Director of Public Prosecutions v Scerri, Luke
[2013] VCC 336
•25 March 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-12-01928
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LUKE SCERRI |
---
JUDGE: | HIS HONOUR JUDGE PUNSHON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 March 2013 | |
DATE OF SENTENCE: | 25 March 2013 | |
CASE MAY BE CITED AS: | DPP v Scerri, Luke | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 336 | |
REASONS FOR SENTENCE
---
Subject: Aggravated Burglary, Theft, Recklessly causing injury.
Catchwords:
Legislation Cited:
Cases Cited:
Sentence: Total effective sentence of 32 months. Partially suspended. All but 275
days, which equates to PSD, suspended for 2 years.
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr N. Goodfellow | |
| For the Accused | Ms N. Smith |
HIS HONOUR:
1 Luke Scerri, you have pleaded guilty to one charge of aggravated burglary, one charge of theft and one charge of recklessly causing injury.
2 The offending occurred on 6 August 2009 when you and your co-offender, Rebecca Parker, spontaneously went to the home of her uncle, entered his premises as trespassers intending to assault him, he was assaulted and items were stolen from him. The motivation for the offending was to punish the victim for the way he had treated relatives of Ms Parker. You punched the victim 5 or 6 times in the head causing soreness to the facial area. You did this after the victim touched Ms Parker and asked her to leave. The items stolen consisted of cigarettes, loose change and port.
3 The victim was a vulnerable, partially deaf, 42 year old man. You were 28 at the time and Ms Parker was 29.
4 A Victim Impact Statement was tendered. The victim understandably suffered considerable anxiety and fear as a result of your actions.
5 On 15 April 2010 I sentenced Ms Parker to a total effective term of 2 years imprisonment, wholly suspended for 2 years and released her on a CBO. She undertook to assist the authorities and give evidence against you.
6 She fulfilled this undertaking in October last year when you were committed to stand trial.
7 Plea negotiations soon after resulted in your pleas of guilty to the current charges, which were entered at the first Directions Hearing in this court. You must benefit from these pleas. They have utilitarian benefits for the administration of justice.
8 You were interviewed for the current matters whilst in custody for unrelated offending. You declined to answer questions. You have spent time in custody for the current offending. This consists of 37 days from 7 December 2009 until bailed on 12 January 2010 as well as the period from your re-arrest in July 2012. In February 2010 you fled interstate after being assaulted and stabbed by offenders who had committed offences against Ms Parker in July 2009. As just noted you were re-arrested in July 2012 and have been in custody since.
9 You have a criminal history including prior convictions for violence, dishonesty as well as burglary and aggravated burglary. You have been previously imprisoned however the longest previous sentence was for 6 months.
10 You will turn 32 in May. You had a difficult and disadvantaged upbringing. Your education was limited. You were homeless at 14 and homelessness has been a feature of your life.
11 A psychological report from Warren Simmons was tendered. It details your personal history including your history of relationships with women, your drug and alcohol history. Mr Simmons stated that you do not appear to have a significant pattern of ongoing antisocial behaviour despite the fact that you have been previously imprisoned on three occasions. He noted the part played by alcohol in these previous offences and its role in the current offending.
12 Mr Simmons considered that you would benefit from ongoing drug and alcohol counselling.
13 Material from Roma House in Queensland and confirmation of your participation in its Bush Adventure Therapy program, ‘Wild Earth Adventures’ was tendered.
14 You were a resident of Roma House from mid 2011 until early 2012 and then participated in the Therapy program just referred to until your arrest in July 2012 and extradition to Victoria. You have made the most of your time in custody completing rehabilitative programs and remaining drug and alcohol free. Your rehabilitative efforts are highly commendable and should be encouraged.
15 You wrote to the Court. You accept full responsibility for your offending and expressed your remorse. I am impressed by the contents of your well written letter. Your slightly older sister, who has mental health skills, attended court and will provide temporary accommodation and support to you on your release from prison. You plan to return to Roma House in Queensland as soon as arrangements can be made. I accept, as Mr Simmons noted, that you have the capacity to maintain employment and perhaps complete the apprenticeship you began. You have no pending criminal charges.
16 A considerable passage of time has passed since the offending. Delay is your fault but you have used the time to make very commendable progress.
17 The prosecution submitted that a total effective term of up to 3 years imprisonment should be imposed. Your counsel did not argue against this but submitted that I should partially suspend the sentence to permit your immediate release. The prosecution accepted that the time you have served to date for the current offending would be sufficient as the period to be served immediately.
18 As noted in discussion this makes good sense to me.
19 It was accepted by both parties that it was open to me to impose an aggregate sentence.
20 I intend to do so.
21 You will be convicted of all three charges and sentenced to an aggregate term of 2 years and 8 months imprisonment, that is 32 months. This sentence is to be suspended but for 275 days, this equates to about 9 months in round terms.
