Director of Public Prosecutions v Pascal (a pseudonym)

[2024] VCC 1099

IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
CRIMINAL JURISDICTION Revised
Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

ERIC PASCAL (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE HIGHAM
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	23 July 2024
CASE MAY BE CITED AS:	DPP v Pascal (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2024] VCC 1099

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW
Catchwords:             Sentence – Theft – Burglary – guilty plea – Drug and Alcohol 
  Treatment Court – Rehabilitation
Legislation Cited:     Sentencing Act 1991 (Vic) ss 6AAA and 18(4)
Sentence:                 Drug and Alcohol Treatment Order, custodial part of 30 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms V. Kambouropoulos	Office of Public Prosecutions
For the Accused	Mr J. James	Marshall Jovanovska Ralph

HIS HONOUR:

1Eric Pascal,[1] you have pleaded guilty to two charges of theft, (charges 2 and 4), for each of which the maximum penalty is a term of imprisonment of 10 years, and one charge of burglary, Charge 3, for which the maximum is a term of imprisonment of 10 years.  Exhibit 1 on the Determination Hearing was a summary of the prosecution opening which set out the agreed facts of your offending. 

[1] A pseudonym.

2In brief, the circumstances of your offending were as follows.  On 1 June 2023, your co-accused, Mr Nathan Green,[2] attended a residential property at Market Lane, Horsham and, in the garage of the premises, located two motor vehicles -  a 2018 Mercedes Benz S350D and a 2018 Mercedes Benz GL CT250. Mr Green contacted you to advise you of the vehicles. You replied: “One each, 16 minutes away”.  You arrived in a Kia Rio at approximately 3.40 am with Ms Zena Tallow.[3]  You and Mr Green entered the property via the garage and located the keys belonging to the Mercedes.  You both left the property in the vehicles at approximately 3.52 am and this is Charge 2.

[2] A pseudonym.

[3] A pseudonym.

3Ms Tallow followed you in the Kia Rio.  You parked the stolen vehicle you were driving on Henry Street, Horsham and took six photos.  You left in the Kia Rio.  I was told on the determination hearing that this vehicle was recovered on 10 August 2023 in Altona North.  The stolen vehicle driven by Mr Green was concealed in the rear yard of a house on High Street, Horsham and was recovered the following day on 2 June 2023.  After abandoning the vehicles, you and your co-offenders attended outside Lattus Jewellers in the Kia Rio bearing stolen number plates.  Ms Tallow remained in the vehicle whilst you and Mr Green attempted to shatter the display window to gain access to the shop.

4Being unsuccessful in these attempts, you returned to the shop window and shattered the glass using a sledgehammer.  You reached through the window and removed several items of jewellery, including 79 rings, eight watches, two display boxes containing fitted rings and 18 leather displays.  Although there was some dispute, the wholesale value of the items reported by the business as stolen was in the region of $64,000, with a recommended retail price of some 2.5 times that amount.  CCTV footage in the area depicts the vehicle arriving and leaving the scene and you and Mr Green exiting and re-entering the vehicle.

5On 2 June 2023, members of Victoria Police attended a house on Geelong Road, Mount Clear and located you and Ms Tallow.  You were placed under arrest and conveyed to Ballarat police station.  During the record of interview you told police that you had driven the car and used a sledgehammer to gain access to the jewellery; that you did not know the amount of jewellery that was stolen; and that the jewellery was in a cupboard at Ms Tallow's house.  Police subsequently attended the home address of you and Ms Tallow on Alfred Street, Sebastopol to execute search warrants and located the following items; three wrist watches, one silver bracelet, a gold coloured ring, a Peter Beck jewellery box containing 38 rings, one black bag, and one gold coloured ring with diamonds.

