Director of Public Prosecutions v Perez
[2021] VCC 756
•9 June 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-00878
Indictment No. L10202049
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PAUL SIMON PEREZ |
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JUDGE: | HIS HONOUR JUDGE TRAPNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 March 2021 | |
DATE OF SENTENCE: | 9 June 2021 | |
CASE MAY BE CITED AS: | DPP v Perez | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 756 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – SENTENCE
Catchwords: Theft – Negligently dealing with proceeds of crime – Burglary – Arson – High moral culpability – Verdins principle 5 engaged – Guilty plea at earliest forensically reasonable opportunity – Combination sentence
Legislation Cited: Firearms Act 1996 – Control of Weapons Act 1990 – Sentencing Act 1991 – Road Safety Act 1986
Cases Cited:R vHalden (1983) 9 A Crim R 30 (CCA Vic) – DPP v Ralph [2004] VSCA 158 – DPP v Meyers (2014) 44 VR 486 – R v Kilic 2016) 259 CLR 256 – DPP (Vic) v Dalgliesh (a pseudonym) (2017) 262 CLR 428
Sentence:For theft (Charge 1), fined $500.00, licences and permits cancelled and disqualified for six months – For negligently dealing with proceeds of crime (Charge 2), fined $200.00 – For burglary (Charge 3), 3-year CCO – For arson (Charge 4), 15 months’ imprisonment, 3-year CCO – For arson (Charge 5) 12 months’ imprisonment, 3-year CCO – 3 months’ imprisonment on Charge 5 served cumulatively imprisonment imposed on Charge 4, – Total effective sentence of 18 months’ imprisonment with 3-year CCO
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr M Roper Mr P Triandos | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Accused | Mr C Pearson Mr G Vassis | Vassis & Co |
HIS HONOUR:
1 Paul Simon Perez, you have pleaded guilty to an indictment containing one charge of theft,[1] one charge of negligently dealing with proceeds of crime,[2] one charge of burglary,[3] and two charges of arson.[4]
[1] Contrary to s 74(1) of the Crimes Act 1958 (‘the Act’).
[2] Contrary to s 194(4) of the Act.
[3] Contrary to s 76(1) of the Act.
[4] Contrary to ss 197(1) and 197(6) of the Act.
2 The maximum penalty for theft is 10 years’ imprisonment, the maximum penalty for negligently dealing with proceeds of crime is five years’ imprisonment, the maximum penalty for burglary is 10 years’ imprisonment, and the maximum penalty for arson is 15 years’ imprisonment.
3 The prosecution filed a summary of prosecution opening dated 26 February 2021,[5] which your counsel told me I can treat as a statement of agreed facts.
[5] Exhibit P1. This was amended at the hearing by changing the total cost of the damage caused to $430,141.72 in [8].
The facts
Charge 1: Theft
4 On 30 September 2018, you were seen driving a maroon 2011 Nissan Murano wagon, registered with the Victorian number plates YQL 746 (‘the Nissan’). The Nissan had been stolen from 42 Everglades Street, Lyndhurst between 11pm on 4 September and 6:30am on 5 September 2018. The owner, Rajesh Joshi, had accidentally left the garage door open, the vehicle unlocked and the keys inside.
5 The theft charge is based on an appropriation by you assuming the rights of the owner by driving the car without permission. It is not alleged you were the original thief. According to the instructions you gave your counsel, to your knowledge, the Nissan had been stolen about two weeks before you were seen driving it.
Charge 2: Negligently dealing with proceeds of crime
6 After the Nissan was stolen, the YQL 746 number plates were swapped for 1HQ 8SH. These plates had been stolen between August and September 2018 from Inner Harbour Drive, Patterson Lakes. These were affixed to the Nissan when you were observed driving the vehicle.
Charge 3: Burglary
7 On the 30 October 2018 at 12:58am, you were captured on CCTV walking south past Repco, a car parts retailer, at 9/10 Cooper Court, Cranbourne. You were wearing dark pants, motorbike gloves and had a dark glove or other similar item hanging out of your rear left pants pocket. You were also wearing a hooded jumper with two draw strings hanging in front and a dark coloured brimmed hat.
