Director of Public Prosecutions v Salmi

[2019] VCC 1026

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-00013

DIRECTOR OF PUBLIC PROSECUTIONS

v

KEN SALMI

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	22 May 2019
DATE OF SENTENCE:	9 July 2019
CASE MAY BE CITED AS:	DPP v SALMI
MEDIUM NEUTRAL CITATION:	[2019] VCC 1026

REASONS FOR SENTENCE
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Subject:   Home invasion
Sentence:  6 years imprisonment, non parole 4 years.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Raimondo
For the Accused	Ms K. Kothrakis (For Plea) Ms J. Clothier (For Sentence)

HIS HONOUR:

1You have pleaded guilty to one charge of Home Invasion.  The maximum penalty for this offence is imprisonment for 25 years.  You also pleaded guilty to one charge of theft for which the maximum penalty is imprisonment for
10 years, and one charge of Arson for which the maximum penalty is imprisonment for 15 years.

2The circumstances of your offending are contained in a Summary of prosecution Opening dated 30 April 2019 which was read to the court by the prosecutor Mr Raimondo.  Your counsel Ms Kothrakis agreed that the prosecution summary was accurate and forms a proper factual basis upon which I can proceed to sentence you for these crimes.  In those circumstances it is not necessary that I here repeat in detail all the circumstances of your offending and will do so only in an abbreviated way.

3At the time of the offending you were aged 41 years and you are now aged 42.  It is alleged for the purposes of the plea that you committed these offences with two co-accused.  The first is your former partner and the other is the former partner of your niece.  They are both contesting these charges.

4In the days leading up to the offending you were informed and believed that the complainant in this offending had been providing drugs to your niece.  The complainant lived in a converted shipping container that was located in a tip in the North Sunshine Industrial Estate.

5The complainant was in his house with an acquaintance when he observed you and your niece and an unidentified male approaching his house.  The unidentified male was holding a knife with about a 5 inch blade.  Before the complainant could lock his door you and the male person with you forced your way into his house acting aggressively and shouting ‘we are going to hurt you’.  You picked up a knife from within the house and waved it about.  You and the other male continued to act aggressively towards the complainant.

6You directed the complainant to sit down on the couch next to his acquaintance.  You said to her ‘what the fuck are you doing with this creep’ or words to like effect.  Whilst in the house the unidentified male that accompanied you began putting objects in his pockets and demanded the complainant give him his wallet.  He took $40.00 from the fridge and gave it to you.  You asked if there was more money in the house and again started waving the knife around.  You through it in the air and it got stuck in the ceiling.

7You then moved away from the complainant and when you did this he took the opportunity to run from the house leaving his acquaintance behind.  She called her boyfriend to come and pick her up.  The complainant called the police.

8Meanwhile you and your unidentified male accomplice stole a number of electrical tools and other equipment belonging to the complainant and placed these objects into the boot of a waiting car.  Before you left you set fire to the complainant’s house.  An explosion was observed to come from the house.  The house and its contents were destroyed.  The fire brigade was called to extinguish the fire.

9You were arrested on 3 October 2018.  You made a ‘no comment’ record of interview which is your right and you were released on bail.  I remanded you in custody for sentence on 22 May 2019.  You have been in custody by way of pre-sentence detention since that time a period of 48 days not including this day on which I pass sentence.

10This is clearly serious offending.  You may have thought you had a duty to take direct action in a vigilante fashion upon a person that you perceived to be a drug dealer.  In that sense you were misguided.  It explains to some extent why you acted as you did but it in no way excuses it.  Society would be lawless if it tolerated this kind of behaviour.  The community simply will not tolerate people such as you invading another person’s home in the company of others, using weapons to scare the occupants into complying with their demands, then stealing some of their property and then burning the house and contents before leaving. 

11Any sentence imposed for this kind of behaviour clearly must reflect proper application of general deterrence to deter others who might also seek to act in such a lawless way, appropriate denunciation, and in your case specific deterrence.  I must also have proper regard to your prospects for rehabilitation.

12I admitted into evidence a victim impact statement from the complainant.  Because of what you did he has lost everything he possessed.  His financial future is uncertain and he suffers from anxiety and depression.  That is understandable.  In passing sentence I have taken the contents of the victim impact statement into account as I must.

13When you pleaded guilty you admitted prior convictions in New South Wales.  You were first convicted in 1999 aged 23 on charges of breaking and entering two properties, theft, obtaining money by deception and receiving.  You were sentenced to periodic detention.  The following year you were again convicted of breaking and entering.  In 2002 you were convicted of drug offences related to bringing drugs into detention.  You have not re-offended for 16 years leading up to this offending which is to your credit.  I was told and accept that your prior convictions occurred in a context where you and your former partner were both abusing illicit drugs.  I accept that the evidence shows that at the time of this offending you had managed to rid yourself of drug use but you have continued to have a drinking problem with alcohol.

