Director of Public Prosecutions v Repac
[2023] VCC 390
•8 March 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-00371
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ALEX REPAC |
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JUDGE: | HIS HONOUR JUDGE MAIDMENT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 November 2022 & 28 February 2023 | |
DATE OF SENTENCE: | 8 March 2023 | |
CASE MAY BE CITED AS: | DPP v Repac | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 390 | |
REASONS FOR SENTENCE
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Subject:Plea - sentencing
Catchwords: Burglary - theft - negligently deal with proceeds of crime
Legislation Cited:
Cases Cited:Worboyes v The Queen [2021] VSCA 169
Sentence:5 years' imprisonment, 3 years and 4 months non-parole
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr N. Mutton | Office of Public Prosecutions |
| For the Accused | Mr M. Murphy | Chester Metcalfe & Co |
HIS HONOUR:
1 Alex Repac, you have pleaded guilty to two offences of burglary, for which the maximum term of imprisonment is 10 years, two offences of theft, for which the maximum sentence is imprisonment for 10 years, and an offence of negligently dealing with the proceeds of crime, for which the maximum penalty is imprisonment for five years.
2 The prosecution tendered and relied upon a summary of prosecution opening for plea which is dated 15 July 2022. That was read to the court. I am not going to read it again in detail, but it suffices to say that the principal offending occurred on 6 September 2021 in relation to Charge 1, and then on 31 October of 2021 in relation to Charges 2 and 3 and 4, and finally the offence the subject of Charge 5 occurred on 1 November of 2021 at the premises the subject of the burglary charged in relation to Charge 1.
3
The offence the subject of Charge 1 arose when you entered a building at
38 Camberwell Road, Hawthorn East.You entered a secure car park at those premises and used a public toilet. It is evident that you attended on that day because it was picked up on CCTV footage. Relevantly, you returned to that same premises on 1 November of 2021 and committed the theft, the subject of Charge 5 on the indictment, where you stole a bicycle valued at $3,000.
4 The offending that occurred on 31 October is particularly serious. It involves the burglary of a dwelling house in Beach Street, Port Melbourne, which had at that stage been vacated due to black mould throughout the property. The insurance company used by the owners of the property had initiated significant repair works and the owners had relocated to another property whilst that work was being carried out.
5 The property itself was part of a four-level apartment complex in the Beach Street area of Port Melbourne. Entry was gained to the premises by a door that was ajar. The property was insecure because there was work being done on the property. Once inside the property you, along with your co-offender, ransacked the house. You opened doors and cupboards. You took cupboards off walls. You caused damage estimated at about $98,000 during the course of your destructive conduct within the property.
6 You stole a large number of items, including a safe containing jewellery and personal documents. You stole expensive boutique clothing, expensive handbags, wines, an Order of Australia certificate belonging to one of the occupants, and you removed the CCTV hard drive from the premises, no doubt with the intention of disguising your identity.
7 Fortuitously, at about 6.58 pm on that day, a gentleman who had some association with the complex, observed you and your co-offender in Hi Vis clothing tampering with the entry gate motor. One of this gentleman's colleagues took a photograph of you and your co-offender and asked you what you were doing. You and your colleague replied to the effect that you were there to pick up a skip and fix the gate. You and your colleague conveyed to this gentleman and his colleague that you were from Bunnings. When you were asked where your car and tools were, you responded that they were inside. The gentleman observed a blue Holden Commodore with the number plate WOI 492, and he took a photograph of the vehicle.
8 You and/or your co-offender asked the gentleman if he was going to be heading out for the rest of the night and he replied to the effect, 'I'll be back pretty soon and I'll let you outside the gate.' The property that you stole from the premises, the subject of the burglary, was loaded into a mobile skip which had been located in the garage area of the premises, which had access to the main dwelling. The building rubble that had been in the skip was removed from the skip for the purposes of you taking the stolen property from the premises. The skip was towed from the premises by the blue Commodore, driven by you. When the gentleman who had spoken to you earlier returned shortly after 7 pm, he noticed that your vehicle had gone. He reviewed his own CCTV and it showed you and your co-offender driving from the complex with the mobile skip attached to the back of the Holden Commodore.
9 The gentlemen was aware that the owners had a skip in the garage, which was being utilised by those conducting the renovation works. He contacted the occupants of the premises and ascertained that you had no authority to enter the premises. He ascertained that property was missing, in particular noticing that a TV was missing from the wall.
