Director of Public Prosecutions v Salapura and Spiteri
[2017] VCC 1914
•15 December 2017
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-17-00353
AP-14-2766CR-17-00354
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| STEVAN SALAPURA |
---
| JUDGE: | HIS HONOUR JUDGE GRANT |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 15 July 2017 and 20 November 2017 |
| DATE OF SENTENCE: | 15 December 2017 |
| CASE MAY BE CITED AS: | DPP v Salapura and Spiteri |
| MEDIUM NEUTRAL CITATION: | [2017] VCC 1914 |
REASONS FOR SENTENCE
---
APPEARANCES: | Counsel | Solicitors |
| For the Director | Mr P. Pickering | OPP |
| For the Accused | Mr M.Cahill QC for Salapura Mr D. Dann QC for Spiteri | Doogue O’Brien George Balmer & Associates |
HIS HONOUR:
1 Stevan Salapura, you have pleaded guilty to one charge of prohibited person in possession of a firearm, one charge of aggravated burglary and one charge of recklessly cause serious injury. You have also pleaded guilty to one summary charge of possess ammunition without a licence. The maximum penalties for these offences are as follows:
· Prohibited person in possession of a firearm, ten years’ imprisonment;
· Aggravated burglary, 25 years’ imprisonment;
· Recklessly cause serious injury, 15 years’ imprisonment; and
· Possess ammunition without a licence, 40 penalty units.
2 You have also pleaded guilty to contravening a community corrections order that I imposed on 15 July 2015.
3 Mr Spiteri, you have pleaded guilty to one charge of prohibited person in possession of a firearm and one charge of aggravated burglary. You have also pleaded guilty to three related summary offences of possess ammunition whilst not being licenced, dealing with the proceeds of crime and committing an indictable offence whilst on bail. The maximum penalties for these offences are:
· Prohibited person in possession of a firearm, ten years’ imprisonment;
· Aggravated burglary, 25 years’ imprisonment;
· Possess ammunition whilst not being licenced, 40 penalty units;
· Dealing with proceeds of crime, two years’ imprisonment; and
· Commit an indictable offence whilst on bail, 30-penalty units or three months' imprisonment.
4 I have heard a summary of the offending. It is not my intention to repeat the whole summary. The summary has been tendered as Exhibit A in these proceedings.
5 Briefly, at about 12.55 am on 10 July 2016, you drove into a utility reserve between Winslow Crescent and Stayton Close, Deer Park. You pulled up at the rear of 30 Winslow Crescent, jumped the rear fence and approached the back door. You each had a handgun. Your respective criminal histories meant that you were prohibited from possessing a firearm.
6
The prosecution accept that your intention in attending at this address was to steal property. Mr Salapura, you had been given information that there was
a cannabis crop at the property and you planned to steal the cannabis. You recruited Mr Spiteri to assist you. I should add that there was in fact no cannabis crop at that property.
7
You both endeavoured to force the back door, but were unsuccessful. The noise of the attempted entry woke the victims. You then both ran to the front door and used a jemmy bar to try to force your way into the house. The male victim attempted to hold the door closed, while his wife armed herself with
a kitchen knife. By this stage, you were both aware that there were people in the house. You forced your way through the front door and there was a struggle with the two victims.
8 Mr Salapura, the male victim, took the jemmy bar from you and punched you. You took the gun from your trousers and fired six times, hitting the male victim three times in the legs. The female victim struck you with the kitchen knife, wounding you to the upper body. Before you left the property you said to the female victim, “Do you want to die?” to which she replied, “No, do you?” You and Mr Spiteri then ran out the front door and climbed over the fence.
9 Mr Spiteri, you drove directly to the Sunshine Hospital emergency department, where you left Mr Salapura. You then drove to your cousin’s factory at Ravenshall, where you endeavoured to try to clean Mr Salapura’s blood from your car.
10 Later that same day, police executed search warrants at your respective homes, as well as the factory at Ravenshall.
11 Mr Salapura, when the police searched the house where you were residing, they located 28 rounds of nine millimetre Luger ammunition in a toolbox that you owned.
12 Mr Spiteri, when your home was searched, the police located six rounds of nine millimetre Luger ammunition in your bedroom. The police also found $5,100, Holden car keys and jewellery, all believed to be the proceeds of crime.
13 The male victim was taken by ambulance to the Royal Melbourne Hospital. In his medical report, Dr Odell, said that the victim was “found to have four wounds in his right leg, which were assessed as being ‘through and through’ bullet trajectories, passing obliquely through the calf in a downwards and lateral direction (away from the centre line of the body). Another pair of wounds were located on the left lower calf and were interpreted as being a bullet path passing downward. One of the right leg bullet paths traversed the knee joint and caused a bone injury that required surgical attention.”
