Director of Public Prosecutions v McMahon

[2019] VCC 1205

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-00234
CR-18-00235

DIRECTOR OF PUBLIC PROSECUTIONS

v

KRISTEN MCMAHON
CONSTANTINOS KREMMOS

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JUDGE:	HIS HONOUR JUDGE MURPHY
WHERE HELD:	Melbourne
DATE OF HEARING:	17 July 2019
DATE OF SENTENCE:	17 July 2019
CASE MAY BE CITED AS:	DPP v McMahon & Ors
MEDIUM NEUTRAL CITATION:	[2019] VCC 1205

EX TEMPORE REASONS FOR SENTENCE
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Subject: CRIMINAL LAW - SENTENCE

Catchwords: Plea– co-accused – intentionally causing injury – armed robbery – theft of a motor vehicle – theft – dated prior convictions – drug use – self-help by effected parties – relationship breakdown – community interest in denunciation  - general deterrence – specific deterrence - community interest in rehabilitation – spectrum of offending – dated prior convictions – some evidence of remorse

Legislation Cited: Sentencing Act 1991

Cases Cited:-

Sentence: Mr Kremmos, aggregate sentence of 222 days' imprisonment and a 12 month CCO, Ms McMahon 12 month CCO

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr E. Tueno	Office of Public Prosecutions
For Accused McMahon	Ms J. Clark	Balmer & Associates
For Accused Kremmos	Mr N. Leslie	Papa Hughes Lawyers

HIS HONOUR: 

1Constantinos Kremmos you have pleaded guilty to, one count of intentionally causing injury, one count of armed robbery and one count of theft of a motor vehicle.  The complainant is a man by the name of Dusko Stojanovski. You have also pleaded to one summary uplifted charge of driving whilst disqualified.  Ms McMahon, you have pleaded guilty to two counts of theft, one of an Apple iPhone and the other of a motor vehicle.

2The maximum penalties were read out in the course of the prosecution opening and I incorporate them by reference.[1]

[1] Exhibit A on the plea.

3The circumstances of the offending were set out in the prosecution opening which was read in open court this morning and I incorporate that by reference.[2]

[2] Ibid

4In brief summary, this was criminality that arose out of the breakdown of relationships, and self-help by the affected parties, as well as misguided emotional assistance to the relevant parties.  Mr Stojanovski had been in some form of relationship with Ms McMahon.  That soured.  There had been some dispute about a previous vehicle he had sold to Ms McMahon.

5The relationship broke down after events concerning indecent videos that the complainant was allegedly sending to other people, Ms McMahon then sought to retrieve her phone and her belongings from the accommodation that she had previously been living in.  She took her co-accused, Mr Kremmos, along.  It was very early in the morning when you got to the house. The two of you, according to him with a third party that is not part of the prosecution case, you went upstairs, you took your phone, Ms McMahon, in order to delete the videos which is an understandable action.  It did not justify it but it explains it and then you, Mr Kremmos, proceeded to assault Mr Stojanovski.

6Then during that same event, you Mr Kremmos were carrying a red baseball bat. You punched him on the jaw, Count 2, intentionally causing injury.  He had a welt to his lower jaw.  He seemed to have gone to  hospital.  There is no victim impact statement.  The prosecution accept that it was a lower level offence of intentionally causing injury but did cause him some injury, no pain.  But he has chosen not to put in a victim impact statement.

7Ms McMahon acquired the keys to the Mercedes and then threw them to Mr Kremmos.  It was taken as some sort of form of security or a lien in response to the alleged underhand matter associated with a prior sale of a car previously owned by you, Ms McMahon, by Mr Stojanovski.  You, Mr Kremmos, then proceeded to get into the car and drive off.  That constitutes the driving whilst disqualified and also the theft of the car. You, Ms McMahon, have pleaded guilty to the theft by way of complicity.

8The car was subsequently found the next day after the mobile phone was tracked to the location where the two of you were staying and it was recovered along with the mobile phone.

9Both of you were then arrested subsequently and you gave records of interview where basically you admitted the offending and put the blame on Mr Stojanovski.  The matter was later the subject of charges that included aggravated burglary, which were withdrawn.  The matter went to a contested committal mention, and was listed for trial. The matter was resolved on the door of the Court.

Seriousness of the offending. 

Ms McMahon

10The learned Crown prosecutor accepted that the offending was at a lower level of seriousness.  With regard to Ms McMahon, the stealing of a mobile phone was relatively low level.  Although obviously this item meant something to Mr Stojanovski. Your complicity in stealing his Mercedes, is more serious because it is obviously an expensive car but your involvement was more limited than that of your co-accused Mr Kremmos.

Mr Kremmos

11In relation to you, Mr Kremmos, you have prior convictions.  Both of you have some prior convictions but your involvement was more serious in that you were the one that punched Mr Stojanovski, causing him injury.  So that is the armed robbery and the punch and then you were the one that drives the car away.  So it is you that actually appropriates the car which you had no entitlement to.  Your offending is at a bit higher level than Ms McMahon's.

