Director of Public Prosecutions v Schembri
[2022] VCC 1941
•8 November 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT Melbourne
CRIMINAL DIVISION
CR-21-00519 & CR-22-01797
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RAYMOND SCHEMBRI |
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JUDGE: | HIS HONOUR JUDGE LAURITSEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 November 2022 | |
DATE OF SENTENCE: | 8 November 2022 | |
CASE MAY BE CITED AS: | DPP v Schembri | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1941 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Home invasion – intentionally causing injury – prohibited person possessing a firearm – handle stolen goods – possess drug of dependence – possess ammunition – two indictments – plea of guilty on one indictment following Sentence Indication hearing - lengthy criminal history – significant impact upon victim – all sentencing purposes engaged – relatively late pleas of guilty – totality principle considered
Legislation Cited: Sentencing Act 1991
Cases Cited: Worboyes v R [2021] VSCA 169
Sentence:Total effective sentence of four years' imprisonment with a non-parole period of two years and nine months' imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. O'Doherty | Office of Public Prosecutions |
| For the Accused | Mr L. Barker | Chris McLennan and Co |
HIS HONOUR:
1On 16 August 2022, I gave a sentence indication in relation to two charges: home invasion and causing injury intentionally. The indication was accepted. Since then, Mr Schembri has been charged with a further four charges: a charge of being a prohibited person possessing a firearm, a charge of handling stolen goods and two charges of possession of a drug of dependence.
2The maximum penalties for these offences are:
(a) home invasion - 25 years' imprisonment;
(b) intentionally causing injury - 10 years' imprisonment;
(c) prohibited person possessing a firearm - 10 years' imprisonment;
(d) handling stolen goods - 15 years' imprisonment;
(e) possession of a drug of dependence - in this instance five years' imprisonment; and,
(f) possession of ammunition – 40 penalty units.
Circumstances
3As to all of the charges, the circumstances are set out in the document entitled 'Prosecution opening on plea', which is Exhibit A.
4Before the events of 29 June 2020, Mr Schembri, and Kristian Gebhardt had known each other for about six months and saw each other very regularly.
5
Mr Schembri asked Mr Gebhardt to finish growing his cannabis plants, about
15 of them. He set up a hydroponic system at his home to do so. He had been growing these plants for about four weeks before Mr Schembri and he fell out.
6Between 13 and 29 June 2020, Mr Schembri and Mr Gebhardt exchanged text messages. Examples of Mr Schembri's messages are set out in paragraph 15 of Exhibit A. They are very threatening and one is an expression of incoherent rage.
7
At about 4.40 am on 29 June 2020, Mr Schembri and three others went to
Mr Gebhardt's home. Mr Schembri used a fire extinguisher to spray the front of his house. One of the group disconnected the power to the house. Two of the group smashed a kitchen window and entered the house. One of those two,
Ben Woolhouse, hit Mr Gebhardt on the head with a metal pole, injuring him.
Mr Gebhardt overpowered Mr Woolhouse and called out to Mr Schembri:
'Help me, Uncle'. Far from helping him, Mr Schembri entered the house and struck him on the head with a glass ashtray. Mr Schembri then discharged a can of oleoresin capsicum spray into his face. This caused Mr Gebhardt to stop resisting and Mr Schembri and the others fled from the house. These are the circumstances of the charges of home invasion and intentionally causing injury.
8On 21 July 2020, police members went to Mr Schembri's home. After a delay, they arrested Mr Schembri. They searched the home and found many things, including:
(a)
from Mr Schembri's bedroom, a black air gun, the subject of Charge 1 on the second indictment; a bag containing dried cannabis, weighing
301 grams (Charge 4); an airgun (part of Charge 1);
(b) in the garage, a small zip lock bag containing a crystal substance, which Mr Schembri agrees is methylamphetamine, the subject of Charge 3;
(c) in an outdoor covered area, a Honda electric generator, stolen from a motor vehicle in May of 2020; and
(d) also in the garage, a pouch containing .308 ammunition (this is the subject of Summary Charge 12).
9When interviewed that day, Mr Schembri denied going to Mr Gebhardt's home. He admitted sending text messages to Mr Gebhardt but denied they were threatening.
10
Through their investigations, including what Mr Schembri's co-accused,
Trent Draper, told them, the police had a strong case against Mr Schembri. This consideration bears upon the value of your pleas of guilty to the charges in the first indictment.
11Mr Schembri's counsel submitted, and was not challenged, the firearms were bought by Mr Schembri's partner for $8 for the amusement of her sons. Although capable of firing pellets, they fired gel caps. Mr Schembri stored the guns in his cupboard to remove them from the boys.
