Director of Public Prosecutions v McDonagh
[2020] VCC 760
•1 June 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-00336
Indictment No. K11110699
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MARTIN DANIEL McDONAGH |
---
JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 27 April 2020 and 11 May 2020 | |
DATE OF SENTENCE: | 1 June 2020 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v McDonagh | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 760 | |
REASONS FOR SENTENCE
---
Subject: CRIMINAL LAW
Catchwords: Sentence – eight charges of obtaining property by deception – one uplifted charge of dealing with property suspected of being the proceeds of crime – pleas of guilty
Legislation Cited: Crimes Act 1958, s81(1), s195(1); Sentencing Act 1991
Cases Cited:Phillips v R [2012] VSCA 140; R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269
Sentence: Total effective sentence of 24 months imprisonment with a non-parole period of 16 months; 396 days declared as pre-sentence detention; 6AAA declaration – 3 years imprisonment with a non-parole period of 25 months.
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms C Pezzimenti | Solicitor for the Office of Public Prosecutions |
| For the Offender | Ms S Lacy | Dribben & Brown Barristers & Solicitors |
HIS HONOUR:
1 Martin Daniel McDonagh, on 27 April 2020, you pleaded guilty to the following charges on Indictment No. K11110699.
Charge 1 –
2 That you, at Hawthorn in Victoria, on 5 October 2018, dishonestly obtained from Vicki Parr, certain moneys in the sum of $5,700, with the intention of permanently depriving Vicki Parr of the said moneys by deception by falsely representing:
(a)that you were the owner of a business, 'Kody’s Home Improvements'; and
(b)that the said business was registered and the workmanship provided was guaranteed.
Charge 2 –
3
That you at Burwood East in Victoria, between 5 December 2018 and
14 March 2019, dishonestly obtained from Michael Wormald, certain moneys in the sum of $280,000, with the intention of permanently depriving Michael Wormald of the said moneys by deception by falsely representing:
(c)that you were the owner of a business 'Kody’s Home Improvements'; and
(d)that the said business was registered and the workmanship provided was guaranteed.
Charge 3 –
4
That you, at Hawthorn in Victoria, between 28 January 2019 and
30 January 2019, dishonestly obtained from Geoffrey Cox, certain moneys in the sum of $12,000, with the intention of permanently depriving Geoffrey Cox of the said moneys by deception by falsely representing:
(e)that you were the owner of a business 'Jackson's Home Improvements'; and
(f)that the said business was registered and the workmanship provided was guaranteed.
Charge 4 –
5 That you, at Newport in Victoria, on 30 January 2019, dishonestly obtained from Terri-Anne Curnow, certain moneys in the sum of $9,000, with the intention of permanently depriving Terri-Anne Curnow of the said moneys by deception, by falsely representing:
(a)that you were the owner of a business 'Jackson’s Home Improvements'; and
(b)that the said business was registered and the workmanship provided was guaranteed.
Charge 5 –
6
That you, at Hampton East in Victoria, between 1 February 2019 and
23 March 2019, dishonestly obtained from Athena Kontonis, certain moneys in the sum of $11,000, with the intention of permanently depriving Athena Kontonis of the said moneys by deception, by falsely representing:
(c)that you were the owner of a business 'Austin’s Home Improvements'; and
(d)that the said business was registered and the workmanship provided was guaranteed.
Charge 6 –
7
That you, at Ashburton in Victoria, between 26 February 2019 and
2 March 2019, dishonestly obtained from Russell Diery, certain moneys in the sum of $23,500, with the intention of permanently depriving Russell Diery of the said moneys by deception, by falsely representing:
(a)that you were the owner of a business 'Harley’s Home Improvements'; and
(b)that the said business was registered and the workmanship provided was guaranteed.
Charge 7 –
8
That you, at South Melbourne in Victoria, between 2 April 2019 and
8 April 2019, dishonestly obtained from Lindsay Chaloner, certain moneys in the sum of $13,750, with the intention of permanently depriving Lindsay Chaloner of the said moneys by deception, by falsely representing:
(a)that you were the owner of a business 'Harley’s Home Improvements'; and
(b)that the said business was registered and the workmanship provided was guaranteed.
Charge 8 –
9 That you, at Noble Park in Victoria, between 26 April 2019 and 28 April 2019, dishonestly obtained moneys from Dean Ibralebbe, certain moneys in the sum of $11,200, with the intention of permanently depriving Dean Ibralebbe of the said moneys by deception, by falsely representing:
(a)that you were the owner of a business 'Austin’s Home Improvements'; and
(b)that the said business was registered and the workmanship provided was guaranteed.
10 The offence of obtaining property by deception is contrary to s.81(1) of the Crimes Act 1958 and carries a maximum penalty of 10 years’ imprisonment.
11 The following summary charge was transferred to this court pursuant to s.145 of the Criminal Procedure Act 2009. On 27 April 2020, you also pleaded guilty to such summary offence.
Summary Charge 18 –
12 That you, at Hadfield in Victoria, on 2 May 2019, did deal with property, namely one silver watch; four Louis Vuitton belts; one Louis Vuitton backpack; one Gucci handbag, three Louis Vuitton purses, one Cartier bangle, one Chanel bag, one Prada handbag; one Valentino handbag; one pair of Louis Vuitton shoes; three Gucci belts; one Gucci carry bag; one Louis Vuitton sash; one Dior handbag; one Christian Luboutin handbag; one pair of Christian Luboutin shoes; two pairs of Guiseppe Zanotti shoes; one pair of pink Valentino slides; three pairs of Saint Laurent stilettos; one pair of Valentino stilettos; one Louis Vuitton scarf; one pair of Chanel sneakers; one pair of Gucci slides; one pair of Gucci street shoes; one pair of Versace stilettos; one pair of Christian Luboutin stilettos; one Gucci cap; one pair of Versace sunglasses; two Gucci belts; one Louis Vuitton satchel; one pair of Louis Vuitton boots and 2- - -two Apple iPhones, suspected of being the proceeds of crime.
13 The offence of dealing with property suspected of being the proceeds of crime is contrary to s.195(1) of the Crimes Act 1958 and carries a maximum penalty of two years’ imprisonment.
The circumstances of the offending
14 During the plea hearing on 27 April 2020, counsel for the prosecution tendered a document headed “Summary of Prosecution Opening” which was marked as an exhibit (Exhibit 1). I was informed by your counsel that you agree with the contents of that document. In particular, I note the following:
·You are 28 years old, having been born on 29 December 1991 in the United Kingdom. You have lived in Australia since 10 March 2015 on a spousal visa.
·Some time prior to your offending, you became involved with a group responsible for committing deceptions, commonly referred to as the 'Irish Roofing Scams'. This group was made up of people who were originally from the United Kingdom or Ireland and operated by printing and distributing flyers, advertising businesses specialising in property maintenance and offering to conduct fully guaranteed works for a discount.
