Director of Public Prosecutions v Micklewright
[2022] VCC 1675
•28 September 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-01132 & CR-20-01133
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SCOTT MICKLEWRIGHT AND KIRCHO TRIFUNOV |
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JUDGE: | Mullaly | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 August 2022 and 8 September 2022 | |
DATE OF SENTENCE: | 28 September 2022 | |
CASE MAY BE CITED AS: | DPP v Micklewright & Anor | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1675 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence
Catchwords: Theft – Possession of a drug of dependence
Cases Cited:Worboyes v The Queen [2021] VSCA 169; Boulton v The Queen [2014] VSCA 342; Chenhall v The Queen [2021] VSCA 175.
Sentence: 87 days’ imprisonment with a 3-year community correction order; 15-month community correction order and $300 fine
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms G. McMaster Ms J. Ellis | Office of Public Prosecutions |
| For Accused Micklewright | Mr W. Barker | Emma Turnbull Lawyers |
| For Accused Trifunov | Mr J. Moore | James Dowsleys & Associates |
HIS HONOUR:
1Scott Micklewright and Kircho Trifunov, I'm about to announce the reasons for a sentence that I'll further announce at the end of those reasons. That is a complicated way of saying here are the reasons for the sentence that I am about to impose.
2In the early hours of 25 October 2019, three unknown offenders broke into the Doncaster Mitsubishi car dealership and stole nine cars. Six of the cars were new Mitsubishi cars valued at $35,000 each. There was also an older Mitsubishi, a Mercedes and a Ford. The total value of the cars was $275,000.
3You, Scott Micklewright, pleaded guilty to the theft of the nine vehicles. Your role was to assist in the relocation of those vehicles. I'll outline where and when those cars were later found. You, Kircho Trifunov, pleaded guilty to the theft of four of those cars by concealing and being involved in the movement of the four cars.
4The prosecution, in the summary of facts and circumstances tendered on the plea, numbered the stolen cars one to nine. Mr Trifunov, you have pleaded guilty to the theft of cars number two, three, five and eight. All the cars were ultimately recovered.
5
In order of the recovery, car nine was located on the next morning, some hours after the break in, in the streets near the car dealership. Car eight was found in Moorabbin on 31 October 2019. Cars seven, three and six were located in the Eastern and South-eastern suburbs within the next three weeks. Cars one and four were located respectively in Fitzroy North and Keilor Downs on
27 December and 13 January 2020. Thus, all cars other than car two were located within a couple of months of the theft. Car two was located a year on from the break-in on 31 of October 2020 in Clayton.
6
The police located car number five on 31 October 2019 when you,
Mr Trifunov, were arrested driving the car. On your arrest, you had a key to car number eight. You also had on you very small quantities of methamphetamines and dimethyltryptamine, a drug of dependence.
7Although all cars were recovered, the theft of those cars amounts to serious offending. You are not to be punished for crimes you have not pleaded guilty to, in particular, the burglary or the organisation of the break in. Rather, you two men moved and relocated and concealed the cars and, in your case, this was four cars, Mr Trifunov, and, in your case, all nine, Mr Micklewright.
8You were both arrested on 31 October 2019. You, Mr Trifunov, were bailed after one day of presentence detention. You, Mr Micklewright, were remanded in custody. I'll return to your remand history shortly.
9After being charged, there were significant negotiations between the parties over an extended period of time, mainly focusing on the original and serious charge of burglary. Ultimately, the settlement and pleas of guilty were resolved in April 2022. A lengthy adjournment was granted and then, in August, an application to remit the matters to the Magistrate’s Court was refused.
10The plea proceeded with very comprehensive submissions made by counsel for all parties. I've been greatly assisted by those submissions. The prosecution emphasised the scale and value of the theft of the nine cars. Self-evidently, this was a serious example of car theft. With offending of this kind, denunciation and deterrence are prominent sentencing purposes.
11You, Mr Micklewright, are the more serious offender and unfortunately you have a more troubling criminal history. Though you, Mr Trifunov, do have a criminal history as well. I will deal with each of your personal circumstances separately. I'll commence with you, Mr Micklewright.
12You are 44 years old. You were born in the UK, but aspects of your upbringing were particularly traumatic. Your difficulties in childhood concerned your parents, who decided to leave England and migrate to Australia to see if things improved for you. It was only years later you revealed that you were sexually abused by a friend of the family, so called, in your early childhood. This horrid experience left its mark. You remained close to, and supported by, your mother in particular, but you were constantly turning to drugs and living a chaotic life.