12As to the generator, Mr Schembri retained it on behalf of another. That consideration, frankly, is of little moment.
Victim impact statement
13Kristian Gebhardt made an impact statement on 31 January 2021. His statement is largely directed at someone other than you, your nephew.
14
Owing to the damage caused by Mr Schembri and the others to the house,
Mr Gebhardt was evicted from the house he had rented for more than
seven years. By 31 January 2021, he was living with friends and family and had lost the independence of living in his own home.
15The incident has destroyed his sense of peace. By 31 January, he was still unable to return to work as a boilermaker.
Criminal history
16
Between 1989 and 2015, Mr Schembri has appeared in a criminal court on
20 occasions and has been found guilty or convicted of 101 charges.
Mr Schembri has been sentenced to imprisonment, to unsuspended terms of imprisonment on eight occasions, suspended sentences of imprisonment on seven occasions and an intensive correction order on one occasion.
Mr Schembri's longest sentence of imprisonment was imposed on
12 November 2015, when he was sentenced to 22 months' imprisonment, with a non-parole period of 15 months' imprisonment. These sentences were imposed for offences of dishonesty, drug and traffic offences.
17Plainly, the sentencing purpose of specific deterrence is very important in sentencing Mr Schembri.
Personal
18Mr Schembri is now 51. He is the youngest of five children. He was born and raised in St Albans. He had a normal childhood, free from the dysfunction often seen in offenders in this and other courts.
19His father was born in Malta. He was a policeman there. After immigrating to Australia, he worked for many years at Taubmans Paint in Sunshine. In 2016, Mr Schembri’s father died. When Mr Mackinnon, the psychologist, interviewed him in November 2020, he was still grieving his death and saying, 'When I lost dad, I hit the drugs, started to lose everything'. Fortunately, his mother is still alive and he enjoys a close relationship with her.
Education and employment
20Mr Schembri was a difficult student in primary and secondary school. He completed Year 10. Leaving school at 16, he worked with his father at Taubmans Paint. At 19 he bought a house. After being injured at work, he received compensation and bought a property near Lake Eppalock.
21In 2011, he bought a farm in Daylesford and agisted up to 30 horses on it. However, he lost his feeling in his right hand and could not work the property, which was sold. He now owns land in Caroline Springs.
Substances
22He traces his drug abuse to the suicide of his partner when he was 30. He started smoking cannabis daily. With the death of his father, he added methylamphetamine. By the time of this offending, he was smoking 0.2 grams of methylamphetamine and two or three grams of cannabis daily. These drugs were used as a form of self-medication.
Psychologist
23Ian MacKinnon is a consultant psychologist. On 28 November 2020, he interviewed Mr Schembri at the request of his solicitors. This was in the context of a bail application.
24Mr Mackinnon considered Mr Schembri as being of average functional intelligence and cognitive functioning. He diagnosed Mr Schembri as suffering from two disorders: a polysubstance dependence disorder; and a mixed anxiety and depression disorder. The former he considered was in partial remission because of the risk of resurfacing following Mr Schembri's release from custody.
25
Mr Mackinnon took a history of a recent attempt at suicide and concluded
Mr Schembri was a high risk of committing suicide while remaining in custody.
The Cottage
26Mr Schembri has been assessed as suitable for admission to a 16-week residential drug rehabilitation programme run by The Cottage in Shepparton. A letter, dated 1 July 2022, describes the program in considerable detail.
27
For the purposes of the sentence indication, I was invited to grant Mr Schembri bail and defer sentencing. I rejected this invitation. I note the history of
Mr Schembri's drug usage recorded in the letter from The Cottage.
Discussion
28For Charge 4 on the indictment, L11740304, being possession of Cannabis L, the maximum penalty varies according to whether Mr Schembri satisfies me, on the balance of probabilities, the offence was not committed by him for any purpose relating to the trafficking of the drug.
29Mr Schembri's counsel submitted his possession was for personal use and not for any purpose related to trafficking. He submitted Mr Schembri was a heavy user of cannabis. However, no evidence was given. 301 grams of cannabis is a large amount and it sits uneasily with the proposition of possession for personal use. I am not satisfied Mr Schembri's possession was not for any purposes related to the trafficking of that drug. Accordingly, the maximum penalty is a fine of 400 penalty units or imprisonment for five years or both.
Purposes of sentencing
30Section 5(1) of the Sentencing Act 1991 (the Sentencing Act) sets out the purposes for which sentences may be imposed:
(a) to punish the offender to the extent and in a manner which is just in all of the circumstances;
(b) to deter the offender or other persons from committing offences of the same or a similar character;
(c) to establish conditions within which it is considered that the offender's rehabilitation may be facilitated;
(d) to manifest the denunciation of the type of conduct the offender engaged in; and
(e) to protect the community from the offender.
