Director of Public Prosecutions v Schembri
[2021] VCC 464
•22 April 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 17-01804
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JASON SCHEMBRI |
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JUDGE: | HIS HONOUR JUDGE MURPHY |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 22 -26 March 2021, 29 March 2021 |
DATE OF SENTENCE: | 22 April 2021 |
CASE MAY BE CITED AS: | DPP v SCHEMBRI |
MEDIUM NEUTRAL CITATION: | [2021] VCC 464 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – Aggravated Burglary – Armed with intent – Assault – Threat to property – Criminal damage.
Catchwords:
Legislation Cited:
Cases Cited: DPP v Meyers [2014] VSCA 314
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr S. Lee | Ms L. Watson |
For the Accused | Mr A. Bates | Ms J. Knox |
HIS HONOUR:
1Jason Schembri, after a short trial, you were found guilty of the offences of aggravated burglary, maximum penalty 25 years' imprisonment; two counts of damaging property, maximum penalty 10 years' imprisonment; and one count of making a threat to damage property, maximum penalty five years' imprisonment. You were found not guilty of one charge of intentionally or alternatively recklessly causing injury.
2I am required to sentence you consistently with the jury verdicts.
The circumstances of the offending
3The offending occurred at a residential address in Carrum Downs on 21 May 2016. The tenant of the address was the complainant, Ms Tarrant. For a period of about two years prior to the events, you had been involved in a relationship with Ms Tarrant. You had been living at the property with her. There was some dispute as to whether you were contributing to the rent. Also living at the property was her now deceased son, Mr Rhys Tarrant. You were 32 at the time, she was around 47, Rhys was about 22.
4About six weeks prior to 21 May 2016, the relationship between you and the complainant broke down. You moved out of the property and moved in with another woman in a nearby suburb, Skye. You took your belongings from the property. You left some children's clothes. They were packed up by Ms Tarrant and she sent you a text message, inviting you to collect them.
5There was inconsistent evidence as to whether she changed the locks at that point.
6In the period from when you moved out to 21 May, you continued in a form of relationship with Ms Tarrant. She contacted you via text message on 6 May and you later met. You also met for a sexual assignation on or about 13 May. In addition, the two of you travelled to Dandenong to obtain some tyres for a vehicle and you dropped her back at the property after that.
7Around this time, another gentlemen, Mr Presnell, moved into the property. At some stage prior to 21 May, your vehicle was stolen from your new address. Ms Tarrant and Mr Presnell had obtained a key to your Holden station wagon from your former boss. You were of the opinion that Ms Tarrant and/or her son and/or Mr Presnell had some involvement in the theft of the vehicle and you sought return of the vehicle. You sent a text message to Ms Tarrant on 17 May seeking return of the vehicle. On 19 May, you were texted by Mr Presnell, suggesting that you speak to Mr Tarrant about the spare key. You then texted him and told him that he had until the following morning to return the vehicle or you will 'Cause havoc on your family, dog. I swear, dog, I will not stop 'til you are found.'
8By 21 May, you had not recovered the vehicle.
9On that morning, you were at your address in Skye. CCTV footage records you leaving the address carrying an axe and a baseball bat and driving a vehicle. You drove to the Cadles Road, Carrum Downs address. CCTV footage shows that you parked the vehicle at the back of the property in an adjoining cul-de-sac. Mr Tarrant gave evidence that he heard a noise at the back fence and then the sliding door opening.
10Mr Tarrant's evidence was that he emerged from his bedroom and was confronted by you, at about 9.30 am, with you holding a baseball bat and an axe. You then accused him of having the spare car key. His account was that you hit him on the left knee with the baseball bat. He denied having the key and you then hit him on the right thigh. You were screaming and then you plunged the axe into the coffee table. You told him to get outside and asked him where his mother was. The jury acquitted you on the charge of intentionally or recklessly causing injury to Mr Tarrant. You admitted however, to hitting him on the right thigh with the baseball bat, which was not the subject of a charge.
11He left the room and exited the property over the back fence. Your entry into the property was as a trespasser and you were armed with an intent to assault. This is the charge of aggravated burglary.
12You then entered Ms Tarrant's bedroom. She was asleep and woke to find you at the end of the bed, holding an axe over her dog's head and threatening to chop his head off. You told her 'If I found out you've had anything to do with my car, I'll chop your dog's head off and then I'll get you.' You then smashed the axe into the bedroom door and left.
