Director of Public Prosecutions v Michael
[2017] VCC 996
•21 July 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-17-00367
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CHRISTOPHER MICHAEL |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 March 2017 | |
DATE OF SENTENCE: | 21 July 2017 | |
CASE MAY BE CITED AS: | DPP v Michael | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 996 | |
REASONS FOR SENTENCE
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Subject:Criminal law – sentencing – aggravated burglary, theft and kidnapping – application of the principles in R v Morgan [2010] VSCA 15 – imposition of immediate custodial sentence.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr S Ballek (Plea) M A Cecil (Sentence) | Solicitor for the Director of Public Prosecutions |
| For the Accused | Mr B Newton | Tait Lawyers |
HER HONOUR:
1 Christopher Michael, you have pleaded guilty to one charge of aggravated burglary, one charge of theft and two charges of kidnapping.
2 The maximum penalty for aggravated burglary and kidnapping is 25 years’ imprisonment, and theft, ten years’ imprisonment, and that demonstrates the seriousness with which Parliament considers these charges.
3
In addition, you have admitted your criminal history and you do have a history that spans a period from 6 August 2009 until 26 March 2015. I noted there were two appearances in the Children’s Court for 6 August 2009 and
23 December 2011. On those occasions you were dealt with without convictions. A Probation Order and a good behaviour bond was imposed on the second occasion.
4 You also have some prior appearances in higher jurisdictions in the Magistrates' Court and on one occasion, this court. The convictions you have are of some real relevance in sentencing you here today because you do have prior criminal convictions in respect to burglary and dishonesty offences, and also for offences against a person involving violence, including recklessly cause injury, assault with a weapon (2012), aggravated burglary (2014), and unlawful assault (2014).
5 You have served terms of imprisonment in both the Youth Justice System and also the adult gaol system. I note that you had terms of imprisonment imposed on 20 August 2014 and 26 March 2015.
6 On 23 August 2016 you were remanded in custody in relation to unrelated matters, which are the subject of a large consolidated plea hearing to be held in the Koori Court division of the Magistrates' Court. In that consolidation there are multiple informants involved with multiple charges, some of which pre-dates this offending, some of which post-dates this offending.
7 On 10 May 2017, I deferred sentence with respect to the present charges, pursuant to s.83A of the Sentencing Act 1991. You were released on strict bail conditions. On the previous day you had been released under what is called a Community Integrated Services Program (CISP) in the Magistrates' Court, which provided for your conditional release on strict conditions, the basis of which was that a therapeutic regime had been established through the auspices of the Koori Court officer in the Magistrates' Court and it was considered to be in your interest to release you so as to enable you to undertake rehabilitation and treatment in respect to your drug addiction, which underlies your offending behaviour.
8 On the afternoon of 11 May 2017, it is alleged that you committed further offences and as a consequence of which you were brought back before this court to be dealt with in respect to an application for a revocation of bail.
9 The charges that have been laid in respect to the offending, the subject of the further charges that are alleged to have occurred on 11 May 2017, include burglary, theft, handling stolen goods, and commit indicatable offence whilst on bail. Bail was refused in respect to the fresh charges and you were remanded in custody by the Magistrates' Court.
10 The indictable matter returned before me on 29 June 2017. I granted the application for revocation of bail and you were also remanded in custody in respect to this matter. I note that there are some 49 days between the time of your arrest on 11 May 2017 and the revocation of the bail with respect to this matter on 29 June 2017, and I have taken that into account in formulating the appropriate sentence.
11 I note that the major consolidation of matters that is in the Koori Court division before Her Honour Magistrate Metcalf is due to be heard on 7 August 2017 at 10 am.
12 The charges, the subject of the fresh matters that are alleged to have occurred on 11 May 2017 are listed at Heidelberg Magistrates' Court for a contest mention on 19 September 2017 at 10 am.
13 In respect to this matter I note that you were charged and a filing hearing of this matter was conducted on 6 December 2016. At that time you were remanded in custody in respect to these matters.
