Director of Public Prosecutions v Mastropavlos
[2015] VCC 961
•10 July 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL JURISDICTION | Revised Not Restricted Suitable for Publication |
CR-15-00739
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| WILLIAM MASTROPAVLOS |
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| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 3 July 2015 |
| DATE OF SENTENCE: | 10 July 2015 |
| CASE MAY BE CITED AS: | DPP v Mastropavlos |
| MEDIUM NEUTRAL CITATION: | [2015] VCC 961 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – plea of guilty – criminal damage – use firearm whilst prohibited – handle stolen goods – unlawful assault – possess cartridge ammunition – assault police officer – resist emergency worker
Legislation Cited: Crimes Act 1958; Firearms Act 1996; Criminal Procedure Act 2009; Summary Offences Act 1966; Sentencing Act 1991
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M Roper | Solicitor for the Office of Public Prosecutions |
| For the Offender | Mr R Backwell | Theo Magazis & Associates |
HIS HONOUR:
1William Mastropavlos, you have pleaded guilty to the following charges on indictment No. E14153594:
2Charge 1, intentionally, without lawful excuse, damaging property, namely one glass window belonging to Coles Express Service Station contrary to s197(1) of the Crimes Act 1958, carrying a maximum penalty of a term of imprisonment of ten years.
3Charge 2, being a prohibited person to use a firearm contrary to s5(1) of the Firearms Act 1996, carrying a maximum penalty of ten years’ imprisonment or 1200 penalty units.
4Charge 3, to dishonestly assist in the retention of a motorbike on behalf of another knowing it to be stolen contrary to s88(1) of the Crimes Act 1958, carrying a maximum penalty of a term of imprisonment of fifteen years.
5Charge 4, intentionally, without lawful excuse, damaging property, namely a wall to the Reservoir Police Station contrary to s197(1) of the Crimes Act 1958, carrying a maximum penalty of a term of imprisonment of ten years.
6You have also pleaded guilty to the following summary offences which have been transferred to this Court pursuant to s145(1) of the Criminal Procedure Act 2009:
7Charge 2, that on 30 November 2014, you unlawfully assaulted Krishna Boller contrary to s23 of the Summary Offences Act 1966, carrying a maximum penalty of three months’ imprisonment or 15 penalty units.
8Charge 5, that on 30 November 2014, you unlawfully assaulted John Wood contrary to s23 of the Summary Offences Act 1966, carrying a maximum penalty of three months’ imprisonment or 15 penalty units.
9Charge 8, that on 30 November 2014, you unlawfully assaulted Ebony Harvey contrary to s23 of the Summary Offences Act 1966, carrying a maximum penalty of three months’ imprisonment or 15 penalty units.
10Charge 11, that on 30 November 2014, you possessed cartridge ammunition whilst not being the holder of a license under the Firearms Act contrary to s124(1) of that Act, carrying a maximum penalty of 40 penalty units.
11Charge 20, that on 30 November 2014, you unlawfully assaulted Adam Neinkemper, a member of the Police Force, in the execution of his duty contrary to s51(2) of the Summary offences Act 1966, carrying a maximum penalty of six months’ imprisonment or 60 penalty units.
12Charge 21, that on 30 November 2014, you did resist Adam Neinkemper and Jeremy Redfern, both Emergency Work service workers on duty contrary to s51(2) of the Summary offences Act 1966, carrying a maximum penalty of six months’ imprisonment or 60 penalty units.
13I have been provided with a prosecution opening on the plea and I am informed that it constitutes the agreed facts of your offending on 30 November 2014. It is marked as exhibit 1. I propose to set out some of the events in order to allow my disposition on sentence to be properly understood.
14On 30 November 2014, at about 12.30am, you entered a Coles Express service station. There was an altercation between yourself and the service attendant in the shop at the service station, Mr Boller. You attempted to reach out and presumably make contact with Mr Boller over the service counter. He moved back. You subsequently picked up several items nearby then threw them at him. Those facts constitute summary Charge 2.
15As you were exiting the shop, you kicked a glass panel of the shop, causing it to break. Those facts constitute Charge 1. As you left the shop, you took up a fighting stance in front of Mr Wood and then struck him once to the side of the head. He suffered no lasting injury but suffered minor soreness. Those facts constitute summary Charge 5.
16At about 1.30am, and at your home address, you engaged in an argument with Ms Harvey about what had occurred at the service station. She had accompanied you there. She was your domestic partner and is the mother of your two-year-old child, Michaela. You punched her to the face, causing her nose to become bloodied and swollen. Those facts constitute summary Charge 8. You made an attempt to apologise to Harvey for punching her. She did not accept your apology. Subsequently, you removed a Winchester single barrel centre fire rifle from a guitar case in your bedroom. It was loaded. You discharged a single shot from the rifle.