13These events constitute the charges of making a threat to damage property, namely the dog, and damaging the property, the door.
14After the event in the bedroom, you left the premises by the back door and returned to where you living in Skye. CCTV footage shows that the duration of your departure from your address in Skye to the return was 19 minutes and it is a short distance.
15A couple of hours later, Ms Tarrant reported the matter to police and you were subsequently arrested and in the record of interview you gave, you denied that you had attended the property that morning.
16Subsequently, in your defence response to the prosecution opening, you admitted that you had attended the property. You denied that when you entered the property, you had any intention to assault any person and that you had a belief that you had a legal right to enter the property.
17During the trial, your defence remained that you were either a tenant of the property or that you had a reasonable belief that you were a tenant of the property or a co-tenant of the property and thus were not a trespasser. The jury must be taken to have rejected this defence and found you entered as a trespasser or without any belief that you had a right to enter.
18The jury must be taken to have not accepted Mr Tarrant's evidence that you hit him on the left knee with a baseball and thus you were acquitted of the charge in respect of that.
19It was directly put to both Mr Tarrant and Ms Tarrant that their evidence that you had damaged the coffee table and the door was false and that the damage was pre-existing. The jury must have been taken to have rejected that account and accepted their evidence. Similarly, it was put that you denied that you had made a threat in relation to the dog. The jury must be taken to have rejected the denial and accepted the evidence of Ms Tarrant in relation to the dog.
Subsequent events
20After 21 May, on the evidence of Ms Tarrant, she had episodic contact with you in the period until August 2018. She also became friends with Ms Scott, with whom you were living and when she was evicted from her property, you and Ms Scott assisted Ms Tarrant to find alternative accommodation. In addition, for a short period, Mr Tarrant lived with you and Ms Scott. He subsequently passed away in a motor accident and you attended his funeral.
Assessing the seriousness of the offences.
21The gist of the offence of aggravated burglary is a trespass with the relevant intent. The aggravating feature here is the carrying of weapons. The offence can be committed in a wide variety of circumstances.
22Here, there was no forced entry. I am affirmatively satisfied beyond reasonable doubt that you entered by the sliding door at the back of the property. I reject the inference that you may have entered by the use of keys through the front door. Ms Tarrant gave evidence that she may have changed the locks. Mr Tarrant gave evidence that you did not have a key. You parked the vehicle at the back of the property. If you had a key, it is more likely that you would have parked the vehicle near the front door of the property. The carrying of an axe and a baseball bat leads to the inference that if necessary, you would have broken into the property. Had you had a key, you would not have needed to carry those items. The evidence of Mr Tarrant is that he heard a noise on the back fence and heard the back door sliding. I accept that evidence beyond reasonable doubt.
23The next issue is your intention at the moment of entry. There was a significant degree of premeditation in relation to this event. You had sent the text message to Mr Tarrant a couple of days earlier in relation to the return of your vehicle. While your conduct in having access to the vehicle to drive to the property that morning may have been opportunistic, there was enough premeditation for you to bring the two weapons. Later, you hid the weapons as they were not located by the police in their search of your property.
24The Court is invited to reason back from your conduct within the house as to your intention at the moment of entry. You did hit Mr Tarrant with the baseball bat to his right thigh. You did commit the two acts of damage to the property. While your counsel sought to characterise the damage to the coffee table as that of frustration, I would rather characterise it as intimidatory.
25While you did not actually assault Ms Tarrant, you did make a threat to her dog.
26From your conduct within the property, when you entered the property carrying the two weapons, you must bear a high degree of culpability as to your intention thereafter, even though you did not carry it any further into effect in the property.
27There were a number of matters raised by your counsel as he sought to characterise the offending as at the lower end of the scale. I accept that the occupants of the house were known to you. He put that they did not fear you. I do not accept that as a mitigating factor, given the carrying of the two weapons. I accept that the fact that the event took place in daylight makes the case of lesser seriousness. You were not in company. The event was over a very short interval and there was no forced entry.
28Also relevant is the fact that to an extent the relationship between you and Ms Tarrant and Rhys Tarrant resumed after the event, although ultimately it ceased before the matter went to court.