10 Police were called and attended the scene. The victims identified the jewellery and receipt that was located in your possession at the time of your arrest as belonging to them, having been kept in the safe of the premises. The inference to be drawn is that, having taken the safe from the premises, you were able to open the safe and access its contents. The total value of the contents of the safe was put at $300,000, the total value of the property stolen is estimated to be $724,136. The damage caused during the commission of the offence is valued at $98,225.92.
11 When you were arrested, phones recovered from you were analysed and showed images of items stolen from the property. There were also text messages on your phone to a female associate stating that you were in possession of handbags, naming their brand, with an estimated value of $100,000.
12
There was also an image of you on your phone with a Dior brand jewellery box, showing your wrist with a tattoo of your son's name and date of birth. The image identified you clearly as the person holding the phone at the relevant time. There were several handbags in the background of that image.
13 The female owner was able to identify, from other images on the phone, items of property that had been stolen from the premises, including particular items of jewellery. The skip was recovered from a street in Kew East. Your phone had indicated that you were using it in Port Melbourne at the time of the burglary, and that you then travelled to Kew, remaining in that area overnight.
14 In the skip were photo albums, a suitcase and an Order of Australia certificate in the name of the male occupant of the premises. Forensic analysis of items at the scene in Port Melbourne linked you to being inside the premises.
15 On the same day, 31 October, you returned to the site of the burglary the subject of Charge 1, and stole a Focus Jam mountain bike. That offending was captured on CCTV. One of the mobile phones in your possession at the time of your arrest was in the name of a person with a New South Wales address. He had been the victim of a burglary at an address in Tullamarine in Victoria in May 2021. Stolen during that burglary was his wallet, containing his Medicare card, New South Wales driver's licence, two credit cards, sunglasses and his mobile phone. Located on your mobile phone were images of that gentlemen's New South Wales driver's licence and his Medicare card. That supports the offending the subject of Charge 5.
16 You were arrested on 1 November near the premises at Kent Street, Kew. You made an attempt at running away from police but were soon caught. You were in possession of some costume jewellery, a jewellery box and a tax invoice from Canturi Jewellers in the name of the female occupant of the premises the subject of Charge 2. The Canturi Jewellers receipt was for the sum of $27,000.
17 You were interviewed by police following your arrest. You denied any wrongdoing in relation to the burglary in Port Melbourne, claiming that you had gone there working for Airtasker, you had received a job to collect a skip from that address, and that is what you were doing. When asked about items in the skip, you indicated that you thought that they were part of the rubbish in the skip.
18 You were asked about the burglary and theft at the Camberwell Road, Hawthorn East address, the subject of Charges 1 and 5 on the indictment. You admitted you were involved in some labouring construction work nearby and you saw the bike when you were using the portable toilet at the premises. You went back later and stole the bicycle. When you were asked where the bicycle was, you stated it had been stolen from you.
19 The male occupant of the premises at Port Melbourne made a victim impact statement. He indicated that he did not wish the statement to be read to the court. The burglary and the theft had a significant effect on both of the occupants of the premises, who were devastated by the damage that had been done, the intrusion upon their home and the theft of and loss of many items of property that had sentimental as well as monetary value.
20 Burglaries of that kind of dwelling are calculated to cause that response from owners who are entitled to feel safe in their own homes, and entitled to feel that their property is safe in their own home when they are absent from it.
21 Turning to matters personal to you.
22 Your counsel provided me with two outlines of submissions, one dated 11 November 2022 and the other dated 28 February 2023. I was also provided with a letter from a Kim Mostyn by way of a reference and a letter from a Jacinta Crough by way of reference. I was provided with a certificate acknowledging that you had taken part in Discovery Therapeutic Day Program online on 12 August 2022 through Odyssey House. I was provided with a letter dated 12 August 2022 from the program co-ordinator at Odyssey House, and a letter dated 10 May 2022 from Odyssey House, concerning your attempts at engaging with them in rehabilitative programs.
23 I was also provided with a report from Forensic Psychologist, Laura Fleming, dated 6 February 2023, a patient health summary dated 24 January 2023, and an email from a representative of G4S concerning the circumstances in which you have been housed whilst you were on remand. It indicates the unit that you were housed in and that you were on a non-mix runout with only a one-hour runout. It indicates that you had requested that yourself, due to threats regarding previous issues in another unit, and that you had been offered to go into a protection unit, but you had refused.
24 I was provided with a further letter from Odyssey House dated 25 January 2023, indicating that you were on the contact list to attend an online program beginning on 23 November, 2022 and that when attempting to contact you prior to that date they were unable to reach you by telephone, presumably because you were in custody.