8 At 1:31am, you arrived at your home at 10 Hoddle Court, Cranbourne and began searching around the carport. You were wearing the same clothes as you were wearing in the CCTV from Repco.
9 At 4:24am, you walked south past Cranbourne Mowers at 26 Cooper Court, Cranbourne again wearing the same clothes and carrying a red jerry can.
10 At 4:28am, you entered the rear of the premises of Squires Towing via a hole which was cut in the cyclone fence at the rear or western side of the property. You were still carrying a red jerry can and but no longer wearing the dark brimmed hat. Seconds later you were seen manipulating the rear roller door before being joined by an unknown male who assisted you. Within seconds you were able to get under the door and inside.
Charges 4 and 5: Arson
11 Once inside the premises, at 4:29am you went straight to the driver’s door of a Mercedes Benz utility vehicle (‘the Mercedes’) parked there, removed a key from your pocket, unlocked the car and opened the door. The vehicle was the property of Fleetwood Specialised Vehicle Bodies Pty Ltd.
12 You poured liquid out of the jerry can into the cabin of the Mercedes and left a trail leading back to the roller door, leaving the driver door of the Mercedes open.
13 An unknown male held up the roller door for you before running off. Seconds later, you crawled out under the roller door while still holding the jerry can. You splashed liquid out of the jerry can a few times before stepping back, placing the jerry can down and igniting the liquid. A fire ignited and seconds later the security smoke alarm was activated. You grabbed the jerry can and left the premises the same way you had entered.
14 The fire took hold, causing damage to the Mercedes totalling $270,657.34. The cost of damage to the Squires Towing building was $159,484.38. The total cost of damage caused by you was $430,141.72. Your offending was captured on CCTV.
Arrest and interview
15 On 1 November 2018 at 6:42am, simultaneous search warrants were executed at your home at 10 Hoddle Court, Cranbourne where two red jerry cans were seized and at 43 Breens Road, Cranbourne West, where a third red jerry can was seized.
16 On 2 November 2018 at 8:15am, police attended at 4 Hoddle Court, Cranbourne and arrested you. You were driven to Narre Warren police station where you were interviewed and denied involvement in the offending.
17 Police took two photographs of tattoos on your forearms. The tattoo on your left forearm read 'BRODY' and the tattoo on your right forearm read 'TADEN’. These tattoos were clearly visible in the CCTV at Squires Towing. You were released pending summons and further investigation, including forensic analysis.
18 Following forensic analysis of various exhibits, a charge and warrant were issued on 19 December 2019. You were subsequently arrested and bailed by police to appear on 28 January 2020 at the Melbourne Magistrates’ Court.
Victim Impact
19 Two victim impact statements were tendered, one made by the owner of the Nissan, Mr Joshi,[6] and the other made by the owner of the towing business, Mr Stewart Squires.[7]
[6] Exhibit P2.
[7] Exhibit P3.
20 According to Mr Joshi’s victim impact statement, he suffered financial hardship because of your offending and felt sadness and shock immediately after his car was stolen. He still feels fearful, anxious, and depressed because of your offending.
21 According to Mr Squires’ victim impact statement, your offending has caused him financial hardship and has damaged his business’ customer relationships. The fire damaged the business’ security system, which led to numerous subsequent break-ins in the weeks after your offending. He was also required to move the business to a different location.
Offence Seriousness
22 Arson is a serious criminal offence carrying a maximum penalty of 15 years’ imprisonment. This indicates the seriousness with which the legislature, on behalf of the Victorian community, views this offence.
23 Your pleas are entered on the basis that:
(1) In relation to Charge 4 your purpose was to destroy the Mercedes.[8]
(2) In relation to Charge 5 you knew or believed that your conduct was more likely than not to result in destruction of or damage to the building in which the Mercedes was being stored.[9]
[8] Crimes Act 1958 s 197(4)(a).
[9] Crimes Act 1958 s 197(4)(b).
24 Criminal damage offences vary greatly in their gravity, however offences charged as arson are generally regarded as being of substantial gravity. The essence of these offences is the damage caused to the property. In R vHalden,[10] Lush J said:
A consideration of s197(1) and (4) indicates that the essence of the offence created by the former subsection is the physical damage caused. The circumstances in which the damage is caused will be relevant to sentence, but the damage will be the starting point. Here, the damage itself did not merit more than imprisonment measured in months, but the method by which, and the purposes for which, it was committed gave the offence an ugly aspect.[11]
In the same case Murphy J said:
It is a crime which may be committed in a very wide range of circumstances. The property damaged may vary from a book to a mansion, and no doubt the penalty to be imposed will be tempered according to the nature of the property and the damage done.
