Director of Public Prosecutions v Peirce
[2014] VCC 105
•3 February 2014
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-01140
Indictment D10906985
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CHRIS MATTHEW PEIRCE |
---
JUDGE: | HER HONOUR JUDGE PATRICK | |
WHERE HELD: | Melbourne | |
DATES OF PLEA HEARING: | 30 September 2013, 29 January and 3 February 2014 | |
DATE OF SENTENCE: | 3 February 2014 | |
CASE MAY BE CITED AS: | DPP v Peirce | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 105 | |
REASONS FOR SENTENCE
---
Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms C. Lee | Office of Public Prosecutions |
| For the Accused | Ms Z. Broughton |
HER HONOUR:
1 Chris Matthew Peirce, you have pleaded guilty to one charge of burglary (charge 1), one charge of theft (charge 2), and two charges of possessing a drug of dependence (charges 3 and 4). You have also pleaded guilty to two uplifted summary charges of possession of a controlled weapon (summary charge 7) and possession of ammunition (summary charge 10).
2 The maximum penalty for burglary and theft is 10 years’ imprisonment. In relation to the charges of possession of a drug of dependence, I am satisfied that you did not possess those drugs for purposes relating to trafficking in those drugs. Accordingly the maximum penalty is one year’s imprisonment. The maximum penalty for possession of a controlled weapon is one year’s imprisonment. The maximum penalty for possession of ammunition is 40 penalty units.
3 The prosecution sought orders for the disposal of certain items, forfeiture of the ammunition, an order for the retention of a forensic sample from you, and an order for compensation in the sum of $147,013.64. The making of orders for disposal, forfeiture and compensation was consented to. The making of the order for the retention of a forensic sample was opposed.
4 The circumstances of your offending are set out in some detail in the Summary of Prosecution Opening which was tendered as Exhibit A. In brief, the circumstances were as follows.
5 Between 11 am on Good Friday 29 March 2013 and 2 pm on 1 April 2013 you gained entry to the victim’s house by breaking a rear kitchen window. The occupants were away for a few days. Prior to breaking in through the window you had climbed onto the roof of the house and had removed tiles from the roof but had not entered the house that way. On entering the house through the kitchen window, you forced open a locked wardrobe door in the victim’s bedroom. You took two safes from the wardrobe. The safes had been secured to a wooden shelf. The safes contained the victim’s savings and other cash amounts, amounting to a total of A$265,650 and US$1,001. $250,000 of that amount was in the larger safe. The smaller safe was subsequently found open in the neighbourhood of the house. The larger safe was not found.
6 On 2 April 2013 you were apprehended by police in relation to a separate incident. You had been observed in the front of the home of your former partner and children swinging an iron bar around. When you were apprehended by police a short time later you were in a taxi. You were found to be in possession of a wrecking bar and four knives. These weapons are amongst the weapons covered by summary charge 7.
7 You also had a small plastic bag with you which contained a small amount of methylamphetamine which is the subject matter of charge 3. In your backpack there was a very large amount of cash, amounting to almost $98,000.
8 You were interviewed by police on that day. You ultimately admitted committing the burglary and made partial admissions in relation to other matters. You said you were swinging the bar around because ice makes you hear things and you thought there were people in the house. You said that you had possessed knives just in case you needed a knife and people came to the house. You said you could not remember when you had committed the burglary and agreed that it was not your normal nature and that it had occurred in the context of your ice use. You said you had taken the larger safe to a factory and had opened it and then discarded it in the bay. You said that the money in the backpack was all that you had taken from the burglary. Later, further cash was found in your home, which you then admitted was also from the burglary.
9 On 3 April 2013 a search warrant was executed at the home of your former partner. Further cash was found, which you admitted was proceeds of the burglary. A further small quantity of methylamphetamine was found, which is also the subject of charge 3. A small quantity of ammunition was found, which is the subject matter of summary charge 10. That ammunition consisted of a pouch with five centrefire cartridges and one single centrefire ammunition round. Police also found a total of 428.6 grams of cannabis. That is the subject matter of charge 4.
10 You told police that all the money recovered, which was $119,680, and about $60,000 you had spent on drugs, gambling and “hookers”, was all that you had taken in the burglary.
