Director of Public Prosecutions v Rebollo

[2018] VCC 1704

IN THE COUNTY COURT OF VICTORIA  Revised
Not Restricted
 Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR -18-01431

DIRECTOR OF PUBLIC PROSECUTIONS

v

DAVID REBOLLO

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JUDGE:	HER HONOUR JUDGE GWYNN
WHERE HELD:	Melbourne
DATE OF HEARING:	17 October 2018
DATE OF SENTENCE:	18 October 2018
CASE MAY BE CITED AS:	DPP v Rebollo
MEDIUM NEUTRAL CITATION:	[2018] VCC 1704

REASONS FOR SENTENCE
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Subject:Aggravated burglary; assault police officer on duty; drive whilst disqualified; refuse a preliminary breath test

Catchwords:
Legislation Cited:  Sentencing Act 1991

Cases Cited:DPP v Bowden [2016] VSCA 283, DPP v Hogarth [2012] VSCA 302, DPP v Meyers (2014) VR 486, DPP v Dalgliesh [2017] HCA 41

Sentence:Total effective sentence five years and six months imprisonment, non-parole period three years and four months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Wallace (Plea) Ms V. Gillis (Sentence)	Office of Public Prosecutions
For the Accused	Mr D. Sala (Plea and Sentence)

HER HONOUR:

1David Rebollo, you have pleaded guilty on indictment to charges of aggravated burglary and assault of a police officer on duty.  These charges carry a maximum penalty of 25 years for the aggravated burglary and five years for the assault police officer on duty.  You have also pleaded guilty to a number of related summary offences which include four charges of assault with a weapon, one charge of drive whilst disqualified and a charge of refusing a preliminary breath test.  The maximum penalties for these offences are two years' imprisonment for the assault with a weapon and drive while disqualified.  The refuse preliminary breath test carries a maximum penalty of 18 months' imprisonment and mandatory license disqualification. 

2The maximum penalties to which I have referred reflect the seriousness with which parliament regards these offences.

3The details of your offending are set out in a document entitled “Summary of Prosecution Opening” dated 18 September 2018.  It has been exhibited at P1 and is an agreed document. 

4I now turn to what I am referring to as the first stage of the offences from March of this year.  In short compass at approximately 6.50 pm on 19 March 2018 you attended at UGL Pty Ltd which is a rail maintenance facility for Pacific National Locomotives located at 561-569 Melbourne Road, Spotswood.  You had been employed by UGL Pty Ltd approximately seven years prior as a service technician but your position had been terminated.  This is something on which you have ruminated for a considerable period of time.

5When you arrived at the yard driving a black Ford utility you were armed with a loaded compound bow and two knives.  You were wearing a black top and camouflage pants.  You initially attended at a wash shed where employees were cleaning a locomotive.  At the time that you entered that wash shed you were armed and had an intention to assault.  It is these facts on which you have pleaded guilty to Charge 1, aggravated burglary.

6Witnesses, Ross Buenaventura and Adrian Oxley were present inside the wash facility at the time.  You firstly approached Oxley and pointed the loaded compound bow at his head from approximately four inches away and said repeatedly, "Do you know who I am?"  Oxley replied, "I have no idea who you are.  I have never seen you before in my life".  Those facts constitute summary Charge 3, assault with a weapon.

7Oxley commenced dialling 000 staying on the phone throughout the incident.  You then approached Buenaventura and pointed the loaded compound bow directly at his chest and said, "Do you want to die today?"  That comprises summary Charge 5, assault with a weapon.  He replied, "No, not today, mate" and you repeated to him, "Do you want to die today?"  Buenaventura stood there in silence with a loaded compound bow being pointed at his chest. 
You then said, "Who's running this show?"  Buenaventura did not reply. 

8You then left the shed via the stairs and made your way to the path between the wash facility and the service facility where you then approached Van Truong and pointed the loaded bow directly in his face.  This comprises summary Charge 7, assault with a weapon.  You pulled back the drawstring and said to Truong, "Do you know who I am?"  To which he replied, "I don't know you". 
At this point Truong grabbed the arrow in an attempt to prevent you from releasing it.  You then grabbed one of your knives from the sheath on your hip and gestured towards Truong.  Truong let go of the arrow and told you to “back off.”