The penalty may also vary according to the circumstances in which the crime is committed …[12]
[10](1983) 9 A Crim R 30 (CCA Vic).
[11] Ibid 36.
[12] Ibid 38–39.
25 And in DPP v Ralph,[13] Winneke P in allowing a Crown appeal against sentence said:
Arson is a serious crime in this State's calendar, which not only has the capacity to severely impact upon the sense of security of its immediate victims, as occurred in this case, but also is destructive of the sense of safety and security of those who are indirectly affected by it, as likewise in this case were the neighbours.[14]
[13] [2004] VSCA 158.
[14] Ibid [12].
26 Burglary, theft and negligently dealing with proceeds of crime are also serious enough criminal offences, although I accept the theft and proceeds of crime charges, while not trifling, fall very much at the lower end of the range for those offences.
27 So far as the burglary charge is concerned, I must be careful in fixing an appropriate sentence to ensure you are not doubly punished for the offence you committed after entry into the premises.[15] As the Victorian Court of Appeal observed in DPP v Meyers:[16]
Apart from supporting an inference as to what it was that [you] intended to do, the seriousness of what took place after entry cannot affect the sentence on the … burglary charge.[17]
[15] DPP v Meyers (2014) 44 VR 486, 503 [70]–[71]. See also Pearce v The Queen (1998) 194 CLR 610; R v Lacey [2006] VSCA 4 [24] (Vincent JA, Callaway and Chernov JJA agreeing).
[16] (2014) 44 VR 486.
[17] Meyers 503 [71].
28 So far as the arson offences are concerned, your counsel accepted your criminality overall is ‘high’. The arson of the Mercedes was premeditated and relatively well planned. You had ‘cased the place out’ on the afternoon before the fire. The value of the vehicle is high. And while the damage to the building was a foreseeable unintended consequence, the damage bill is also high, and has caused significant emotional trauma and financial loss, despite an insurance payout.
29 I assess your moral culpability as being high. Clearly, general deterrence, denunciation and just punishment must loom large in sentencing you on those offences.
30 So far as your motive for committing the arson offences is concerned, you told Ms Carla Lechner, a clinical psychologist engaged by your legal representatives who assessed you on 16 March 2021,[18] ‘the cars were (sic) set on fire so as to destroy fingerprint evidence in an effort to avoid jail’. You instructed your counsel you had been inside the Mercedes, which had been stolen, and you suspected the police would find your fingerprints and charge you with being involved in the theft of the vehicle. Apparently, the Mercedes had been recovered by police and taken to Squires Towing for storage.
[18] Her report dated 18 March 2021 is exhibit D2.
31 In my opinion, this is a circumstance which increases the gravity of the arson offences. While you have not been charged with attempting to pervert the course of justice, your motive in committing those offences ‘so belonged and gave meaning to the offence[s]’[19] in my opinion it is not unfair to take your motive into account.[20]
[19] See R v Nobile [2006] VSCA 211 [8] (Nettle JA), [45], [52] (Coldrey AJA, Bell AJA agreeing); R v Henderson-Drife [2007] VSCA 211 [13]–[18] (Whelan AJA, Chernov and Vincent JJA agreeing); DPP v Gonzalez
[20] Compare R v De Simoni (1981) 147 CLR 383; R v Newman and Turnbull [1997] 1 VR 146.
32 You counsel submitted that the objective gravity of the ‘combined effect’ of the burglary and arson offences ‘is relatively high, but not extreme’.[21]
Personal Circumstances
[21] See Outline of Submissions on Plea dated 26 March 2021 (exhibit D1).
General background
33 You are aged 38 years and were 36 at the time of the offending.
34 You are the third of five children. Your parents separated when you were 8 to 9 years’ old. You lived with your father for a year but were subjected to extreme physical abuse. You returned to live with your mother, where you currently reside, and have had no contact with your father for many years. You are close to your mother and have an ‘okay’ relationship with your father.