11 The victim is an elderly widow who is now 80 years old. She lived with her two brothers-in‑law in her home at the time of the burglary. A victim impact statement was tendered as Exhibit B and was read in court. In her victim impact statement the victim says that she was previously an independent person, who was now dependent on her daughter. She says that she suffers from anxiety attacks when leaving her house, and is fearful returning to the house. She describes her loss of feelings of safety and security in the home which she used to enjoy.
12 A victim impact statement was also tendered from the victim’s daughter as Exhibit C. She describes her mother as a changed person who no longer trusts people. She says her mother relies on her daughter in ways that she did not before, and that this has had a negative impact on her life.
13 You have a limited prior criminal history, involving three prior criminal matters dealt with in Magistrates’ Courts. From the penalties imposed they appear to be relatively minor, and include charges of possession and use of heroin, breaching an intervention order and possession of a controlled weapon without excuse. Your limited prior criminal history is to your credit, given your personal circumstances and your upbringing. I have taken those circumstances into account in sentencing you.
14 You are now 37 years old. You are the son of Victor Peirce who could be described as a notorious criminal. Your upbringing was described by your counsel and in a psychiatric report from Dr Lester Walton dated 20 January 2014 (Exhibit 2). I accept that you had an extremely chaotic and fractured upbringing.
15 You were brought up by your father and Mrs Wendy Peirce. Your father spent periods of time in jail, as did Mrs Peirce. From about 1988 your circumstances became particularly difficult in the context of the Walsh Street killings. Mrs Peirce and the children, including you, were in witness protection and were moved around a number of times. Your father was killed in 2002.
16 You had always thought that Mrs Peirce was your biological mother, but in 2009, in the context of acquiring a birth certificate, you found out that she was not your mother. You found your biological mother and spent around five months with her, but ultimately were rejected by her. You have a number of half-siblings. Your half sister died of a drug overdose in suspicious circumstances in 2010.
17 There have been a number of other tragedies and dramatic events involving criminal offences and other matters concerned with your wider family. You told Dr Walton, and I accept, that your childhood was surrounded by multiple criminals and that there were drugs everywhere.
18 Despite this background and having left school part-way through Year 11, you have a good employment history. You have worked as a wood machinist, bricklayer, concreter, furniture removalist and boat builder. I was provided with a positive reference from your employer (Exhibit 3). That reference confirms your periods of employment by a manufacturer of fibreglass boats who has re‑employed you on a number of occasions. You have also been in a relationship for about 19 years, although there have been periods of separation. You have four children with your partner, and she is expecting your fifth child in about two weeks’ time. Your partner remains supportive of you.
19 You have a history of alcohol abuse and the use of a number of illegal drugs. In more recent years your principal drug of abuse has been amphetamine. Around three years ago you began using methamphetamine and developed a habit of using about 2 grams daily intravenously. You told Dr Walton in addition to matters that you told police that you committed these offences in the context of your ice use. Your counsel agreed with the proposition that you were looking for money to buy drugs. Dr Walton is of the opinion that your paranoia and hallucinosis is probably a “rather more than usually protracted drug-induced psychosis” rather than a psychiatric disorder such as schizophrenia.
20 It is Dr Walton’s opinion that your anti-psychotic medication needs to be reviewed and potentially increased. He considers that alcohol and drug counselling/rehabilitation is an intervention which continues to have high priority, and suggests that successful rehabilitation ought to significantly lower the risk of you reoffending. It is Dr Walton’s opinion that imprisonment is more onerous on you than others because your mental disturbance has caused you difficulties in custody, and the issues are yet to be addressed adequately. It is Dr Walton’s opinion that psychiatric treatment and rehabilitation can only be completed once you are out of custody.
21 After this offending you appeared in court in May 2013 on two charges of making a threat to kill. By the time you were sentenced, you had been in custody for 29 days. The sentencing court imposed a community correction order. A folder of material was tendered on your behalf as Exhibit 1. Included in that material is a letter from the Eastern Drug and Alcohol Service to whom you were referred by Corrections as part of your community correction order. The writer of that report says that you engaged well, and that after six appointments your involvement ceased. Subsequently you relapsed and were admitted to Box Hill Hospital in August 2013. You were admitted to a psychiatric section of that hospital for four days between 17 August 2013 and 20 August 2013. You have also been treated by your general practitioner, who in a letter says that it was intended that you be reviewed by a psychiatrist.