17According to the criminal record, exhibit 3, you appeared before the Heidelberg Magistrates’ Court on 23 June 2013 charged with recklessly cause injury, criminal damage and failure to answer bail. You were placed on a Community Correction Order for twelve months.
18Section 5(1) of the Firearms Act 1996 makes it an offence for a prohibited person to use a firearm. The expression “prohibited person” is defined in s3(1)(c)(ii)(a). It includes a person who is subject to a community correction order within the meaning of the Sentencing Act. You were obviously under a community correction order and were, therefore, a prohibited person. Those facts constitute Charge 2.
19You then placed the firearm in the courtyard of your home. Later, you took the firearm and threw it over a side fence into the rear yard of an adjacent property. The police attended at your home at 2.40am. They found the firearm. It was unloaded by then. Ammunition rounds were found at your house and were seized. Those facts constitute summary Charge 11.
20In the course of the police looking around your home, they came across a Kawasaki motorbike in your garage which enquiries revealed had been stolen on 23 October 2013. Those facts constitute Charge 3.
21You were subsequently conveyed to the Reservoir Police Station. You were initially placed in a holding cell and later in an interview room. While in the holding cell, you damaged the wall of the cell. Those facts constitute Charge 4. You were moved into an interview room.
22You were highly agitated. Sergeant Neinkemper and two other police officers entered the interview room. An attempt was made to calm you down. A decision was made to handcuff you. Sergeant Neinkemper and Constable Redfern approached you. You threw two punches at Sergeant Neinkemper which glanced off the side of his head. Those facts constitute summary Charge 20.
23You resisted attempts to handcuff you, with the result that a struggle ensued. You had to be forcefully restrained so that you could be handcuffed. Those facts constitute summary Charge 21.
24Mr Backwell, of counsel, submitted at the outset that the range of disposition was between the time served by you and a community correction order or, alternatively, an additional sentence of imprisonment with a community correction order or the imposition of a minimum term, allowing you to be released on parole. I referred you to be assessed to determine your suitability to have a community correction order imposed upon you. You have been assessed as suitable for a community correction order.
25Mr Backwell essentially submitted that there are a number of factors which I should take into account in sentencing you. They are, in summary, you are a youthful offender. You were born on 17 June 1990. You have limited education, having completed your schooling at the Year 8 level. You have no significant educational achievements beyond that level of schooling and you have no other educational training. You have essentially worked as a handyman on a casual basis from the time you were still at school up until the time you were remanded in custody.
26Your parents separated. Both have subsequently entered into domestic relationships. You were physically abused by your father, who you described as an “angry drunkard”. You encountered behavioural problems when you were young. You sought the assistance of psychologists and psychiatrists because of your challenging behaviour and unsettled character. I note that you had been admitted to a psychiatric unit on two occasions. The last being in 2012 following the onset of suicidal ideation.
27You have a significant alcohol problem. You have consumed alcohol from about the age of fourteen years and later, you indulged in the use of cannabis, amphetamine and methylamphetamine but fortunately for you, your encounter with those drugs was brief. You last used cannabis in about mid-2014.
28You have the support of Ms Harvey’s mother, who you refer to as your mother-in-law. She visits you with Michaela twice a week. Your mother also supports you. Both your mother-in-law and your mother attended Court to support you. It would appear that you have a sound relationship with both of them. Your relationship with your father, it would appear, has returned to a reasonable level.
29Mr Backwell tendered a report of Mr McKinnon, forensic consultant psychologist, dated 27 June 2015, which is exhibit A. It contains much of the history and your past and present difficulties, which I have just summarised. Mr McKinnon did not consider that you have any significant psychological or psychiatric condition. He did record a statement made by you demonstrating some remorse on your part. I quote,
“I did the wrong thing. I wasn’t using drugs. I was having relationship problems with Ebony. There had been a bit of conflict, I was on edge.”
30You made similar but brief comments of the same kind in your record of interview.
31Additionally, Mr McKinnon referred to some aspects of your background which give an insight into the manner in which you have behaved in more recent times. He said:
“His developmental history appears to have been distorted by physical abuse he suffered during his childhood, subsequent poor educational experiences, the break-up of his family origin, a lack of vocational training, limited employment experience and a general lack of engagement with wider community activities and associations.”
32He also remarked that you are “relatively ill equipped to handle interpersonal difficulties”.
33You were charged on 11 December 2014. There was no issue that you admitted your guilt at an early point in time, which is to your credit.