·The businesses which they advertised were not registered and the mobile phone numbers on the flyers were registered under false identities. People contacted these businesses believing them to be legitimate.
·Upon being contacted on these mobile numbers, members of this group attended all potential clients’ homes to provide quotes for works, asserting them to be 'guaranteed'. While these quotes were generally reasonable initially, as works progressed, the costs increased. Clients were told that further works were necessary, due to structural issues and the cost of the undertaking of those works was excessive.
·The businesses engaged sub-contractors to carry out the works, some of whom were qualified and some not.
·Permits were not obtained for any of the works.
·During the course of the investigation, police identified a number of your associates by analysing phone and banking records. These men also appeared to be operating in a similar manner with unregistered businesses and flyer distribution. At this stage, none of those men have been charged in Australia.
·There were a number of sub-contractors engaged by you to carry out the works concerned with the offending.
·Peter Armsanius (“Armsanius”) and Roger Rodriguez (“Rodriguez”), neither of whom hold any trade qualifications, were engaged by you in December 2018, via an advertisement placed by both men together on Gumtree. At that time, you introduced yourself as 'Jackson'. Armsanius told you that while he had done some carpentry work, he did not have any qualifications.
·Jeramie Mackenlay, who is a qualified roof plumber, was engaged by you via an advertisement. You introduced yourself to Mackenlay as 'Kody'.
The first charge
·In around September 2018, Ms Vicki Parr received a flyer in the mail advertising 'Kody’s Home Improvements', after which she contacted that business and requested a quote to undertake some maintenance to woodwork and window frames at her address in Hawthorn.
·You attended at that address, introduced yourself as 'Kody' and provided an electronic quote for works to be completed with a 10-year guarantee. You offered Ms Parr a discount if she paid cash, which was declined, and she ultimately paid you $5,700 into an ANZ account.
·The works were only partially completed.
The second charge
·In or around November 2018, Mr Michael Wormwald received a flyer from 'Kody’s Home Improvements' in the mail, after which he contacted 'Kody' seeking assistance with his front door which was 'sticking' when opened and closed.
·You attended the address of Mr Wormwald in Burwood East in late, November 2018 and identified yourself as “Kody”.
·You told Mr Wormwald there was nothing wrong with the door and the issue was that the house was coming off the foundations and that it was structurally unsafe. You stated that if it got worse, it would be unliveable and unsellable.
·You asked for $48,000 to restump the house, which Mr Wormwald agreed to pay half, as he did not have that sort of money at the time. He advised you that his mother had recently passed away and he would be getting back a deposit that he had paid for her care. On 4 December 2018, Mr Wormwald received his first invoice from you and the sum of $24,000 was paid into an ANZ Bank account the following day.
·You returned during December 2018 with Bernard Jude McCarthy, (your brother), Armsanius and Rodriguez, and over the following months those workers attended the property intermittently and carried out 'perceived' repairs to the property.
·In January 2019, you told Mr Wormwald that you would check his roof, and later you advised Mr Wormwald that in resetting the house, the roof was damaged. You and Mr Wormwald went up to the roof to view the damage and you advised Mr Wormwald that the vertical support beams had buckled and you would need $96,000 to fix the problem.
·About a day or two later, you informed Mr Wormwald that the works on one side of the roof had damaged the other side of the roof, causing some roof tiles to be removed and some support beams broken. You advised Mr Wormwald that this would require an additional $120,000 to fix.
·You informed Mr Wormwald that you had a solicitor who was excellent at drafting fraudulent insurance claims and you claimed that work done would not satisfy the insurance company and would need another $109,000. When Mr Wormwald told you he did not have any more money, you told him that you would be prepared to pay for it out of your pocket and Mr Wormwald would have to pay an extra $10,000. You stated that a contract would have to be signed reflecting such an agreement.
·Armsanius stated that he worked at this address for 'Jackson' in early March 2019 and that 'Jackson' – that is you – told Armsanius what work would be required, stating there were broken roof battens and dips in the roof at the address. Jackson – you – explained how to remedy the dips.
·Armsanius worked at this address for about two weeks with Rodriguez, and at that point Jackson – that is you – informed them that they had to go to another job. The works at Mr Wormwald’s were “far from completion”, with temporary props still in place.
·On 22 March 2019, Mr Wormwald engaged building inspectors to inspect the structural integrity of the house and the works completed. Mr Luke Blackwood, a building inspector, compiled a report noting, in particular:
– a contractor was employed to underpin the perimeter of the house and restump the floor. None of these works have been started – they have simply turned some soil over to appear that the works have been completed.
– the roof and roof space had major structural defects. Pine timber props have been placed between the ceiling joist, (not structural and not designed to bear weight) and the rafter. The work does not achieve anything, it is contributing to the defect.
– the contractor was wrong to suggest foundations had failed and works were required. There would be no reason to restump or underpin the house.
– after fully inspecting the house, there is no evidence to suggest that any repair or rectification work was required and the contractor was deceitful towards him and bluffed his way into working at the house. Furthermore, the contractor has damaged the roofing at the front of the house, with the damage to repair estimated at $7,500.
·Architect, Simon Tiller, compiled an Architect’s Advice Report for Mr Wormwald, and noted:
– excavation holes dug around the house appeared to be for no apparent reason.
– a roof repairer had replaced some roof elements including battens, framing and added incorrect roof props bearing on various new areas, including ceiling joists next to hanging beams above the master bedroom. Such interventions would not normally be recommended by a structural engineer and no evidence of required structural engineering and permits for the work appeared to be in place.
– the west face of the roof shows extremely uneven tiles at risk of failure (at an incorrect pitch), particularly above the master bedroom, where structural repair work has not been carried out by a correct construction method.
– the sag above the living area of the tiled roof, does indicate common settlement of roof framing.
– assessment of the property did not show a major structural issue and the floors of the home did not show major settlement, and the interior of the home did not show any signs of a structure needing major interventions.
– no building permit appears to have been in place for work done, which would normally include and require a structural engineer’s report, geotechnical report, permits in place and work carried out by a registered contractor.
– none of the work was considered as required apart from the work done to correct the front door and screen rubbing. Work was not done to a correct construction method, including props, battens, uneven tile, extra purlin packers and props on ceiling joists supported by the hanging beam rather than an adjustment to the original Barap which would continue to transfer loads according to the original building system.
– the work did not appear to utilise correct construction practice generally, having been carried out without a building permit and clearly without required professional qualifications in preparation for structural changes to the roof, and for excavation checking around base walls.
·On 26 March 2019, Mr Wormald recorded a phone conversation between himself and you. The recording captured a discussion about the works and what had happened. You stated that you would arrange for a solicitor to assist with making an insurance claim for Mr Wormald, and that you would take care of everything and Mr Wormald would not be out of pocket.
