Director of Public Prosecutions v Pira
[2012] VCC 892
•28 June 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-12-00826
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JACKSON PIRA |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 June 2012 | |
DATE OF SENTENCE: | 28 June 2012 | |
CASE MAY BE CITED AS: | DPP v Pira | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 892 | |
REASONS FOR SENTENCE
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Catchwords: Criminal law – sentencing – aggravated burglary – intentionally cause injury – theft – summary charge – breach of a Family Violence Intervention Order – immediate custodial sentence imposed.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms. C Boult | Mr Craig Hyland, Office of Public Prosecutions |
| For the Accused | Mr. L Gwynn | Valos Black & Associates |
HER HONOUR:
1 Jackson Pira, you have pleaded guilty before me to three charges, one charge of aggravated burglary, one charge of intentionally cause injury, one charge of theft, and they relate to the events that occurred on 29 August 2011 when you attended a property in Doveton.
2 In addition you have consented to a summary matter, being dealt with by the court, and that relates to a breach of a Family Violence Intervention Order that was made pursuant to the Family Violence Protection Act.
3 Now each of those charges are serious and that is evidenced by the maximum penalty that our parliament prescribes for them. For aggravated burglary it is 25 years’ imprisonment. Intentionally causing injury it is ten years’ imprisonment. For theft it is ten years’ imprisonment and in respect to the contravention of an intervention order, the penalty is two years’ imprisonment or level 7 fine or both.
4 The prosecutor outlined to me in her Crown opening the circumstances surrounding the offending.
5 I shall proceed to sentence you now in relation to these charges on the basis of that opening, there being no issue taken with it by your counsel during the plea hearing.
6 Briefly, on Monday 29 August 2011 at about 4.25 am, you kicked in the front door of the house in Doveton and entered without permission.
7 Once inside you ran down the hallway into a bedroom where the victim was sleeping.
8 You struck her in the left upper thigh with a baseball bat, which you had in your possession at the time you entered.
9 As a result of that assault she was left with bruising to her leg. I have observed the photographs taken of the victim's injuries at the time, and it is evident that she has a large lineal bruising to her left thigh region.
10 She did not attend for medical treatment and there is no medical evidence that has been put before the court.
11 She was requested to file a Victim Impact Statement, but no Victim Impact Statement has been filed.
12 In relation to the intervention order the circumstances of that were that you were placed on an intervention order at the Dandenong Magistrate's Court. On 11 August 2011, the victim was granted an intervention order for a period of 12 months against you and that order included conditions that you not intentionally damage any of her property, contact or communicate with the victim, approach or remain within five metres of the victim, go or remain within 200 metres of her premises at 3 Dorothy Street Doveton, and not commit any family violence against her.
13 I accept that there was a context to this offending. Previously, you were in a relationship with Bronwyn Brown, the victim, and that relationship had been for some 12 years.
14
At some stage prior to the granting of the intervention order, there had been
a breakdown in the relationship. However, there was a history of ongoing contact, following separation, and there were evidently grievances between the parties.
15
I am satisfied that you were both exhibiting bad behaviour towards each other, and I am aware of a charge that was laid against Ms Brown in relation to an earlier incident involving her having a verbal argument with you and using
a brick to smash the windows of a vehicle belonging to a Ms Kerry Anne Stapley, who was said to be your new girlfriend.
16 It was in that context that you committed these offences. Whilst I can understand that there is a context, and that these things just did not happen out of the blue, it, in no way, excuses your offending.
17
There are a number of aggravating features to your offending. The fact that it is the forced entry of somebody's home in the early hours of the morning.
At the time you forced your entry you had in your possession a baseball bat that you then used to inflict injury, and also it was in clear contravention of the intervention order, the details of which I have already announced, that was imposed only some 18 days earlier.
18 I consider that your moral culpability is high and that there is a need to impose a sentence that reflects the need to emphasise specific deterrence for you, and also general deterrence.
