Director of Public Prosecutions v Salberg

[2020] VCC 843

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-19-02198

DIRECTOR OF PUBLIC PROSECUTIONS

v

GREG SALBERG

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	3 June 2020
DATE OF SENTENCE:	12 June 2020
CASE MAY BE CITED AS:	DPP v Salberg
MEDIUM NEUTRAL CITATION:	[2020] VCC 843

REASONS FOR SENTENCE
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Subject:  Home invasion, Theft
Sentence:  15 months imprisonment

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms Ashleigh Harrold
For the Accused	Mr R. Bhattacharya

HIS HONOUR: 

1Greg Salberg, you have pleaded guilty to one charge of home invasion for which the maximum penalty is imprisonment for 25 years, and you have also pleaded guilty to a charge of theft for which the maximum penalty is imprisonment for ten years.

2Further, at the time you pleaded guilty you admitted a number of prior convictions, and you pleaded guilty to a related summary offence of assault for which the maximum penalty is imprisonment for three months.  Through your counsel you agreed to having the summary charge dealt with me by me in this court. 

3The circumstances of your offending are summarised, in an agreed summary of prosecution opening dated 2 June 2020.  That document was read in open court by the prosecutor and your counsel agreed that it was accurate for the purposes of sentencing.  In those circumstances it is not necessary that I hear again set out a full factual matrix, and I do so only in an abbreviated way.  These sentencing remarks should however be read in conjunction with what is set out in the summary of prosecution opening which I marked as Exhibit A on the plea.

4At about 5.45 on the morning of 18 April 2019, you and two other co-offenders, went to the home of the victim. At the time you were a young offender aged 21 years.  You are now aged 22 years.  You are to be regarded as a youthful offender for the purposes of sentencing.

5You and your two co-offenders found yourselves walking past the home of the victim in Echuca.  You were aware that one of your group had in his possession a knife.  The prosecution appropriately concedes that you did not have the knife in your possession.  Someone in your group suggested that you all go into the house of the victim, who was known to you and one of the other co-offenders.  Your purpose was to steal from the victim.

6The three of you entered the victim's home whilst he was asleep in his bed.  And once inside you went to the bedroom of the victim.  The victim soon after woke up to see the three of you in his bedroom, with one of your group holding out a knife.  You and one of your co-offenders spoke to the victim.  Your co-offender said 'I don't want to hurt you, we just want your stuff.  If you call the cops we'll come back and kill you.'

7When the victim responded you told him to 'shut the fuck up'.  The victim fled from the house and you and your co-offenders stole an iPhone and his wallet containing $150.  The three of you returned to the address where you had been socialising earlier in the evening.  You were soon after located by the police and charged.  When interviewed you were generally cooperative with the police.  You were remanded in custody and you have served 422 days pre-sentence detention.  You were originally charged with aggravated home invasion but after a series of mentions the charges were resolved into the charges that you have now pleaded guilty to.

8For the purposes of sentencing I treat you as having pleaded guilty at the earliest opportunity, for that you are entitled to and will receive a reduced sentence, which will be reflected in the sentence that I will shortly pass.  Because you have pleaded guilty you have saved the time and cost of a trial and you have accepted responsibility for your offending, and you have advanced the administration of justice.  I also treat your pleas of guilty as reflecting your genuine remorse for your crimes.  I have taken all this into account in passing sentencing.

9Your offending is serious because it involved entering the home of a victim in the early hours of the morning whilst he was asleep, and entitled to feel safe in his own home.  You were accompanied by others and your intent was to steal.  I accept that the offending was towards the lower end of the range for this kind of offending, it was unplanned and relatively unsophisticated, and no attempt at disguise was made by anyone. 

10However, a weapon was produced and the victim threated with it.  I accept the prosecution concedes that you did not use the weapon.  The summary assault charge as against you is on the basis that you were complicit in the offending with others who threated the victim.

11Because this kind of offending is so serious, sentencing for this kind of offending almost always requires proper application of the sentencing principles of deterrence, here both general and specific, denunciation and protection of the public.  I must also have regard to your personal circumstances and background and your prospects for rehabilitation. 

12Further, Charge 1 of home invasion is a category 2 offence, for the purposes of the Sentencing Act 1991. Pursuant to s.5 sub-s.2H of the Act, a custodial sentence must be imposed on this charge except in certain circumstances. Your background history which I shall shortly turn to, reveals matters that the prosecution properly concedes may enliven one or other of the exceptions in s.52H of the Act. Because of those matters and because you have served 422 days imprisonment already, and because you are still a youthful offender, I have decided here that the appropriate disposition is to impose a straight sentence of imprisonment upon you and I will not fix a non-parole period, and neither will I impose a community corrections order.

13I am of the opinion that a straight sentence of imprisonment that I will impose will properly address all the purposes of sentencing in this case.  Having regard to the evidence that I have formed the opinion your offending occurred in part because of your impaired mental functioning, and that I should, for sentencing purposes, regard your moral culpability as having been reduced.

14I referred earlier to your prior convictions.  You have previously been dealt with by the Magistrates' Court for a number of offences from four previous appearances, and you have also been before the Children's Court.  You have prior convictions for acts of violence and threatening violence, criminal damage, aggravated burglary, dishonesty, drug and driving offences.  In the past you have been given non-custodial dispositions.  This is your first time in custody.

15On 25 June 2018, you were dealt with for breach of a community corrections order which was varied to continue until 5 May 2019.  This offending occurred whilst you were still subject of that community corrections order which is an aggravating feature of your offending.  Your counsel filed with the court a very helpful outline of his submissions which I have marked as Exhibit 1 on the plea. 