6You were remanded in custody on 2 June 2023 and have remained there since that time.  Your matter was committed to the County Court after a contested committal hearing on 1 December 2023 and on 3 April 2024 was adjourned into the Drug and Alcohol Treatment Court for a Determination Hearing which concluded on 15 July 2024, when I indicated my intention to place you on a Drug and Alcohol Treatment Order.  Exhibit 5BC on the joint determination hearing was a case management assessment report from Mr Harrison Suidgeest dated 24 May 2024.  Exhibit 6BC was a clinical adviser assessment report from Ms Krishna Jones dated 9 May 2024. 

7Exhibit 11 was an individual treatment plan dated 24 May 2024.  I also received your criminal record.  Taken together, these reports set out your personal narrative, your substance use, mental health and criminal history, your challenges, your motivations and, where appropriate, made recommendations for treatment. 

Personal Circumstances

8I turn now to your personal history.  You were born in March 1992, and you are now 32 years of age, 31 at the time of this offending.  You were born and raised in Sunshine with two older sisters, neither of whom have had any interactions with the criminal justice system.  Your parents separated when you were 10 years of age, your father being both an alcoholic and a perpetrator of family violence, of which your mother was a victim, and you were a witness.  You were an average student.  Your schooling was impacted by your treatment and other behavioural issues. 

9After leaving Sunshine College in Year 10, you enrolled in a technical college to begin an apprenticeship but left during Year 12 and did not complete the apprenticeship.  Of this period you told Mr Suidgeest 'I was skipping school because no-one was telling me to go.  My house became the local party house with me and my friends'.  Around this time, your mother moved to WA with your younger sister and your elder sister having moved in with her partner, you were left alone.  At first, your mother agreed to cover rental accommodation for you, and you had begun work in a butcher shop.  Your mother then ceased rental payments. 

10You went to live with your grandparents at their property outside Ballarat.  Of this time, you told Mr Suidgeest, in Exhibit 5BC, 'I felt like they didn't want me.  I felt like they had to take me'.  It was at this time that you started to use drugs of dependence. You describe this period as 'partying on the weekend like a normal kid'.  You began to regularly commute to Melbourne on weekends, couch-surfing with friends and going to nightclubs and then returning to Ballarat for a working Monday morning in various labouring and unskilled employment.  Unsurprisingly, you lost your employment. 

11I note that over the years you had had various labouring and other unskilled employment.  However, as your drug-use started to take over your life, your ability to hold down employment was severely impacted.  In 2019 you reported that your total employment would not have added up to more than two years.  You became a regular drug-user.  You state 'It became more important to party.  I started using speed on weekends and staying longer in Melbourne.  Then I tried ice at 21.  From the minute I tried that, it was bad news'.  You would stay in Melbourne for up to two to three weeks at a time or until the methamphetamine ran out.

12You had access to a vehicle and as you told Mr Suidgeest this meant you could pretend to go home, when in fact you had nowhere to go.  You would regularly sleep in your car.  You reflected at this time 'It's pretty sad when I look back now.  I was in a dark place'.  You stated 'Not really many people put in the effort to reach out to me when I started doing the bigger sentences.  I was hurt and I never reached out to anyone.  That's how I got clean; I went to Ballarat'.

13Of the index offending, you said 'I was definitely in a chaotic state.  I was using ice and GHB daily.  I was clean for about five to six weeks and had only got out of gaol a few months ago'.  You went with your partner and co-offender, Zena Tallow, to see your father, wanting to show him that you were doing well.  You ended up having row with your father instead.  You then decided to use and were quickly, in your words, ‘back into fulltime use.’  Your partner was also again using illicit substances.  Both of you became homeless. 

14You state:

'We needed money.  I was trying to support our drug habit.  It was a constant battle.  We were running a habit and trying to find a place to live.  I was trying to get by every day, using GHB and shard every day.  My friend told me about a jewellery shop, so we drove up there, smashed the window, grabbed the rings and drove off'.