14 On 28 February 2017 you entered a plea of guilty in respect to the four charges, the subject of the indictment at a committal case conference and the matter proceeded by way of straight hand-up brief. The matter was then listed for a plea hearing in the County Court on 3 April 2017. Your matter was dealt with in the Koori Court division of this court. Present at the hearing and supporting you were your parents, Marcia Michael and David Austin, and your paternal grandmother, Cheryl Calgaret.
15 The matter proceeded by way of a plea of guilty and a sentencing conversation then took place in the presence of two elders and respected persons. In submitting to the Koori Court process you agreed to engage in a sentencing conversation. The Court of Appeal in Victoria has recognised that the sentencing conversation in the Koori Court is designed to further the reformation of an Aboriginal offender.[1]
[1]R v Morgan [2010] VSCA 15.
16 Participation in the process is not easy and that was demonstrated in your case. Both Elders and Respected Persons challenged you about your offending and sought from you details of your motivation for the offending and also an understanding of what you can do to address your offending behaviour. You were very open and listened carefully to what was said to you and accepted that your behaviour involved in the offending was not acceptable.
17 You indicated a strong desire to stop the cycle of freedom, offending and gaol. You acknowledged that your offending disrespected your community and was disrespectful to those harmed by your actions, both the owner of the home which you entered, and also to the elderly taxi passenger. You accepted that you need support to stop taking drugs and that your desire is to obtain employment in the future so that you can be a more productive person.
18 I am satisfied that you did participate appropriately in the conversation and that you do have evolving insight into your offending behaviour and also the need to cease taking drugs, and therefore I consider your active participation in the process is a factor that mitigates punishment.
19 I will now sentence you on the basis of the plea opening that was read to the Court at the time of the plea hearing and is marked as an exhibit.
20 Briefly, the circumstances of your offending are that you travelled via taxi from Preston to 40 Victoria Street, East Brunswick. It was on Saturday, 23 July 2016 at about 12.15 pm. You gained entry to the property by smashing a front window. At the time you were wearing a hooded jacket and some gloves. You were carrying a shoulder bag and had a large kitchen knife in your possession. At the time the house was unoccupied and once inside you began rummaging around searching for items to steal. (Charge 1 – aggravated burglary).
21 You located a white Samsung mobile phone that was being charged. That phone belonged to the resident of the house, Mr Soo Pen Lim. You removed the phone and at some point you placed a SIM card from your own mother’s phone into the stolen phone and called another taxi to come and collect you. You kept that phone. You then forced open a locked door to a storage room and rummaged through some drawers in that room before going into a second bedroom where you searched through a bedside table. You then opened a cupboard and located two Citizen watches belonging to Mr Lim and took possession of those watches. (Charge 2 – theft).
22 At around this time Mr Lim arrived home and on opening his front door he heard noises coming from the second bedroom. When he went into that room he saw you standing there with a knife. You started making stabbing gestures with the knife towards him and saying things that he could not understand. He was very scared and thought he was going to be harmed. He then ran out of the room and out of the front door of the house, shouting for help.
23 You followed him out of the house and attempted to get into the taxi that was waiting for you in the street. Mr Lim shouted to the driver that you had just robbed his house and upon hearing this and seeing you had a knife, the taxi driver refused to take you.
24 You then got out of the taxi and ran down towards Victoria Street towards Nicholson Street. All the while Mr Lim followed you, shouting out that you had robbed him. A passing cyclist, Mark Riley, saw what was happening and rode up and stopped in front of you. He got off his bike and said, “What do you think you’re doing?” to which you replied, “None of your fucking business”, and you proceeded to produce your knife.
25 On seeing the knife Mr Riley stepped aside and allowed you to walk by. You then jumped into the back seat of a different taxi that had stopped at a red light in Nicholson Street. Bhurpinda Singh, the taxi driver, and Irean Wizel, an elderly female passenger, were present. When you got into the taxi the driver told you that he already had a passenger and could not take you. You then produced your knife and yelled at him to drive straight. He drove off and started to follow your directions through various streets in the area. He obeyed you as he was in real fear for both himself and his passenger's safety.