14You pleaded guilty at committal mention and the matter proceeded to this court by way of a straight hand-up brief.  I treat you as having pleaded guilty at the earliest available opportunity.  For that you are entitled to a reduction in sentence, and this will be reflected in the sentence that I will shortly pass.  By your pleas of guilty you have saved the time and costs of a criminal trial and you have acknowledged your responsibility for your offending and you have advanced the administration of justice.  In passing sentence I have taken all of this into account.

15Ms Kothrakis prepared a helpful written outline of submissions on your plea which I marked as Exhibit 1.  That outline sets out much of your background history.  After leaving High School you completed a four year apprenticeship as a motor mechanic.  It was at this time that you commenced using drugs and drinking to excess.  I accept you have been a good worker and you are good at your work.  At the time of this offending you had a good job in this field.

16At age 22 you formed a relationship with a woman who allegedly offended with you in these crimes although you had separated from her in 2010.  You both used drugs heavily and as I said earlier your prior offending occurred in that context.  There is a child, a son, of this relationship now aged 18 years.

17In 2010 your niece ran away from home aged 15 and was using drugs.  She lived with you for brief periods but was otherwise homeless.  Later she had three children between 2013 and 2017 two of whom were placed into the care of your mother with the mother of your niece Ms Hutton in 2018.

18You and others within the family were concerned about the on-going drug use of your niece.  You perceived that your niece was being supplied with drugs by the complainant in exchange for sexual favours from her, the complainant being a much older man.  This is what motivated you wrongly, and in a misguided way, to offend in this way.

19I received into evidence references from Ms Hutton, the mother of your niece, your mother Mrs Aino Salmi, and your partner of the last eight years Ms Walls.  All speak highly of you as a hard-working man and as a devoted family man. 
Ms Hutton describes your actions as a desperate act to try to help her daughter which got out of hand.  All the references acknowledge that you acted wrongly and each speaks of your remorse for your actions.  I accept that you are remorseful, that you have good family support and employment prospects as a motor mechanic once you are released.  In those circumstances I accept that your prospects for rehabilitation are reasonably good, but you must attend to resolving your on-going problems with alcohol.

20I received into evidence a psychological report from Dr Mathew Barth who saw you at the request of your solicitors on 8 April 2019.  Dr Barth also referred you for treatment to Geoffrey Burrows, a forensic counsellor who saw you over five sessions for anger management counselling.  I also received a report from Geoffrey Burrows. 

21Dr Barth carried out psychological testing of you and he concluded that you do not manifest any symptoms of psychological disorder and no diagnosis was rendered by him.  He also opined that there was no indication to suggest that you have previously suffered from the effects of such a condition.  In short, he evaluated your mental status as normal.  He noted your history of past drug abuse and your on-going issues with alcohol abuse for which he thought you will need on-going counselling. He thought you do display some features of an anti-social personality disorder.

22Ms Kothrakis acknowledged that the Sentencing Act 1991 provides that on conviction on a charge of Home Invasion I must impose a sentence of immediate imprisonment. The Act does not provide for a statutory minimum sentence. However, she submitted in all of the circumstances related to your offending and your background and your prospects for rehabilitation I should impose a term of imprisonment up to 12 months in combination with a Community Corrections Order.

23The prosecution submitted in all the circumstances of your offending, which it submitted was serious offending, such a disposition would not achieve the purposes of sentencing in this case.  The prosecution submitted I should impose a term of imprisonment and fix a non-parole period.

24I accept the prosecution submissions.  Your offending was serious.  You had no right to enter the complainant’s home as you did in company and to destroy it and its entire contents by fire.  If you had concerns about the complainant you should have called the police.  The sentence I impose must send a strong message to those who would seek to offend as you have that should they do so they can expect stern punishment.  The sentence imposed must also appropriately denounce your offending.  A term of imprisonment in combination with a Community Corrections Order in my judgment will not send that message.

25On Charge 1 home invasion you are convicted and sentenced to a term of imprisonment of two years.

26On Charge 2 theft you are convicted and sentenced to a term of imprisonment of three months.

27On Charge 3 Arson, you are convicted and sentenced to a term of imprisonment of five years.

28I direct that one year of the sentence imposed on Charge 1 cumulate upon the sentence imposed on Charge 3 making a total effective sentence of six years’ imprisonment.

29I direct you serve a minimum term of imprisonment of four years before being eligible for release on parole.

30I declare there has been 48 days pre-sentence detention under the sentences passed this day, and I direct that 48 days be reckoned as having been already served, be entered into the records of the court and be deducted administratively. For the purposes of the s.6AAA of the Sentencing Act 1991 I state that if it had not been for your pleas of guilty to the charges I would have imposed a total effective sentence of eight years with the minimum of six years before being eligible for parole.

31The prosecution seeks the making of a forensic sample order under s. 464ZF of the Crimes Act 1958. The making of that order was not opposed and for the reasons stated in the order I have signed it which means that whilst in custody you may be approached by a member of the police force and asked to provide a sample from your body. If you refuse the police may use reasonable force to obtain that sample.

32Is there any questions arising out of that?

33MS CLOTHIER:  No Your Honour

34HIS HONOUR:  Can you take Mr Salmi back into custody please.

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