·Over the course of the works, Mr Wormald paid $280,000 in total to three bank accounts:
– $24,000 to an ANZ account
– $136,000 to a different ANZ account
– $120,000 to a CBA account.
The third charge
·In around January 2019, Mr Geoffrey Cox received a flyer for 'Jackson’s Home Improvements' in the mail.
·Mr Cox contacted the company to obtain a quote to conduct maintenance to replace veranda slats and fix some external facing beams at his address in Hawthorn.
·You attended at that property, introducing yourself as 'Jackson' and provided a verbal quote for work.
·
The works were completed to Mr Cox’s satisfaction, although he believed he had been overcharged. Between 28 January and
30 January, Mr Cox paid $12,000 into a CBA bank account.
·Mr Cox was unaware that the business he engaged was not registered and indicated that he would not have engaged them if they had not been a legitimate organisation.
The fourth charge
·In or about January 2019, Ms Terri-Anne Curnow, received a flyer in the mail advertising 'Jackson’s Home Improvements'. In the week commencing 21 January 2019, she contacted the company to obtain a quote for some landscaping at her address in Newport. On 24 January 2019, you attended at that address with another male and Ms Curnow showed you a picture of the landscaping work that she wanted done and you gave an estimate of $20,000 to her.
·Ms Curnow then asked you to look at the balcony because the roof was rotting and you advised her that the work was urgent and should be fixed straight away, and a verbal quote of $8,000 to $9,000 was given. No written quote was provided at any time.
·Approximately two days later, without prior arrangement, two men attended at Ms Curnow’s address and informed her they were there to start work on her balcony. Subsequently, you contacted her and told her that the job had incurred greater cost than quoted, and that she would be required to pay $12,000.
·On 30 January 2019, Ms Curnow paid $9,000 into an ANZ bank account, but refused to pay the additional $3,000.
·Although Ms Curnow was satisfied with the work done, she would not have engaged your business had she been aware it was not a legitimate operation.
The fifth charge
·In or around February 2019, Ms Athena Kontonis, received a flyer from 'Austin’s Home Improvements' in the mail. She contacted the company to obtain a quote to install a carport, side fence/gate and lay synthetic turf at her address in Hampton East.
·You attended and introduced yourself as 'Austin' and provided a quote for $13,250. On March 23 2019, Ms Kontonis paid $10,000 in cash to you for the completed work on the carport and the side fence/gate. She had previously paid a $1,000 deposit to a man she believed to be your brother.
·The work on the synthetic turf was left incomplete.
The sixth charge
·In around February 2019, Mr Russell Diery received a flyer in the mail from 'Harley’s Home Improvements', causing him to contact the company to obtain a quote to prepare some leaks in his roof at his property in Ashburton.
·Mr Mackenlay attended and inspected the roof and subsequently you telephoned Mr Diery, introducing yourself as 'Harley', and informed him that the repairs would cost $4,000. Such quote was accepted and such work commenced.
·
You attended at the address once during the works to inform
Mr Diery that some of the rafters had warped due to the house shifting. You informed Mr Diery that this was dangerous and that he should report the house unfit to be lived in.
·You revised the quote to $26,000, which was emailed to Mr Diery with the invoice. In accordance with the flyer that Mr Diery received, such works were discounted by 10 per cent and the amount owed was $23,500. Between 26 February and 2 March 2019, Mr Diery paid $23,500 to a CBA bank account.
·You offered to assist Mr Diery with making an insurance claim, but Mr Diery refused, as he believed this 'sounded like a scam'.
·The works were completed, however, by early June 2019, the roof was once again leaking.
The seventh charge
·In or around March 2019, Ms Lindsay Chaloner received a flyer in the mail advertising 'Harley’s Home Improvements', causing her to contact that company for a quote to attend to rotten wood in her window frames and the replacement of a structural beam at her address in South Melbourne.
·You introduced yourself to Ms Chaloner as 'Harley' and provided a quote for the works of $9,000 and during the works Ms Chaloner received an invoice of increased costs of $13,750.
·Between 2 April and 8 April 2019, Ms Chaloner paid the full amount via bank transfer.
The eighth charge
·In or around February 2019, Mr Dean Ibralebbe received a flyer from 'Austin’s Home Improvements' in the mail, causing him to telephone the company requesting a quote for construction of a cover for his deck and a wall at his address in Noble Park.
·In April 2019, he received a call from you and you arranged to attend the address and provide a quote. At that time, you introduced yourself as 'Austin' and provided a verbal quote of $13,000, which was reduced to $10,000 due to a 15-percent-off special advertised in the flyer, combined with cash payment and the placement of an advertisement sign at the front of the property.
·The works were completed and you suggested you could arrange for additional plastering work at an additional cost of $1,200.
·Between 26 and 28 April 2019, Mr Ibralebbe paid you a total of $11,200 in cash, and although the initial works were completed, no one attended to undertake the plastering works that had been paid for.
15 In late March 2019, Mr Wormwald contacted police to report the offending at his address and provided police with the documents concerning his agreement with 'Kody', a recorded phone call between him and 'Kody', and both a building inspector’s report and an architect’s report.
16 Ultimately, police were able to identify you and obtained a search warrant in relation to your residence at 3/16 Bedford Street, Hadfield. On 2 May 2019, police executed the warrant at your address, where you were arrested and cautioned, after which a search was conducted and a number of items were located and photographed. Among those items located were the items set out in the uplifted Summary Charge 18. You were interviewed by police on 17 May 2019 and gave a 'no comment' interview. Police made further enquiries into your offending and were able identify your involvement with a number of other unregistered businesses, including those previously mentioned.
17 Police identified a number of subcontractors who had been engaged by you to undertake work and none of these men knew you by your actual name. Police spoke to Armsanius and MacKenlay, who provided details of addresses where they had been engaged to undertake work by you, causing police to subsequently contact those victims.
18 You were remanded in custody on 2 May 2019 and had been remanded up to this date.
19 Counsel for the prosecution sought orders for the forfeiture and disposal of the seized items, which was not opposed. Furthermore, compensation orders were sought from the court in relation to various complainants.
Victim Impact Statements
20 The following victim impact statements were tendered by the prosecutor on behalf of:
(a)Ms Vicki Parr (and her husband Mr Bruce Parr) – the complainant relevant to Charge 1 (Exhibit 5);
(b)Mr Michael Wormwald, the complainant relevant to Charge 2 (Exhibit 7);
(c) Ms Athena Kontonis, the complainant relevant to Charge 5 (Exhibit 4);
(d) Mr Russell Diery, the complainant relevant to Charge 6 (Exhibit 3);
(e) Ms Linsday Chaloner, the complainant relevant to Charge 7 (Exhibit 6);
(f) Mr Dean Ibralebbe, the complainant relevant to Charge 8 (Exhibit 2).
