Director of Public Prosecutions v Reddy

[2023] VCC 210

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

AT MELBOURNE

CRIMINAL DIVISION

CR-21-00150

DIRECTOR OF PUBLIC PROSECUTIONS

v

EMMANUEL REDDY

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	4 and 5 July 2022
DATE OF SENTENCE:	15 February 2023
CASE MAY BE CITED AS:	DPP v Reddy
MEDIUM NEUTRAL CITATION:	[2023] VCC

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence

Catchwords:              Sentence indication – Plea – Sentencing Principles – Parity – Denunciation – General deterrence – Rehabilitation.

Cases Cited:Worboyes v The Queen [2021] VSCA 169; Ralph v The Queen [2022] VSCA 185 (1 September 2022).

Sentence:                  Two years and two months imprisonment and a minimum non-parole period of one year.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public prosecutions	Mr S. Lee	Office of Public Prosecutions
For the Accused	Mr L. Barker	Emma Turnbull Lawyers

HIS HONOUR:

1Emmanuel Reddy, on 5 July 2022, I indicated to you what sentence I would impose if you pleaded guilty to the charges you faced.  You accepted that indication and pleaded guilty on arraignment to four charges of theft, two charges of burglary, one charge of criminal damaged (rolled up), one charge of theft of firearms, along with two summary offences of driving while disqualified.  I should add at this moment that the total effective sentence I indicated for the eight charges on the indictment and the summary charges was two years and two months with a non-parole period of one year.

2I will pause there to indicate that the sentence announced or the plea and sentence was adjourned from 5 July, to 8 September, to suit parties in respect of the delivery of the sentence.  On that day, when you were to come before the court to be sentenced and commence your sentence, you failed to appear and a warrant was issued for your arrest.  You ultimately were arrested some 17 or so days ago and are in custody.  What occurred during that time, unhappily, is a series of crimes that you have been charged with before the Magistrates' Court.

3Counsel who have spoken to you put it in its usual frank way that you decided that this was the last hurrah before you went to gaol and commenced using drugs again and committed offences.  That is a matter of concern in the sense that your rehabilitation, which did have some brighter signs, are now to be seen in a different light.  However, the legislation, as discussed this morning between the parties, is strict.  I am not able to pass a sentence more serious, I think the words are, but it means longer than what was indicated if you accepted the sentence indication.  There does not seem to be any discretion for circumstances such as this, where you failed to appear and turn up some months later and having been on, what seems to be alleged anyway, a crime spree.

4So I will impose the same sentence.  What will follow is that various Magistrates potentially a County Court judge will have to deal with you for the offences that you committed while on bail and failing to appear for the sentence that I proposed to impose.  It is a longhand way to say that there is not anything that can be done about the fact that you failed to appear in court now – that is for others at a later point.

5Now, a key factor in determining the sentence that I indicated was the sentence that the co-accused Mr Barry was given by Judge Hassan in June 2021 for broadly the same offences, thus the issue of parity and slight disparity loomed large.  Mr Barry received a sentence of three years one month with a non-parole period of two years.  I have had the benefit of Judge Hassan's sentencing remarks and I respectfully adopt her succinct description of the facts and circumstances of the joint offending. 

6I will briefly outline the offences for which you stand charged alone.  That is, the first offence Charge 1 which was the theft of petrol valued at $30.05.  That is a drive-off from a service station in Deer Park on 24 June 2020.  This was the only offence you pleaded guilty to that did not involve Barry.  The next group of offences arose on 11 July 2020 when you, along with Barry, committed the offences, burglary, theft and theft of firearms. 

7As Judge Hassan wrote in her reasons for sentence, at approximately 4:09am you drove to a Shell service station situated in Cook Street, Port Melbourne.  You were with your co-accused Mr Barry.  The two of you drove to the Port Melbourne storage facility situated at Lorimer Street, Port Melbourne, parking in the bays opposite the entrance.  At 4:26am you forced a pedestrian gate and walked down the main driveway.  He used some tool to cut the lock of the storage and the shipping containers belonging to the victim. 

8You and Mr Barry then removed a number of items, including CCTV cameras, battery charges, a number of model cars, a Ford XA compliance plate, a key box safe, a number of vehicle keys, remote control devices and a number of coins.  When you were there, you located a secured firearms safe and forced the lock of that.  Four firearms were safely stored there and those four firearms were stolen by you and Mr Barry.  All that was placed in a wheelie bin and transported to your vehicle.  The total value of the firearms was approximately $6000.  The value of the other items was in excess of $10,000 and the Ford XA compliance plate depreciated the value of that vehicle, which was an expensive vehicle valued at approximately $60,000.  The offending was captured on the CCTV footage and, as I have indicated, as did Judge Hassan, it was the basis for the charges of burglary, theft and theft of firearm. 