14 The female victim suffered superficial injuries to her hands and upper limbs.
15 Both victims have provided victim impact statements that detail the profound impact your offending has had upon their lives. The male initially required medication to treat his pain. He has ongoing pain in his knee and he is unable to run, jog or engage in sporting activities. He is depressed, anxious and suffers from nightmares and flashbacks. The female victim suffers from stress and hyper vigilance that leaves her exhausted. She also suffers nightmares and flashbacks. Both victims have suffered significant economic loss arising from the sale of their home and the storage of furniture.
16 Clearly, this is very serious offending. You attended the premises with the intention of entering the home and stealing property. You forced your way into the victims’ home in the early hours of the morning. When you did so, you knew there were people inside the house. You were disguised and you were armed with handguns and a jemmy bar.
17 Mr Salapura, your firearm was loaded and you discharged it inside the house, causing serious injury to the victim, Mr Nguyen. When you did so, you acted recklessly. You accept, by your plea of guilty, that you were aware when you fired your gun, that this conduct would probably cause serious injury to the victim. The male victim suffered serious injuries that have left him with ongoing discomfort and impairment.
18 The events of this evening were terrifying for the victims.
19 In this case, general deterrence, just punishment and denunciation are central sentencing considerations.
20 You both have relevant prior convictions.
21 Mr Salapura, you first appeared in the Children’s Court on 9 August 2010, on charges that included armed robbery, three counts of attempted armed robbery, robbery, two counts of intentionally cause injury, recklessly cause serious injury and possess unregistered general category handgun. You were sentenced to 12 months' detention. On appeal to the County Court, the sentence was set aside and you were re-sentenced to a 12 month youth supervision order. You next appeared at the Ballarat Magistrates’ Court on 20 August 2013, on charges that included attempted robbery, assault by kicking, possess ecstasy, possess methylamphetamine and prohibited person possess a firearm. You were placed on a 12 month community corrections order, with conditions that included, undergo treatment for drug use and participate in offender behaviour programs, as directed.
22 On 24 November 2014, you appeared at the Sunshine Magistrates' Court for offences that included assault with a weapon and being a prohibited person possess an imitation firearm. You also admitted contravening your CCO. The magistrate sentenced you to a total effective term of 12 months' imprisonment. You appealed that order and you were released on bail.
23 On the 15 July 2015, I upheld your appeal in this court. On the breaching offences, I sentenced you to 126 days and declared that period served. On the contravention of CCO, I cancelled the original order and re-sentenced you to an 18 month community corrections order, with conditions designed to address your drug abuse problems. I made these orders on the basis of evidence of your rehabilitation. I had a report from the CISP program that was very positive. You were still only 21 years old. I heard evidence that you had strong support from your mother, you were in a relationship that was beneficial, your partner was pregnant and you had been undertaking various courses in rail construction. This explains why I gave you an opportunity to again address your drug abuse issues with community support. It is an aggravating feature of the current offences that they occurred whilst you were on that CCO.
24
Mr Spiteri, between July 2011 and March 2014, you appeared in the Sunshine Magistrates’ Court for offences that predominantly involved the use of a motor vehicle. On 24 September 2014, you appeared at Sunshine Magistrates' Court, charged with a number of offences, including possess a general category handgun without a licence and carrying a loaded firearm in a public place. You were sentenced to six months’ imprisonment of each charge. On 14 November 2014, you again appeared at the Sunshine Court, charged with prohibited person possess a firearm, possess cartridge ammunition without a licence or permit, possess GHB and commit an indictable offence whilst on bail. You were sentenced to an aggregate six months’ gaol, with two months concurrent with the sentence you were already undergoing. You were also placed on an
18 month community corrections order, with conditions that you undergo treatment for alcohol abuse and participate in behaviour change programs.
25 When you committed the current offences, you were on bail for aggravated burglary and assaulting a police officer in the due execution of his duty. I will talk about this matter in more detail a little later in these remarks.
26 Mr Salapura and Mr Spiteri, your respective criminal histories mean that the principles of specific deterrence and community protection are highly relevant sentencing considerations.
27 I now turn to the background matters relevant to each of you and the matters raised in mitigation.
Stevan Salapura
28 Dealing first with you, Mr Salapura. You were born on 2 May 1994. You are now 23 years old.
29
Your family circumstances were difficult and at times, traumatic. I was told that your father drank heavily and was violent to your mother and the four children. Your mother told Dr Evans, a consultant neuropsychologist, who assessed you on 26 September 2017, that there was a high degree of domestic violence within the family and that you and your brother were the target of verbal and physical aggression. When you were 12 years old, your mother left the relationship and became the sole supporter for the family. In sentencing you,
I do make allowance, in a general way, for the impact upon your life of the hardships you suffered in your early years.