21 Pursuant to the wish of Ms Chaloner, the prosecutor read her statement in court.
22 I have read all such statements. The victims of your defrauding generally feel, in various degrees, exploited, vulnerable and have little trust in entering in any type of work to be done by a 'local'. Some of them also have experienced great degrees of stress when trying to get the work done, contacting you, and finally realising in some cases that the work paid for, had not been done or not totally completed. Furthermore, some of the complainants or victims relate to being substantially out of pocket, either because work was not completed or, indeed, work has had to be undertaken to remedy the 'repairs' undertaken by you.
Your education, employment and general background
23 Your counsel tendered the following documents:
(a)a document headed 'Defence Chronology and Plea Outline 26 April 2020' (Exhibit 'A');
(b) a series of references from:
– reference from Ms Pauline Burton, dated 9 September 2019. Ms Burton is the housing support officer with Leicester City Council in England and has known and worked with your family for over 30 years. She describes your family as excellent tenants who always contributed to the community. In particular, she found you to be polite and respectful and took a lot of responsibility on your shoulders' as your mother had a very difficult time bringing up the children due to your father’s substance misuse and anger issues.
She describes you as a kind and considerate person, but on many occasions, was very upset when witnessing your father’s violent actions towards your mother. Ms Burton comments whether the court would consider the negative background that you have suffered.
– reference jointly signed by Ms Geraldine Lindsay, skills development coordinator for the London Gypsies & Travellers and also by your mother, Margaret McDonagh, dated 23 August 2019. In that reference, Ms Lindsay states that she has known your mother and family for many years in the capacity of a family support worker. She also states that your mother would like to give the court some insight into your background and the unstable life you had as a child. In particular, she notes that during your childhood, you witnessed a lot of domestic violence towards your mother, from your father, and witnessed abuse between you mother’s side of the family and your father’s side of the family. In particular, she asserts that as a result of this family feud, you witnessed many violent incidents and was also aware of many other incidents. One of the main issues you and your family had to deal with was the death of a maternal uncle who was shot by another member of your father’s family.
Growing up as a young traveller man, you were not allowed to show any emotions, as you were expected to be an adult before your time and expected to take care of family members at a very young age because your siblings were all young women.
Your mother notes that although you have reconciled your relationship with your father, the 'scars and memories are still very real'. Ultimately, she describes you as a kind and compassionate young man, but you are also very vulnerable as a result of your past.
– reference from Father JJ Maloney, dated 9 September 2019. Father Maloney describes himself as a priest in Leicester in the United Kingdom, who, in particular, describes how he has known your family and in particular you, since being a 'little boy'. Father Maloney describes you as coming from a dysfunctional home, your father being involved in drugs and alcohol and you were subject to abuse on many occasions.
– reference from your wife, Ms Paige Marshall, dated 18 June 2019. She describes herself as your wife and the mother of your son, Orlando. She notes that at the time of writing you have been in Marngoneet Corrections Centre for the past seven weeks, but she has been unable to visit you because of the impact on her of such a visit and also on the mental and physical well-being of your son, Orlando.
She describes you as a good husband, a great father and 'as a family we do everything together'.
– from Father Xavier, dated 12 September 2019. Father Xavier is the Parish Priest at St Marks Parish in Fawkner, Victoria, and has known you and your immediate family, as you have been parishioners of his church.
Father Xavier describes you as suffering from depression and anxiety, and what he describes as 'scars' that you received from growing up in your family.
Father Xavier states that he has come to know you to be a pleasant and hardworking young man, and always showing a willingness to help, and is of a good nature.
In particular, (in a further reference dated 7 May 2020), Father Xavier notes that your stay in prison, has made you reflect on your crimes and that you are sincerely repentant.
– reference from Mr Craig Turner, dated 4 September 2019.
Mr Turner describes himself as the head coach at the Downend Police Boxing Club, Bristol, in the United Kingdom. He notes that he met you when you were aged 13 and whilst you obtained a very good standard of competition, you exhibited a 'very kind and gentle manner', far removed from your situation at home.
Mr Turner notes that outside his allocated training, you assisted in everything, from cleaning the facility, fundraising and coaching other members. He describes the charges that you now face, to be very much out of character and do not in any way fit your usual standard of behaviour.
– two references from two of your sisters, Shirley and Maryanne, dated 29 August 2019. They describe the family life that you and your sisters experienced when growing up in what they describe as a very violent home, and your father being an alcoholic with a very bad temper.
Your sisters describe how your father treated you as an adult from a very early age, but at all times they described you as 'loving and kind' and would do anything to make your mother and sisters feel they are beautiful people.
They note that you married young and that your marriage to Paige and the subsequent birth of Orlando made you happy and ultimately you moved to Australia for a better life.
– A letter from Dr Alon Talmor, dated 17 December 2018. In that letter, Dr Talmor describes himself as a reproduction medical specialist and that he has been assisting with the hope that your wife will conceive a further child. In particular, he describes you and his wife as a “delightful couple” who have been through some “very said miscarriages previously”;
All such references are marked as Exhibit “B”.
Further documents which were tendered:
(c)Report from the psychologist, Dr David Ball, dated 24 April 2020 (Exhibit “C”);
(d) Prison Education Summary Report (Exhibit “D”);
(e)bundle of documents – courses undertaken, including statement of results of prison courses (Exhibit “E”).
24 Partly based on various submissions made by your counsel at the plea, and partly based on some of the information contained in the tendered material, I note the following:
·You are one of six siblings, with four sisters and one brother. Although born and raised in the United Kingdom, you informed the forensic psychologist, Mr Ball, that your parents were “Irish travellers” and that your family was treated with distrust and discrimination, as a consequence of this heritage. In particular, you described to Mr Ball what he refers to as “a grossly dysfunctional upbringing against the backdrop of a violent feud”. Seemingly, the feud was between one of your uncles and your father, who you described as a violent alcoholic, having served two prison terms and suffered a severe stabbing injury (involving 70 internal and external sutures) in a pub brawl.
·Your father, Bernhard, when he had work, was a furnisher removalist. He is almost illiterate, with no skilled labour or other qualifications and can barely spell his own name. Throughout your childhood he was an alcoholic, and when drunk, he was violent. Your mother, Margaret raised the children and undertook home duties. She also had little schooling but had achieved basic literacy and numeracy.
·As a consequence of this “clan war” and your father’s violence, (both within the family and in public), your family moved frequently and you experienced little stability during you childhood. You did note that your mother was “very good to us”, but she struggled with her own mental health and attempted suicide.
·According to Mr Ball, you did not report any significant childhood illnesses or injuries and left the family home when you married at 18 to live with your wife.
·You have limited recollection of any schooling and because the family did move frequently, you did not get much opportunity to establish yourself at any school. You described yourself as being functionally illiterate and innumerate. You had no outside friends, so you had no friends outside your family and other children bullied you “for [your] accent and being a traveller”.
·Over the years, you had inconsistent employment in typically low-paid labouring-style positions.
·You married when you were 18 and have an eight-year-old son from that relationship. You informed Mr Ball that your wife is still supportive of you.