35 You were a good student but became increasingly rebellious at secondary school. When you were 15, you were diagnosed with attention deficit hyperactivity disorder. Ms Lechner was of the opinion it is possible this was a contributing factor to your dysregulated behaviour.
36 You worked in labouring and concreting positions after leaving school. You appeared to have a steady employment history and stable family life until the suicide death of your partner, Selina, eleven years ago. You and Selina had two children together, Brodie, now aged 15, and Taydn, now aged 12. You found Selina after her suicide and tried to revive her. Your second child, Taydn, was a baby when Selina died.
37 You put aside your grief in order to assume a primary parenting role. You told Ms Lechner you have not addressed the grief associated with this loss. It has also had a negative impact on subsequent relationship losses.
38 Your next relationship was with a woman called Jeanette, with whom you have a third child, Max, aged 3. You are no longer in a relationship with Jeanette. Brodie is in residential care, Taydn is in the care of an ex-partner and you have no contact with Max due to an intervention order taken out by Jeanette.
39 You told Ms Lechner you started using drugs to block out negative feelings. This in turn undermined your ability to work and to provide stability for your children. Your life was spiralling downwards at the time of these offences as your drug use peaked and you were prevented from having contact with your youngest child.
40 Ms Lechner’s opinion was that you are capable of consequential thinking but currently overwhelmed by a high level of emotional distress. You have high emotional dependency needs, are highly sensitive to experiences of loss and you become destabilised when intimate relationships falter or end.
41 You continue to suffer a high level of trauma and unresolved grief in relation to Selina's death. You have recently experienced a relationship break-down, which has resulted in suicide attempts and a deep sense of hopelessness and helplessness. You reported symptoms of ‘severe mental unwellness,’ ‘extreme’ depression’ and ‘severe’ anxiety.
42 Ms Lechner concluded that your offending was ‘inextricably linked’ to your addiction to methamphetamine, both in terms of financing your addiction and contributing to impaired judgment and decision-making. In her opinion, your offending, including your prior criminal history, coincided with escalating methamphetamine use, which has been your means of coping with psychological distress associated with grief and loss.
43 You were spending about $350 a day on methamphetamine at the time of these offences. Ms Lechner believed your actions appeared to be motivated by a desire to source money for your methamphetamine habit. She was of the opinion you present with symptoms of Stimulant Use Disorder - in remission and Major Depressive Disorder (both DSM 5 diagnoses).
44 According to Ms Lechner’s report, you expressed regret for your actions and have made good efforts since you committed these offences to rehabilitate yourself. You told Ms Lechner you had not offended for well over two years and had ceased using illicit drugs.
45 At the time of the plea hearing you were living with your mother and you were employed in your brother’s construction business. You were supported by a friend who attended court during the plea hearing.
46 Following the plea hearing, I received a brief email report from Ms Marina Chernishov, advanced Child Protection Practitioner, with the Department of Families, Fairness and Housing dated 30 March 2021.[22] Ms Chernishov reported there were no concerns raised regarding your drug use during Child Protection involvement. She considered you were honest in disclosing your cannabis intake and you would generally complete drug screens within a few hours.
[22] Exhibit D5.
47 Moreover, Ms Chernishov considered you engaged with Child Protection in an open and honest manner where your primary concern was for the safety of your child. You attended all scheduled meetings and sought mental health supports for your child. You also attended school meetings to ensure your child was provided an education. According to Ms Chernishov you were open and honest about your criminal history, you discussed your remorse and you said your priority was ensuring the wellbeing and safety of your children.
Prior criminal history
48 Your prior criminal history effectively comprises one appearance on 25 May 2017 when you were before the Frankston Magistrates’ Court and convicted of a large number of offences including burglary, theft, theft of a motor vehicle, theft from a motor vehicle, obtain property by deception, deal with property suspected of being proceeds of crime (2 charges), unlawful assault, possess cannabis, Firearms Act 1996 and Control of Weapons Act 1990 offences, commit indictable offence whilst on bail (3 charges) and a large number of driving offences, including display number plate other than issued (3 charges), use vehicle displaying altered number plate and number plate not affixed as required.