30
As a child, you attended the Bacchus Marsh Primary School. You then went to a college in Melton for Year 7. You left that school and went to Caroline Springs Secondary College. You left that school at the end of Year 10. I was told that by that time, you had started using drugs. You worked as a concreter for four months, before moving to Queensland to live with a cousin. You did this to try and remove yourself from the use of drugs. You worked with your cousin in
a furniture factory for 12 months, before returning to Melbourne, where you obtained part-time work on the railways.
31 You have had a persistent and serious drug problem for some years. Your criminal history reveals a pattern of attempted rehabilitation, followed by periods of relapse and serious criminal offending. Efforts to support you within the community have, as I have already detailed, been unsuccessful.
32 Your counsel told me that you had initially done well on the community corrections order that I made in July 2015. The evidence supports that submission. You attended your initial appointment on 22 July 2015. You were referred to ACSO Coates for an initial assessment on 3 August 2015. You attended that appointment. Because you were, to all appearances, drug-free at that time, you were not recommended for further treatment. You were subject to urine analysis on 24 December 2015, which returned a negative result. You provided a mental health plan, as required, on 3 September 2015. You attended two appointments on the psychologist, who confirmed on 13 May 2016, that you were no longer required to undertake mental health treatment.
33
You were also referred to offender behaviour change programs on 18 August 2015. You were found suitable and placed on a waiting list. The Corrections report states that the commission of these offences made you unsuitable for such a program. I cannot help but note that, by the time the current offences were committed, you had been on the waiting list for some months. Finally,
I note that you attended the judicial monitoring hearing on 6 October 2015 when I was advised by Community Corrections that no further monitoring was required.
34 I was told that the catalyst for your relapse into drug abuse and re-offending was an incident that occurred on 5 July 2016, when there was a home invasion at your grandmother’s house. You were living in her home at the time with your partner and young daughter. You were at work when the home invasion took place, but your partner and child were present at the house. Your partner’s car was stolen. As a consequence, you moved with your family to your mother’s home. I was told by your counsel, that because of this event, you became angry and frustrated and relapsed into the heavy use of amphetamines.
35 Whilst this is not a significant issue, I find it very difficult to accept the submission that you suddenly went from not using ice to a serious abuser of ice, within the course of five days. Indeed, the evidence from your partner was that there had been random occasions of drug usage before 5 July 2016. In this context, it is significant that the first failure to attend on your CCO occurred on 18 May 2016. This would seem to point to an earlier date for relapse.
36 I make a second point on this issue. Engaging in an aggravated burglary, five days after your wife and child were subject to such an event, reveals a telling lack of empathy for those who are the victims of such serious criminality. It is of no benefit to you to say that you were not thinking clearly because of the ice you had consumed. You knew from past experience what follows from your heavy use of ice, namely, you engage in serious criminal offending. In these circumstances, your drug usage at the time, offers no mitigation.
Matters in mitigation
37 There are some matters in mitigation. You did enter an early plea of guilty. It is an acceptance of responsibility and it is indicative of remorse. In addition, your plea has utilitarian benefit by saving the victims from the trauma of giving evidence and saving the community the cost involved in running a criminal trial. You will be given credit for all these matters.
38
As a result of the events on the night in question, you suffered serious
life-threatening injuries. You suffered blood loss that required a massive transfusion. You now suffer post-traumatic stress disorder. According to
Dr Evans, you demonstrate cognitive deficits, indicating an acquired brain injury that is most likely secondary “to the hypoxic events associated with (the) significant blood loss.” These deficits are described as, and I quote from Dr Evans' report, “Attentional (sic) and memory difficulties that are potentially further exacerbated by underlying mood disorder.” Even though you are the author of your own misfortune in this regard, your injuries serve as a reminder of and punishment for your criminal behaviour. I take this aspect of extra-curial punishment into account in moderation of sentence.
39
I also accept that at the age of 23, you are a relatively young man. The principle of rehabilitation should be given some weight. However, in the light of this serious offending and your history of previous breaches of the law, this is not
a paramount factor in your sentencing.
40
I am guarded about your prospects of rehabilitation. You have shown
a remarkable propensity to commit serious offences involving violence.
