Director of Public Prosecutions v Papas

[2014] VCC 1516

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-13-01662

DIRECTOR OF PUBLIC PROSECUTIONS

v

DYLAN PAPAS

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:	4 September 2014
DATE OF SENTENCE:	4 September 2014
CASE MAY BE CITED AS:	DPP v Papas
MEDIUM NEUTRAL CITATION:	[2014] VCC 1516

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J Saunders
For the Offender	Mr Thomas

HIS HONOUR: 

1Dylan Papas, you pleaded guilty to an indictment charging you with three offences of common law assault, two offences of criminal damage, and one offence of recklessly causing serious injury.  The offences on the indictment all occurred on 23 May 2012.  You've also pleaded guilty to a related summary offence that you entered a private place, namely the premises at which the offending conduct to which I have just referred took place, in Craigieburn, without the express or implied authority of the owner, or any lawful excuse.  That offence occurred on 1 June 2012 and it seems that was an occasion upon which you revisited the home of Ms Godov, in Craigieburn.

2The prosecution has tendered and relied upon a summary of prosecution opening, which was Exhibit A.  That has just been read, I am not going to repeat it, suffice to say that it catalogues a disgraceful course of conduct on your part, on 23 May 2012, when, without what anybody else might have regarded as provocation of any kind, you committed the offences upon Ms Godov and her daughter, Amanda Angelov.  Each of those persons received injuries.  In the case of Ms Godov, she received a serious injury and it seems that Amanda Angelov had attended to assist her mother in the circumstances in which you were engaging in violent conduct towards her.

3You have admitted a number of prior convictions and court appearances.  Some of those involve offences of violence.  There have been other instances for which you have been convicted and sentenced since 1 June 2012 and you have, it seems, successfully undergone a Community Correction Order with the requirement that you perform 150 hours of unpaid community work, which as I understand it expired on 12 June of this year.

4Offences of this kind, as the Court of Appeal has made very clear in the passage to which Mr Saunders referred me a few minutes ago, are to be regarded as very serious offences, which require the courts to impose sentences that have the capacity to deter others.  That case involved offences of intentionally causing serious injury and there were two charges of that nature.   Obviously intentionally causing serious injury is significantly more serious than causing injury recklessly, which is the offence the subject of Charge 6 on this indictment.  Nevertheless the principles that were identified by the Court of Appeal in the passages to which I have referred, apply to cases such as yours.

5The courts must deter persons like yourself from engaging in domestic violence, putting people in danger in their own homes, preventing people from taking out their frustrations on those nearest and dearest to them and leaving people with an ongoing feeling of lack of safety in their own homes.

6The prosecution has also relied upon a victim impact statement from your other victim, Ms Godov's daughter, Amanda Angelov.  That sets out at some length the effect of your conduct upon her.  Now, it is true that Ms Godov has chosen not to provide the court with a victim impact statement, as was her right, and she has chosen rather to move on.   However it is clear that Amanda Angelov still suffers the physical effects and the emotional effects, and there have been financial effects too, from the violence that you visited upon her.  The extent to which she will get over those is a matter of conjecture.  These things have a habit of having very long term effects.  I am bound to take in to account the effect of your conduct on your victims, both of them.  One may suppose that Ms Godov suffered ongoing effects of one kind or another.  Pure speculation, of course, to assess the extent of the psychological harm of the incident upon her, but nevertheless one may suppose that it would have affected her also.  It is fortunate, perhaps, that she has chosen to move on.

7Moving to matters personal to you, your counsel helpfully provided me with an outline of the submissions that he intended to make and I had the opportunity of reading those in advance of the hearing.  He has set out a little bit about your background, that you are 44 years' of age, you were born in Australia, and completed Year 12.  You took tertiary education in the form of a computer course and you have had a 26 year involvement in your family's moving business.  You had a period managing the business.   You are no longer in a management role.  You have had paid employment with Simon Brothers operating an excavator from April 2012 to mid-2014 and since mid-2014 you have been employed as an excavator operator, six days a week, from 6.45 am to 4 pm.

8You have no children.   You have had a period of receipt of anti-depressant medication, although I understand that is no longer prescribed.  It is, I think, significant that since these events occurred you have not committed any further offences and you have not been any trouble, it would seem, to either of your victims.  Frequently, as Mr Saunders acknowledged a few minutes ago, it is the case that persons who engage in domestic violence, for one reason or another, cannot let the relationship go, and are unable to move on, and continue to be a threat to the victims of domestic violence.  It seems that is not the case with you, you have moved on, and Ms Godov has moved on. 

9It would seem that your propensity towards domestic violence, for one reason or another, stems from that relationship.   That is now over.   Therefore one may reasonably conclude that your prospects of rehabilitation are good.  You clearly have a capacity for hard work, that I am sure will assist you to stay out of any further trouble.   Despite the fact that you have some criminal convictions, some of them going back quite some time, I take the view that you are, I think, a good prospect for rehabilitation and there is at least a reasonable prospect that you will stay out of trouble in the future.