34You have a number of prior convictions. The one that is most troubling is an occasion when you appeared in the Magistrates’ Court at Heidelberg on 23 June 2014. A LEAP report was tendered, exhibit 4, which is a short summary of what occurred. What is clear is that you assaulted your then domestic partner by punching her repeatedly. You kicked the driver’s side door and quarter panels of her car. Attending police searched your car and found an imitation firearm and a hunting knife under the front passenger seat of your car. You were subsequently charged with recklessly cause injury, criminal damage and failure to appear on bail. You were convicted on each of those charges and you were placed on a Community Correction Order for twelve months. You candidly admitted that you have not complied with that Community Correction Order at all.
35You were convicted at the Magistrates’ Court at Heidelberg on 13 March 2012 on a charge of intentionally case injury. You were convicted and fined $700. You were also dealt with at the same Magistrates’ Court on 17 March 2009 on a charge of theft. You were sentencing to one month’s imprisonment, which was suspended. On 17 July 2009, you were convicted of a number of driving offences and were given an aggregate penalty of $300 including disqualification from driving for six months.
36On 2 August 2014, you drove to Lakes Entrance with your then domestic partner and your father. You say that the driver of the other car spoke threateningly to your father, who was in your car. You alighted from your car, approached the other driver and punched him twice to the face. You pushed him to the ground, with the result that the victim of that assault suffered a fracture of his arm. In your record of interview, you accused your victim of being the aggressor.
37On 21 July 2015, you were apprehended by police and found to be driving without a license. You were asked to undergo a breath test, which you refused. Mr Backwell candidly informed me of all of these matters and that you have been charged, and will face court soon. He submitted that a common denominator with those charges and the charges I am dealing with here, is alcohol. I would add that there are other common denominators as well, namely uncontrolled anger and violence.
38I have not taken your other offending, for which you are yet to be dealt with by a court, into account in determining a just sentence relevant to the charges before the Court.
39You are a youthful offender. I recognise that fact as being relevant to determining a just sentence which I should impose on you. However, I also recognise that specific deterrence has a place in the sentence I impose on you. You have proved yourself to be a violent man. That is not only evidenced from your appearance before the Magistrates’ Court at Heidelberg on 30 November 2014 but what is particularly worrying is that you engaged in domestic violence against a former partner, and did so again on 30 November 2014.
40What is also particularly worrying is that the LEAP report discloses that you had an imitation pistol and hunting knife in your car and on this occasion, you had a loaded rifle and ammunition.
41The sentence I impose on you must send a message to you that you must be deterred from assaulting your domestic partners, from obtaining weapons, whether imitation or real, and resorting to gratuitous violence on innocent members of the public. It is clear to me that you did not learn from your last appearance at the Magistrates’ Court at Heidelberg on 23 June 2014 when you were probably warned that your conduct would not be tolerated.
42There must also be an element of general deterrence in the sentence I impose to operate as a factor in the prevention of the commission of crimes similar to the ones you have committed as a demonstration to others who might engage in the same conduct who might think that a light punishment faces them.
43One factor which I consider to be of particular significance in sentencing you is to impose conditions which will facilitate your rehabilitation. There was no doubt what the magistrate had in mind when you were previously considered suitable for a community correction order. Your failure to comply with that order concerns me, to the extent that I wonder whether you will apply yourself to it and reap the benefits of an order of that kind designed to bring you out of your current state of conduct and to seriously improve your prospects of not offending again.
44You have been remanded in custody for 222 days. You have experienced the nature of imprisonment and I hope that it has had a part to play in you changing your regrettable history of violence and making every effort to rehabilitate yourself.
45In the end, I consider that I should impose a term of imprisonment with a Community Correction Order as a proper balance when the relevant sentencing principles are applied and in particular, specific and general deterrence moderated by your youth and what I consider to be reasonable prospects of rehabilitation, which can be achieved through a community correction order.
46You will be sentenced as follows:
47On Charge 2, the firearms charge, you are sentenced to nine (9) months’ imprisonment.
48On Charge 3, the motorbike charge, you are sentenced three (3) months’ imprisonment to be served concurrently with the sentence imposed on Charge 2.
49On Summary Charge 8, the assault on Ms Harvey, you are sentenced to six (6) months’ imprisonment with three (3) months to be served concurrently with the sentence imposed on Charge 2 and three (3) months to be served cumulatively.
50That is a total sentence of twelve (12) months’ imprisonment, with 222 days served to be reckoned as part of the sentence.
51On Charges 1 and 4 and Summary Charges 2, 5, 11, 20 and 21, you are placed on a Community Correction Order for three (3) years on the following Conditions. I want you to listen to this very carefully:
(1)That you undertake 200 hours of unpaid community work;
(2)That you undergo assessment and treatment for drug abuse and dependency;
(3)That you undergo assessment and treatment for alcohol abuse and dependency;
(4)That you undergo any mental health assessment and treatment that may include psychological, neuro-psychological or psychiatric treatment in a hospital or residential facility;
(5)That you engage in any program which addresses factors relating to your offending behaviour;
(6)That you be supervised, monitored and managed as directed by the Secretary to the Department of Justice.