49 You were convicted and sentenced to a community correction order (‘CCO’) for 24 months with 275 hours of unpaid community work, supervision and a number of treatment and rehabilitation conditions. Your driver licence was cancelled, and you were disqualified for four years.
50 On 30 July 2018, the CCO was cancelled and you were fined an aggregate of $2,000. Your counsel submitting the present offending was not aggravated by the fact you were subject to a CCO or any other court order at the time.
51 I had you assessed for suitability for another CCO.[23] You were assessed as suitable however in the course of the assessment the opinion was formed by the assessment officer that you have a high risk of reoffending according to the Level of Service Risk Assessment Tool. Clearly, your prior criminal history and this risk assessment requires specific deterrence and protection of the community to be given real weight in my sentencing synthesis.
[23] See Community Correction Order Assessment Outcome Report dated 30 March 2021 (exhibit C1).
52 Moreover, I can only adopt a cautious approach to your prospects of rehabilitation, which must remain guarded while your substance abuse remains a potential problem for the future. Some positive circumstances are:
1.You have apparently not reoffended in the more than two years and eight months since committing the present offences; and
2.I was told by your counsel you have family support from your mother and employment available with your brother renovating houses.
Substance abuse history
53 You told Ms Lechner you were using a lot of ‘ice’ (the colloquial name for methamphetamine) at the time of the present offences. She opines your prior history of offending, of relatively recent onset, coincides with an escalating drug addiction problem, with underlying unresolved grief and trauma contributing to both the genesis and ongoing nature of your drug use.
54 You told Ms Lechner you have smoked cannabis since the age of 16 years. You consumed about four grams a day until about six months ago when you gave up ‘cold turkey’. You said you had used ‘a little bit’ of speed and commenced use of methamphetamine when living at the Pines area of Frankston. You reported a habit of initially half a gram per day, escalating to 1.7 grams per day. You were using at this level at the time of these offences. You said you ‘gave up’ about two years ago with the help of a former partner. You told Ms Lechner, ‘very occasionally I'd lapse but I've now been 16 months without it’. In the past you have ‘dabbled’ in cocaine, ketamine and lysergic acid diethylamide (‘LSD’).
55 At the time of Ms Lechner’s assessment you were prescribed the antidepressants Avanza and Lexapro, in addition to Seroquel, to assist with sleep.
56 Regarding alcohol, you told Ms Lechner, ‘I did not drink for ten years but I started up about six months ago ... I've probably been drunk about five times in that time but I usually only drink four cans of Wild Turkey’.
57 You disclosed a long history of substance abuse to Mr Martin Markus, a senior mental health clinician who compiled a report under the Mental Health Community Corrections Screening Program at my request.[24] This included smoking cannabis daily from the age of 13 until about five months ago and using methamphetamines for the last ten years until about six months ago. You told Mr Markus you believed substance use was no longer a serious concern for you compared with several months ago.
[24] See the report of Mr Martin Markus dated 1 April 2021 (exhibit C2).
58 Toxicology reports tendered on your behalf which related to six urine screens collected between 17 April 2020 and 11 June 2020 showed cannabinoids were detected but no other illicit drugs were present.[25]
[25] Exhibit D4.
Mental health history
59 Ms Lechner considers you currently present with symptoms of stimulant use disorder, which is now in remission, and major depressive disorder, which is partly reactive to a recent relationship break-up but, more fundamentally, is a result of ongoing unresolved grief and trauma in relation to the suicide death of your partner eleven years ago. Your grief has never been addressed and comes to the fore each time an intimate relationship ends. This occurred recently when your relationship with a woman named Diana ended. Ms Lechner observed you were finding it extremely difficult coming to terms with this recent separation.
60 Ms Lechner administered a number of psychometric tests and formed a number of clinical opinions as a result of her assessment of you. You impressed her as being of ‘average’ intelligence and capable of consequential thinking. However, at the time of her interview you were ‘overwhelmed by a high level of emotional distress’.
61 Your score on the Kessler Psychological Distress Scale was indicative of ‘likely to be severely mentally unwell’. Your score on the Beck Depression Inventory fell in the extreme range, which Ms Lechner opined was consistent with your presentation at interview and a diagnosis of clinical depression. Your result on the Beck Anxiety Inventory was in the ‘severe’ range.
