Director of Public Prosecutions v Pool
[2023] VCC 659
•7 June 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-22-01169
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICHAEL ANTHONY POOL |
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| JUDGE: | HIS HONOUR JUDGE CAHILL |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 28 April 2023 |
| DATE OF SENTENCE: | 7 June 2023 |
| CASE MAY BE CITED AS: | DPP v Pool |
| MEDIUM NEUTRAL CITATION: | [2023] VCC 659 |
REASONS FOR SENTENCE
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Subject: Aggravated burglary and false imprisonment
Catchwords: Guilty plea – high utilitarian value – low mid-range offending –- relevant criminal history – parity – totality
Legislation Cited: Sentencing Act 1991 (Vic) s 5(3); Crimes Act 1958 (Vic) ss 74(1) and 77
Cases Cited:Postiglione v The Queen (1987) 145 ALR 408
Sentence: 451 days’ imprisonment with 18-month community correction order
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | J. W. O’Toole | Office of Public Prosecutions |
For the Defence I. Polak Papa Hughes Lawyers
HIS HONOUR:
1Michael Anthony Pool, you have pleaded guilty to:
(a)one charge of aggravated burglary (Charge 1);[1]
(b)one charge of false imprisonment (Charge 2); and
(c)one charge of theft (Charge 3).[2]
[1] Contrary to Crimes Act 1958 (Vic) s 77.
[2] Contrary to Crimes Act 1958 (Vic) s 74(1).
Circumstances of your offending[3]
[3] The circumstances of your offending are set out in the Summary of Prosecution Opening, Exhibit A. They are agreed facts.
2In late 2020, Mark Feddersen started to do some home repair work for a woman you knew, Sophia Spiro. Spiro gave him a house key so that he could access your home. Towards the end of January 2021 she fell into dispute with him about money.
3Subsequently, she formed a belief he had stolen money from her home when she was not there.
First incident – aggravated burglary
4On 4 June 2021, at 4:46 AM Feddersen and his partner, Mackenzie Baumann, woke when they heard banging on the front door of their home, at Frankston, and a man calling out “Hello”. On a CCTV monitor they saw a man and woman standing in the driveway.
5Feddersen got out of bed and walk to the front door. When he said, “Who’s that?” the man on the other side of the door said something like “It’s a fortnight” or “It’s 40”.
6When Feddersen said, “What do you want?” The man said, “Is that Mark?” When Feddersen said, “He’s not here”, he heard a woman’s voice, which he recognised to be Spiro’s, say, “Mark, I know your voice, come out”.
7Someone switched off the power. Shortly after, Feddersen heard someone force the door open by kicking it.
8Feddersen ran to his bedroom room, shut himself inside and called 000. His partner hid in the ensuite.
9While he was on the phone, Feddersen heard at least two sets of footsteps inside the house for about a minute.
10Police arrived a short time later.
11The prosecution case is three offenders including Spiro and you broke into Feddersen’s home, knowing or at least being reckless as to whether he was home, intending to assault him.
12Text messages sent from Spiro’s phone on 3 June 2021 and at 4:37 AM on 4 June 2021 show that she organised people to go to Feddersen’s home and was present when entry was made into his home.
13It is not clear who damaged the door and who entered the house.
14The prosecution case against Spiro was that she organised the commission of the offence.
15The prosecution case against you is you were complicit by agreeing to commit the offence and assisting. How you assisted is not known.
Second incident – false imprisonment and theft
16On 10 June 2021, around 9:30 AM, Feddersen received a call from a man who told him he had been to Feddersen’s home a week earlier. He told Feddersen to go to Spiro’s home at 4:00 PM and threatened, if he didn’t show, Feddersen would continue to be targeted.
17Around 4:30 PM Spiro phoned Feddersen. Spiro asked him where he was and told him he needed to come to her house.
18Feddersen didn’t go to her home. Instead, he went to a park nearby where he called Spiro and told her, if she wanted to talk to him, she would need to come to the park.
19Spiro arrived at the park about 40 minutes later. She accused Feddersen of stealing $30,000 from her. He denied it. He showed her data in his phone which he said would prove it.
20While Spiro was looking at Feddersen’s phone you, with another man, Suric, walked over to Feddersen and pushed him onto a seat behind him. Suric grabbed his left shoulder and you grabbed his right arm.
21Suric and you told Feddersen to go with you to a car. You produced an object, possibly a blade or box cutter, and, with Suric, you walked Feddersen to a nearby car park. Spiro grabbed Feddersen’s bike and walked in front of Federsen and you.
22As you were walking, when Feddersen asked what was going on, you pulled out the object and threatened to cut Feddersen if he didn’t shut up and stop causing a scene.