15You have had several intimate relationships over the years, usually with partners who also use illicit substances.  You have been a respondent in one family violence intervention order.  You are currently in a relationship with Zena Tallow, your co-offender.  You describe how your own relapse led her down the rabbit hole.  You describe your relationship as current.  During your remand, the pair of you have been in regular contact.  All your connections are in Ballarat, both prosocial (e.g. your Nan), and criminogenic.  As you told Mr Suidgeest 'If I go to Ballarat, I know I can get on with no money straightaway'.

16Your criminal history broadly supports this account. Since 2012, you have been subject to multiple community correction orders for dishonesty, theft, handling, burglary, criminal damage, driving, possession and trafficking drugs of dependence and Bail Act offences. You received your first term of imprisonment in October 2015. In October 2019, you were sentenced by His Honour Judge Wraight to a total effective sentence of three years and three months for aggravated burglary and other dishonesty offending. Of the 12 CCOs upon which you have been placed, all have been contravened by on-order offending or non-compliance.

17You did however manage to successfully complete a term of parole in 2020-2021, the discharge comments citing your excellent compliance across all parole conditions.  Your grandfather passed away in 2018 whilst you were in custody.  You attended his funeral in handcuffs and a restraining belt leaving you with an apparent abiding sense of shame and a determination to change your choices.  I say apparent because such resolve did not prevent further substance use, further offending and further prison sentences.  It is clear that prison has not deterred you. 

18Whilst of course you do not fall to be sentenced again for matters in respect of which you have already been dealt with by the courts, your prior criminal history does impact my assessment of the need for specific deterrence, your prospects of rehabilitation, your moral culpability and the need to protect the community from your continued offending.  Ms Jones, Exhibit 6BC, confirmed your substance use history and your limited AOD engagement.  You report being incarcerated for approximately seven of the last 10 years.  For a man of 32 years now, that is a truly sobering reflection and you report having struggled to maintain abstinence in the community.

19You report making a choice on this remand to remain abstinent and you are currently prescribed antidepressant medication.  You report experiencing periods of anxiety and depression which you describe as being situational due to 'feeling shit and lonely'.  Ms Jones commended your engagement in her assessment.  She noted 'Significant was his recent period of abstinence of four and a half years of which one and a half was achieved in the community'.  You attributed prescribed methadone as a significant factor in your maintaining abstinence, along with your own internal resolve to remain drug-free.  She discerned a high degree of internal resolve on your part towards changing your life and working towards sustained recovery and positive goals. 

20Ms Jones was of the opinion that you would satisfy diagnostic criteria for substance use disorder at the time of the offending, severe in nature and currently in sustained remission in a controlled environment and with the assistance of pharmacotherapy.  She was also satisfied that the treatment and supervision component of a DATO would be an appropriate intervention to address your substance use disorder and that there were no significant concerns regarding your capacity to participate in such an order. 

21Mr Suidgeest also regarded you as 'Motivated for recovery.  He has demonstrated commitment to working towards a drug-free life through his vocational achievements and UDS results during his current remand'.  He concluded that 'a drug and alcohol treatment order, a DATO, will provide you with intensive therapeutic support, in addition to both structure and routine, all of which would support you in addressing both your re-offending behaviours and your recovery goals'.  He recommended you as suitable for a drug and alcohol treatment order, noting that you will need emergency accommodation within the Melbourne CBD to provide you with the best prospects at the start of your order.

Purposes of a Drug and Alcohol Treatment Order (DATO)

22Now the particular purposes of a drug and alcohol treatment order are:

(i)Firstly to facilitate the rehabilitation of the participant offender by providing a judicially supervised therapeutically oriented integrated drug and alcohol treatment and supervision regime. 

(ii)Secondly, to take account of the offender participant's drug or alcohol dependency. 

(iii)Thirdly, to reduce the level of criminal activity associated with drug or alcohol dependency; and

(iv)Fourthly to reduce the participant's health risks associated with drug or alcohol dependency.

23Mr James, on your behalf, submitted that such a disposition was an appropriate disposition in your circumstances and the circumstance of your offending. 