·You have informed Mr Ball that you commenced drinking alcohol when you were aged about 18 and described patterns of consumption which were described as “binge drinking”. You denied any experimentation with or habitual use of any substance at any time in your life and further denied any abuse or overuse of any prescription or over-the-counter medication.
·In relation to the subject offending, you told Mr Ball you had a clear recollection of events, despite being affected by alcohol on occasions. In particular, you described that you initially worked as a labourer and you then were required to do quotations and you did not know anything about licences or companies, not being that well educated.
·You informed Mr Ball that you wanted to build a healthy family life for your wife and son, who are currently residing with your wife’s extended family in the United Kingdom.
The circumstances of your offending
25 Your counsel submitted that on your instructions, in April 2018, you were engaged to work as an assistant labourer for the home improvements’ businesses through a man you had met at an Irish pub in Melbourne. In about August 2018, you were asked to take on the role liaising with customers and coordinating tradesmen. In this way, you had some operational involvement, although you were not a principal operator or decisionmaker in the businesses.
26 Further, your counsel submitted, on your instructions, that your dishonest representations were confined to falsely representing that you were the owner of the business, by introducing yourself as 'Kody', or 'Jackson', or 'Harley', that the business was registered and the workmanship was guaranteed.
27 Again, on your instructions, your counsel submitted that you did not have general access to the bank accounts, nor did you receive any profits, but was paid a weekly salary of $1,000, for which you worked five to six days per week. Your counsel submitted that your motivation was not one of greed, but “sustenance”, with no evidence of unexplained or inflated wealth.
28 You are not a skilled tradesman yourself, and could not, and did not, assess and cost the work involved. According to what you told your counsel, you would relay information to your boss and was told what to do. It was submitted that you were not capable of assessing whether the work had been overcharged or improperly quoted, or adequately performed, but you were ambivalent as to the circumstances.
29 Again, on your instructions, those who established and controlled these businesses and the various accounts to which profits were paid into, have all returned overseas. They operated their businesses under false identities and travelled under false passports.
30 It was submitted that the features of your role render you a “lower level offender in a dishonest enterprise” from which your enrichment was no more than a modest income.
The evidence of the forensic psychologist, Mr David Ball
31 Mr David Ball, a forensic psychologist, consulted with you at the Marngoneet Correctional Service on 26 March 2020, for approximately 90 minutes. He notes that as a consequence of the COVID-19 considerations, prison policy is to allow only non-contact (box) visits, which necessarily limit communication and do not facilitate psychometric testing.
32 At that consultation, Mr Ball was shown the education and training unit certificates obtained by you while in prison, together with the Personal Development Certificates brought about by activities when in prison. He obtained a history, much of which has been referred to already in this sentence.
33 In particular, he confirmed that your background and upbringing was surrounded by much violence, particularly in relation to your father and an ongoing violent family feud. Mr Ball obtained the history that you had little limited recollection of your schooling and because your family moved frequently, you did not get much opportunity to establish yourself at any school or develop friends. You described yourself as being functionally illiterate and innumerate and with no friends outside the family. Since leaving school, you have had an inconsistent employment history, in typically low-paid labouring-style positions. You describe your relationship with your wife and eight-year-old son in “strongly positive terms”.
34 You informed Mr Ball that you commenced drinking alcohol when you were 18 and described patterns of consumption consistent with binge drinking. You denied any experimentation or habitual use of any illicit substances at any time in your life.
35 In particular, Mr Ball stated, in part:
'Mr McDonagh presents with rising schizoid personality features.
Mr McDonagh reported living as a socially detached individual with crushingly low self-esteem, who tends to perceive others as being more capable and worthy. He is more likely to be a follower, rather than a leader, often taking a passive role in social affairs. While he seeks emotional support and protection from others, he is uncomfortable in social relationships.
The schizoid features of Mr McDonagh's personality, means that he takes little interest in others, unless there is some reward, such as alcohol or excitement. He often has trouble understanding the feelings and motivations of others and can appear bland and apathetic …
Based on Mr McDonagh's clinical interview and personal history, I am of the view that he narrowly falls short of diagnostic criteria for the DSM-5 diagnostic criteria for schizoid personality disorder. However, he satisfies the DSM-5 diagnostic criteria, for post-traumatic stress disorder without specifiers. I consider his condition to be severe at this time and unmanaged at this time. In my view, he also satisfies the DSM-5 diagnostic criteria for obsessive compulsive disorder. I consider this latter condition to be severe'.
36 Mr Ball also stated that you would benefit from treatment, monitoring, supervision and support in the community under a community corrections order or similar conditional release, with particular emphasis on continued management of Obsessive Compulsive Disorder and post-traumatic stress disorder. The plea in this matter, although commencing on 27 April 2020, was put over to 11 May 2020, in part for those acting on your behalf, to seek further information from Mr Ball, as to both - whether the burden of imprisonment as a result of any mental ill health and any likely exacerbation of any mental health while imprisoned. When the matter returned on 11 May 2020, the court was informed that the response did not support the applications for the so-called principles 5 and 6 set out in R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269. Your counsel disclaimed any reliance on any of the principles stated in Verdins (op cit).
Matters relied on by your counsel in mitigation of sentence
37 Your counsel submitted that the following matters are relevant in mitigation of any sentence:
(a) your plea of guilty and remorse
Your counsel notes that this matter resolved to a plea of guilty, prior to any committal hearing. Indeed, the court was informed that your previous solicitors began settlement negotiations in August 2019, and in October 2019, offered to plead guilty to the same charges now presented on the indictment. Such offer was rejected in late October 2019. In November 2019, you engaged your present solicitors to assist in resolving the allegations and ultimately the prosecution accepted your renewed second offer of resolution, two days before the committal hearing.
It is submitted by your counsel that such a plea should be viewed as being at the “earliest reasonable opportunity”. Your counsel notes the utilitarian value of such a plea of guilty, in that it saves the judicial system the time and cost of a trial and furthermore submits, that such a plea of guilty, should be accepted as evidence of remorse. In this respect, your counsel referred to some of the tendered material on your behalf;
(b) lack of criminal record
There are no records of any prior convictions for any type of offending in this jurisdiction;
(c) your dysfunctional family background
It was submitted that it is an established sentencing principle, that offenders from deprived backgrounds, can be considered in mitigation of sentence. In particular, it was submitted that the effects of profound childhood deprivation, do not diminish with the passage of time. Reference was made to the well-known High Court decision of Bugmy v R (2013) 249 CLR 571. Reference was made to the comments of the psychologist, Mr Ball, who described you as experiencing a grossly dysfunctional upbringing, against the backdrop of a violent family feud. In particular, reference was made to the comments of Mr Ball, where he says:
“Overall, Mr McDonagh impressed me as a man with some impairment in his capacity for good judgment and to his ability to plan and execute positive and self-sustaining behaviours. He presents with as yet, unmanaged PTSD and OCD, but is applying himself to his own rehabilitation'.