22 In sentencing submissions your counsel submitted that the appropriate sentence would be a community correction order or suspended sentence. Your counsel particularly relied on the following matters:
(a)Your early plea of guilty;
(b)Your remorse;
(c)Your admissions to the police;
(d)Your past work history;
(e)Your limited prior criminal history;
(f)Your reasonably good prospects of rehabilitation if your drug issues were addressed;
(g)The circumstances of the burglary, including the limited damage that you caused;
(h)The lack of evidence of planning or skill involved; and
(i)That family support is available to you and that your partner is shortly expecting your fifth child.
23 The prosecutor in sentencing submissions submitted that the only appropriate sentence would be an immediate custodial sentence. The prosecutor suggested that your remorse was limited to a degree. The prosecutor also submitted that this was a targeted burglary. I ruled that I was not satisfied beyond reasonable doubt that this was a targeted burglary in the sense of you having any prior knowledge of the movements of the occupants of the house or that an amount of money was kept in the house.
24 Mr Peirce, your offending, particularly in relation to the burglary and theft, is serious. On the material before me and the facts you have admitted, you forcibly entered this house in order to steal money. For the purposes of sentencing you I accept that you were surprised by the amount of money that was ultimately found in the safes. You made determined efforts to get the contents of the safes, and you kept the money when you found it. There was a large amount of money, clearly kept by a person in a home as their savings. According to you, you used some of the money then to buy drugs and to spend at the casino and on “hookers”. Some of the money was recovered, but the remainder has not been recovered, and it is of significance that you have failed to account for approximately $140,000 of the money.
25 When you were apprehended you had with you weapons, being knives and an iron bar, and further knives were found where you had apparently been staying. It is clear that you had knives with you for the purposes of potentially at least frightening other people with them. I have accepted that you had possession of the drugs of dependence for the purposes of your own use. The amount of cannabis in particular is significant. In the circumstances of this case, in the absence of any firearm, the possession of the ammunition is a relatively minor offence.
26 As I have outlined, your counsel relied on a number of matters in mitigation of sentence. You are entitled to a significant discount in respect of your plea of guilty, which was made at the earliest opportunity. The utilitarian value of that plea of guilty in saving the time, expense and trauma of a contested committal and trial is diminished to an extent by your later action in having the matter listed for a contested plea and a subpoena issued to the victim. Through your counsel you have expressed your acknowledgment of the distress your actions and ongoing consequences would have caused to the elderly victim and her daughter, and have apologised for those matters. It must have been clear to you that subpoenaing her to attend court in order for a contested plea would have caused additional trauma to her. Ultimately she attended court and you did not contest the plea. Your actions in that regard do diminish to a certain extent the utilitarian value of your plea of guilty.
27 I accept that you are, to an extent, genuinely remorseful about your actions and the consequences to the victim. As I have said, you have apologised through your counsel and acknowledged the victim’s distress. You told Dr Walton you regretted the incident. You have pleaded guilty, and made early admissions to the police. Your admissions to the police were significant, in circumstances where at that point the police did not have any evidence linking you to the burglary and theft other than the way in which the money was bundled.
28 I say that your remorse is limited, given your actions in relation to the contested plea and your failure to account for a large portion of the money that was found. It is also of some significance that you insisted that the money initially found on you was all that had been stolen, but then further amounts were found.
29 As I have said, your offending in relation to the burglary was serious. You entered a person’s private home forcefully and made a determined effort to take safes which turned out to contain a large amount of money. For the purposes of sentencing you, I accept that you went into this house because the lights were not on, and you thought no one would be home. The burglary in itself appears to be a straightforward residential burglary without any particular skill or planning. I have considered the application of DPP v Lehmann [2005] VSCA 9 and Phillips v The Queen [2012] VSCA 140 on which your counsel relied. Limited damage was caused to the premises, and there was not a general ransacking of the premises. There is no evidence to suggest that you would have caused any injury to any person had they returned to the home.
30 I accept that your offending in relation to the burglary and theft occurred in the context of your addiction to ice. Given your long history of substance abuse, background and lack of significant prior criminal history, I am satisfied that you engaged in this more serious offending because of your ice addiction. That conclusion is supported by the contents of Dr Walton’s report. This is another tragic example of the consequences of illegal drug use. Once again I am sending to gaol a man in his thirties who has no history of serious offending and a good work history for committing serious offences in the context of an addiction to ice.