62 Ms Lechner concluded that you would benefit from involvement with psychological counselling supports in addition to pharmacotherapy. She did not directly suggest your mental condition was such as to make the burden of imprisonment more onerous on you. However, she did say, ‘In light of his recent attempts at suicide, I have concerns for his mental health in a custodial environment’. She also said she ‘would anticipate a further decline in his mood state with possible further attempts at self-harm’ She recommended ‘close monitoring’ of your mental health.
63 According to the Area Mental Health Services database (CMI) you have some prior and recent contact with mental health services. This includes three acute psychiatric admissions from 2016 to February 2021 and receiving the diagnosis of Adjustment Disorder.
64 During a telephone interview, you reported to Mr Markus having recently experienced a difficult relationship breakdown of a long-term intimate partner. You were unable to provide any strategies on how you managed your distress indicating poor and/or limited coping skills, which Mr Markus considered is consistent with your diagnosis of Adjustment Disorder.
65 You disclosed symptoms of low mood, heightened anxiety, rumination causing sleep disturbance and appetite disturbance. You said you had lost 11kg in the last two to three months due to loss of appetite. You reported you are currently linked in with a local GP who has prescribed the antidepressant Mirtazapine.
66 Mr Markus opined there were no indications of thought disorder, perceptual disturbances or delusional beliefs in your disclosures. He considered you presented at that time with symptoms of depression, anxiety and psychosocial stress associated with your recent relationship breakdown.
67 You disclosed to Mr Markus having attempted suicide by both motor vehicle and hanging as recently as now five months ago. However, at the time of the assessment you denied any suicidal ideation, planning or intent. It was Mr Markus’s impression that you then presented as a significant risk of harming yourself and you would benefit from close monitoring in the community.
68 You reported feeling ambivalent about engaging in psychology or counselling in the community due to difficulties with opening up with others, particularly in relation to your vulnerabilities.
69 Nonetheless, Mr Markus recommended you would benefit from remaining linked with your local GP for ongoing mental state monitoring, suicide risk monitoring and medication reviews. You would further benefit from treatment with a dual trained clinician to address both your substance use issues, underlying mental health issues, and to improve your coping skills.
70 Overall, Mr Markus assessed you as having a ‘Mild Mental Health Problem’ which would be assisted by you receiving ongoing mental health care as a requirement of any CCO I imposed on you, with the objective of improving your mental health wellbeing and reducing your risk of reoffending.
71 At the plea hearing, your counsel submitted no Verdins principles[26] are engaged in your case.[27] This position was not revised following the plea hearing in light of Mr Markus’s report.[28] On the other hand, the prosecution conceded Verdins principle 5 is enlivened in light of your depression, suicidal ideation and attempts at self-harm.[29] I will sentence you on this latter basis.
[26] R v Verdins (2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA). See also Brown v The Queen [2020] VSCA 212.
[27] Outline of Submissions for Plea dated 26 March 2021 (Exhibit D1) [9].
[28] See Submissions as to Suitability for a CCO dated 18 April 2021 (exhibit D6).
[29] See Sentencing Submissions on Behalf of the Prosecution dated 24 March 2021 (exhibit P4) and Further Sentencing Submissions on Behalf of the Prosecution dated 16 April 2021 (exhibit P6).
Mitigating Circumstances
72 You pleaded guilty to these offences at the earliest forensically reasonable opportunity.[30] I accept your pleas have utilitarian benefit, particularly in the COVID-19 environment, and have saved the victims the trauma of giving evidence. The pleas also indicate your acceptance of responsibility for your offending conduct and a willingness to facilitate the course of justice.
[30] See Atholwood v The Queen (1999) 109 A Crim 465, 468 (Ipp J); Cameron v The Queen (2002) 209 CLR 339, 345–6 [20]–[22] (Gaudron, Gummow and Callinan JJ).
73 While I accept you are undoubtedly regretful for the situation in which you find yourself and the effect this has had, and will continue to have, on you, there is insufficient evidence before me to make a finding in your favour that you demonstrate true contrition and remorse beyond what is evident from the pleas themselves.[31]
[31] See Barbaro v The Queen (2012) 226 A Crim R 354, 364–365 [32]–[38] ((Maxwell P, Harper JA and T Forrest AJA).