19 I note that you were arrested on 29 August 2011, shortly after these events occurred. The baseball bat was recovered and also the mobile phone that is the subject of the theft charge.
20 In relation to the theft, apparently the victim's pink Nokia mobile phone was taken at some point during the incident on Monday 29 August 2011.
21 You made no real admissions in relation to this offending and you denied that you were involved in the offending.
22 You were remanded in custody upon your arrest on 29 August 2011. You did not apply for bail. You were sentenced in respect to other matters at the Melbourne Magistrate's Court on 3 February 2012. They relate to trafficking methylamphetamine, traffic cannabis, possess methylamphetamine, possess cannabis and deal with property suspected to be the proceeds of crime.
23 A total effective sentence of four months imprisonment was imposed, and that term of imprisonment has now been served. I was advised by the prosecutor that the sentence expired on 3 June 2012 and that there are currently
183 days of pre-sentence detention to be taken into account as time served on this matter for the purposes of s.18 of the Sentencing Act 1991.
24
At the time you were arraigned you admitted your prior criminal record. I note that there were some four court appearances that span the period from
18 March 1994to 9 August 1995.
25 I accept that there are no prior criminal convictions in respect to crimes of violence against the person, and that the prior criminality relates to possession of drugs, namely cannabis L, and one on one occasion, being unlawfully on a building with others. I note, in the past that you were convicted and fined, and on two occasions dealt with, by way of no conviction being recorded and that you pay a fine on occasion and a community service on another.
26 I also noted that at the time of those offences, you were living in Brisbane and you were aged 18.
27 In your favour I have taken into account that there has been a lengthy period of time between the last court appearance, namely 9 August 1995 and this offending, to which you were are currently before the court.
28 I have taken into account the matters put in mitigation by Mr Gwynn on your behalf. I accept that it is your first time in custody. That the plea of guilty was entered at the earliest opportunity at committal on 23 May 2012.
29 I note, that at that time discussions took place and the matter was resolved without the necessity of any witness being called to give evidence. I accept that through your plea of guilty you have demonstrated some remorse for your actions and also have accepted the wrongfulness of your actions on this occasion.
30 Through your plea you have saved the expense of a trial and you have spared the witness further the ordeal of having to give evidence upon your trial. And in those circumstances I accept you facilitated justice and your sentence will be discounted as a consequence.
31 Since being in custody, you have actively utilised your time and have participated in a number of programs. Mr Gwynn provided me with certificates of attendance in relation to safe food handling information courses, staying safe in the community, which deals with drug and alcohol services and treatment options available in custody, and in the community, harm reduction strategies and other information in relation the abuse of drugs and alcohol.
32
You have also got a Certificate II in Hospitality Kitchen Operations, Certificate II in Asset Maintenance Cleaning Operations, working safely in the construction industry, managing conflict program skills and communication, and finally there is a certificate confirming completion of the managing conflict program. I have also been provided with drug screens that have been done randomly since your incarceration, and each of those drug screens from
3 October 2011to 8 May 2012 are negative.
33 I am satisfied that you have appropriately utilised your time in custody in developing skills for the future.
34 I have also taken into account the fact that following your conviction and sentence in respect to these offences that you do face the prospect of deportation and the possibility of being able to continue living in Australia is uncertain. And that this will make the time you spend in custody more burdensome than for a person who otherwise faces no such risk.
35 I refer to the R v Quon [2004] NSWCCA 456 and approved in Guedon v R [2010] VSCA 196.
36 That leads me to say some things about your personal history and background that I have taken into account.
37 I note that you were born in Hamilton, New Zealand and are Samoan of origin. You are the eldest of three sons, born to your parents. I note that you lived in New Zealand until you were 18 and then you came to Australia to join your parents who were living in Queensland when you were aged 18.