9Undeterred, you then started to make your way towards the service facility shed.  You entered the service facility and made your way to an internal office where you confronted the ‘on duty’ supervisor, Fabian Boother.  Another staff member, Chris Farrugio, was also present.  You pointed the loaded bow at Boother's neck region and stated that you also wanted to kill everyone.  Boother could see the two knives contained in the sheathes which you had with you.  That comprises summary Charge 9, assault with a weapon.

10You said, "I want to get Gus and Trevor".  This is believed to be a reference to your former supervisors, Gus Cintino and Trevor Cameron who were your direct supervisors when you were an employee of UGL.  You then said, "I want to kill you".  Boother and Farrugio have grabbed you by the arms and tried to forcibly remove you.  Boother tried to calm you.  You continually said that you wanted to kill and stab them. 

11You were apparently calmed when it became known to you that the police had been called.  You placed the bow on a nearby desk however you then pulled out a large hunting knife from its sheath and lunged at Boother.  Both Boother and Farrugio grabbed you and tried to restrain you, during which Boother suffered a cut to his right thumb.  Both Boother and Farrugio then let go. 
You retrieved your bow from the desk and left.

12This is what I am referring to as the first stage of your offending on 19th day of March of 2018 and comprises the aggravated burglary as well as the summary assaults with a weapon.

13In terms of assessing the objective seriousness of this part of your offending
I find it extremely serious indeed.  In terms of the aggravated burglary I have reflected on recent decisions of the Court of Appeal which include that of
DPP v Bowden [2016] VSCA 283, DPP v Hogarth [2012] VSCA 302 and
DPP v Meyers (2014) VR 486. I have had recourse to each of those decisions. In DPP v Meyers the court referred to the decision in Hogarth and said that:

"Hogarth established the current sentencing practices for serious forms of aggravated burglary needed to change as they did not reflect the objective seriousness of such offending.  Aggravated burglaries which involve confrontation and violence or threats of violence should be viewed very seriously whether the target of the attack is a former domestic partner or a person against whom such other grievance is held". 

14Further, the decision of Meyers referred to determining the appropriate sentence of an offence of aggravated burglary through an assessment of the seriousness of the offence and included a number of considerations as being relevant to such an assessment. 

15Bearing those in mind your intent of point of entry was to assault.  You were carrying multiple weapons, all of which you were prepared to use and subsequently did use and you entered in the belief that persons would be inside the premises.  In your particular aggravated burglary there simply must have been a degree of planning given the number of weapons and the fact that the compound bow was loaded. 

16Your intent on entry is a significant feature going to the gravity of your offending and is informed by the actions that took place once inside the premises.  I bear in mind that the offence of aggravated burglary is complete upon entry and that any sentence on that particular charge cannot involve punishment for what happened post entry.

17In a subsequent decision of DPP v Dalgliesh [2017] HCA 41 the High Court held that a sentencing court will fall into error treating current sentencing practices as restrictive on the position of a sentence that otherwise would be appropriate in all the circumstances of the case.  Dalgliesh does not affect the conclusion of the Court of Appeal in relation to sentences for aggravated burglary that the current sentencing practice has been inadequate.  It does not affect the principles which I take to be applied by sentencing judges in assessing the objective gravity of the offending in such cases which in my view clearly have relevance. 

18Whilst it is sought to distinguish the charge of aggravated burglary that you have committed as being less serious on the basis that it was not on private premises, I fail, in these circumstances, to see that there is any great difference. 
Your aggravated burglary was targeted to your previous workplace and at a time when you clearly believed persons will be present during their working hours given it was your previous place of employ and this information would have been known to you.  Your timing must have been deliberate.  This was a work environment for your victims, an environment in which they are entitled to feel safe.  I accept the prosecutor's characterisation that this is at least a mid-level in terms of its objective seriousness for aggravated burglary.

19The four related summary offences of assault with a weapon are also objectively serious.  I note there have been no victim impact statements tendered.  Whilst I appreciate there was no physical contact with any of your victims I have little doubt that being faced with an aggressive offender in possession of a loaded compound bow with two knives strapped to him and with a willingness to both use, as well as to use, each of these items, combined with the comments made by you, would have been very frightening if not terrifying.  None of these persons, as I understand it, were directly known to you nor were they the source of your grievance.  They were very innocent pawns in your frustration with UGL. 

20I find that for a charge of assault with a weapon each of your offences are at a high end in terms of their objective gravity. 

21The offending overall as it unfolded was protracted, involved numerous direct victims, travel to each of your victims plus subjecting at least one other person to being a witness to the events as they. 