25 Summarising the submissions put by your counsel on your behalf: he dealt with your personal history, drawing upon Ms Fleming's report. You are now 39 years of age. You grew up in a household where your parents often argued. Your father abused alcohol and was physically violent. You witnessed violence from your father towards your mother. You suffered physical punishment and observed physical punishment upon your sister during your upbringing.
26 Your grandfather, with whom you were particularly close and who you regarded as a role model, died suddenly as a result of an injury in the garden. That had a profound effect upon you and led to a subsequent diagnosis of a grief disorder. You described to Ms Fleming that things went downhill for you in life after that, and that you really never got over the death of your grandfather.
27 You moved out of home at the age of 18, indicating to Ms Fleming that you left the house because your preference at that stage was for using drugs of dependence It was also as a result of your feelings of being overwhelmed by the expectation that you were then the man of the house and you were responsible for your sister, your mother and your grandmother.
28 You struggled at school. You were frequently in detention and were suspended for misbehaviour. You completed Year 11 before you commenced an apprenticeship. Ms Fleming diagnosed Post-Traumatic Stress Disorder, Stimulant Use Disorder (amphetamine type substance, severe, in early remission, in a controlled environment) and Sedative, Hypnotic or Anxiolytic Use Disorder (moderate, in early remission, in a controlled environment).
29 She also noted symptoms consistent with the diagnosis of Attention Deficit Hyperactivity Disorder, although without the necessary information she was unable to endorse that diagnosis. She noted the chronic nature of the violence you grew up with and the likely effect that might have upon symptoms of PTSD. And she noted that you were unlikely to receive the specific treatment that you require whilst in custody. She also noted that you were currently receiving anti-depressant medication in custody.
30 She noted that you had a long history of substance abuse beginning at the age of 18, before commencing the use of amphetamines at 20 years of age. You began using methamphetamine when it became available, as well as GHB. You also reported problematic use of heroin and alcohol. That led to estrangement from family and termination of employment. You last used amphetamine in 2021.
31 When you were bailed from custody in relation to these charges, you were bailed to attend Odyssey House. You left apparently due to psychosocial and relationship stressors, although you had commenced attending video sessions with the Dayhab programme. Your time in custody has been particularly onerous because of your perceived need to be under protective management conditions, where you were separated from others and kept in a cell by yourself with no contact with other prisoners. You were only permitted one hour a day runout by yourself.
32 Your counsel relied on your disruptive and deprived background as a basis upon which I could reduce emphasis upon moral culpability to some extent, 'even if the reduction is minimal.' This does not seem to me to be a case where the principles in Bugmy apply to any substantial extent and I think that was accepted by Mr Murphy on your behalf, although of course your background cirumstances are relevant in the general sense to the sentencing discretion.
33 Reliance was also placed on Verdins principles 2, 5 and 6. Whilst there is, it seems, a good reason for applying principle 5 on the basis that your mental impairments will make it more difficult for you to navigate your time in custody, I am not satisfied that the information and evidence obtained from the report of Ms Fleming supports the application of Verdins principle 6. I am not persuaded that Verdins principle 2 applies in these circumstances. However, all of these facts feed into the determination of what sort of sentence you should receive as well as the length of the sentence and the structure of the sentence.
34 I did not take it that there was any opposition from the prosecution to the application of Verdins principle 5, although there was opposition to the application of principles 2 and 6. There is no doubt that you are entitled to a full measure of credit for your plea of guilty, coming as it does in the COVID era. There is no doubt that there is significant utilitarian value from your plea and it is to be noted that your plea of guilty represents an acceptance of criminal responsibility and remorse for your offending.
35 There is no doubt, as your counsel puts it, that you should be publicly rewarded for your plea of guilty and that there should be a significant discount of sentence arising under the principles discussed in Worboyes v The Queen [2021] VSCA 169 at paragraphs 35-39.
36 Your continuing incarceration will also be subject to continuing restrictions beyond those that are normally imposed in non-COVID times and whilst you continue to seek to be, and are, housed in management conditions with limited access to time outside your cell. All of those matters need to be taken into account in assessing an appropriate sentence.
37 You continue to receive the support of your ex-wife, the mother of your child. It is submitted that you have good prospects of rehabilitation, despite your prior convictions. Your counsel notes that the matters before me are the most serious charges that you have faced to date. There has been some delay. The matter has been hanging over your head for some time. But in the overall scheme of things it does not seem to me that delay should be accorded great weight in the circumstances of this case.