24Ms Kambouropoulos conceded on behalf of the Director that it was open to the court to adopt such a course. 

Objective Gravity

25Mr Pascal, the offences of burglary and theft involve a complete disregard for the property rights of others and this is reflected in the maximum penalties of 10 years' imprisonment that Parliament has seen fit to impose.  Approximately 10 weeks after your most recent release from prison, you entered a residential property, having been messaged by your co-accused, and stole a relatively high-end Mercedes, (charge 2).

26Later that night, you attended at the local jewellery store, eventually breaking the glass with a sledgehammer and grabbing what items of value you could before making your getaway. I do note that on the plea tentative submissions were made as to the whether the measure for assessing the value of the loss should be the wholesale or retail value of the items.  What is clear is that your offending caused a significant loss, measured in thousands of Australian dollars, to a local business with a wholesale value or around $60,000.  There was also the loss involved of business opportunity in selling those goods at the recommended retail price.

27The offending I find required some degree of planning and was quite brazen in its execution.  Small businesses and individuals must be protected from such offending which fees into the community's sense of alarm and unease and genuine concern.  As you candidly admit, you had relapsed and you were trying to support yourself and your partner in your drug-fuelled life. That may be the context for your offending, but it cannot excuse it.  Your moral culpability for this offending is high. 

General principles

28Now in sentencing you I have to have regard to a range of different factors. 

29I must give effect to the principle of general deterrence; that is, the deterring of others from behaving as you did, and to specific deterrence; that is, to deter you from any repeat of such offending.  I must consider the need to protect the community.  I must express the community's denunciation of your conduct.  I must take into account the effect of your crimes upon the community.  I must have regard to current sentencing practices and statutory maximum penalties for the offences to which you have pleaded guilty.  I must ensure, as far as possible, that you are rehabilitated and reintegrated into society.

30In short, I must try to balance your personal circumstances with the circumstances of your offending. I must also pass no greater sentence than is necessary in all the circumstances of the case as I find them to be. These sentencing purposes as identified in s5(1) of the Sentencing Act are all still enlivened in your case. Clearly, general and specific deterrence, denunciation, just punishment and protection of the community from your continued offending all loom large in the sentencing process.

31However, if the court is considering making a drug and alcohol treatment order, then your rehabilitation and the protection of the community to be achieved through your rehabilitation have greater importance than those other sentencing purposes. 

Findings

32On all the material in front of me, I am satisfied on the balance of probabilities that:

(i)you have a polysubstance dependency, primarily methamphetamine. 

(ii)that your dependency contributed to the commission of the offending in front of me. 

(iii)that otherwise it would be appropriate to impose an immediate sentence of imprisonment of no more than four years.

(iv)that you are not charged with offending, nor are you subject to any order that would make you ineligible for a drug and alcohol treatment order; and

(v)that it is appropriate in all the circumstances to make such an order.

Reasons

33I have regard to your plea of guilty which brings with it the utilitarian benefit of saving the community the time and expense of a trial and indicates a willingness to facilitate the course of justice. 

34Secondly, looking at your forensic history, it is clear that neither prison alone,  nor your past resolve, have enabled you to achieve the drug and offence free life which you now identify as a settled goal.  Both Ms Jones and Mr Suidgeest comment positively on your apparent motivation. You told Mr Suidgeest that if you hadn't been abstinent whilst on parole, you wouldn't even give Drug Court a go:

'But now I know I can do it.  I know I have a partner, but I just really want to do this for me.  I can't even tell people that I want to get clean because they won't believe me.  I'm older now and I've matured.  I'm trying to change myself'.

35Mr Pascal, I am prepared to give you the opportunity to turn those words into actions.  On Charges 2, 3 and 4, you are convicted and sentenced to a drug and alcohol treatment order. 

36A DATO has two parts: the treatment and supervision part and the custodial part. The treatment and supervision part itself has two parts, which are as follows.

