in the circumstances of your particular case.
[4] Sentencing Act 1991 (Vic) s 5.
61Mr Makrogiannis, after consideration of all of the above matters, including the oral and written submissions of both the defence and the prosecution, the victim impact statement, the psychological and CISP material tendered, the testimonial from your mother, I have come to the view that the only sentence that can be imposed for the serious offending before the court is one of imprisonment, so in relation to the offending before the court I sentence you as follows.
62
In relation to Charge 1, of armed robbery, you are convicted and sentenced to
2 years and 6 months imprisonment. In relation to Charge 2, the possession of cannabis, I note this was a small amount found when police executed a search warrant at your address. Accordingly, you are convicted and discharged.
63In relation to the summary related offences of committing an indictable offence on bail and driving whilst disqualified, you are sentence to 14 days imprisonment for each. These terms are to be served concurrently with each other and concurrently with the sentence imposed on Charge 1.
64I order that you serve one year and six months before being eligible for parole. In this case, I am satisfied it is in the interests of justice and the community to allow for a significant period of time where you are supervised in the community.
65You have now served 696 days by way of pre-sentence detention. I order that this be reckoned as a period of time already served.
66Pursuant to s6AAA of the Sentencing Act, but for your plea of guilty I would have imposed a term of imprisonment of four years with a non-parole period of two years and six months.
67I will make the disposal order sought by the prosecution with respect to the drugs located.
68Are there any other matters?
69MS RUTHERFORD: There is not, Your Honour.
70MR STURGES: No, Your Honour, thank you.
71HER HONOUR: Mr Makrogiannis, hopefully you can put in your application for parole. I do not know how that is going to go, it is not something I can take into account, but there has been provision made for it, so I just wish you all the best with that and I hope that you can put this behind you, get out into the community and do the right thing basically.
72You have had a pretty long stint in custody in pretty difficult circumstances, so if that is not going to help you to change your ways then I am not sure, so nurture your relationship with your mum, look after her and I wish you all the best.
73MR STURGES: Thank you, Your Honour.
74HER HONOUR: Thanks very much. Thanks to both counsel. Thanks, Mr Sturges and Ms Rutherford, for your very thorough submissions. That was really helpful. We will adjourn.
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