In particular, it was submitted that consistent with the principles in Bugmy (op cit), your deprived childhood, characterised by impoverishment, lack of education and absence of adequate paternal role modelling, upheaval, trauma and prejudice, has had the effect of diminishing your moral culpability for the incident offending;
(d)Deportation
As has already been recorded, you entered this country on a spousal visa. In the event that you are sentenced to a period of imprisonment of 12 months or more, such a visa will be automatically revoked and you will be subject to deportation pursuant to the provisions of the Migration Act 1958.
Your counsel stressed that both your wife and son are Australian citizens, and in particular, your wife was born and spent her early childhood in Australia. Both you and your family returned to Australia in 2015, to set up a new life for your family. Reference was made to the well-known case of Guden v The Queen [2010] VSCA 196. Your counsel submitted that the potential consequences of deportation for you, during the period of time that you have been in prison and any further period of imprisonment, would give rise to significant hardship, bearing in mind, the origins of your family and your intended future course in this country.
(e) The hardship generally
Your counsel noted that since being imprisoned, the only visit you have had is from Father Xavier, as your family had to return to the United Kingdom in May 2019, where they are living with your wife’s extended family.
Furthermore, the circumstances of COVID-19 have caused a reduction in services and use of facilities for education and training in prison and has induced fear and alarm amongst the prisoners. All these factors make imprisonment more onerous during this period of time, and again, that should be taken into account as a mitigating factor;
(f)Prospects of rehabilitation
Your counsel submits that you have presented with “good prospects of rehabilitation” during the 12 months you have been on remand, you have dedicated yourself to self-improvement. You have completed in excess of 20 courses in personal development and vocational training and have been employed as a laundry billet. You have instructed your counsel that over your period on remand has been without incident. Reference was made to the various letters of support, to which the court has already made reference, where there is clear support that you are an essentially kind, compassionate, polite, respectable, hardworking and generous, and this offending is 'out of character'. It was submitted by your counsel that you have turned your back on criminal enterprise and it is your intention to direct your energy to providing an honest, stable home environment for your young family when released.
38 Your counsel also submitted that the uplifted summary charge, is of a relatively low-level charge, with a maximum penalty of two years’ imprisonment. The goods outlined in that charge were largely found in your bedroom in the house, at the time the police executed a search warrant and he instructs that you did not steal such goods.
39 The primary submission of your counsel was that you should be sentenced to a term of imprisonment of less than 12 months, notwithstanding that your period of remand now extends further than 12 months, (although, of course, that does not prevent the court, if it so desires, to order a sentence of less than 12 months with the balance of time served, as being effectively 'dead time'. In the alternative, it is submitted there be a combined sentence of imprisonment of less than 12 months, coupled with a community corrections order.
The position of the prosecution
40 Counsel for the prosecution submitted that an immediate period of imprisonment is warranted in all the circumstances of this matter. It was submitted that a combination sentence is not appropriate. Reference was made to the following matters:
(a) there are eight complainants;
(b) the offending was over a number of months;
(c)some of the complainants were in a vulnerable position, confronted by the offender who held himself out as an expert and owner of the businesses;
(d)some of the transactions involved significant losses of money.
41 Overall, it was submitted there is a certain gravity to the offending, bearing in mind those matters. Furthermore, general deterrence, denunciation and specific deterrence are all important considerations in the sentence, so it was submitted.
Community Corrections Order
42 I ordered that you be assessed to determine your suitability for a community corrections order. This was undertaken on 6 May 2020 and you were assessed as suitable for such an order.
43 The writer of such report assessed you as a “medium risk of general reoffending”. However, in particular, you told the Corrections officer that the offending occurred in the context of “working for a company, I thought they were legit but they weren’t. I started as a labourer and then went higher up. I was telling people they were registered and legit, but they weren’t”. Also, when asked to comment about the impact of your actions on the victims in these matters, you told the writer of the report that you believed your actions were reckless, stating “I should have looked into them more, I didn’t stop to think what I was doing. I feel saddened I’ve become a burden here. I am in gaol and disgusted. It made me realise not to take life for granted. I’m really sorry for everything that has happened”.
Conclusion
44 Over the period from early October 2018 to late April 2019 – a period of approximately seven months – you held yourself out to be variously known as:
(a)“Kody”, the owner of “Kody’s Home Improvements”, a business said to be registered and the workmanship provided was guaranteed (Charges 1 and 2 on the indictment);
(b)“Jackson”, the owner of “Jackson Home Improvements”, a business said to be registered and the workmanship provided was guaranteed (Charges 3 and 4 on the indictment);
(c)“Austin”, the owner of “Austin Home Improvements”, a business said to be registered and the workmanship provided was guaranteed (Charges 5 and 8 on the indictment);
(d)“Harley'”, the owner of “Harley’s Home Improvements”, a business said to be registered and the workmanship provided was guaranteed (Charges 6 and 7 on the indictment).
45 Clearly enough, such dishonest representations were known to you. I find such a situation hard to reconcile with the comments you made to the Corrections officer at the time of your assessment for suitability for a community corrections order. At that time, you stated you were working for a company which you thought was “legit”. On moving higher up, you were telling people they were registered and “legit”, but they were not. For the sake of any doubt, I do find that beyond reasonable doubt, when you entered into the various transactions represented by the eight charges on the indictment, you were well aware that the businesses that you represented were not legitimate, not registered and not able to guarantee the work undertaken.
46 This is also reinforced by the agreed facts, that you engaged a number of subcontractors – Armsanius and Rodriguez – by way of an advertisement on Gumtree, well knowing that both those men had no trade qualifications. I do accept that some of the men employed had qualifications, such as the qualified roof plumber, Mackenlay.
47 Although I accept that you were engaged by others higher up in the control of these purported businesses, I consider that your role was significant and an integral part in the overall functioning of the so-called businesses.
48 In this sense, you were the person who was contacted when responding to the various flyers, advertising the various businesses, offering home improvements. You were “the face” that the complainants ultimately dealt with when responded to, whether it be on a first call discussing the nature of the work, giving a quote, or being the person to contact if the customer had any complaint. Obviously enough, you were not a skilled tradesman and, according to your counsel, could not and did not assess and cost the work involved. However, again, I do find beyond reasonable doubt, that your operational involvement extended to knowing, that certain renovations were not completed or, indeed, never commenced. In this respect, I refer to Charge 2, involving Mr Michael Wormwald, where expert investigation ultimately revealed that excavation holes dug around the house appeared to be for no apparent reason and, indeed, the underpinning of the perimeter of the house and restumping the floor had never been undertaken, notwithstanding that the owner was asked for $48,000 to undertake such work.