10It's more than two years, two and a quarter years, since the offending conduct and I think that the competing principles of sentencing leave the court with something of a dilemma.   Had it been for the fact that I was to sentence you soon after the events, shall we say in September 2012, then I think the strong likelihood is that the court would have imposed a substantial custodial sentence.  However, the court has to balance up the fact that you have in the intervening period been punished for other offences that arose shortly before and at or about the time of this offending conduct.  You have undergone and completed that punishment.   Looking at the principle of totality, the court has to take those matters in to account.

11Also, it seems to me that one has to look to the overall public interest.   Whilst it is undoubtedly very important to impose sentences that have the capacity to deter others from committing domestic violence of this kind, at the same time the community is not well served if the court creates condition which render your prospects of rehabilitation less likely to succeed.

12Parliament has made it clear, in bringing in the sentencing option of a Community Correction Order, that it is available in cases - even in serious cases - where a term of imprisonment would otherwise have been appropriate.  It seems to me that where a person has demonstrated not just a willingness, but a capacity, to stay out of trouble, rehabilitate themselves, put this kind of offending behind them, that is a time when one can look to that as a suitable sentencing option.

13However, the court still has to denounce your conduct satisfactorily, to punish you adequately, to deter you from offending conduct of any kind, and in particular with offending of that particular kind, to deter others  as well as facilitating your continued rehabilitation as far as I reasonably can.  In those circumstances I am persuaded that it is open to the court to impose a Community Correction Order.  I note that you have just negotiated one order which had conditions which were designed to assist you with alcohol abuse, and so on and so forth, and offending conduct, programs to deal with offending conduct, and it does not seem to me that an order of that kind is necessary at this time.  However, I think that it needs to have a punitive aspect, which will require you to undergo a substantial term of unpaid community work during that time.  It will be inconvenient for you, because you are working six days a week and you are going to have to find the time around your working schedule in order to complete those hours.

14Now, I cannot impose such an order unless you consent.  I have in mind to require you to undergo 270 hours of unpaid community work.  I will give you two years to do that.  The order would cease once you had completed those hours, so if you were able to complete the hours within that two year period then the order would come to an end, but I would give you the option at least of spreading it out over that period.

15You should realise that, and no doubt you were told this when you entered in to your last Community Correction Order, that it has an effect not dissimilar to a suspended sentence, in that if you breach the order then you would be brought this court, possibly me, and the court would have the option of re-sentencing you, cancelling the order and re-sentencing you for these offences.  If that happened then the strong likelihood is that the court would be inclined to impose a quite substantial term of imprisonment.  Now, in that sense, as I say, it is rather like having a suspended sentence hanging over your head. 

16

You would breach the order if you committed a further offence, punishable by imprisonment, within the period that the order was in force.  You would breach the order if you failed to meet any of the conditions of the order.  Those conditions will be set out in the draft that will be handed to you in a minute and be explained to you.  No doubt you are aware of them already, but

Mr Thomas will make sure that there is no doubt in your mind as to what the obligations are.  In addition to the obligation of staying out of trouble you will have the obligation of completing that 270 hours of unpaid community work.  Of course, in doing so you will have to keep appointments and to meet the requirements of corrections for you to undergo the suitable unpaid community work.

17A lot of people come back to the court, having failed to complete Community Correction Orders, and they end up being sentenced to a term of imprisonment.  For one reason or another they fail to keep appointments, fail to fulfil their obligations, fail to complete the unpaid community work.  You will be familiar enough with having to do all of that.  I have to say all that, even though you have been through the mill yourself in recent times.   Are you willing to consent to being put on an order in those sort of conditions?

18OFFENDER:  Yes I am, Your Honour.

19HIS HONOUR:  All right, we will have the order drawn up and when you have checked it with your counsel, and signed it, then I will pronounce the order.  I will also make the orders for compensation and for the provision of a forensic sample, a scraping from the inside of the mouth in accordance with the drafts with which I have been supplied.  You should appreciate that there will be obligations attached to that order for you to attend a particular police station, report to the officer in charge, and submit yourself to the provision of a scraping from the inside of your mouth.  If you do all that, all well and good, if you attend and fail or refuse to provide such a scraping then the officer authorised will have the power to take a blood sample, and may use reasonable force to obtain that blood sample.  I am quite sure you will not put the police to that trouble.

20So when the order is drawn up I will get you to have a look at it and sign it.  Which Community Corrections Centre would it be, Mr Thomas?

21MR THOMAS:  I think Sunshine.

22HIS HONOUR:  It would be the same one as the last one, I presume.

23MR THOMAS:  I imagine so, Your Honour.

24HIS HONOUR:  Yes, do you want to take instructions on that?

25MR THOMAS:  If I can, thank you, Your Honour.  Yes, it is Sunshine, Your Honour.

26HIS HONOUR:  It is Sunshine?  All right.

27MR SAUNDERS:  Your Honour, (indistinct) 6AAA.

28HIS HONOUR:  Yes, but for your pleas of guilty in this matter I would have sentenced you to a term of imprisonment of 20 months with a non-parole period of 14 months.  You can take a seat again, thank you.

29MR THOMAS:  If I may be excused from the Bar table?

30HIS HONOUR:  Yes you may, Mr Thomas.  Yes, I have now signed the order, so the order is now in place.  I have signed the ancillary orders also.  Your client may leave the dock now.  You appreciate you need to report to Sunshine Correction Centre within two working days, you will be appreciate the first obligation to do that.  Thank you.

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