13At age 30, you commenced an important relationship. You and your partner had a son, now 11. He remains important to you. You have remained in a positive relationship with the mother of your son when you were not troubled by drugs.
14In 2010, you went to Queensland to get away from a drug life in Melbourne and, with your partner, raise your son. You did well for a while, securing work, but you fell back into drug addiction after difficulties at work. Your partner then separated from you. However, as I said, when you are free of drugs you enjoy a good relationship with her and you see your son. She has moved to Victoria so that she and your son are closer. Presently, you are seeing your son three days a week. This is a positive sign, a significant protective factor.
15You were remanded on your arrest on 31 October 2019 until you were granted bail in January 2020. However, you were sentenced to a term of imprisonment on separate matters and remained in custody until 26 April 2021. On your release, you were placed on community correction orders. You did well while in custody, albeit much of that was during the COVID restrictions. The letters tendered on your plea reveal your positive steps while in custody. However, the most shattering aspect of your time in custody was that your mother died from pancreatic cancer in early 2021.
16You were in custody and the terrible experience appears to have woken you up. Your grieving experience has been intense and difficult. You were, on your community corrections order upon your release, connected up to skilled clinicians at Peninsula Health. This has had a positive impact upon your mental state.
17Your father, likewise, suffered deeply at the loss of his wife. Once you were released, you have rebuilt what was a strained relationship with him. You and your father now spend a good deal of time together. That improved relationship involving living together in the Dromana or Rosebud area is also a very significant protective factor.
18However, after you were released and commenced to re-establish that relationship and many other aspects of your life, you were seriously set back by contracting COVID-19 and becoming very seriously ill. When you contracted the disease, you were taken to hospital and then immediately taken into intensive care where you remained in a coma for 32 days. You remained in hospital after that for another month. Your physical strength and health have only slowly improved. In fact, unfortunately, you also now have long COVID with significant difficulties with exhaustion and depression.
19Of real importance is that, in these difficult circumstances that I've just outlined, you did not relapse into drug use. You routinely did fall into drug use when under strain in the past. Your restraint, which continues, is a very significant change in you.
20All this is in the context of a history of serious physical problems from a serious head injury that arose from an assault in 2002 in Queensland, and in 2006 and 2014, you had episodes of Bell's palsy and brain infection. This has left you paralysed or affected on one side and, as a consequence, you have a noticeable limp.
21Your criminal history includes many offences. Offences of dishonesty, drug offending, driving and weapons which have seen you receive many community corrections orders and short jail terms. This offending, of course, is at a much larger scale.
22Ordinarily, a sentence of significant imprisonment would be the only option. However, the changes in your circumstances and attitude in recent times is of such significance that other options opened up. What is important to understand is that, within the context or circumstances that I have set out relating to your perilous health and your strained mental health, you have made progress, completing two community corrections orders and sticking with the current community corrections order.
23You seem, finally, on a trajectory of solid reform. It may be that there comes a time in someone at your age, the deep drug problem and entrenched criminal ways comes to the point of genuinely not wanting to continue in a destructive way of life. Your very close brush with death and the loss of your mother seems to have caused a change. Your efforts in drug rehabilitation and steadiness in your dealing with your mental health are at a point that all that can be done to continue your rehabilitation should be done. This is a moment to seize.
24The facilitation of your rehabilitation can be achieved while simultaneously punishing you in the community for your crimes. You have been imprisoned for 87 days on remand for these matters. Your overall period of imprisonment is significant with respect to the principal of totality. It is, as I understand it, about 18 months. In any event, I have taken into account the whole time that you have been in custody and note that, with the delays and other aspects, perhaps this matter could have been dealt with at the same time as those other matters.
25In the end, in my view, the community are best protected if you remain free of drugs and crime. You have been assessed for a community corrections order and are found to be suitable. It seems to me that your chance of completing a community corrections order and continuing to reform, that time is now. That reform would be at risk if you are returned to prison. What has been harnessed on your behalf and where you are now on your path of reform leads me to impose a sentence that is a merciful one.
26However, a significant factor that operates in mitigation is your plea of guilty in these COVID times. A plea of guilty must now attract a more significant benefit than was the case prior to the pandemic and the adverse impacts on the criminal justice system brought about by the pandemic. The benefit must be of a dimension that others who are guilty are encouraged to plead guilty and thus relieve the beleaguered criminal trial lists.