31 It appears that your prospects for rehabilitation are clearly linked to your ability to deal with your drug and alcohol issues. At the point at which the plea commenced on 30 September 2013, those prospects looked moderate to reasonable. You had at that stage clearly been struggling for a period but had made attempts to deal with your drug and alcohol issues, despite some relapses. About two weeks after the plea commenced, whilst you were on bail, on your own admission through counsel, you committed a robbery which involved the taking of synthetic ice from an adult shop. That matter is yet to be dealt with, but your commission of an offence such as that indicates that despite what was said in that initial plea you have not been able to deal with your drug and alcohol problems.
32 Between the robbery and your arrest you attended a detox program. I accept you genuinely want to stop using illegal drugs but the length of your illegal drug use and relapses gives cause for concern. I accept that you have an incentive in terms of your relationship with your partner and the imminent birth of your fifth child, but you have continued to offend and engage in the use of illegal drugs, including ice, despite having had that support in the past. Given your difficulties in dealing with your drug and alcohol issues, I consider that your prospects of rehabilitation are moderate at best.
33 It is my view that your offending in respect of the theft and the amount of money involved is serious offending requiring a sentence of imprisonment for the purposes of just punishment, denunciation, general deterrence, specific deterrence and community protection. Others need to be deterred from engaging in residential burglaries and from taking large amounts of money from people. You need to understand that you will face very significant penalties if you engage in further offending. It is my view that a sentence which does not involve an immediate period of custody would not appropriately reflect those sentencing purposes in this case.
34 I have taken into account, in the setting of the appropriate sentences and degree of cumulation and concurrency, and the non-parole period, the principles of totality and proportionality as well as your prospects of rehabilitation. The burglary and theft are so interlinked that cumulation is not appropriate. The other offending is more minor and does not warrant cumulation of sentence in my view. I have taken into account all the matters raised in mitigation by your counsel, albeit limited to the extent I have discussed. Whilst your counsel did not rely on the application of Verdins’ principles, I have taken into account in mitigation what was said by Dr Walton as to the difficulties you have been experiencing in custody whilst on remand for the other matter, in view of your current mental state.
35 Your counsel submitted that I ought to take into account, by way of pre-sentence detention, both the six days of pre-sentence detention that you have served in relation to this matter and the 89 days that you have served in pre-sentence detention in relation to the robbery matter. She submitted that the 89 days ought to be taken into account, as this is the first available opportunity. The plea in relation to the robbery matter has not yet been heard and the sentence has not yet been determined. I accept that submission. I have taken into account in a general sense that you spent 29 days in custody in respect of the threat to kill offences which were dealt with in May 2013.
36 Please stand, Mr Peirce.
37 In respect of charge 1, burglary, you are convicted and sentenced to 9 months’ imprisonment.
38 On charge 2 of theft you are convicted and sentenced to a term of imprisonment of 30 months.
39 In respect of charge 3, possession of a drug of dependence, you are convicted and fined $500.
40 In respect of charge 4, possession of a drug of dependence, you are convicted and sentenced to a term of imprisonment of one month.
41 In respect of charge 7, possession of a controlled weapon, you are convicted and sentenced to a term of imprisonment of three months.
42 In respect of charge 10, possession of cartridge ammunition, you are convicted and fined $250.
43 The sentences are all to be served concurrently. The total effective sentence is 30 months’ imprisonment. I fix 18 months as the period you are required to serve before being eligible for release on parole.
44 I declare that you have served 95 days of this sentence by way of pre-sentence detention. Six days are declared by virtue of s18 of the Sentencing Act 1991. The 89 days spent in custody on another matter, a robbery matter committed in October 2013, is deducted in an application of common law principles. The prosecution and defence should each make a careful note of that last matter, as Mr Peirce is not entitled to any further deductions in sentence in respect of those 95 days.
45 But for your plea of guilty I would have sentenced you to a term of imprisonment of 44 months with a non-parole period of 30 months.
46 I have made the orders for forfeiture, disposal and compensation that were sought. I am also making the order for the retention of the forensic sample taken from you. I am making that order because of the seriousness of the circumstances of this offending, your prior convictions and findings of guilt, and it is my view that the granting of the order is in the public interest.
---
0
2
0