49 You instruct your counsel that you did not have general access to bank accounts, nor did you receive any profits. Rather, you were paid a weekly salary of about $1,000, for which you worked five to six days per week and that your motivation was not one of greed, this is your counsel submitting, but of “sustenance”. Other than your say-so, there is no evidence one way or the other what moneys you received over this period of time. I do accept, of course, as the prosecution accept, there is no evidence of any unexplained or inflated wealth, seemingly over this period of time.
50 I consider that the general nature of your offending to be objectively serious, as it involves exploiting and deceiving people who do no more than rely on your purported expertise and experience to give advice about building work. I do accept that the objective seriousness of the offending in relation to each charge varies. At one end, you had the circumstances of Mr Wormwald who ultimately paid out $280,000 in total to three bank accounts nominated by you. In return, his house was not restumped, and to the extent that any work was done on his roof, expert opinion would suggest that gave rise to defects in the roof. At no time were permits obtained or expert reports from structural engineers and the like.
51 At the other end of the spectrum was the work done for Mr Cox, (Charge 3) and Ms Curnow, (Charge 4). Both were ultimately satisfied with the work undertaken, but both were of the view that you would not have been engaged if they were aware that you were not a registered business and not a legitimate organisation. Furthermore, Mr Cox, although satisfied with the work, believed he was overcharged.
52 In between were the situations where moneys were paid and some work undertaken, but ultimately not completed (Charge 5). Again, there were examples of work being purportedly completed (Charge 6), and where the work was seemingly completed, but with a short period, was clearly defective. In this respect, I refer to the circumstances where Mr Diery had his roof repaired, but within a short time afterwards, the roof again was leaking.
53 One only has to read the various victim impact statements to understand how the various victims of your offending feel they have been exploited and 'conned', in relation to their various building repairs. Many of the complainants talk about the emotional stress involved in dealing with these matters and, of course, in some cases, the financial stress involved in completing the jobs for which your organisations were supposed to undertake, or indeed, rectifying work already undertaken by your organisations.
54 I also consider that your moral culpability is also high, in that, although you are not, on the evidence before me, the promoter of such schemes, you were very much involved at the operational level and understood the nature and deceit involving the various complainants.
55 In mitigation of your offending, I also take account of the following matters:
(a)I accept that your plea of guilty, although not at the earliest opportunity, was an 'early plea', consistent with the submission of the prosecution. I accept that the plea does have utilitarian value in saving the time and cost of a trial, as is made clear in Phillips v The Queen [2012] VSCA 140 at paragraph [36]. It is always a question for the sentencing judge whether remorse or willingness to facilitate the course of justice and acceptance of responsibility are to be inferred from the plea of guilty. (Phillips v The Queen op cit at paragraph [96]). I do accept, in the circumstances of this matter, that your pleas of guilty in all the circumstances, does demonstrate some willingness to facilitate the course of justice and acceptance of responsibility. Furthermore, I accept that you have some remorse, as this is demonstrated to some extent, in the various references your rely on and indeed, the report from Corrections.
(b)On the evidence before me I do accept that your upbringing was within a dysfunctional family wherein, in particular, your father was largely an illiterate drunkard, who engaged not only in domestic violence, but violence generally, with you being one of the victims. Furthermore, seemingly, there was a family feud which gave rise to continuing ongoing violence. One of the consequences of that situation was that you and your family were moving frequently, a result of which you were never able to establish yourself at school or friendships.
I refer to the Court of Appeal decision of Marrah v R [2014] VSCA 119, where the court speaks of, in part, the consequences of a deprived earlier life, after making reference to the well-known High Court decision of Bugmy v R (2013) 249 CLR 571. The Court of Appeal stated:
“Circumstances of deprivation, abuse and other social disadvantage occurring during an offender’s formative years ,are more than matters of historical significance to the administration of justice. The effects of such social disadvantage do not generally diminish with the passage of time,16 and are likely to have profound and lasting consequences. The common experience of the law is that very frequently such disadvantage precedes the commission of crime, and often explains and contributes to an offender’s criminal behaviour.” (reference was made to DPP v Terrick (2009) 24 VR 457.
It needs to be recalled that Mr Ball is of the opinion that you suffer some impairment in your capacity for good judgement and your ability to plan and execute self-sustaining behaviour. I do accept that, to some extent, your moral culpability is reduced because of this tragic background, and it must be borne in mind, as recognised in Bugmy (op cit), this can be sometimes balanced out by the need of protecting the community from any particular offending;
(c)I also accept the general proposition that if you are sentenced to a period of imprisonment of 12 months or more, your spousal visa will be automatically revoked and you will be subject to deportation pursuant to the provisions of the Migration Act 1958. As your counsel stressed, both your wife and son are Australian citizens and in particular, your wife was born and spent her early life in Australia. Both you and your family returned to Australia in 2015, to set up a new life for your family.
When Guden (op cit) was handed down, the cancellation of a visa under the Migration Act was only discretionary. Since then, it is mandatory when someone is sentenced to 12 months or more. I refer to the Court of Appeal decision of Schneider v R [2016] VSCA 76 at paragraph [25], wherein the court stated, explaining the relevance of the amendments:
“Prior to the amendments to the Act, upon which the appellant placed reliance, the relevant principles concerning the risk of deportation were spelled out in Guden … More recently, the principles to be applied following the changes to the Act, were analysed in Konamala and Da Costa (both cases having been heard by a similarly constituted court on the same day). I need not repeat that analysis in detail. But I note that in Konamala it was said:
‘Self-evidently, whether the prospect of deportation in a given case will make the burden of imprisonment more onerous will depend on the prisoner’s personal circumstances. It is an unhappy fact that many offenders come to this country for the sole purpose of criminal activity. They have no interest in making Australia their home. For offenders such as those, deportation to their country of origin, may impose no burden upon them at all. Indeed, deportation might be something of a blessing, particularly where language or culture have caused them to be isolated. On the other hand, the prospect of deportation might be a severe additional punishment for an offender who has aspired to make Australia his or her home, particularly if the offender has a spouse, children or other family resident in the country, or has other ties to the Australian community.
In Guden, it was recognised that — subject always to the state of the evidence before the Sentencing Judge — the prospect of deportation is a proper matter for consideration in determining an appropriate sentence. Despite the changes to the Act, that must remain so. Without evidence bearing on the issue, although it may be said with some confidence, that the visa of an offender in the applicant’s position will be cancelled, it cannot be assumed that the Minister will not revoke the original decision to do so.”
(Footnotes omitted.)
Consistent with the contents of that decision, I do accept that you face greater hardship in prison, knowing that you face a real risk of deportation from this country, bearing in mind your family situation and background.
(d)I also accept that you suffer from a degree of hardship, bearing in mind that your wife and son have returned to live with the extended family, until your circumstances are clear. Apparently, the only visitor you have had come to prison has been one of your reference writers – Father Xavier. I take account of such hardship.