9

Judge Hassan then continued with respect to the next group of offences which were on 11 August 2020.  Then at 8:50pm in the evening, you and Mr Barry approached a building in a set of flats in Caroline Springs.  Some other person let you into the garage and there, having driven in, you then, together with Mr Barry, broke windows on multiple cars to steal items from them and cut holes in multiple storage cages to steal items from them.  In paragraph 14 of her sentence,

Judge Hassan outlines the various things that were stolen.  These establish Charges 5, 6, 7 and 8 on your indictment, being burglary, criminal damage and two charges of theft.

10

The summary offences of drive while disqualified relate to the two occasions that you drove to commit the crimes that I have just outlined on 11 July and then

11 August 2020.  You were arrested on 13 August 2020.  At your interview with police you made no comment. 

11

As I noted, the first charge of theft was a petrol drive-off valued at $30 and Barry was not involved.  However, more importantly was that he pleaded guilty to a significant theft to the value of $15,000 which you were not involved in.  Further, he pleaded guilty to two offences arising from the fact that he was on bail at the time of his offending.  The sentence Barry received for the $15,000 theft was

12 months with three months of that cumulative on the other sentences imposed that were before Judge Hassan and are now before me.  In addition, he received one month cumulative for the bail offences.

12In the sentence indication hearing, I agreed with your counsel submissions that you ought receive a lesser sentence than Barry, notwithstanding his earlier plea.  Each case, even those involving a co-accused, differ from each other and require independent analysis in order to affix the appropriate sentence.  Parity is an important principle but it is not a mathematically determinative principle.  The role of an accused and, importantly, an accused's personal circumstances and the future prospects loom large in the individualised sentencing process.

13Before moving to your personal circumstances, I make clear that the offences you have pleaded guilty to were serious crimes with the most serious being the theft of the firearms.  I accept that your theft of the guns arose because you came across them in the storage unit.  It was not planned to steal firearms.  It was an opportunity that you took in the moment.  However, it remains the case that dangerous weapons were distributed and remain at large in the community. 

14The reasonably recent creation of this offence of theft of firearms with its maximum term of 15 years indicates just how seriously our Parliament takes the issue of firearms being in the community unregulated.  The other crimes were serious and, no doubt, caused inconvenience and annoyance or worse to those whose cars were damaged and items stolen.

15You have a poor record of like offending dating back to 2014.  You have been sentenced to terms of imprisonment and Corrections orders, most of which have been breached.  I will not detail each and every prior offence or penalty.  It is safe to say that from 2019 to this offending in 2020, you were regularly before the courts.  There were subsequent matters to the offending in 2020 and, as I have just outlined, that continued beyond the sentence indication hearing that I gave for a period of time up to your arrest 17 days ago.

16So deterrence to you and protection of the community must be given proper weight.  Here, of course, I am concentrating on the offences that are before me, not those that you have been recently arrested.  But I note Mr Barry also had similar concerning prior history.  You were, at this time 29, you may have turned 30, but you were 29.  You were 27 at the time of the offending.  Your counsel outlined relevant aspects of your personal circumstances in a helpful written submission. 

17You are an only child but you had little dealings with your father after the relationship between your father and mother failed.  He returned back, you think, to live in Fiji.  Your mother lived in central Victoria with you but you lost contact with her some time in 2021.  Important adults in your life as you grew up were your grandparents.  This was the case because your mother worked nightshift as a nurse so you stayed with your grandparents and developed a relationship with them.  They did their best to give you a stable upbringing and you, unfortunately, were quite, to quote your counsel's word, 'rudderless' as you grew up.

18You were raised in the Sunshine area and schooled only to year 9.  Once you left school, you did get work with the company that your grandfather worked for.  That employment involved air-conditioning units and you did hold this job for some significant period of time.  It does indicate that, absent drugs, you are able to work and have some stability.  But you were introduced to drugs at about 18 and it has taken over your life.  You moved from cannabis to amphetamines and methamphetamines, GHB and are addicted.  You have been, through the last 10 or so years, very chaotic, housing and homeless for a good deal of the time. 

19Mr Barker, your counsel, indicated that the most recent crime that you were out of prison was once you released from prison in June 2021, as it led up towards this settlement of this matter in the sentence indication.  You were, or claim to be, abstinent from drugs and were in a position that was better than you had been for some time.  Thus, he said that there was a period of 17 months where you had not been before the courts and this supported the proposition that you were not using drugs.  However, that is all come asunder in recent times.  But I do take into account there was this period which gave some optimism and I some weight to that in coming to the sentence that I did.