26 Ms Wizel was terrified by your aggressive demeanour and began crying. After some time you told the driver to pull over in Sturrock Street, Brunswick, and handed him approximately $7 in coins, you got out of the taxi and walked off. (Charges 3 and 4 – kidnapping).
27 Ms Wizel was crying and hard to comfort. She remained upset for the remainder of the trip. After dropping her off Mr Singh located a green coin purse in the back seat of the taxi and a garden glove on the rear floor and both those items had been left by you and they were handed to the police. CCTV footage was obtained and stills were produced to the Court, which clearly depicted you present in the taxi and you are seen holding the large kitchen knife in your right hand.
28 When interviewed formally in respect to this matter on 10 November 2016 you made a “no comment” record of interview.
29 There was no Victim Impact Statements filed in respect to any of the persons who were affected by your offending. However, I have read all the depositional statements of Mr Lim, Mr Riley, Ms Wizel and Mr Singh, and I am satisfied, having regard to those statements, that your actions on that occasion would have caused them to be terrified.
30 Mr Lim said he was scared and Mr Riley described Mr Lim as being in shock and being upset. Ms Wizel said she was terrified. She had no idea what you were going to do and was crying because of her fear. She was very scared because of your demeanour. Mr Singh was aware that you were holding something in your hand when you got into the taxi. He thought it was probably a gun or a knife and that it was a very difficult situation. He had to manage trying to comfort his passenger and also his fear because he was frightened that you might do something to both or either him and his passenger, so he met your demands.
31 During the Koori Court Division sentencing conversation it was emphasised to you that the offending on this occasion was very serious and extremely disrespectful to all persons affected by your conduct and it was also disrespectful to the traditional owners on the land on which you offended.
32 The Elders made the point, which is very relevant, that everyone has the right to feel safe in their own home, to feel safe in their workplace, or safe when they are riding as a passenger in a taxi. On that day you made poor choices and your behaviour was unacceptable.
33 Mr Newton, on your behalf, conceded that all the charges were serious and accepted that your offending did cause other citizens to be in fear for their personal safety and wellbeing.
34 It was accepted by both defence counsel and also the prosecutor during the plea conversation that the features of the kidnapping were such that it could be considered to be in the lowest category of this type of serious offence. It was of relatively short duration but nonetheless I emphasise that the kidnapping charges are serious.
35 Insofar as the aggravated burglary is concerned there was a degree of pre-planning in that you arranged to be dropped off at the property and you were armed with a knife when you entered the property. You used the stolen phone to call another taxi to facilitate leaving the property with the items that you had stolen. I note that you did not disguise yourself and further, no person was physically harmed. I consider the aggravated burglary to be in the lower level of the mid-range for this type of offending.
36 The motivation given for your offending was that you had a raging drug addiction. Upon your release from gaol, having completed the 18 month sentence that was imposed on 20 August 2014, you immediately succumbed to using ice again. It was offered to you to “celebrate” your release from prison. Thereafter your behaviour quickly spiralled out of control and there was the repeated pattern of offending commenced in order to finance your habit.
37 Whilst providing a context and an explanation to your offending, your drug addiction does not excuse your behaviour.
38 You are a person who has had a long term addiction to illicit drugs. You first commenced drinking alcohol at age 15 and smoking cannabis at age 17 and within a year you were smoking 3 grams of cannabis daily and also at age 17 you began using ice, which quickly progressed to intravenous use.
39 It is the case that you have been aware of the link between your addiction and your offending over many years and given your prior criminal history, both general and specific deterrence and the protection of the community are highly relevant sentencing considerations.
40 Your personal history and circumstances have been comprehensively detailed in both the submissions made by Mr Newton, and also in the report of Bernard Healey, clinical psychologist, dated 12 March 2016.
41 You are relatively still a young man. You are 25 years of age. I accept that your early childhood and formative years have been marred by significant disadvantage. Both your parents have had their own difficult histories associated with being long term heroin addicts and your early years were very disrupted. You have spent time with relatives in Fremantle, Western Australia, and there were also times when you have been cared for by your paternal grandmother here in Melbourne. Your parents’ relationship was fraught and they eventually broke up when you were about nine years of age. You are their only child.