23When you all got to the car, Suric opened the rear passenger door and told Feddersen to take off his backpack and get into the car.
24Feddersen gave his backpack to Suric who handed it to you.
25Feddersen then pushed Suric and ran off. He stumbled and fell as he did. You pursued him and swung the object you are carrying at him, allegedly cutting his jacket and pants.
26Feddersen ran off. Spiro caught up with him and yelled, “You owe $5000 within a week”. When Feddersen said that you he wasn’t paying you anything as he had done nothing wrong she then demanded $10,000 within a week. When Feddersen agreed to pay, Spiro gave him back his phone and told him to wait until you returned with the rest of his things. Police were in the vicinity. She told Feddersen, because there were police in the park, he could collect his things from her home.
27Instead, he went to police, where he made a report.
28In the days beforehand Spiro sent messages to Suric and Pool to coordinate the second confrontation of Feddersen. She also sent Feddersen messages demanding $5000 from him.
29In the days after, she sent Feddersen messages repeating a demand for payment and reminding him she had his backpack and bike.
Arrest
30On 28 June 2021, police intercepted a car you were driving. Allegedly, you were driving under the influence of drugs and had drugs in the car. Police arrested you and charged you with several offences. You were remanded in custody.[4]
[4] You and only you have been released from jail.
31On 6 June 2023 a Magistrate, at Frankston Magistrates’ Court, sentenced you to 258 days’ imprisonment for offences arising out of the 28 June 2021 incident. I was told you have already served that sentence by way of pre-sentence detention.
Proceedings
32The proceedings against you were listed for trial on 1 May 2023.
33On 21 April 2023 I heard sentencing applications by Spiro and you. On the same day, I gave indications, which you both accepted. And the two of you were arraigned, and pleaded guilty to the charges now before the court.
Suric
34Police had arrested Suric on 27 July 2021.
35Suric pleaded guilty to a charge of false imprisonment. On 4 November 2021, at Melbourne Magistrates Court, he was sentenced to a 12-month community correction order without conviction. He had no prior convictions and had made a confessional statement which implicated Spiro and you.
36On 28 April 2023 I sentenced Spiro to an 18-month community correction order for her involvement in the aggravated burglary and 30 days’ imprisonment for her involvement in the false imprisonment and theft.
Victim impact
37Feddersen[5] and his partner[6] both made victim impact statements.
[5] Exhibit E: Victim Impact Statement of Makenzie Baumann.
[6] Exhibit F: Victim Impact Statement of Mark Feddersen.
38Understandably they were traumatised by your crimes and have ongoing anxiety and fears for their safety.
Criminal Record
39You have admitted an extensive criminal record between January 2003 and April 2020.
40Relevantly, in this court, on 12 December 2006, to two years and nine months’ imprisonment for armed robbery, and, on 13 August 2009, to one year and 10 months’ imprisonment for aggravated burglary.
41For summary offending you have been fined and imprisoned and also released on community-based dispositions, 12 times. You have contravened nine of those orders.[7]
[7] Community Correction Order Assessment Outcome Report dated 24 April 2023.
Personal circumstances
42You were born in October 1982 at Melbourne.
43You grew up in Prahran and Malvern.
44You struggled at school and were diagnosed with ADHD. Prescription Ritalin made you feel ill. Since you were 16 years old, you have self-medicated with alcohol and marijuana. In your 20s you started using heroin and then methylamphetamine.
45You were abusing illicit drugs when you committed these crimes.[8]
[8] Ibid.
46You left school at the end of year 10 and completed three years of a cabinetmaking apprenticeship. After the company folded you had landscaping, handyman and factory jobs.
47You have a 22-year-old daughter whom you see regularly, when not in custody, and an eight-year-old son. He lives with his mother in Sydney. Your parents have maintained contact with him.
48Your prison indent[9] indicates you have been in custody since 21 April 2018 apart from a period in the community from 22 March 2021 until you were arrested on 28 June 2021.
[9] Exhibit P6: Prison indent.
49In prison, you have completed the programs made available to you.[10]
[10] Exhibit P4: Four prison program Certificates of Completion.
50As well, you have been in enforced drug remission.[11]
[11] Exhibit P5: Urine analysis results (three certificates – August/September 2022).
51And you have been employed in the trusted position of Peer Listener.[12]
[12] Exhibit P2, DJCS letter dated 20 April 2023
52On release, you will live with your mother.
Defence Submissions
53Mr Polak, who appeared on your behalf, relied on several factors in mitigation of penalty.[13]
[13] Exhibit P1: Outline of Plea Submissions
54Firstly, he relied on your guilty plea.