38 The prosecution also tendered and relied upon written submissions dated 11 November 2022. They support the submission that Charge 3 is a particularly serious example of theft and the damage caused during the course of the burglary is an aggravating feature of the burglary. The burglary is serious because it involves the unlawful entry into a dwelling house. Further, it is clear that there was a degree of planning, sophistication and daring involved in the way in which the burglary took place. Clearly there was an expectation that there would be a significant quantity of valuable material in the premises and a skip available to transport the stolen goods.
39 It was brazen. You were not put off by the intervention of the gentleman who organised for photographs to be taken of you and your vehicle and you continued with the offending despite his intervention. And it is clear that your motivation was for substantial profit which you sought to obtain in the time following the burglary. Entry was gained to the safe, and your sustained conduct led to the contents of the safe being made available to you for the purposes of on-sale.
40 Your prior convictions are serious. They go back to 2005 and involve offences of dishonesty which include burglary. However, your record is not such that it puts you in the upper echelons of criminal activity during the period of your offending. Your record culminated in a term of imprisonment being imposed on 9 June 2020 for a number of offences involving dishonesty and other offences.
41 Your counsel submitted that you have good prospects of rehabilitation. Your record and, indeed, the content of the report of Ms Fleming support the alternative proposition put by the prosecution that your prospects of rehabilitation are no higher than guarded. It is accepted that there is no other penalty that I can impose other than a term of imprisonment with a non-parole period. It is necessary, in determining the appropriate sentence, to ensure that the principles of denunciation, just punishment, general deterrence and individual deterrence are given proper weight. To the extent that your mental impairments are relevant to your offending, there is a need also for me to consider protection of the public, that is, protection of the public from you committing offences of a similar nature in the future.
42 All of that has to be factored against the need to give you the opportunity of rehabilitation. I propose to do that to the extent that is consistent with the other sentencing objectives. I note that this offending conduct puts you in breach of a Community Correction Order that had been imposed upon your last court appearance in June of 2020.
43 Alex Repac, I sentence you as follows.
44 On Charge 1 of burglary, you are convicted and sentenced to imprisonment for 10 months.
45 On Charge 2 of burglary, you are convicted and sentenced to imprisonment for a term of four years.
46 On Charge 3 of theft, you are convicted and sentenced to imprisonment for a term of four years.
47 On Charge 4 of theft, you are convicted and sentenced to imprisonment for four months.
48 On Charge 5 of negligently dealing with the proceeds of crime, you are convicted and sentenced to imprisonment for two months.
49
The sentence of four years on Charge 2 is the base, and I order that
three months of the sentence on Charge 1, eight months of the sentence on
Charge 3 and one month of the sentence on Charge 4 be served cumulatively upon one another and upon the sentence of four years on Charge 2.
50 It makes a total effective sentence of imprisonment for five years
51 I fix a period of three years and four months as the non-parole period.
52 I declare 309 days pre-sentence detention as time to be reckoned as served on the sentence that I have imposed, and I direct that that fact be noted in the records of the court.
53 But for your pleas of guilty, I would have sentenced you to imprisonment for a period of seven years and six months, with a non-parole period of five years and two months.
54 Are there any other orders that I need make?
55 MR MUTTON: Yes, Your Honour, the prosecution has sought a forfeiture order and I believe a draft of that has been filed already.
56 HIS HONOUR: Yes.
57 MR MUTTON: All right.
58 HIS HONOUR: And - - -
59 MR MUTTON: There's one small - - -
60 HIS HONOUR: Yes, go on.
61
MR MUTTON: Sorry, there's one small correction, I apologise for this
Your Honour, there was some discussion with your associate prior to
Your Honour coming on the Bench about the pre-sentence detention, and I've given her some incorrect information about the date he was - Mr Repac was initially remanded. It had become clear, during Your Honour's - on his sentencing, there should be one additional day of pre-sentence detention, it should be 310 days.
62
HIS HONOUR: Three hundred and ten days, and that's agreed is it,
Mr Murphy?
63 MR MURPHY: Yes, Your Honour.
64 HIS HONOUR: Yes. I amend my order to declare 310 days as being the period of pre-sentence detention that needs to be deducted from the sentence and entered in the records of the court. I will sign the forfeiture order.
65 MR MUTTON: Thank you, Your Honour.
66 HIS HONOUR: Thank you both for your help.
67 COUNSEL: If Your Honour pleases.
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