22 I declare that you have served 275 days, not including today, by way of pre-sentence detention and that this period is to be reckoned as time already served under the sentence I have imposed. That means that you have completed the time required to be served immediately and are now to be released.
23 Had you not pleaded guilty I expect I would have sentenced you to about 42 months imprisonment with a non-parole period of about 21 months.
24 I am sure your counsel will confirm and explain to you that if you commit another offence during the operable period of suspension which I fix as 2 years you will be required to return to the court and may have to serve the suspended period in custody.
25 All right, anything I have overlooked or got wrong that counsel can identify?
26 MR GOODFELLOW: Yes. I am just not entirely sure about the operation of the law in relation to the period in which the sentence is suspended for.
27 HIS HONOUR: Yes. No, I think that is right. Do you think it might have to be suspended for the period of the totality of the sentence?
28 MR GOODFELLOW: That is correct, Your Honour. I think s.27(2A).
29 HIS HONOUR: Let me have a look. The length of the suspended term of imprisonment, I would have thought referred to the term that was being held in suspension, which in round terms here is less than two years. The other interpretation would be, as you were expressing some caution about, 32 months would make a great deal of sense to me.
30 MR GOODFELLOW: No, Your Honour.
31 HIS HONOUR: But I want to get it right so should we check that?
32 MR GOODFELLOW: Perhaps - I tend to agree with Your Honour's initial assessment but I think perhaps we can, just to be sure, look into that.
33 HIS HONOUR: I think it is safer if we check it. I think the term in ss.2A(b), referring to the length of the suspended term of imprisonment, refers to the period that is held in suspension.
34 MR GOODFELLOW: Yes, Your Honour.
35 HIS HONOUR: But let us check it.
36 MR GOODFELLOW: Yes, Your Honour.
37 HIS HONOUR: We will come back at - 2.15 enough time?
38 MR GOODFELLOW: Yes, Your Honour, we will be here.
39 HIS HONOUR: That means you will have to remain in custody until 2.15 so that we make sure we get this correct. Ordinarily people consent to remaining in custody until the paperwork is completed, which would ordinarily mean you would be required to go downstairs and be released from downstairs, but you will be released as soon after 2.15 as possible, okay. We will come back at 2.15. Just check that - this is not a serious offence as well. I meant to check that to ensure that the aggregate sentencing provisions are open but I am pretty confident that none of these offences are serious offences and barred by s.9.
40 MR GOODFELLOW: Yes, Your Honour.
41 HIS HONOUR: I will see you at 2.15.
42 MR GOODFELLOW: Thank you, Your Honour.
43 (Short adjournment.)
44 HIS HONOUR: Sorry for the delay. What is the answer?
45 MR GOODFELLOW: Not at all, Your Honour. Both within the parties and my instructor has consulted - - -
46 HIS HONOUR: Let us have that again?
47 MR GOODFELLOW: Within the parties we do not think there is an issue. So as the sentence as Your Honour has stated is fine, does not fall in violation of the Act.
48 HIS HONOUR: Has someone checked that with your instructors?
49 MR GOODFELLOW: My instructor has consulted a much higher authority and he has also confirmed that - - -
50 HIS HONOUR: Higher, much higher.
51 MR GOODFELLOW: It will probably as high as we can go.
52 HIS HONOUR: I did too. I spoke to another judge that I regard very highly and he was of the same view as well. It makes sense.
53 MR GOODFELLOW: It does, Your Honour.
54 HIS HONOUR: Because I thought at one stage that it might mean for the entire period of the total sentence, because usually, or very commonly, an accused might have no PSD but on reflection, it would be fair, I think, for the time in custody in those circumstances to count as part of the period in which the suspended sentence was running, because it is tempting to think well, it only applies when someone is out of custody but of course you can commit offences and breach the partially suspended sentence when you are in custody, in any event, and the terms of the section seem to me to suggest the interpretation we have all agreed upon is correct. I am pretty confident I have done that previously as well and without consequence. So then I need to do nothing more, do I? I am right about the aggregate sentence as well, am I not?
55 MR GOODFELLOW: Yes, Your Honour. That is correct, Your Honour. Yes, the serious offender provisions do not apply.
56 HIS HONOUR: All right. None of these sentencing remarks need to be - none of this discussion needs to be part of the sentence.
57 MR GOODFELLOW: No, no.
58 HIS HONOUR: And that is all I need to do.
59 MR GOODFELLOW: Yes, Your Honour.
60 HIS HONOUR: Okay, thank you both for your help, and I think the protocol, Mr Scerri, is for you to go with the prison officer. They need to complete their paperwork. I am not sure whether that is absolutely compulsory or not but most people follow that course so once the paperwork is completed I am sure you will be able to leave. So if there is any issue let me know.
---
0
0
0