Director of Public Prosecutions v Mkrtchyan

[2023] VCC 1293

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT BENDIGO

CRIMINAL JURISDICTION

CR 22-01456

AP-23-0048

DIRECTOR OF PUBLIC PROSECUTIONS

v

SARGIS MKRTCHYAN

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JUDGE:	HIS HONOUR JUDGE CHETTLE
WHERE HELD:	Bendigo
DATE OF HEARING:	25 July 2023
DATE OF SENTENCE:	28 July 2023
CASE MAY BE CITED AS:	DPP v Mkrtchyan
MEDIUM NEUTRAL CITATION:	[2023] VCC 1293

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW SENTENCE

Catchwords:             Sentencing – aggravated burglary, theft, theft of a motor vehicle.

Legislation Cited: s6AAA Sentencing Act 1991,

Cases Cited:-

Sentence:Imprisonment, total effective sentence for both sets of offending – 5 years, new non-parole period fixed at 3 years, cancellation and disqualification of drivers’ licence for 2 years, forfeiture and disposal orders.  

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Cordy	Ms A. Byrne, Office of Public Prosecutions
For the Accused	Mr W. Blake	Mr L. Dean, Slades & Parsons

HIS HONOUR: 

1Sargis Mkrtchyan, you pleaded guilty to one charge of aggravated burglary, one charge of theft and one charge of theft of a motor vehicle.  In addition, you pleaded guilty to two related summary offences:  one, breach of a parole condition; and the other, unlicensed driving.

2On 12 January 2023 you were sentenced to an effective term of imprisonment of two years and five months with a non-parole period of 18 months for charges of theft of a motor vehicle, by two, burglary, theft, breach of conditions of bail, possessing prescription drugs, drive in a manner dangerous and failing to stop on police direction.  You were also fined $1,000 for unlicensed driving.

3You have appealed that sentence and both the prosecution, and your counsel agree that it was appropriate to deal with that appeal at the same time as your new offending, although it should be noted that the indictable matters pre-date the matters for which you have appealed.  The conduct of all matters is similar in nature and issues of totality are significant in this case.

4Issues relating to pre‑sentence detention motivated your sentence appeal.  Your counsel did not take issue with the court's indication that, given your prior criminal history, the sentences imposed by the learned magistrate could not be said to be excessive.  What both parties submitted to be appropriate was for the court to sentence you for the totality of your offending and to set a global minimum term and declare pre‑sentence detention and I propose to adopt that course.

5The facts of the offending for which you have pleaded guilty before me are set out in Exhibit A, the prosecution plea opening.  Your counsel confirmed that I could treat that document as an agreed statement of fact, and I incorporate it into these reasons for sentence and sentence you on the basis of the facts set out therein.

6So very briefly stated, on 23 March 2021 at about 10.15 am you and an unknown accused drove to Heathcote, went to a house in Palm Court.  You falsely pretended to be repossession agents before arming yourself with a wheel brace and forcing your way into the house.  Your face was covered.  You stole two sets of keys from the kitchen area.  You ran out, jumped into a Holden ClubSport belonging to the occupant of the home and stole it, driving away down the Northern Highway.

7You did not hold a driver's licence and you never have.  You were in breach of your parole conditions at the time.  Your counsel advised the court that you had cut off an ankle bracelet which was a condition of your parole.

8You crashed the Holden near Pyalong and were subsequently arrested.  You made some admissions when interviewed.

9One of your victims, Mr Graham Threlfall, filed a victim impact statement.  He was 81 years of age at the time.  He states that he is disgusted with you and what you did.  He has tried to block it out of his memory, and he has had to have counselling with a psychologist, which he says has assisted him.  He says:

'Once this crime occurred, Royce wanted to move on.  He didn't want to be in this house anymore.  This led us to move towns.  Royce obviously felt more uncomfortable about what happened and couldn't be in that house anymore'.

10Royce, the owner of the Holden, has unfortunately died.

11I take the relevant parts of the victim impact statement into account in sentencing you. 

12For completion I will briefly summarise the facts surrounding the matters you have appealed from the Magistrates' Court.  In August 2022 an Audi A4 was stolen from a property in Mount Waverley.  The garage was forced open, car keys stolen from the inside of the house and the car driven away.  On 4 August you were apprehended by police in a VW Golf with false registration plates.  The Audi keys were located in your pocket.

13On the same day you and a co-accused burgled a house in St Albans.  You kept watch whilst the co-accused entered the premises and stole a number of wallets and a handbag.  You were handed the keys to a Toyota Camry, which you subsequently stole.  You were arrested early the next morning.  You had been driving the Camry on Nepean Highway, Cheltenham.  You failed to stop the vehicle when police activated lights and drove away at 150 km per hour in an 80km per hour zone.  You crashed the vehicle and were arrested.

14You have admitted an extensive criminal record.  You have three prior convictions for theft of a motor vehicle, three prior convictions for burglary, 11 convictions for theft, four prior convictions for breach of bail conditions, two prior convictions for failing to stop on police direction, one prior for carrying a related firearm item and you have five convictions for driving unlicensed.  You have breached community corrections orders, community-based orders, and suspended sentences in the past.