52Pursuant to s6AAA of the Sentencing Act, had it not been for your plea of guilty at an early point in time, I would have imposed an effective sentence of 20 months’ imprisonment with a Community Correction Order of three years with the same conditions.
53Now, I want you to listen to this very carefully, Mr Mastropavlos. This is a warning I must give you relevant to the imposition of a Community Correction Order.
54In addition to the conditions I have specifically imposed, you must also abide by the terms that apply to all community correction orders. These are:
(1)You must not commit any offence during the period the Order is in force, being any offence for which you could be imprisoned, even if the Court would not choose to impose imprisonment;
(2)You must report to, and receive visits from, a Community Corrections officer;
(3)You must report to the Community Corrections Centre at Greensborough within two (2) clear working days, as will be noted on the Order that will be provided to you shortly;
(4)You must not leave Victoria without first obtaining permission from a Community Corrections officer;
(5)You must inform the Community Corrections officer of any change of address where you live or work within 48 hours of that occurring;
(6)Finally, you must obey all lawful instructions from and directions of Community Corrections officers.
55Do you understand the conditions I have imposed and the general terms that apply?
56OFFENDER: Yes.
57HIS HONOUR: Before you consent to the making of such an Order you must understand that the contravention of any condition attached to the Community Correction Order, except for a contravention of a direction by the Secretary, is itself an offence punishable by three months’ imprisonment.
58Contravention of a community correction order also carries with it the prospect that you will be brought back before me and re-sentenced for the original offences. Do you consent in those circumstances to the imposition of such an order?
59OFFENDER: Yes.
60HIS HONOUR: Mr Roper, are you seeking the ‑ ‑ ‑
61MR ROPER: Orders.
62HIS HONOUR: ‑ ‑ ‑ acquisition of a forensic sample?
63MR ROPER: Yes, Your Honour, I have a draft order. The basis of that application, if I hadn't mentioned earlier on, is the seriousness of the offending, the prior convictions and I believe the order is not opposed and also for public interest. I have three copies of the draft order that have been completed with today’s date and the parties and Your Honour ‑ ‑ ‑
64HIS HONOUR: All right, thank you.
65MR ROPER: I hand that up. That’s for the taking of an order when a person is in custody.
66
HIS HONOUR: It is also an obligation I have, Mr Mastropavlos, to give you a warning about the taking of a forensic sample and I understand, from
Mr Backwell, that you do not object to this course being undertaken.
67Application has been made by the prosecution for the provision of a forensic sample by the taking of a scraping from your mouth or a blood sample. Having regard to the seriousness and the circumstances of the offending I find that the granting of the order is in the public interest and I note that you have consented to that occurring, through Mr Backwell. I will make the order and sign it shortly.
68I am required to warn you that if at the time you are requested to supply a sample of your DNA by a scraping from the inside of your mouth under supervision by an authorised member of the police force, then the sample will be taken in that way. But if, when requested by the officer, to provide the sample in that way you either fail or refuse to provide the sample, the officer is authorised to obtain a blood sample and to use reasonable force to obtain that blood sample. Do you understand that?
69OFFENDER: Yes.
70MR ROPER: Yes, just one final matter, Your Honour, the forfeiture order in relation to the firearm and the ammunition. My instructor’s completed a draft for Your Honour’s signature. It’s in triplicate. I believe one remains on the Court file.
71HIS HONOUR: Do you have anything to say about that, Mr Backwell?
72MR BACKWELL: No, it’s consented to, Your Honour.
73HIS HONOUR: Yes.
74MR BACKWELL: Might I approach the dock and get Mr Mastropavlos to sign these Community Correction Orders?
75HIS HONOUR: Yes, of course you may.
76MR BACKWELL: Thank you, sir.
77HIS HONOUR: Yes thank you. Anything else, Mr Roper, Mr Backwell?
78MR BACKWELL: No, Your Honour.
79MR ROPER: No, sir.
80HIS HONOUR: All right, I will now adjourn the Court until 10.30.
Resumed 16 July
81HIS HONOUR: All right. Let me then recast this.
82I will sentence Mr Mastropavlos to two months’ imprisonment on Summary Charge 8 and I will make an order that it be served cumulatively with the sentence on Charge 2.
83MR ROPER: Indictment Charge 2.
84HIS HONOUR: I have made an error and I have been invited to correct it. I have corrected it. Your sentence, total effective, is now not 12 months but 11 months.
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