27These principles were set out for sentencing judges as guidelines by the court of appeal and the important decision of Worboyes v The Queen [2021] VSCA 169 (‘Worboyes’) and Chenhall v The Queen [2021] VSCA 175. This increased benefit for pleading guilty can be expressed of course in terms of a shorter sentence but, in my view, it can also be expressed in terms of a sentence of a different category such as a community corrections order be imposed alone.
28The principles set out in the important case of Boulton v The Queen [2014] VSCA 342 are very much to the fore in this case. By the imposition of a sentence that involved you remaining at liberty doing a lengthy community corrections order, extending your engagement with corrections and other important agencies, this can give proper measure to denunciation, deterrence and importantly your rehabilitation. These matters, in my view, are the best way to protect the community as I have said.
29I'll return back to the announcement of your sentence after I have dealt with the matters relating to Mr Trifunov.
30You, Mr Trifunov, were less involved in the offending. Your personal circumstances of course are different and at the present moment your health in particular is of concern and it is properly a mitigatory matter that I will refer to shortly.
31You are 46 years old. Your criminal history is concerning but less than your co-accused. You were raised in a strict but supportive family. The death of your father in September 2019 caused significant distress and despair. You escalated your drug use at that time and became involved in this theft to get money for drugs. What is important is that, since this offending nearly three years ago, you have very significantly rehabilitated. You have tackled your drug problem and the scenario for you is vastly improved, perhaps as best as it has been in many years.
32You have been a man who has had solid and lengthy periods of work. You are now back in employment with a supportive employer. I consider, in a case such as yours, solid employment prospects are very important in promotion of stability and rehabilitation. All this would be at risk if you were imprisoned.
33I've taken into account the helpful reports from Ms Lechner, the psychologist, and Dr Sinclair, the neuropsychologist. It seems from the analysis of those clinicians that you are possibly in the best position that you have been, especially in terms of dealing with drug addiction. You've also dealt with gambling problems. You did well and benefited from your Court Integrated Services Program (‘CISP’) bail programs.
34What is of concern though to you is your physical health. It appears you have a concerning cardiac diagnosis. You have an angiogram upcoming on Monday, 3 October. I was told this morning that, in the interim since the tests that were taken of you on 17 and 19 September, you spent three days as an inpatient in hospital being monitored for shortness of breath and the like. An x-ray has revealed something that is concerning in terms of a shadow seen on your lungs.
35The type of cardiac problem that you have relates to breathlessness it seems, and you are to undergo, as I have said, an angiogram on Monday next week. In all, your clinicians are moving things quickly to sort out what your problems are and how to treat them. I think it's reasonable to infer that this physical problem that you have is serious, or potentially serious. Physical ill health is always relevant to sentencing. It can be mitigatory and can prompt or justify a merciful sentence.
36What is also is very important is your plea of guilty in these COVID times. I will not repeat what I have said with respect to Mr Micklewright and the principles set out in Worboyes certainly apply to you. The increased benefit to be given to your plea is not just a lower sentence, but a sentence of a different kind that will permit you to remain in the community, that is, working, continuing to manage your drug addictions and, importantly, dealing with your emerging cardiac health problems and perhaps others.
37To your credit, the delay of three years has been well used. Community corrections order can continue your rehabilitation while simultaneously punishing you. There must be some parity in the sense that, for your lesser involvement and your less concerning past history, your sentence must be plainly less than that of Mr Micklewright.
38I was assisted this morning by the prosecutor as to what occurred with others who are connected with these crimes. There were fines and community corrections orders, although one person who was said to have been involved in a burglary received a term of imprisonment but he had perhaps 40 odd other charges that were dealt with simultaneously by the Magistrate’s so no real parity can be taken from that.
39
However, prosecution contend that the sentence that should be imposed on you, Mr Micklewright, is a head sentence of a non-parole period and for you,
Mr Trifunov, a combined sentence which sees you imprisoned with a community corrections order to follow.
40I have considered this submission seriously and anxiously but in the end, for the reasons that I've outlined as to your case Mr Micklewright this being a moment to seize and likewise in your case Mr Trifunov and your series of problems, I've determined that a period of incarceration is not needed notwithstanding the seriousness of the crime. In fact, the circumstances individually of each of you set you apart from the ordinary set of circumstances which, as I've said, would lead ordinarily to a term of imprisonment.