A common feature of your offending, is that you are armed with a firearm. In assessing your prospects, I cannot ignore the fact that past efforts to support you in the community have failed. Your ability to defeat your drug problem is compromised on every occasion by a relapse and further serious offending. This pattern has occurred whilst you have been in work and whilst you have had the support of your mother and in more recent times, your partner. This history does not auger well for your future efforts at rehabilitation.
41 I accept, of course, that a person is capable of change. You are still a young man. You have the benefit of ongoing support from your mother and your partner. They offer this support, even though you have let them down badly in the past. You say you are now firmly focused on addressing your drug problem and being a good father to your daughter. These are fine ambitions, but they have to be acted on. There is a ray of light that comes from your behaviour on remand. You have completed a number of beneficial courses and you have maintained a drug-free status. It can only be hoped that this positive progress can continue upon your eventual release from prison.
42 Finally, in determining your matter, I am required to apply the principle of totality. This means that in sentencing you for all these offences, I am required to ensure that the total sentence remains just and appropriate for the whole of your offending. I have taken care to avoid any double punishment in respect of the charges on the indictment.
Stephen Spiteri
43 Mr Spiteri, I now move to your background and matters in mitigation. You were born on 15 June 1991. Your mother and father are both alive and they are hardworking people. Your childhood was uneventful.
44 You completed Year 9 at Sunshine Secondary College and then commenced an apprenticeship in diesel mechanics with Winslow Plant Hire. You completed the apprenticeship in 2010 and remained with the company until 2011. Shortly thereafter, you were involved in a serious motorcycle accident, where you sustained a fractured skull and internal bleeding.
45 Your counsel told me that it was after this incident that you commenced to use drugs. Since then, your drug problem has exerted a powerful influence over your life.
46
As I have already said, your offending escalated in 2014, with an appearance on 24 August in that year, at the Melbourne Magistrates’ Court for offences that included dangerous driving while pursued by police, possess general category handgun and carrying a loaded firearm in a public place. You received
a sentence of imprisonment. On 14 November 2014, there was an appearance at the Sunshine Magistrates’ Court for offences that included prohibited person possess firearm and possess cartridge ammunition. You were sentenced to
a term of imprisonment, to be followed by an 18 month CCO, commencing on 6 September 2015. That order had conditions designed to address the personal factors that were said to lay behind your offending. The current offences were committed whilst on that CCO. This is an aggravating feature of this offending.
47 It is also significant that you were on bail when you committed the current offences.
48 On 12 February 2016, you were involved in an aggravated burglary at an address in Truganina. The purpose of the burglary was to steal a hydroponic crop. You were armed with a fully loaded handgun and you were initially remanded in custody on those matters.
49 On 16 March 2016, you were bailed for that offending. The bail had many conditions, including compliance with the Court Integrated Services Program, not to use a drug of dependence and a curfew condition between the hours of 9 pm and 5 am.
50 On 10 July 2016, you committed the current offences at 12.55 am.
51
On 12 July 2017, you were dealt with for the offences that occurred in
12 February 2016. Her Honour Judge Davis sentenced you on the aggravated burglary to four and a half years’ imprisonment. You were sentenced to three years on the charge of assaulting a police officer in the execution of his duty, of which 18 months was to be served cumulatively upon the sentence for the aggravated burglary. This made an effective sentence of six years’ imprisonment. Her Honour fixed a non-parole period of four years and declared 213 days pre-sentence detention. This represented the 33 days you spent in custody from 12 February 2016 and 16 March 2016, added to the 180 days from the date when your bail was revoked, which was 13 January 2017, and the date of Her Honour's sentence.
52 You are currently serving the sentence imposed by Judge Davis. Although this is not a prior conviction, it is a matter relevant to my sentence, because of the operation of the principle of totality. In today's case, I am required to consider the total sentence that would have been imposed, had all of the offences fallen for consideration on the same occasion. To help me in this task, I have read the sentencing remarks of Her Honour Judge Davis. In sentencing you, I am required to ensure that the total sentence I am impose is just and appropriate for all your offending. In addition, because all of the offences were unable to be dealt with at the one time, you have lost the opportunity for some concurrency as between the orders made on 12 July and the orders I make today. I take that into account in fixing your sentence. I have also taken care to avoid any double punishment in respect of the charges laid against you.
Matters in Mitigation
53 There are matters in mitigation. I accept that you entered an early plea of guilty. The plea is an acceptance of responsibility and it is indicative of remorse. In addition, it has utilitarian benefit by saving the victims from the trauma of giving evidence and saving the community the cost involved in running a criminal trial. You will be given credit for all these matters.
54
I also accept that at the age of 25, you are still a relatively young man and as
I said for your co-offender, the principle of rehabilitation should be given some weight. However, in the light of this serious offending and your history of previous breaches of the law, this is not a paramount factor in your sentencing.