37The core conditions, which are that:

(a)   you must not commit, whether in or outside of Victoria, another offence punishable on conviction by imprisonment during the time the Order is in force;

(b)   you must attend Drug Court when required by the Court to do so; 

(c)   you must report to the Melbourne Drug Court House within two clear working days after the Order is imposed; 

(d)   you must report to and accept visits from members of the Drug Court;

(e)   you must undergo treatment for alcohol and drug dependency as specified in the Order or by the Drug Court;

(f)    you must give notice of any change of address, at least two clear working days before the change, to a specified Drug Court officer;

(g)   you are not to leave Victoria without the permission of the Drug Court; and

(h)   you are to obey all lawful instructions from the Drug Court Team. 

38The core conditions will operate for 30 months, or until further order.

39The program conditions, which are that you must: 

(a)   submit for drug and alcohol testing AS DIRECTED

(b)   submit to detoxification or other treatment specified in the order AS DIRECTED

(c)   attend vocational, educational and employment programs AS DIRECTED

(d)   submit to medical, psychiatric and psychological treatments AS DIRECTED

(e)   not associate with Nathan GREEN

(f)    reside at an address as directed by the Drug and Alcohol Treatment Court for until further order

(g)   comply with an exclusion zone of City of Ballarat

(h)   comply with a curfew that you remain at an address as directed by the Drug and Alcohol Treatment Court between the hours of 9:00 PM and 6:00 AM. This curfew is required until further order.

(i)    not use a drug of dependence without lawful authorisation

(j)    abstain from alcohol

(k)   Comply with the Individual Treatment Plan dated 24 May 2024 and signed by you on 23 July 2024

(l)    must not attend Gaming Venues, including but not limited to Crown, TAB venues, RSLs or any other venue with slot machines.

(m)     must not gamble online or via any Smart Device.

(n)   must not access any online gaming platforms

(o)   must only have one mobile phone, and inform the Drug and Alcohol Treatment Court if you change your phone or phone number and reasons for the change:

(p)   must only access the internet through one Device, which is nominated within 7 days, and inform the Drug and Alcohol Treatment Court if you change Devices and reasons for the change:

(q)   must allow a designated Drug and Alcohol Treatment Court officer to view upon request at any time your internet search history and applications, and inspect any search history or any application relating to online gambling platforms, online gaming platforms or the like:

(r)   must not delete internet search history or any applications without express prior permission of the Drug and Alcohol Treatment Court Team:

(s)   must not drive a motor vehicle:

(t)    Do or not do anything else that the Drug Court considers necessary or appropriate concerning:

(i)your drug and alcohol dependency: and

(ii)the personal factors that the Drug Court considers contributed to your criminal behaviour

40The custodial part of the DATO is the term of imprisonment that I would have imposed had I not placed you on a DATO, and it is a term of imprisonment of 30 months. That is made up as follows:

(i)Charge 2: 11 months

(ii)Charge 3: 16 months

(iii)Charge 4: 22 months

41I order that 5 months of charge 3 and 4 months of charge 2 run cumulative to each other and cumulative to sentence on charge 4. This makes a Total Effective Sentence (TES) of 30 months.

42Pursuant to s6AAA, had you not pleaded guilty you would have been sentenced to a total effective sentence of 3 years and 8 months, with a non-parole period of 2 years and 8 months.

43Pursuant to s 18(4) of the Sentencing Act 1991, I declare that you have served 417 days of pre-sentence detention.

44Now, you are also at this point waiving all rights of confidentiality of communications between the Drug Court on the one hand and on the other hand, all treatment providers, all Government agencies, authorities and Departments.  Do you understand what you are doing, Mr Pascal?

45OFFENDER:  Yes

46All right, now I am going to ask you a question, Mr Pascal.  Do you consent to being placed on a drug and alcohol treatment order?

47OFFENDER:  Yes I do, Your Honour.