41
For you, Mr Micklewright, for the charge of theft you are sentenced to a term of imprisonment of 87 days and a community corrections order that will last
three years. I declare that you have served 87 days as pre-sentence detention. I will ensure that this declaration is entered in the records of the court so the prison authorities are left in no doubt that you have served each and every day of the period of imprisonment that I have just imposed.
42In respect of the community corrections order, there will be a number of conditions. I will run through them quickly and come back to them more formally in due course. You will be required to do community work of 150 hours. This is lower than might be the case because of your ill health. You will also have to do programs involving drug treatment, mental health treatment. All the hours that you do with respect to these programs should be counted as part of the unpaid work. You will have to be under supervision and it will require you to return before me for judicial monitoring sometime in February. A date will be provided to you.
43Had you pleaded not guilty to these matters and been found guilty of them, I would have imposed a sentence of three years with a minimum terms of 18 months.
44For you, Mr Trifunov, for the crimes you committed in respect of the thefts, you are placed on a community corrections order for 15 months. I debated whether, in your circumstances, there should be any unpaid community work. In the end, there will be a small amount of unpaid community work significantly lower because of your ill health, that will be 50 hours. You too have to undergo treatment for drug addiction and for your mental health. The hours that you spend doing work in those programs are counted as fully unpaid work. You also have to be under supervision. In respect of the two drug offences, an aggregate fine with conviction is imposed of $300.
45Had you pleaded not guilty to these offences and been found guilty of them, I would have imposed a sentence of 18 months with a non-parole period of nine months. I don't intend to set a sentence of one day and then declare that you have served it, that is tailoring that is not appropriate in these circumstances. However, it would not be ignored should you come back before the court.
46But both of you should understand that if you don't do each and every aspect of the community corrections orders that I have just imposed and you return back to me, the merciful sentences that I have just imposed, they will not be repeated, you will go to gaol.
47
In respect of you Mr Micklewright, the judicial monitoring will be on
10 February 2023 at 9.30 am.
48All right, now what will occur is that a document will be produced that will set out the terms and conditions of the corrections order. I will run through them again, there are a number of conditions that are required in respect of each of you that are standard to all corrections orders. Both of you should be familiar with those, but I am going to make it clear to you. Excuse me for a moment. Just bear with me for a moment.
49MR MOORE: I just want to assist you with something.
50HIS HONOUR: If it is the summary charges, I'm being assisted.
51MR MOORE: Yes, it is.
52HIS HONOUR: As usual. It is in an array of documents that has just escaped me. Both of you men have summary offences that I apologise for not dealing with directly.
53One for you Mr Trifunov, you pleaded guilty to unlicensed driving and also for committing an indictable offence while on bail. You Mr Micklewright have pleaded guilty to a charge of unlicensed driving.
54
With respect to the unlicensed driving, for you Mr Micklewright, the community corrections order that I have imposed will deal with all aspects of your reform and punishment, but for the unlicensed driving you are convicted and fined $200. Do I have to deal with Mr Micklewright's licence, is that mandatory
or not?
55MR MOORE: No.
56HIS HONOUR: No?
57MR MOORE: No, it is not.
58HIS HONOUR: Does he have a license?
59MR MOORE: Do you have a license at the moment.
60ACCUSED MICKLEWRIGHT: Not – I think it is given back in January.
61HIS HONOUR: I'll leave it where it is, it is important.
62ACCUSED MICKLEWRIGHT: Thank you very much.
63HIS HONOUR: In respect to you Mr Trifunov, you have unlicenced driving and committed an indictable offence while on bail. These two matters can be dealt with by a further imposed fine of $300. You are a man that's working, I'll impose upon you an aggregate fine of a further $300, separate to the $300 for the drugs. In respect of the license, there will be no order as to your license.
64HIS HONOUR: Does that cover everything Ms Ellis.
65MS ELLIS: Yes, Your Honour.
66HIS HONOUR: Thank you. Were there any – were there some orders for forfeiture of drugs and various things.
67MS ELLIS: Yes.
68HIS HONOUR: I will sign all the orders.
69MS ELLIS: Yes, thank you Your Honour.
70HIS HONOUR: Thank you. Is there anything further Mr Moore.
71MR MOORE: Nothing Your Honour.