20Beyond your personal circumstances but in some way connected to them, your decision to plead guilty is of importance and warrants a more significant mitigatory benefit or discount to you than was the case in the past.  Such a course follows the Court of Appeal decision in The Queen v Worboyes (‘Worboyes’).[1]  In short, the impact of the pandemic on the criminal justice system has left the court list beleaguered with delay.  Those who are guilty must be encouraged to plead guilty by knowing that sentencing courts will impose less severe sentences than in the past. 

[1]Worboyes v The Queen [2021] VSCA 169.

21My sentence here must recognise the increased value of your plea and give the sort of encouragement to others to resolve the matters that the court of appeal ask sentencing judges to do, thus, people will not hold out for a jury trial or run one when it is possible not to.  I note Judge Hassan did not have the benefit of the Court of Appeal decision in Worboyes but her sentence does note the difficulties of the pandemic as it was unfolding.  But since Worboyes, sentencing judges like myself must make the benefit of a plea palpable.  Not to do so is a sentencing error.

22That said, Mr Barry did plead guilty earlier and the fact that he did so must be acknowledged.  You have, on the other hand, had the adverse impact of delay until your case resolved.  As I said just before in relation to your counsel's submissions about the better times that surrounded this, that is, you have, in the meantime, since July 2021 taken steps on what would be a long path of rehabilitation.  This is principally by remaining abstinent from drugs. 

23Although in one sense rehabilitation in the community must be put on hold while you do the inevitable term of imprisonment, that term will further advance your abstinence from drugs.  That has started again, unfortunately, as you approached the imposition of sentence.  Your path on rehabilitation fell off the rails or cliff even.  It is hoped you maintain a commitment once you are released, whenever that may be.  I have allowed for a longer period on parole.  Whether you are released and when is for the Parole Board, not the court.  I have imposed a sentence that is less than Barry's but, in my view, given the different offences and circumstances, the sentence I indicated is the just and appropriate one, properly satisfying the sentencing purposes of denunciation and deterrence to you and to others and your rehabilitation.

24Since I gave the sentence indication hearing prior to the date that the sentence was to be announced in September, the Court of Appeal in the decision of Ralph,[2] a case which is not too dissimilar to the circumstances of your case, had dealt with that and there being charges of burglary and theft and theft of firearms.  In that case of Ralph, the court applied a more moderate approach to the theft charges in arriving at a total affective sentence of two years and two months with a non-parole period of 12 months. 

[2]Ralph v The Queen [2022] VSCA 185 (1 September 2022).

25Now, equal justice is important between co-accused, which is highly relevant here, but it is also relevant where there is unrelated but like offending which goes to the Court of Appeal and is endorsed.  But again, I emphasise each case is different.  But that Court of Appeal decision gives me some more comfort in setting the terms of imprisonment that I have, being lower than those that were fixed for Mr Barry. 

26The sentences that I indicated are made up as follows.

·Charge 1, theft, one month.

·Charge 2, burglary, nine months.

·Charge 3, theft, nine months.

·Charge 4, theft of firearms, 20 months.

·Charge 5, burglary, nine months.

·Charge 6, criminal damage, four months.

·Charge 7, theft, five months.

·Charge 8, theft, five months.

·In the summary offences of drive while disqualified, each of those I impose a sentence of two months imprisonment. 

27The sentence that I indicated is made up as follows.  It is a total sentence of
26 months made up of Charge 4, a 20 month sentence is the base sentence.  I order the following cumulations:

·Charge 2, two months.

·Charge 5, two months.

·Charge 7, one month.

·Charge 8, one month.

28If my mathematics is right that is a sentence of two years and two months and, as indicated, I impose a minimum non-parole period of one year. 

29I can declare that there has been some pre-sentence detention, being 17 days now on the basis of the executed warrant to this date. 

30Had you pleaded not guilty to these offences and been found guilty of them, I would have imposed a sentence of three years and eight months with a non-parole period of two years and nine months. 

31I am asked to sign various forfeiture orders and disposal and I intend to sign those and forward them to the Crown. 

32HIS HONOUR:  Is there any other orders required?

33MR LEE:  No, Your Honour.

34MR BARKER:  No, Your Honour.

35HIS HONOUR:  Thank you.  And the mathematics is right?

36MR BARKER:  Is it right for me, sir.  Yes, thank you.

37HIS HONOUR:  All right.

38MR LEE:  Yes, Your Honour.

39HIS HONOUR:  Thank you.  If there's nothing further, then I thank counsel for their patience and persistence and you, Mr Barker, I can make available a very short period of time for you to speak to your client if you wish to do that, it's up to you.

40MR BARKER:  Thank you, Your Honour.

41HIS HONOUR:  Anyway, thank you.  You work it out with my staff.

42MR BARKER:  Thank you, Your Honour. 

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