42 There have been many tragedies in your life that have negatively impacted upon your wellbeing and your history has been taken into account. I note the effects of disadvantage do not diminish over time with repeat offending and that has being taken into account.[2]
[2]R v Bugmy [2013] HCA 37 [44].
43 You have very little by way of formal school education because your schooling was very disrupted. You were required to attend various primary schools, both in Fremantle and also in Thornbury and I note that you did not complete Year 7 at Darebin High School. One of the consequences of that is that you only have limited reading, writing and numeracy skills.
44 Mr Healey assessed you as having a very low IQ of 47 but he only had a limited opportunity to properly explore all your literacy and other problems, and I have my doubts about that assessment being a robust one. It is somewhat at odds with your presentation during the sentencing conversation. You were very attentive and responsive to all questions that were asked of you. I do accept, however, that you have difficulties with literacy.
45 I am satisfied that there is a need in your situation, nonetheless to moderate both moral culpability and the need for general deterrence having regard to your various difficulties.
46 I do accept, however, that this is an example of your propensity to offend in a violent way and the current offending is another example of serious criminal behaviour. I must give appropriate weight in sentencing you to the principle of imposing just punishment and also community protection.
47 In sentencing you I have had regard to the mitigating factors that were highlighted on your behalf by Mr Newton. You entered an early plea of guilty. It was acknowledged it was entered at the earliest opportunity. There is real utility in your plea. No witnesses have been tested, either at committal or trial, and so that spared them the further trauma of having to come to court to give evidence and the community has been spared the time and expense of a trial. You have facilitated justice and your sentence will be discounted accordingly.
48 I am satisfied that the pleas are also indicative of some remorse and that whilst in custody you have developed some insight into understanding the seriousness of this offending and you do now accept some responsibility for your actions and you are genuinely sorry for the harm you caused on that occasion to the victims.
49 You have expressed a desire to write a letter of apology to each of those victims and you openly acknowledge that what you did was wrong.
50 I noted in the sentencing conversation that you appeared to be genuinely remorseful and you were strong in expressing a desire of trying to break the cycle of offending and gaol, which you do accept is inextricably linked to your drug use. You also stated that you are anxious to reconnect with your son. I am told that he is in the care of an aunt, he is around six or seven years of age and, sadly, you have not had much contact with him because of your issues. You are motivated to turn around your situation so that you can eventually reconnect with him.
51 Your grandmother, Cheryl, and other family members who are close to you were present and they provide ongoing support. Your grandmother, in particular, is a very strong role model who is emphatic that she does not support drug use. She expressed her real fear that you are becoming institutionalised and she also expressed her preference that you live at home with her, drug-free, and be more focussed on getting a job.
52 Previously you obtained a “white card” that enables to work in construction and you are open to exploring possibilities of work in that area in the future. I accept that you have been drug-free since you have been in custody, which is significant given your level of your addiction in the past.
53 You have been caring for yourself in custody, you are fit, well and you have gained weight. You have participated in some Koori art and education and drug and alcohol programs and you have also enrolled in the reading program. You have made real progress whilst in prison, notwithstanding the fact that you are being held in the Albion Unit at Metropolitan Remand Centre, which is the subject of onerous conditions including daily lockdown in the early afternoon each day. I have taken your difficult circumstances in terms of the onerous conditions of gaol into account.
54 I noted your expressed commitment for the future. You have told the court that you are going to be a better man when you leave jail and you expressed the strong desire to turn your life around. You stated that upon your eventual release that you will work and not have associations with people who invite you to use drugs and you committed to remaining drug free. All of those are positive commitments which need to be further encouraged.
55 Overall, having regard to your relative youth and your expressed commitment to change and the progress that you have had in custody, I consider that there is some prospect of rehabilitation for the future but you will need some significant support upon your release to transition back into the community so as to realise those commitments.