16He also filed a very lengthy neuro-psychological report from  Professor Warrick Brewer dated 1 June 2020 which I marked as Exhibit 2.  That is a very detailed and helpful report, which makes clear that you need support outside of prison.  The kind of support that you need is detailed in paragraph 46 of
Professor Brewer's report, that level of report would not be available on a community corrections order from Corrections Victoria.  This is why I have not entertained a combination sentence which your counsel submitted that I should impose.

17In my view, the sentencing of you has been complicated because you have served so long by way of pre-sentence detention.  Your counsel conceded the seriousness of your offending, he relied upon a number of factors in mitigation, much of your background is outlined in Professor Brewer's report, your counsel properly described you as a profoundly disadvantaged young man evidenced from the following matters.

18You were sexually abused by your mother's partner at age 5.  You witnessed family violence in the home perpetrated against your mother.  You engaged in violence yourself against your mother.  You have used drugs from an early age, cannabis at nine, methamphetamine by 12, and heroin by 14.  You were involved in a serious motor vehicle accident at age 17 as a result of which you incurred an acquired brain injury.  You had no contact with your father until you were aged 18, and no further education beyond year 7. 

19You have some work history, having performed work in concreting, lawn-mowing, brick laying, cabinet making.  You have two sons, Corey aged two and Jackson aged one.  You are supported by a disability pension, as a result of the injuries sustained by you in the motor vehicle accident.  In passing sentence I have taken into account your profoundly disadvantaged background as I must. 

20Your counsel told me and I accept that you were living a fairly transient existence in the year prior to the offending.  You resided in Sunshine and then Woodend and then Echuca.  In Echuca you resided for some time with the mother of your children, sorry the mother of your youngest child.  However this accommodation broke down and you were homeless at the time of the incident.

21You had completed a detox session as a result of this community corrections order that you were on at the time of the offending.  You instructed your counsel and I accept that at the time of the offending you were abstaining from drugs.  About a month prior to the offending you had reconnected with Ms Ethel Melin, she is the mother of your other child, and with whom you had previously been in a long term relationship.  I was told and accept that when released from prison it is anticipated that you will reside with her in Kyneton.

22Professor Brewer's report makes it clear that you have a number of psychiatric and psychological problems.  At paragraph 42 he makes it clear that you have an acquired brain injury, suffered from intellectual disability and post-traumatic stress disorder as a result of circumstances and events that occurred in your upbringing.

23This offending occurred with two others.  One of the other offenders was also an adult, Mr Pegorari has been dealt with in the Magistrates' Court, he had no prior convictions and received a community corrections order for this offending.  The other co-offender was aged 15 and dealt with in the Children's Court. 

24In my judgment and having regard to the nature of the offending and your relative youth and your level of cognitive functioning at the time of this offending and your background, the sentencing in this matter, which requires some leniency, in my view your moral culpability for this offending is somewhat reduced.

25One of the factors that comes through from the report of Professor Brewer, is that you need a high level of assistance outside of a prison setting, no matter what sentence is passed here, your prospects for rehabilitation must be regarded, or should be regarded, that is because you require a high level of assistance, as I said earlier both psychiatrically and psychologically, and you need that from a number of different agencies.

26In my judgment, the only way that you will get proper assistance in that regard is to get you out of the prison system, at the earliest opportunity.  Having said that this is serious offending, although as I say I regard your moral culpability for it as being somewhat reduced.

27On Charge 1 of home invasion you will be convicted and sentenced to a term of imprisonment of 15 months.  On Charge 2, theft, you will be convicted and sentenced to a term of imprisonment of three months.  On the summary charge of assault, you are convicted and discharged.

28I have deliberately not fixed a non-parole period pursuant to s.11 of the Sentencing Act, because I am of the opinion in all the circumstances, it is inappropriate to do so. I declare that there has been 422 days pre-sentence detention relating to the sentences passed this day and direct that 422 days be reckoned as having been already served, be entered into the records of the court and be deducted administratively.

29For the purposes of s.6AAA of the Sentencing Act (1991) had it not been for your pleas of guilty to the charges I would have passed a total effective sentence of three and a half years and direct that you serve the minimum term of two years before being eligible for release on parole.

30Are there any questions arising out of that?

31MR BHATTACHARYA:  I'm sorry, Your Honour, if I can just confirm, the sentence for attempt was that concurrent with the sentence for a home invasion?

32HIS HONOUR:  I'm sorry?

33MR BHATTACHARYA:  The sentence for Charge 2, was that concurrent with the sentence for Charge 1?

34HIS HONOUR:  Yes.  The provisions of the Act will take care of that.

35MR BHATTACHARYA:  Yes, thank you, Your Honour.

36MR FISHER:  Just one matter, Your Honour, my instructions are that the pre-sentence detention sits at 421 days, not including today, but I might just try - just double check that.

37HIS HONOUR:  I thought it ‑ ‑ ‑

38MR FISHER:  I understood it was 411 days as at the date of the plea on 3 June.

39HIS HONOUR:  No, I think it was ‑ ‑ ‑

40MR BHATTACHARYA:  412 days was my calculation, Your Honour.

41HIS HONOUR:  Yes, it was 412 days as at the plea, and there
has been ten days since then I think.

42MR FISHER:  Yes, all right.

43HIS HONOUR:  And there has been ten days since then I think.

44MR FISHER:  Yes, it was 412, then Your Honour is correct, it is 422.

45HIS HONOUR:  Thank you.  No other matters.

46MR FISHER:  Thanks.

47HIS HONOUR:  Thanks, Mr Fisher.

48MR FISHER:  Thanks, Your Honour.  Thank you.

49HIS HONOUR:  Thank you, Mr Bhattacharya.

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