55 I am also guarded about your prospects of rehabilitation. What I have said about Mr Salapura applies to you. You also have shown a remarkable propensity to commit serious offences. A common feature of your offending is that you were armed with a firearm. In assessing your prospects, I recognise that you, like your co-offender, have failed to take advantage of efforts made to support you in the community. Notwithstanding the strong support of your parents over the years, you have been unable to deal successfully with your drug problem and the consequent serious offending that arises out of that problem. So this past history does not auger well for your future efforts at rehabilitation. Clearly, your future depends upon you ceasing any involvement with drugs.
56 Whilst in custody, you have completed a number of courses, including a course on managing ice addiction. I was told that you were working as a billet and your counsel submitted that you are drug-free. A certificate from May 2017 supports that submission. I accept that you have strong family support. You have treated that support with disdain in the past. Notwithstanding that fact, your father is still prepared to support you in accommodation and in work upon your release from prison.
57 In assessing your culpability, I recognise that no allegation is made that your firearm was loaded, nor is it alleged that you produced the firearm at any time. If these matters reduce your culpability in comparison to Mr Salapura, the fact that you were on bail for an offence of aggravated burglary when you committed the current offences, operates to the opposite effect. In addition, Mr Salapura sustained extra-curial punishment, which moderates his sentence to a degree. Given these circumstances, I can see no reason why I should distinguish between either of you, as far as sentencing for the aggravated burglary is concerned. I have made a distinction between you in relation to the firearms offence that reflects Mr Salapura’s possession of a loaded firearm.
58 Mr Salapura, will you stand.
59
On the charges on the indictment, you will be sentenced to the following periods of imprisonment: Prohibited person possess a firearm, three years. Aggravated burglary, four and a half years. Recklessly cause serious injury,
five years.
60 On the related summary offence you are convicted and fined $2,500.
61 I find the contravention of community corrections order proved. The order is cancelled. You are sentenced to one months’ imprisonment on the contravention and I re-sentence you on the original offences. In doing so, I take account of the extent of your compliance with the order. On all the charges, you are sentenced to an aggregate imprisonment term of three months.
62
I order nine months of the sentence on Charge 1 on the indictment and
24 months of the sentence on Charge 2, be served cumulatively on each other and cumulatively upon the sentence on Charge 3.
63
This makes a total sentence of seven years' and nine months' imprisonment.
I fix a minimum term before you will be eligible for release on parole of five years and nine months.
64 I make a declaration that you have served 514 days pre-sentence detention.
65 Had you pleaded not guilty and been found guilty after trial, I would have sentenced you to a total effective sentence of ten years, with a minimum term of eight years.
66 I make the disposal and forfeiture orders sought by the crown.
67 You can be seated.
68 Mr Spiteri, will you please stand.
69 Mr Spiteri, on the charges on the indictment, you are sentenced to the following periods of imprisonment: Prohibited person possess firearm, two years’ and three months’ and aggravated burglary, four and a half years.
70 On the related summary offence of possess ammunition, convicted and fined $2,500. On the related summary offence of dealing with the proceeds of crime, six months’ imprisonment. And for the offence of breaching bail, two months’ imprisonment.
71 I order six months of the sentence on Charge 1 on the indictment be served cumulatively upon the sentence on Charge 2. This makes a total effective sentence of five years.
72 I direct that two and a half years of this sentence be served cumulatively upon the Judge Davis sentence. This makes a total effective sentence across the two matters, of eight and a half years.
73 You are currently serving the non-parole period imposed by Judge Davis.
74 Under s.14 of the Sentencing Act 1991, I am required to fix a new non-parole period. I fix a new non-parole period of six and a half years. I declare 187 days pre-sentence detention. Obviously, the declarations of pre-sentence detention made by Judge Davis also apply.
75 If you had pleaded not guilty and been found guilty after trial, I would have sentenced you to a total effective sentence on the current matters of seven and a half years’ imprisonment, with consequent adjustments to the total effective sentence across the two matters and I would have set a new non-parole period.
76 I make the disposal and forfeiture orders sought by the Crown.
77 Are there any other matters, Mr Nankin?
78 MR NANKIN: No, Your Honour.
79 HIS HONOUR: No?
80 MS KOTHRAKIS: As Your Honour pleases
81 HIS HONOUR: Thank you.
82 MS VARDI: As Your Honour pleases
83 HIS HONOUR: Yes, well the prisoners can be removed, thank you.
84 I will just sign those orders, Mr Nankin, now.
85 MR NANKIN: Thank you, Your Honour.
- - -
2
0
0