38 You returned in 1995 to New Zealand for some five years, at which time you met Bronwyn Brown, a woman who is seven years your senior, who has two children, Joseph and William, who were aged 10 and 14, respectively, when your first met.
39 You then returned to Australia to become reunited with your parents and have remained here since.
40
Your mother, Cynthia, was present in court and is supportive of you.
You father, Frank, is very unwell with emphysema. You have two younger brothers, one of whom suffers from schizophrenia and cancer, and has been cared for by your mother, and another brother who is currently living in Melbourne with his family.
41 I was told in the course of the plea hearing that the entirety of your family live in Melbourne. So separation from your family would be very harsh.
42 You have an excellent work history and I do not propose to go into a great deal of detail about that. It was fully outlined by Mr Gwynn. You have got work experience in the building industry, as well as qualifications as a welder. You lost your job in mid 2010 when you were made redundant by One Steel. And following that it seems to me that your life began to spiral when you began using amphetamines. I was told that your former partner, Ms Brown, was also an amphetamine user, and had been over a number of years.
43 It is in this context that the relationship between yourself and Ms Brown broke down, and thereafter these matters occurred.
44
You were working before your arrest and intended to continue working as
a security guard. However that opportunity will no longer be available to you, by reason of your convictions.
45 I accept, in the past, you demonstrated a good work ethic and the potential for the future is that you can make a positive contribution to the community upon your release. I consider that you have excellent prospects of rehabilitation.
46 In sentencing you, in addition to your excellent prospects of rehabilitation
I must impose just punishment and also ensure that the circumstances of your release are such that it will assist you in your rehabilitation.
47 I note that you have taken active steps whilst in gaol to address your underlying offending behaviours, and that you are regularly attending AA meetings, and that you are now abstinent from your drug taking.
48 Mr Gwynn outlined to me that you are on the wait list for other programs, and in all the circumstances I consider you have sound prospects.
49 Mr Gwynn indicated that upon your eventual release you propose to take up residency at your parents' place in Narre Warren and look for suitable employment.
50 He submitted, having regard to the principles of totality, and the fact that you have been in custody continuously since August of last year, that the court should consider an option whereby you are immediately released from prison.
51 The Crown, having regard to the features of your offending, submitted that
a head sentence in the range of 18 months to two years, with a non parole period of nine months to 15 months was warranted.
52 Having regard to all the circumstances of your case, I consider that the most appropriate disposition, in this case, is an immediate term of imprisonment with a non parole period to be fixed.
53 I have allowed a longer than normal non parole period to enable your release, facilitate your release into the community with the support of the parole board to facilitate your further rehabilitation. Could you please stand, Mr Pira.
Sentence
54 The formal orders of the court are as follows:
55 In respect to the first charge; aggravated burglary, convicted and sentenced to 12 months imprisonment.
56 In respect to the second charge; intentionally cause injury, convicted and sentenced to six months imprisonment.
57 In respect to the third charge; theft, convicted and sentenced to three months imprisonment.
58 The orders for cumulation; the head sentence is Charge 1, the aggravated burglary. There will be an order for three months of Charge 2 to be cumulative upon that charge, making a total effective sentence for the indictment of 15 months.
59 In respect to the summary charge, contravene Family Violence Intervention Order, you will be convicted and sentenced to six months imprisonment.
60 I make an order for cumulation that three months of that sentence, with respect to the summary charge, be cumulated upon sentence imposed on the indictment, making a total effective sentence of 18 months imprisonment.
61 I fix a non parole period of seven months.
62 I make the following declaration in relation to s.6AAA - - -
63 MR GWYNN: Excuse me, Your Honour. I apologise at this stage, but just prior to Your Honour making that declaration, I have received a note from my instructor who was not in court earlier who has some information relevant to the declaration that Your Honour is about to make.
64 HER HONOUR: Right.
65 MR GWYNN: So I am sorry to interrupt at this stage.
66 HER HONOUR: All right.
67 MR GWYNN: But just prior to Your Honour making the declaration I have received instructions that the figures as calculated are incorrect.