Prior convictions. 

Mr Kremmos

12You are both aged 38.  So for the sort of people that this Court sees, you are in the elderly cohort.  You, Mr Kremmos have some prior convictions from when you were around 20.  These included theft, thefts of motor vehicles, burglary and intentionally damaging property.  You were given a Community Corrections Order and four months' imprisonment by way of an Intensive Correction Order on 21 October 1999. This offending is 20 years old, so those convictions carry less weight, because you would have been less than 20 at the time.

13More recently, you have had three appearances for contravening a Community Corrections Order and you were first given a without conviction disposition.  You breached that and you were convicted. That offending from the submissions from your counsel, arose out of the breakdown of your relationship with your wife who you have three children with.

Ms McMahon

14You, Ms McMahon, are the same age, and also have prior convictions but again, they are stale in that the most recent conviction involved shop stealing when you were 22. You had been given some suspended sentences for shop stealing and also a burglary.  But obviously, as your counsel, Ms Clark, put you have had no recent convictions since you had twin children, which you still have in your care.  So obviously moving into motherhood stabilised you away from what was obviously a drug problem back when you were around 18 to 20.

15So the age of the prior convictions in relation to both of you means that you do not come before the Court without prior convictions but both of your prior histories are of relatively low relevance.

Prospects of rehabilitation

16The explanation given in relation to you, Mr Kremmos, is that you had been taking ice around this time, even though you had a steady good job with a chemical factory.  You have blown that as a result of this offending. You were arrested and then spent a period of 221 days on remand.  You both have had  your risk of reoffending rated as high by the Community Corrections staff and the prospects for both of your futures really relates to whether you can address your drug problems. 

17You, in particular, Mr Kremmos have fallen back in to the use of ice.  Just before and subsequent to the date when this matter was listed for trial this year, you have been arrested and been in custody for the last 69 days.

18So even though you had been given nearly 12 months bail after the committal hearing, you have diminished the prospects of your rehabilitation by this reoffending.  You obviously need some drug assistance.  You probably need some psychological therapy because of what followed the breakdown of your relationship, the loss of contact with your children when you are, at the moment, trying to get that back.

19So in sentencing each of you, I am required to reconcile the interests of the community in rehabilitation with the interests of the community in condemning the sort of conduct that you have both engaged in, particularly you, Mr Kremmos. I am also required to have regard for the principles of denunciation, general deterrence, specific deterrence and then weigh that against the need for people who offend to be rehabilitated into the community.

Mr Kremmos

20Your counsel, Mr Kremmos in a comprehensive submission, which I incorporate by reference[3], put your personal background to me and how you had after a short bit of offending when you were younger moved out, married and had three children. That stabilised your life.  But the breakdown of your marriage led to problems and your wife was suffering a mental illness. You ended up getting kicked out of the family home and there were proceedings in the Family Court to get some form of access to your children, you have not got custody of them.  So that has caused problems.  Even though you had been using drugs previously, these personal issues led to more problems.  Then there was a breakdown in the relationship with intervention orders being imposed that led to you go appearing in Court for breaches of those Intervention Orders. There were a series transiently relationships, and now you are in a relationship with your co-accused. 

[3] Exhibit 1 on the plea.

21So in his submissions, your counsel put you should get a discount for the plea of guilty.  The offer was made earlier in the proceedings, after the prosecution adjusted what charges they were bringing against you. You effectively pleaded according to your counsel to the charges that have been previously offered.  So I regard it as a reasonably early plea.  I will give you credit for that. Your plea shows that you have accepted responsibility for your conduct and it is some evidence of remorse.  There is no real evidence of victim empathy but your plea saved Mr Stojanovski of going through a trial even though you had put him through a committal.

Ms McMahon

22You, Ms McMahon, with your plea, it is not clear when that was entered but I will give you credit for your plea.  The offending that you committed is of a lower order of magnitude than that of your co-accused, Mr Kremmos. The details of your background were set out, by your counsel, and I incorporate them by reference.[4] You had a dysfunctional upbringing and you dropped out of school by Year 10.  Drug use began early in your life which included the use of heroin. You had one relationship that led to you having twins and that really stabilised your life, although the relationship then broke down. That's when you ended up in a relationship with Mr Stojanovski and that led to this issue of the of videos associated with that relationship. There was also the issue concerning returning to get your property after it was threatened to be left out on the street and I accept the photos exhibited show that it was.[5]

[4] Exhibit 3 on the plea.

[5] Exhibit 4 on the plea.

23So the offending here is at a lower end of the range and your prior convictions have less relevance.

24You have now been able to stabilise your life since you have been on bail. You have got stable accommodation.  You are now trying to get yourself further educational qualifications, you have enrolled in an online TAFE course from Queensland and so I certainly encourage you to continue that.