22Whilst I understand that you explained your offending through a long held grievance which was fuelled on the day by your intoxication through alcohol and prescription medication, this does little to either explain or justify your decision making.  Your long-lasting anger and frustration was clearly the spark that lit the flame to your violent entry to UGL's premises and the subsequent offending such that both specific and general deterrence loom large in sentencing.

23On the face of it your prior history would appear to be relatively limited. 
You have had eight court appearances over some 21 years.  In terms of a general description of your prior criminal history, it involves weapon possession, drug possession, speeding and drink driving offences.  It is clear from the history and from other matters that are now before me that you have had a longstanding problem with alcohol which directly affects your decision making and behaviour in terms of impacting clearly on your own life, that of your family members and, as is apparent, other members of the community.

24On closer examination your prior history becomes more concerning.  It includes appearing at Werribee Magistrates' Court on 16 September 2013 for charges of criminal damage.  You were placed on an adjourned undertaking for this offence but I am told that it related to you placing graffiti on the front fence of one of your supervisors from UGL. 

25On 16 September 2015 you appeared at Werribee Magistrates' Court in relation to a number of offences which included threatening serious injury, make threat to kill and unlawful assault.  This apparently relates to events which occurred on 15 December 2014 when you again attended at UGL and threatened an employee by the name of Mark Fay.  You made threats to kill him and his family and confronted him in his office.  You apparently raised your fist towards him and attempted to strike him.  Work colleagues apparently came in to assist and to remove you from the administration building whilst you continued to yell abuse and make threats as you made your way out.

26The matters before me will therefore represent the third and obviously the most serious approach that you have made to employees of UGL in an attempt to clear your grievance with that company.  This is indeed extremely concerning and there is no real evidence before me which properly explains the grievance itself, why it has been so unrelenting and why your decision making is impacted to such a degree that you were prepared to behave in the way that has been documented.  By so doing you have clearly impacted on your own life, those that care about you and a number of employees at UGL.  If alcohol has affected you on each of these occasions you have failed to learn the risk you present when drinking. 

27You are not to be punished for your prior criminal history a second time.  However the history as outlined by me, in my view, emphasises the need to give significant weight to specific deterrence, protection of the community and denunciation. 

28There was a second stage to your offending on 19 March 2018.  You fled UGL in the black Ford and travelled west on Melbourne Road, Newport.  Police were called and you were identified as having a last known address of 3 Totara Court, Werribee.  At approximately 7.20 pm Detective Senior Constable Street observed you on the Princes Highway in Werribee and followed you to that address. 

29At approximately 7.25pm Detective Sergeant Mark Sargona and Detective Senior Constable Steve Oakley arrived and approached your address with Detective Senior Constable Street.  They were joined by Sergeant Lone Stein in a marked police vehicle and Senior Constable Kevin Lubinsky.  Detective Street, Sargona and Oakley approached you as you were standing near the passenger door of your ute in your driveway. 

30Detective Street asked you to show your hands and to step away from the vehicle.  At this time you were approximately ten metres away from police. 
You refused, stating that police weren't coming near your house without a warrant.  You were again asked to get on the ground to which you replied "Fuck off" and produced a large hunting knife from the sheath on your hip gesturing towards Detective Street.  This comprises Charge 2 on the indictment, assault police officer on duty.

31Detective Street produced his firearm, pointed it at you yelling "Drop the knife, drop the knife".  You still refused to comply and he again yelled "Drop the knife, David, drop the knife".  You then placed the knife on the roof of the ute and went back to the open passenger door of the ute and retrieved a compound bow gesturing towards police.  Believing that the bow was possibly loaded Detective Street demanded that you drop the bow whilst continuing to point his firearm at you.

32You told the police that the bow was not loaded and placed it on top of a nearby hedge before retrieving a second smaller knife from another sheath and turned back towards Detective Street.  You were again told to "Drop the knife". 
You took several steps towards Detective Street who told you, "David, drop the knife or I will shoot you".  Your reply was, "Go on, fucking shoot me” and you took another two steps towards Detective Street.

33Meanwhile Detective Oakley got back into his police vehicle and accelerated towards you as you were walking towards Detective Street waving the knife.  Detective Oakley stopped just short of striking you, which caused you to drop the knife, put your hands on the bonnet of the vehicle before falling to the ground.  You were arrested after a short struggle.