74 The effect of delay is a mitigating circumstance in your case. It is now over two years and seven months since you were interviewed on 2 November 2018. You were not charged in relation to these matters until 19 December 2019.
75 There will always be some delay in prosecuting cases of this kind but here there has been more than the usual delay which was beyond your control. This is exemplified by the unexplained delay of some 14 months between you being interviewed on 2 November 2018 and this matter first coming before the Melbourne Magistrates’ Court on 28 January 2020.
76 The law recognises ‘delay is more likely to be a major mitigatory factor where the prosecution or the justice system is responsible for the delay’.[32] As the Victorian Court of Appeal observed in Rodriguez v DPP (Cth):[33]
Delay is normally relevant in two ways. First, it is relevant to rehabilitation that has occurred during the delay and the effect that has in turn on specific deterrence. Secondly, delay is relevant in the sense that the anxiety and uncertainty of having the prospect of a sentence hanging over one’s head during the period of delay is akin to punishment in itself.[34]
[32] Judicial College of Victoria, Victorian Sentencing Manual, online, page 142 [7.5.3.2].
[33] (2013) 40 VR 436.
[34] Ibid 445–6 [36] (Warren CJ and Redlich JA) (citations omitted).
77 So far as your rehabilitation during the period of delay is concerned, it is to your credit that you ceased using methamphetamine soon after committing the present offences. More recently you have apparently ceased using cannabis. It is crucial to your future prospects of rehabilitation that you remain drug free. Moreover, you have not committed any further offences since the present offending.
78 So far as delay akin to punishment is concerned, since you were interviewed in relation to these offences you have had the prospect of a sentence of imprisonment hanging over your head. Undoubtedly, this would have caused you significant stress and anxiety, and it has had an adverse effect on your mental health. I take these effects of delay into account in your favour.
79 The effects of the COVID-19 pandemic are relevant to sentencing because:
(a) An offender is a higher risk of contracting COVID–19 if they are incarcerated (presuming an outbreak in custody).[35]
[35] The Queen v Madex [2020] VSC 145 [52].
(b) The inherent utilitarian value of a guilty plea is greater during the pandemic.[36]
(c) The pandemic is causing additional stress and concern for those incarcerated and their families, as it is for every member of the community.[37]
(d) The pandemic can impact on visits, work and educational opportunities, depending on the number of cases of COVID-19 in the community at any given time.
[36] DPP v Bourke [2020] VSC 130 [32].
[37] Glen Brown v The Queen [2020] VSCA 60 [48].
80 However, there is no evidence before me to indicate you will suffer any particular additional custodial hardship over and above that of the average prisoner as a result of the COVID–19 pandemic.
Application of Sentencing Principles
81 I have had regard to recent current sentencing practice for the offences before me as informed by the decisions of the High Court in R v Kilic[38] and DPP (Vic) v Dalgliesh (a pseudonym).[39] While current sentencing practice is relevant to the sentences I impose on you, it is only one of a number of sentencing considerations I must take into account in imposing just sentences in your case.[40]
[38] (2016) 259 CLR 256, 266–8 [21]–[25] (Bell, Gageler, Keane, Nettle and Gordon JJ).
[39] (2017) 262 CLR 428 (Kiefel CJ, Bell, Gageler, Keane and Gordon JJ).
[40] See DPP (Vic) v Dalgliesh (a Pseudonym) (2017) 262 CLR 428.
82 Moreover, it is always difficult to gauge more than a general yardstick from so-called ‘comparable cases’, given the wide range of offending conduct that can constitute the offences before me and the myriad of personal circumstances pertaining to individual offenders. I have had regard to the Sentencing Snapshot for Arson provided by your counsel,[41] for what it was worth.
[41] Victoria, Sentencing Advisory Council, Sentencing Snapshot – Arson, No 226, April 2019 (exhibit D3).
83 The basic purposes for which a court may impose a sentence are just punishment, deterrence (both specific and general), rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of factors, such as the seriousness of the offences, your culpability for them, the impact on any victim and your personal circumstances.
84 I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, so far as is possible, you are rehabilitated and reintegrated into society.
85 General deterrence and denunciation of your conduct must be of primary importance in sentencing you for the arson offences.[42] Specific deterrence and protection of the community must also be given real weight. Moreover, I can only adopt a cautious approach to your prospects of rehabilitation.