72HIS HONOUR: All right. In this case the media, who deal with these things in as best they can on indictments, Crown openings, defence responses for the trial, the OPP opening for the plea and the defence submissions for the plea. So, I will provide the indictment and the Crown opening for the plea. Is there any difficulty with the defence submissions on the plea?
73MR MOORE: Yes, there is. There is a highlight of small matters outlined there and, while this was public interest in reporting crime, I would be concerned with providing a journalist with the information contained in those documents.
74
HIS HONOUR: Relating to what happened to him in the UK, which I have
– yes, I was not sure whether I should say what I said. All right, thank you. I will provide the openings for the plea to the – from the OPP's opening for the plea and the defence materials will remain for the court. They can make other applications if they wish to see them under the Open Courts Act 2013 (Vic).
75All right is there anything further? The sentence itself will be available in writing to the press and also it will be available on our portal. That said, I would expect that those responsible journalists will not refer to Mr Micklewright's – I am sorry, Mr Trifunov's matters in the UK.
76MR MOORE: Mr Micklewright's matters in the UK.
77HIS HONOUR: Mr Micklewright's matters in the UK, thank you.
78MR MOORE: That is concerning the child abuse.
79HIS HONOUR: Thank you. Anything further?
80MS ELLIS: Nothing further Your Honour.
81HIS HONOUR: Just get these community corrections orders printed. Yes, it might take a while. I'm going to read them out these men and get their oral consent.
82
So, Mr Micklewright, the community corrections orders are for three years. You will be required to report to the – it will be all managed by the
Rosebud Office where you go. So, the conditions apply to everyone, you know, but I'll just repeat them.
83Most importantly, you cannot commit any offence which will be punishment by imprisonment during the course of the community corrections order. So, any offence that you commit, if you drive a car before January or whenever it is you get your license, it will just see you return back here and you will go to jail.
84There are a number of things you have to do that are really cooperation with the authorities. You have to let them know if you change your address or job. You have to let them know if you wish to leave the state and get their permission to do so. You have to accept visits from them and there may be other things under the regulations like photographs so they can identify you. You just have to cooperate with them.
85The conditions that are separate and distinct and unique to you is that you have to do the unpaid community work. You have to understand that you have to do each and every day of that and each and every hour. You have to continue with your drug treatment and with your mental health treatment. You will work it out with the office of correction exactly who those things are to flow. If you complete the hours doing those programs, then they will be counted for your unpaid community work.
86You have to be under supervision, you know what that means. They will often check in with you and you have to come and see me for the judicial monitoring that is on 10 February 2023. Do you understand all those conditions.
87ACCUSED MICKLEWRIGHT: Yes, I do.
88HIS HONOUR: So, you consent to doing this corrections order?
89ACCUSED MICKLEWRIGHT: Yes, I do.
90
HIS HONOUR: Thank you, I will note that you gave oral consent.
Mr Trifunov, the program conditions that I just outlined they are the same for you. You must not commit an offence punishable by imprisonment during the time that you are on the corrections order. If you do that will breach the order and you will come back to me.
91You too have to cooperate, you have to let them know of any change of address of any change of work. You have to receive visits and they may need to – they will want cooperation with things such as taking photographs so they can identify you and all those matters you have to cooperate with. You have to report to the community corrections office – where would that be?
92ACCUSED TRIFUNOV: Dandenong.
93HIS HONOUR: Dandenong. You have to do it within 48 hours or two clear working days. Just do it as soon possible, get that started. You too have to do some community work, work it with them exactly how you are going to do that. Keep them apprised of your health outcomes following the angiogram on Monday.
94You have to do treatment for drug addiction and have assessment and treatment for mental health. They will work that out whether that is a mental health plan through your GP, how that all works but cooperate with them. Any hours you do in that can be taken away from the unpaid work. You also will be under supervision. I do not require you to reattend for judicial monitoring. Do you understand this Mr Trifunov.
95ACCUSED TRIFUNOV: Yes, Your Honour.
96HIS HONOUR: Do you agree to do the community corrections order.
97ACCUSED TRIFUNOV: Yes, Your Honour.
98
HIS HONOUR: I will note that you gave your oral consent in the hearing. Is there anything further? Those documents will be produced in due course
Mr Moore and Ms Ellis and provided to everyone, so do not leave until you get it. It is the easiest way. I will sign them in due course. All right, the gentlemen can come out of the dock.
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