34Whilst in police custody you appeared to the police to be agitated and were observed to smell of alcohol.  You stated that you had cancer - there is no evidence of that before me that you do - and that you were angry and blamed your former supervisors at UGL for the way your life had turned out.  You were not formally interviewed.

35Whilst at the Werribee police station, police requested that you undergo an evidentiary breath test.  You refused despite being told of the consequences of such refusal and this forms summary Charge 11, refuse preliminary breath test.

36In dealing with what I have described as the second stage of your offending on 19 March 2018 I am dealing with Charge 2 on the indictment, that is assault of police officer on duty, and the charge of drive whilst disqualified and refuse preliminary breath test.

37You have a history for driving whilst disqualified.  However it is the assault on the police officer which is obviously the greatest concern.  The police officer said to be the victim of your assault was Detective Senior Constable Peter Street.  As I understand the accepted facts of that plea, it is in your production of the large hunting knife and gesturing it towards him in a threatening manner.  Your armed approach to employees at UGL as well as your armed approach to the police member could easily have had far more catastrophic consequences.  The only person who is really responsible for the way your life has turned out is you. 

38I take into account matters personal to you.  You are now aged 48 years. 
Your parents are of Spanish origin and you were born in Australia after their immigration.  I am told your father was a particularly hard worker and was often absent from home as a result.  Your mother was therefore responsible for family discipline and being the home maker.  You describe your upbringing as strict and disciplined with strong morals and a sense of respect towards others. 
You have three sisters of which I am told two are older and one younger.

39You describe your family as being very supportive of you during your upbringing as you were the only male sibling.  You left school after a Year 10 education and worked fairly consistently up until 2009.  Your particular passion was in the area of motor mechanics and particularly in relation to train mechanics. 

40You have a son, Cody, aged 28 years whom you are largely responsible for raising.  Your relationship with him is very important to you and it is described as a close relationship.  I note that your son and one of your sisters have been present for your plea and for today's sentence. 

41Your mother passed away from cancer in 2009 and your father is still alive residing in Queensland.  You began drinking socially when aged 14 years but
I am told that your drinking became problematic after separation from your wife, Cody's mother.  The longest period you have been sober before your remand is three months.

42You have a previous history of cannabis, cocaine and amphetamine use which ceased when you were aged about 35 years.  You have never attempted any rehabilitation for your alcohol abuse.

43In 2009 you also suffered a workplace injury when you fell between a train on which you were working and a platform, injuring three discs in your back.  You were working at UGL at this time and had been for approximately six years.  The ongoing pain from your injury was such that you were unable to complete your duties and were terminated from this employment in around 2011.  This has been a catalyst for your ongoing anger and frustration with UGL and continuing rumination about the loss of your employment.

44References have been tendered on your behalf from your housemate, Christine Rogers, your sister, Connie, and niece, Maria McMurray.  Each describe you as a loving and caring human being and a dedicated father.  All are shocked and surprised by your offending behaviour.  These references are a clear indication that you are well supported and loved and that there is a positive side to your character. 

45Two reports have also been tendered on your behalf and to which I have had recourse. 

46The first report is a psychological report authored by Carla Ferrari, consultant psychologist.  It is dated 11 September 2018 and marked at D2. 
Ms Ferrari sets out much of your personal history.  I am told that this report is submitted to support your remorse and to establish that you have prospects for rehabilitation.

47Ms Ferrari reports that:

"He expressed remorse and disappointment in himself for his abuse of substances which ultimately led to his involvement in the offences.  Further, he identified feeling ashamed.  His behaviour has affected himself, his family and moreover that he had inflicted trauma and pain on the victims as a result of his actions".

48This insight does support your prospect for rehabilitation and establishes your remorse and I accept Ms Ferrari's report on this basis.

49Also tendered on your behalf was a report authored by Dr Prashant Pandurangi, consultant forensic psychiatrist, dated 15 September 2018.  It is exhibited at D3.  He confirms that you were prescribed an anti-depressant as you have been for some six years.  He also confirms that you are now on treatment for raised blood pressure due to the stressors of your environment.

50You have also reported your remorse to Dr Pandurangi quoting him, "He now feels sorry for the people who are involved in this incident and that he did not intentions (sic) to hurt anyone".  In Dr Pandurangi's opinion you do not present with depressive or psychotic symptoms and are appropriately treated with anti-depressant medication.  You do not suffer from an enduring psychotic illness and do not present with gross cognitive dysfunction. 