55He submitted it has high utilitarian value, considering especially there were triable issues, namely whether the prosecution could prove:
(a) you were one of the persons who went to Feddersen’s home on 4 June 2021; and
(b) whether you were carrying a weapon when, with Spiro and Suric, you detained Feddersen against his will at the park on 10 June 2021.
56He also relied on your guilty plea, made at the earliest available opportunity, for its high utilitarian, and as evidence of your remorse.
57He also relied on the additional Worboyes considerations which attract to your guilty plea.
58Secondly, he relied on the greater hardship of prison for all prisoners during the public health pandemic.
59Thirdly, considering you have had only three months in the community since 21 April 2018, he relied on the need for a sentence which avoids the risk of your institutionalisation.
60I will take into account these factors to moderate the sentence I will impose.
Prosecution Submissions
61Mr O’Toole, who appeared for the prosecution, submitted there were serious features of:
(a) the aggravated burglary offence including:
(i)that you went to Feddersen’s home in the early hours of the morning when you will have expected him to be asleep and vulnerable;
(ii)you were in company;
(iii)your intention was to assault Feddersen; and
(iv)your confrontation[14] of him was premeditated; and
(b) in relation to the false imprisonment, including:
(i)you detained Feddersen in a public place,
(ii)in company, and
(iii)with some premeditation in so far as Spiro had organised Suric and you to intimidate Feddersen.
[14] Although not the aggravated burglary: see Prosecution submissions, Exhibit D.
62He also submitted your victims’ significant trauma, including anxiety and fear for their safety, elevates the objective seriousness of your offending.
63He acknowledged Spiro was the primary offender who had the grievance with Feddersen. Nevertheless, in his submission, you were an active and willing participant.
64He submitted your history of violent offending, in large part committed when you were either alcohol or drug-affected, is relevant to considerations of community protection and specific deterrence.
65He accepted, while identifying aggravating features, the aggravated burglary falls to the lower end of the spectrum for offences of the kind.
66I accept the force of his submissions.
Consideration
67The maximum penalty of 25 years’ imprisonment demonstrates the offence of aggravated burglary, is inherently very serious.
68False imprisonment and theft each carries a maximum penalty of 10 years’ imprisonment.
69In my view, your crime of false imprisonment is objectively more serious. You committed it in company in an open space where people are entitled to feel safe.
70Mr Polak submitted I ought impose a sentence which allows for your immediate release from prison.
71I have decided you have served sufficient prison time for crimes. However, to protect the community, and to advance your rehabilitation, the sentence I impose will also have a supervisory and therapeutic component, namely a community correction order.
CCO Assessment
72You have been found suitable for a CCO. I accept the assessing officer’s recommendations as to the special conditions I should impose.
Sentencing principles
73I must have regard to the parity principle.
74Suric was sentenced in the Magistrates Court. He pleaded guilty at an early opportunity and had no prior convictions. His involvement was limited to the second criminal episode.
75The Magistrate released him on a 12-month community correction order without conviction.
76I also have regard to the sentence I imposed on Spiro who was the organiser.
77Taking into account the differences, between them and you, in the offending and personal circumstances, I must not impose a sentence on you which would cause you an unjustifiable sense of grievance.
78Because you are to be sentenced for several offences, I have had regard to the principle of totality to ensure your total sentence is “a just and appropriate measure” of your total criminality.[15]
[15] See Postiglione v The Queen (1987) 145 ALR 408, 416-417, 442-43.
79I am also obliged to impose a sentence that is no more severe than that which is necessary to achieve sentencing purposes.[16]
Conclusion
[16] Sentencing Act 1991 (Vic) s 5(3).
80By the sentence I impose, I must denounce your conduct, punish you, and deter you and others, from committing crimes of the same or similar kind. I must also look to your rehabilitation.
81Considering the circumstances of your offending, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you.
82I sentence you as follows:
(a) on charge one, aggravated burglary, you are convicted and released on an 18-month community correction order. In addition to the core conditions, I attach the following special conditions:
(i)supervision;
(ii)mental health;
(iii)drug and alcohol rehabilitation and treatment; and
(iv)offender programs.
(b) The community correction order will commence today.
(c) You are to report to the Frankston Community Corrections Service, Ground Floor, 431 Nepean Highway, Frankston within two working days.
83On charge two, false imprisonment, you are sentenced to 451 days’ imprisonment.
84On charge three, theft, you are sentenced to 90 days’ imprisonment. I order that the sentence I have imposed on the theft charge be served concurrently with the sentence I have imposed on the false imprisonment charge.
85I declare you have already served your sentence of 451 days’ imprisonment by way of pre-sentence detention.
86While there is some artificiality to the process, doing the best I can I declare, but for your plea of guilty, I would have sentenced you to a total effective sentence of two years and six months’ imprisonment and imposed a minimum non-parole period of one year and six months.
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