Sentencing Considerations: Mr Kremmos

25So weighing all the competing considerations in relation to you, Mr Kremmos, you have done a significant amount of time. I do take into account in a general way the 69 days, you have been in custody since May of this year.  It is not pre-sentence detention and I cannot declare it as such but you have done a fair bit of time.

26Given that you have never been in prison before it seems you have been able to reflect on life and that has obviously giving you an opportunity, at your age, given you have had a good employment record in the past.  You have got the incentive of getting further access to your children.  You have got the support of your mother and your sister, your father who could not make it here today.  So you have got family support, that is relevant and you have got also the support of your co-accused who got less criminal history than you and so she will obviously give you some support when you do eventually clear all this past offending and then the Community Corrections people will send you off to some drug counselling, so you can have some assistance and then get yourself back into a mental health plan to cover the problems, the sequelae of the breakdown in your relationship that forced you into using drugs as a sort of self-therapy.  After you have had this taste of prison, the community has probably got a reasonable chance of a man of your age to really put your criminal past behind you and resume being a productive member of the community.

Sentencing Considerations: Ms McMahon

27As far as you are concerned, Ms McMahon, as I said, the focus has got to be on your rehabilitation given the long period that you have been out of the reaches of the criminal justice system.  The offending is of less seriousness.

28Now, each of you have been charged with theft of a motor vehicle and so it requires, if you are convicted, to have your licence dealt with for a period that is a matter of discretion.  What I propose to do in relation to you, Mr Kremmos, because you have got a prior conviction for driving whilst disqualified, then you are going to be convicted and fined $500 on the charge of driving whilst disqualified and your licence is going to be suspended for six months.  On the theft of the vehicle, your licence is going to be suspended for a period of three months.

29In relation to Charge 4 for you, Ms McMahon, your licence is going to be suspended for one month.

30So the formal orders of the court, if you could both stand.  In relation to you,
Mr Kremmos, on the three charges on the indictment, you are sentenced to an aggregate sentence of 222 days' imprisonment and a 12 month community corrections order to commence when you are released from prison.  I declare you have served 222 days' imprisonment.  On the drive whilst disqualified, you are convicted and sentenced to a fine of $500 and your licence is suspended for six months on that charge.  On Charge 4, the theft of the motor vehicle, your licence is suspended for three months.

31The Crown has sought a forensic sample from each of you which means you have got to provide a mouth swab within 28 days.  You will provide it in prison, Mr Kremmos.  You, Ms McMahon, have got to go to a police station.  You will get a list of the police stations to go to.  If you do not provide the sample, then the police are entitled to use reasonable force to get the sample.  I also make the disposal order for the baseball bat against you, Mr Kremmos.

32In relation to you, Ms McMahon, on the two charges, you are sentenced to an aggregate sentence of 12 months community corrections order.  On Charge 4, the theft of the motor vehicle, your licence is suspended for a period of one month effective today and you are ordered to provide a forensic sample.

33Pursuant to s.6AAA[6] in relation to you, Mr Kremmos, had you not pleaded guilty, I would have imposed a sentence of 12 months' imprisonment and a 12 month community corrections order.  In relation to you, Ms McMahon, had you not pleaded guilty, I would have imposed an 18 month community corrections order, both of them as an aggregate sentence.

[6]Sentencing Act 1991

34Are there any other matters I have not covered, Madam Prosecutor?

35MS TUENO:  No, Your Honour.

36HIS HONOUR:  Now, I just want to explain the Community Corrections Order that both of you are on.  When you get released from custody, Mr Kremmos, you have got to go to the Community Corrections Office there in Melton within two business days.  You have been on a community corrections order before but that was a while ago.  So you will be inducted.  I am not ordering any community work, you have done your time, but if they send you off to offender behaviour programs, mental health counselling or drug and alcohol counselling, you have got to go.  You are under the supervision of the Office of Corrections officer and so if they make an appointment to see you, you have got to turn up.  If you do no, that breaches the order.  In addition to that, effectively, you are not to commit a crime, an offence carrying a term of imprisonment.  If you do that, it breaches the community corrections order and that carries a three month maximum penalty on its own.

37I have only summarised the specific orders.  You have got a copy of it.  It has been explained by your Counsel.  Same as you, Ms McMahon, you have got to turn up there within two business days and for the next 12 months, you are on a Community Corrections Order.  You have got to be inducted, follow the directions of the Office of Corrections.  If they send you off to drug counselling or alcohol counselling, you have got to do that, you understand?

38You have got to tell them about any changes of address as well. 
You breach the order, if you commit an offence carrying a term of imprisonment, if you will breach it and you will be brought back before me and I can resentence you and I will remind you what I told you today.  I am giving you this one opportunity, both of you, at 38 you are far too old to be in the criminal justice system.  You have both got children that need parents fully involved in their lives and not using drugs and hanging around with bad company which both of you seemed to have been doing in in the lead up to these acts of criminality.

39I thank counsel and adjourn the court.

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