68 HER HONOUR: What figures?
69 MR GWYNN: For the pre-sentence detention.
70 HER HONOUR: All right. What is it?
71 MR GWYNN: And that is why I am interrupting at this stage, and I apologise, Your Honour.
72 HER HONOUR: All right.
73 MR GWYNN: And I have briefly raised this with the prosecutor. We may need to get some further proof of it, however. That is the issue.
74 HER HONOUR: Right. All right. So what are you saying?
75 MR GWYNN: What my instructor has passed me a note of, is that during the period of four months that my client was in Fulham for the matter, that is not a prior, that Your Honour has referred to. There were a number of lockdowns at Fulham, so rather than serving the full amount he served the four months, less 21 days.
76 HER HONOUR: Right.
77 MR GWYNN: That is the issue. Bearing that in mind, the pre-sentence detention I am instructed should be 204 days because he has, in essence, been on remand for this matter 21 days earlier than otherwise would be calculated.
78 HER HONOUR: Where did she get that information from?
79 MR GWYNN: From my client's instructions to my instructor.
80 HER HONOUR: All right.
81 MR GWYNN: But then he was however transferred to the MRC much earlier than one would have been expected, and my client is aware of the facts of that.
82 HER HONOUR: All right.
83 MS BOULT: Your Honour, if I can interrupt. I actually have the sentence remand report from Corrections Victoria. And I spoke with my learned friend yesterday to try to find the date that he completed his sentence, and it did not appear on here. But I can see from what my learned friend has had to say that there is an entry at Fulham on 2 April 2012, and then on 7 May 2012 he is transferred to the Metropolitan Remand Centre.
84 HER HONOUR: Yes.
85 MS BOULT: But other than that I have not had an opportunity to confirm.
86
HER HONOUR: All right. Look, rather than finishing off my sentencing remarks, what I will do is I will stand the matter down. Can you please ring Ray Dickenson at central records and just ask him to clarify that? And then
I will finish.
87 MR GWYNN: Thank you, Your Honour.
88 HER HONOUR: That is all right.
89 MR GWYNN: My instructor could not be here this morning, so.
(Short adjournment.)
90 HER HONOUR: All right. So I understand there has been clarification of the pre-sentence detention, and 205 days - - -
91 MR GWYNN: Yes. 205, Your Honour, and we all agree and - - -
92 HER HONOUR: - - - is to be declared.
93 MR GWYNN: Yes, Your Honour.
94
HER HONOUR: All right. I announce the total effective sentence of
18 months, with a non parole period of seven months. I make the s.6AAA declaration, but for your plea of guilty I would have imposed a sentence of two years and six months, to serve 12 months imprisonment.
95 I make the declaration of pre-sentence detention of 205 days and I order that that be recorded in the records of the court. I make the disposal order sought in relation to the baseball bat, and I make the order for the retention of the forensic sample, having had regard to the seriousness of the circumstances of the offending. I consider that it is warranted.
96 Further, I note it was not opposed, and further I consider the granting of the order is in the public interest. I think that covers everything.
97 MR GWYNN: Yes.
98 HER HONOUR: Yes. So the upshot of that is, Mr Pira, that your fate is now in the hands of the parole board, and you will be serving just a very short period of extra time until you are eligible to apply for parole. I do not have any control over that. All right. The parole board will have to deal with your release.
99 MR GWYNN: I have explained that to Mr Pira. (Indistinct) further discussion, yes.
100 HER HONOUR: Your barrister can explain that to you. All right. I think that covers everything. I will just hand down the signed orders for you, Madam Prosecutor.
101 MS BOULT: As Your Honour pleases.
102 HER HONOUR: And I think we have covered everything else.
103 MR GWYNN: Yes, Your Honour. Thank you.
104 HER HONOUR: Good. Thank you for your assistance.
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