56 Following the sentencing conversation I was optimistic about your rehabilitation prospects. When the Magistrate made provision for you to be placed on the CISP bail program that supported your release back into the community with a comprehensive support program, it was considered that it was in your interest to release you on bail to enable you to take up those opportunities. However, all that came to nought because you were arrested on the day following your release and your bail was revoked. I note that you are contesting the fresh charges.
57 Overall I consider that yours is a situation, Mr Michael, where you have to make a real commitment to change, you have to demonstrate that you are genuine in your preparedness to change. You do have evolving insight into your offending behaviour but there is a real need in the future for you to be supported to consolidate those evolving commitments so as to ensure that your rehabilitation prospects for the future are greatest. I am somewhat guarded about your rehabilitation prospects now and your commitment to change.
58 In formulating the appropriate sentence I must impose just punishment. I have taken into consideration all the submissions made in respect to the appropriate disposition. Your counsel, Mr Newton, conceded that an immediate term of imprisonment was appropriate, together with a non-parole period. He urged the court not to impose a crushing sentence.
59 Mr Ballek, on behalf of the Crown, indicated his view was that it was serious offending which represented an escalation in the type of seriousness of the offending for which you have been charged in the past. He also referred to your prior criminal history for convictions of a similar nature. Nonetheless he acknowledged the utility of the plea of guilty and the early stage at which it was entered and other factors highlighted in mitigation and his submission was that a combination of gaol and a Community Correction Order would be within range.
60 Having regard to the serious nature of the offending I consider that a term of imprisonment to be imposed with a non-parole period is the only suitable sentencing disposition. I have had regard to the principles of totality and I have also had regard to your relative youth when sitting the sentence together with all the matters highlighted in mitigation, including the early plea of guilty.
61 Mr Michael, I will now impose the formal court order. So I just ask that you stand.
62 Charge 1 is the aggravated burglary. You will be convicted and sentenced to two years' imprisonment.
63 Charge 2 is the theft, convicted and sentenced to six months' imprisonment.
64 Charge 3, kidnapping, and Charge 4, kidnapping, on both those charges you will be convicted and sentenced to one year imprisonment.
65 I make the following orders for cumulation. Charge 1, the two years imposed for the aggravated burglary is the base sentence. Three months of the sentences imposed with respect to charges 3 and 4 are cumulative upon each other and the sentence imposed on Charge 1, and that makes a total effective sentence of two years and six months, and I fix a non-parole period of 15 months. I have allowed that timeframe to reflect the efforts that have already been undertaken by Mr Michael whilst he has been in custody towards his rehabilitation.
66 I make the following declaration of pre‑sentence detention. I direct that it be recorded in the records of the Court that there are 178 days' pre‑sentence detention.
67 I make the following s.6AAA declaration. But for your plea of guilty, I would have imposed a term of imprisonment of four years to serve two and a half years.
68 I make the disposal order sought and the compensation order sought in favour of Mr Lim in the sum of $950.00 and I note that those orders were not opposed. I think that covers everything. Yes. All right, so, Mr Newton, did you just want to have a quick chat with your client here in court or would you prefer to go down to the cells?
69 MR NEWTON: If Your Honour would allow me one moment to speak.
70 HER HONOUR: All right. Yes, all right. All right.
71 MR NEWTON: I am most grateful for the time.
72 HER HONOUR: All right, Mr Newton, what I will do is I will make sure that the sentencing remarks are revised. Are you dealing with the matter in the Magistrates' Court on 7 August?
73 MR NEWTON: I am not, Your Honour.
74 HER HONOUR: No, all right. We will make the revised sentencing remarks available to Ms Greensill at Tait Lawyers to assist her.
75 MR NEWTON: Yes.
76 HER HONOUR: Because obviously there is overlap in terms of the period of the offending.
77 MR NEWTON: Yes.
78 HER HONOUR: Yes, and so the principle of totality will have to come into play.
79 MR NEWTON: Yes.
80 HER HONOUR: That may offer some assistance to the Magistrate, so we will ask that the remarks be prepared so that the revised remarks can be expedited.
81 MR NEWTON: I am most grateful, Your Honour.
82 HER HONOUR: All right. That concludes the matter so we can adjourn.
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