51Dr Pandurangi accepted that you were intoxicated with alcohol and prescription drugs at the time of your offending which would have affected your ability to think clearly, make appropriate judgments or calmed and reasoned decisions.  He found that there was only "limited evidence that his underlying depressive disorder is causally linked to the offending or affected his ability to appreciate the wrongfulness of his actions".  He further opines that your risk of similar offending depends on your ability to, firstly come to terms with your situation about the loss of your employment, secondly, in seeking appropriate psychological assistance to deal with your stressors and, thirdly, to desist from the abuse of alcohol.  I can only agree.  He is of the opinion, perhaps unsurprisingly that you would benefit from a referral to a drug and alcohol program both whilst in custody and in the community. 

52Your counsel does not call into your aid the principles of R v Verdins.  It is not suggested that your time in custody would be made more difficult by any psychological condition nor is it sought to do so in terms of your physical health.

53I do accept that this is the first time you have been exposed to the prison system.  I accept that this, in itself, has acted as a circuit breaker in terms of your alcohol use and abuse.  You have provided clean urine screens,  of which a number have been tendered on your behalf.  Whilst there is no evidence before me as to your physical condition I do accept that you have suffered long term pain as a result of the workplace accident in 2009.  I accept that this experience is likely to be ongoing within the prison system and I take all of these factors into account.

54Hopefully your time in custody to date and into the future has given you both pause and cause for thought.  Quite clearly, until you find some way to deal with your grievance with UGL and your alcohol properly, your life simply has no prospect of improving.  You remain a risk to the community and you will limit your prospects for rehabilitation.

55I am told you have undergone a number of courses in custody including maths, English, food handling and court awareness.  Your son has been able to visit you regularly.  I am told that you are now resolving to try and deal with both your alcohol problem and your grievance with UGL.  If this can be achieved your prospects for rehabilitation are obviously heightened. 

56Essentially there is no mental condition such as to justify a reduction in your moral culpability or which would otherwise reduce the importance, which must, in my view, be given to specific and general deterrence. 

57I do accept that you have pleaded guilty at an early opportunity and that your plea has saved the time and expense of any trial and importantly the witnesses the trauma of having to relive the events of 18 March 2018.  Based on the materials tendered on your behalf, which include the written references and the psychological material, I am satisfied that your plea is one borne of remorse.  I take all of these matters into account in fixing your sentence.

58The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.  In sentencing you I must have regard to a range of matters which include the seriousness of the offending, your culpability for it, your personal circumstances and those of your victims. 

59I am also required to balance the interests of the community in denouncing criminal conduct with the interests the community clearly has in seeking to ensure, as far as possible, that offenders are rehabilitated and are re-integrated into society. 

60I have taken into account the relevant sentencing guidelines referred to in s.5 of the Sentencing Act. 

61I also take into account, as I must, the principles of totality and parsimony.  I have made the ancillary orders as sought for a forensic sample and for disposal. 

62I do now turn to sentence.

63In relation to the charge of aggravated burglary you are convicted to four years' imprisonment.  This is the base sentence.

64On the four summary charges of assault with a weapon you are convicted and sentenced to 12 months imprisonment on each charge, of which three months is cumulative on each other and on the base sentence. 

65On the charge of assaulting a police officer on duty you are convicted and sentenced to 18 months' imprisonment, of which four months is cumulative on the other sentences imposed this day.

66On the charge of drive whilst disqualified you are convicted and sentenced to six months' imprisonment of which one month is cumulative on the sentences imposed this day.

67On the charge of refuse a preliminary breath test all licenses held are cancelled and disqualified for a period of four years.  You are convicted and sentenced to eight months' imprisonment of which one month is also cumulative.

68This comprises a total effective sentence of five years and six months' imprisonment. 

69I accede to your counsel's submission that I should consider a longer than usual period of parole in order to support your transition back into the community and rehabilitation within it.  According I fix a period of three years and four months before being eligible for parole.  213 days are reckoned as time already served in accordance with this sentence.

70Section 6AAA of the Sentencing Act requires me to state the sentence that
I would have imposed if you had not pleaded guilty to the charges.  If not for your pleas of guilty I would have sentenced you to seven years and six months' imprisonment with a minimum of five years and three months before being eligible for parole. Is there anything further?

71MR SALA:  If it please the court.

72HER HONOUR:  I thank counsel for the assistance.

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