31The offences on each indictment, and the summary offence, are frequently seen in this and the Magistrates' Court. Just punishment, general deterrence and denunciation are important sentencing considerations. Mr Schembri's criminal history emphasises the need to deter him from committing these or similar offences. It also points to the need to protect the community from him.
32Section 5(2) of the Sentencing Act sets out matters, where relevant, which should be taken into account in sentencing Mr Schembri.
Gravity
33The offences on the two charges on Indictment C20113741.1 are significant examples of serious offences. Mr Schembri’s culpability for both is high.
Guilty plea
34In relation to all of the charges, in terms of the timing of his pleas of guilty, they were entered at a reasonably late stage in the proceeding, where the proceeding starts with the laying of the charge against him and could end in a trial.
35By pleading guilty to the charges, Mr Schembri has avoided a trial. This saves the time and expense of a trial. Mr Schembri has allowed other trials to be listed earlier than would otherwise be the case. He has spared a large number of witnesses the burden of giving evidence in a trial. Giving evidence is never easy. This would especially be the case for the victim, Mr Gebhardt.
36At the present time, pleas of guilty deserve a greater discount on sentence. Why this was so was explained in the case of Worboyes v R[1] where the Court said:
‘As is abundantly clear, one of the pernicious effects of the current pandemic is that the lists of the criminal courts in this State have become severely congested. Unacceptable delay in the disposition of criminal cases is endemic. Indeed, it is not an overstatement to say that the system of criminal justice in this State is in crisis, requiring a response from the courts. We therefore consider that, whilst the courts of this State continue to labour under the adverse effects of the pandemic, a sentencing court should view a plea of guilty as carrying with it a greater utilitarian benefit than at other times and in other circumstances, and, concomitantly, as attracting an augmented mitigatory effect on sentence, simply because the plea will benefit the beleaguered administration of justice. Given the unhappy state of the courts’ lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead. Such encouragement must come from an actual and palpable amelioration of sentence.’
[1] [2021] VSCA 169 at [35]
COVID-19
37
Mr Schembri's time on remand has been almost entirely spent during the restrictions caused by the pandemic. It is common knowledge that prisons and remand facilities have introduced measures severely limiting the ability of persons in custody to move around the facility, to receive visits from family and friends, and to attend education and other programmes. In other words,
Mr Schembri's time in custody has been more onerous than would be the case if it were not a time of pandemic.
Totality
38
Normally, one would make some of the sentences on the second indictment cumulative upon the sentences in the first indictment. However, the application of the principle of totality leads me not to do so. I am conscious of
Mr Mackinnon's assessment of Mr Schembri's unstable psychological state and of his suicidal tendency, even though that assessment was made in late 2020.
Sentence
39With Indictment C20113741.1:
(a) on Charge 1, a charge of home invasion, I sentence Mr Schembri to three years and nine months' imprisonment;
(b)
on Charge 2, a charge of causing injury intentionally, I sentence
Mr Schembri to nine months' imprisonment.
40The base sentence is the sentence on Charge 1. Three months of the sentence on Charge 2 is to be served cumulatively upon the base sentence.
41With Indictment L11740304:
(a) on Charge 1, a charge of a prohibited person possessing a firearm, I sentence Mr Schembri to a fine of $250;
(b) on Charge 2, a charge of handling stolen goods, I sentence Mr Schembri to one month's imprisonment;
(c) on Charge 3, a charge of possession of a drug of dependence, being methylamphetamine, I sentence Mr Schembri to a fine of $250;
(d) on Charge 4, a charge of possessing a drug of dependence, being cannabis L, I sentence Mr Schembri to three months' imprisonment.
(e)
on the Summary Charge 12, possessing cartridge ammunition, I sentence
Mr Schembri to a fine of $250.
42The sentences of imprisonment will be served concurrently with each other and with the sentences imposed on the Indictment C20113741.1.
43The total effective sentence is four years' imprisonment. I will set a non-parole period of two years and nine months' imprisonment.
44Mr Schembri was arrested on 21 July 2020 and has been in custody since then. Excluding today, that represents 840 days. However, 69 of those days were used to satisfy another sentence. Accordingly, I declare 771 days of his pre‑sentence detention as time served under my sentences.
45I will refer the collection of the fines-to-Fines Victoria.
Forfeiture and Disposal orders
46I will make the forfeiture orders and the disposal order in the terms of the draft orders.
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