(e)I also accept that the circumstances of COVID-19 can be relevant as to hardship in prison. To date, the Court of Appeal has been hesitant to express a general statement of principle in relation to sentencing practices. I refer to R v Brown (aka Davis) [2020] VSCA 60, (a decision of Priest and Weinberg JJA) on 23 March 2020; R v Sazimanoska [2020] VSCA 66 (again a decision of Priest and Weinberg JJA), delivered on 26 March 2020 and R v Nguyen [2020] VSCA 76, a decision of Niall JJA and Croucher AJA, delivered 1 April 2020. In particular, the court in Brown (op cit) at paragraph [48] stated:
“With regard to the COVID-19 pandemic, and the submission put forward on behalf of the applicant in that regard, we readily acknowledge that this is a matter that is certain to come before this court again in the immediate future. In the absence of any adequate material concerning the impact of the virus upon the Corrections systems, as matters stand, and given that the situation is one that is rapidly evolving, we are hesitant to express a general statement of principle regarding how this court (and others) should deal with this crisis, as regards its effect upon relevant sentencing principles. We do accept, however, that the situation is causing additional stress and concern to prisoners and their families, and it is for every member of the community. The extent to which that may be taken into account, if at all, will be a matter to be resolved on the particular facts of any individual case.”
As noted by the court, it is difficult to make a statement of principle as the situation continues to evolve and it cannot be deemed precisely how Corrections will react to the changing manner.
In the circumstances of this matter, I do take account of the following:
(i)generally, there is greater risk of contracting the virus, given that social distancing is so much harder to apply in prison, and more so, such problems have given rise to longer periods of lockdown and the reduction in the use of services and facilities for education and training in prison. In your circumstances, where you have undergone many courses, such would be a real loss in such circumstances, I do accept that the advent of COVID-19 should be taken into account as a matter of hardship to any term of imprisonment.
(f)your counsel has submitted that you have 'good prospects of rehabilitation'. She highlights that you have no prior convictions in Victoria for this type of offending, you have dedicated yourself to self-improvement when in prison, by undergoing a large number of courses (certificates of which are part of the material before the court) and indeed, your period on remand has been without incident. Furthermore, references which refer to you as an essentially kind, compassionate, polite, hardworking and generous, and the offending is 'out of character'.
I do accept that you have made a real effort in prison by undergoing many courses for your own personal improvement. Furthermore, the references are generous, speaking of you as a kind, compassionate, polite and hardworking person. Overall, I consider that it is early days to come to any meaningful conclusion about your prospects of rehabilitation and it is to be recalled, that Corrections assessed you as having a medium risk of re-offending. Of course, as has been discussed in these reasons, you do come from a deprived background which, as I have indicated, has probably played some role in your offending. All in all, taking all these matters into account, I consider your prospects of rehabilitation are guarded.
Your sentence
56 As I have recorded, your counsel has submitted that an appropriate sentence would be effectively merely time served, but no more than one year’s imprisonment – no doubt to avoid any risk of deportation. Her fallback position was a combined sentence of imprisonment and a community corrections order. Again, as has been recorded, counsel for the prosecution submitted that the only appropriate disposition was one of immediate imprisonment.
57 Although appreciating that community corrections orders can be utilised in circumstances where the gravity of the offending is high, (see Bradshaw v R [2017] VSCA 273), I consider that in all the circumstances, an immediate term of imprisonment is appropriate. I consider that such factors as general deterrence, specific deterrence, (given the repetitive nature of the offending over time), just punishment and probably the protection of the community requires, in the circumstances of this matter, an immediate custodial sentence.
58 In relation to the uplifted matter, it is a far lesser offence than the charges on the indictment, bearing in mind that the maximum sentence is two years’ imprisonment. However, it is to be noted that the items which were found in your bedroom, and are the subject of the uplifted charge, are numerous and, as was described by counsel for the prosecution, were 'up market', no doubt based on the brand names of the various items. Notwithstanding, there is no evidence as to the value of these items and, indeed, the offence is limited to dealing with items suspected of being the proceeds of crime – which is not an allegation of theft on your part.
59 I intend to convict you of all the offences on the indictment, but sentences will vary for each charge given the circumstances of the offending in relation to each charge. Furthermore, there will be a degree of cumulation, but within bounds to reflect the concept of totality.
60 Yes, you do not have to stand.
(a)in relation to Charge 1 on the indictment, you are convicted and sentenced to a period of four months’ imprisonment;
(b)in relation to Charge 2 on the indictment, which is the base sentence, you are convicted and sentenced to a period of 10 months’ imprisonment;
(c)in relation to Charge 3 on the indictment, you are convicted and sentenced to a period of two months’ imprisonment;
(d)In relation to Charge 4 on the indictment, you are convicted and sentenced to a period of two months' imprisonment;
(e)in relation to Charge 5 on the indictment, you are convicted and sentenced to a period of three months’ imprisonment;
(f)in relation to Charge 6 on the indictment, you are convicted and sentenced to a period of three months’ imprisonment;
(g)in relation to Charge 7 on the indictment, you are convicted and sentenced to a period of three months’ imprisonment;
(h)in relation to Charge 8 on the indictment, you are convicted and sentenced to a period of four months’ imprisonment.
(i)in relation to the uplifted summary matter, you are convicted and sentenced to three months’ imprisonment.
61 I order that two months of the sentence relating to Charge 1, one month of the sentence relating to Charge 3, one month of the sentence relating to Charge 4, two months of the sentence relating to Charge 5, two months of the sentence relating to Charge 6, two months relating to Charge 7, two months of the sentence relating to Charge 8 and two months of the sentence relating to the summary charge, be cumulated amongst themselves and in relation to Charge 2 on the indictment.
62 The total effective sentence is 24 months’ imprisonment and I order that there be a non-parole period of 16 months.
63 I declare that you have served 396 days’ pre-sentence detention and that will be administratively deducted from your sentence.
64 I grant the orders sought by the prosecution for the forfeiture and disposal of the seized items, together with the compensation orders sought from the court, in relation to various complainants.
65 I declare that save for your pleas of guilty in relation to the offending on the indictment, I would have ordered a period of imprisonment of three years with a non‑parole period of 25 months.
66 MS LACY: As the court pleases.
67 MS PEZZIMENTI: As Your Honour pleases.
68 HIS HONOUR: Yes, I think I have got the cumulation right, I have checked it. Yes, we have got this link for a few more - well to 12 in fact. Ms Lacy, when I leave the court, you get some privacy, you might want to talk to your client over the video. Do you want to do that?
69 MS LACY: Your Honour, I understand he has capacity to call me afterwards.
70 HIS HONOUR: Does he?
71 MS LACY: So I'll do that, I'll speak to him on the telephone, thank you though.
72 HIS HONOUR: Yes, anything else to arise?
73 MS PEZZIMENTI: No, Your Honour.
74 HIS HONOUR: Yes very well, we'll adjourn sine die.
- - -
2
11
0