15You have regularly been imprisoned for your offending.  On 11 April 2019 you were before the County Court at Melbourne and sentenced for offences of intentionally cause injury, prohibited person possessing a firearm and two charges of theft.  You were sentenced to a total effective sentence of four years and six months with a non-parole period of three years.  It was in relation to that sentence that you breached your parole conditions.

16You were released on parole on 20 January 21.  The Parole Board cancelled your parole on 16 March 2021, and you were required to serve your full sentence.  Thus, there is no pre‑sentence detention in relation to the offences to which you pleaded guilty before me.  When you were sentenced by the Magistrates' Court on 12 January this year you had accrued 150 days of pre‑sentence detention on those charges and as of now have 346 days, not including today, of pre‑sentence detention available on the appeal matters.

17Turning to your personal circumstances, you are now 31 years of age, being born in December 1991, in Armenia.  Your personal history is set out in Exhibit 3, the psychological report of Carla Lechner, and summarised in your counsel's submissions, Exhibit 1.  Your parents separated when you were eight years old.  Your mother, siblings and you came to Australia when you were 10 years of age.  You attended school here until Year 9 level.  You left your family at age 15.

18You lived with friends, used drugs, and attempted to fund your substance abuse by criminal offences.  You fell into a cycle of offending, custody, relapse into drugs and reoffending in a short time.  You now claim to regret your offending and stated to Ms Lechner that you wished to address your drug abuse issues and turn your life around.  You have not had any meaningful employment and last worked only briefly, over 10 years ago.  Ceasing drug use and finding employment when you are released will be critical to your future prospects.

19Your counsel relied on a number of matters in mitigation of your offending:  firstly, your pleas of guilty.  Those pleas of guilty have spared the witnesses the need to give evidence at the trial and the community the cost of such a trial.  You are entitled to a reduction in sentence to reflect the significant utilitarian benefit of those pleas.

20Secondly, that reduction of sentence will be greater because of the increased value of your pleas because of the effect COVID-19 has had upon our legal system.  You have facilitated the course of justice.

21Thirdly, I accept that you have demonstrated remorse for your offending by your pleas of guilty and in your conversations with Ms Lechner.  You wrote a letter to the court, excuse me, which is Exhibit 4. 

22Your request for a sentence combining a term of imprisonment and a community corrections order cannot be accommodated.  Your offending is too serious and your history of offending so bad that such a disposition is simply unavailable.  You were involved in what was a mid-level example of a confrontation aggravated burglary.  You were on parole at the time. 

23The Court of Appeal has made it clear that general deterrence, denunciation and just punishment and the principal sentencing factors for offences such as yours.  In addition, your history demonstrates the need for specific deterrence and protection of the community.  Clearly principles of totality are particularly important in your case; however, I am obliged to impose some cumulation of sentence to reflect the separate serious offences you committed. 

24I take into account in sentencing you the fact that you have been drug-free whilst in custody.  The urine samples tested, Exhibit 2, confirm your drug-free status.  You have also enrolled in a Relink program, which is designed to give assistance and sport for your eventual release from prison.  I refer to Exhibit 5.  The court can only hope that your stated desire to be drug-free is genuine and you obtain whatever support you can to remain drug-free.

25On all charges you are convicted.  On Charge 1, aggravated burglary, you are sentenced to be imprisoned for three years.

26On Charge 2, theft, you are sentenced to be imprisoned for three months.

27On Charge 3, theft of a motor vehicle, you are sentenced to be imprisoned for 12 months.

28On the summary offence of breach of parole conditions, you are sentenced to be imprisoned for one month; and on the summary charge of drive whilst unlicensed you are sentenced to be imprisoned for one month.

29I order that six months of the sentence imposed on Charge 3 be served cumulatively on the sentence imposed on Charge 1, which I declare to be the base sentence.  Other sentences are to be served concurrently.  That is a total  effective term of imprisonment of three years and six months.

30On the appeal matter I consider that the sentence imposed by the learned magistrate can only be described as lenient.  I do not, however, propose to increase these sentences.  I formally set aside the orders imposed in the Magistrates' Court and I impose the identical sentences and cumulation to those imposed in the Magistrates' Court.  That means that you have an effective sentenced term of imprisonment in those matters of two years and five months.

31Having regard to principles of totality, I order that 18 months of that sentence be served cumulatively on the sentence imposed for the indictable offending. 

32That is a term of imprisonment of both sets of offending of five years.  I order that new non-parole period be fixed at three years.  I declare that 346 days, not including today, have already been served by way of pre‑sentence detention.

33Pursuant to s6AAA of the Sentencing Act I indicate that but for your pleas of guilty I would have imposed a total effective term of imprisonment in relation to both matters of seven years with a non-parole period of five.

34I am required to disqualify you from obtaining a driver's licence in respect of Charge 3 on the indictable matters and you are disqualified from obtaining such a licence for two years.  On the appeal matters I impose the same disqualification periods as the magistrate imposed.  I also make the same forfeiture orders that the learned magistrate made.

35Any other orders, Mr Cordy?

36MR CORDY:  No, Your Honour.

37HIS HONOUR:  Anything else?  No?  All right.

38MR BLAKE:  No, Your Honour.

39HIS HONOUR:  Terminate the links, please.  That completes the circuit, Mr Cordy.

40MR CORDY:  Yes, Your Honour.

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