[42] See eg Pollard v The Queen [2010] VSCA 156 [32] (Maxwell P and Weinberg JA).
86 I must avoid imposing double punishment on you in relation to the common elements in the burglary and arson charges.
87 I consider sentences of imprisonment to be immediately served combined with a CCO are the only sentences on the arson charges appropriate to achieve the purposes for which those sentences are imposed.[43] In the case of arson offences, the general rule in s 44(1) of the Sentencing Act 1991 regarding the maximum length of the immediate imprisonment component of a combination sentence being restricted to 12 months or less does not apply. On Charges 4 and 5 I may combine a CCO with ‘any sentence of imprisonment’.[44]
[43] See Sentencing Act 1991, s. 5(4).
[44] Ibid s 44(1A) and clause 5 of Schedule 1. See generally Tannous v The Queen [2017] VSCA 91.
88 On the burglary charge, I consider a sentence only involving a CCO is appropriate, and I will impose moderate fines on the charges of theft and negligently dealing with proceeds of crime.
89 I consider there should be some degree of cumulation between the sentences on Charges 4 and 5 to reflect the interference with the rights of different victims.
Stand up Mr Perez.
On the charge of theft (Charge 1) you are convicted and fined $500.00. That fine is referred to the Director Fines Victoria for collection and management. All licences and permits you hold under the Road Safety Act 1986 are cancelled and you are disqualified for a period of six months commencing today.
On the charge of negligently dealing with proceeds of crime (Charge 2) you are convicted and fined $200.00. That fine is referred to the Director Fines Victoria for collection and management.
On the charge of burglary (Charge 3) you are convicted and sentenced to a CCO for three years commencing upon your release from custody with the terms and conditions I will presently detail.
On the charge of arson (Charge 4) you are convicted and sentenced to imprisonment for 15 months together with a CCO for three years commencing upon your release from custody with the terms and conditions I will presently detail.
On the charge of arson (Charge 5) you are convicted and sentenced to imprisonment for 12 months together with a CCO for three years commencing upon your release from custody with the terms and conditions I will presently detail.
I order that three months of the sentence of imprisonment imposed on Charge 5 by served cumulatively on the sentence of imprisonment imposed on Charge 4, making a total effective sentence of 18 months’ imprisonment together with the three-year CCO.
In the circumstances I consider it is inappropriate to fix a non-parole period.
The three CCOs will be concurrent in accordance with the statutory presumption.[45]
[45] Sentencing Act 1991 s 31(1).
The terms and conditions of the CCO which will commence upon your release from custody are as follows:
Three years commencing upon your release from custody.
You must attend at Cranbourne Community Correctional Services within two clear working days upon completion of the imprisonment term.
You must perform 300 hours of unpaid community work over a period of three years.
Pursuant to s 48CA of the Sentencing Act 1991, up to 100 hours of treatment and rehabilitation satisfactorily undertaken are to be counted as hours of unpaid community work.
Pursuant to s 48D(3)(a) of the Sentencing Act 1991, you must undergo assessment and treatment (including testing) for drug abuse or dependency.
Pursuant to s 48D(3)(b) of the Sentencing Act 1991, you must undergo assessment and treatment (including testing) for alcohol abuse or dependency.
Pursuant to s 48D(3)(e) of the Sentencing Act 1991, you must undergo any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility.
Pursuant to s 48D(3)(f) of the Sentencing Act 1991, you must participate in programs and/or courses that address factors relating to your offending behaviour.
Pursuant to s 48E of the Sentencing Act 1991, you must be under the supervision of a Community Corrections Officer for the duration of the three-year CCO.
Pursuant to s 48K of the Sentencing Act 1991, you must attend for a judicial monitoring hearing at 9:30am on 9 June 2023 at the County Court of Victoria at Melbourne.
There is no pre-sentence detention to declare.
Pursuant to s 6AAA of the Sentencing Act 1991, I state that the sentence I would have imposed on you but for your pleas of guilty would have been a total effective sentence of three years’ and six months’ imprisonment with a non-parole period of two years and six months on Charges 3, 4 and 5 and a fines with conviction totalling $1200 on Charges 1 and 2.
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