29No victim impact statement was available for Mr Tarrant as he has passed away. In his evidence, he indicated that he was crying during the event. Your conduct must have had some impact on him.
30In her victim impact statement, Ms Tarrant indicates that your offending had a major impact on her. In the statement, she indicates, 'You scared the hell out of me and I felt like I was frozen, sitting there on my bed, waiting for you to swing it at Mac and then me, because at this time, I realised the yelling and screaming that woke me was between you and Mr Tarrant, you yelling and Mr Tarrant screaming. I didn't know what you had done to him or where he was. My heart was thumping through my chest but I was still frozen yet shaking and feeling so totally hopeless and helpless and I had no way to escape as you were blocking the door.'
31She then goes on to say she has recurring nightmares because of what you did to her and her son and the dog, 'I wake up sweating and shaking believing you are standing there with the axe again. This has affected me greatly. You have taken me from a self-confident woman who always believed I could manage everything to a shadow of my former self who is always second guessing my decisions, who is not now confident to be at home alone, who is always checking that doors and windows are locked which has become very time consuming to the point where I rarely leave home anymore. I don't sleep through a full night anymore, which leaves me drained and exhausted the next day. It is just a vicious circle and I can't seem to get out of it. I suffer anxiety and depression because of you and your axe that morning.'
32She goes on to say, 'I used to trust people and take them at face value but now because of you, I've lost my belief in people, my sense of security, my confidence and my sense of safety and a big part of myself.'
33So it is clear from the victim impact statement of Ms Tarrant that this offending has had a major impact on her which must be considered in assessing the seriousness of the offending here.
Prior convictions
34You admitted a limited criminal record. You were born in 1984 and are now aged 37. You were aged 32 at the time of the offences. You have a 2009 conviction for possessing a prohibited drug. You have an appearance in 2007 when you were aged 23 for careless driving and unlicenced driving. In 2015, you were convicted and fined for driving whilst suspended.
35The most significant prior appearance was on 19 December 2015 at the Frankston Magistrates Court when, on charges of driving whilst suspended, you were convicted and fined $2,000. On making a threat to kill and criminal damage, you were fined an aggregate fine of $2,000 and your licence was suspended for three months.
36Thus, you have relevant prior convictions for making a threat and for criminal damage.
Matters in mitigation.
37In a comprehensive plea, your counsel put a number of matters relating to your personal situation in mitigation.
38You were born in Sunshine and your parents separated when you were six and were involved in Family Court type proceedings. Both re-partnered and you went between the two parents' houses. You were abused by a stepmother at one stage and required counselling. You ended up at 15 with a paternal aunty. You have five half-sisters, two of whom were in court to support you and your mother had flown in from interstate on the plea. You also had your partner and friends in court on the plea for support.
39You have a daughter, aged 16. You had no contact with her following her birth, but in recent times have reconnected and are seeking to build a relationship with her.
40You have two younger children aged eight and seven and you have been heavily involved in their lives and have care of them at weekends. The older boy has ADHD and an intellectual disability that is being investigated. You are also seeking to address this. Separation from your children will be an additional burden that I take into account.
41With an unsettled childhood, you achieved Year 11 and joined the military. You were in the military for some years and then suffered an injury and then subsequently were involved in a number of civilian labouring type jobs, but also including a substantial progress in a printing apprenticeship that you did not conclude. You have a number of occupational licensing certificates.
42While you have been awaiting trial, you have established your own car detailing business.
43You have suffered from depression and anxiety and sleep apnoea. Before the court were two mental health plans in July 2016 and April this year for referrals to a psychologist for mental health and CBT.
44You have been a long-time user of drugs, including Ice. At the trial, there was significant evidence of drug use at the property, including by Ms Tarrant. You are seeking to address your drug problems.
45Before the court were a number of references from family members and friends that indicate you have been taking responsibility for your actions and seeking to steer clear of negative influences. They also speak highly of your involvement in the lives of your two younger children and the references speak of your remorse and insight gained as a result of your period in remand and in custody.
Prospects of rehabilitation
46As I have noted, you have a relatively limited criminal record. You are now aged 37 and have an occupational history. You have served a short sentence of imprisonment for dishonesty and drug related offences since this offending. It is clear that you have had drug problems in the past. Since you were released from the sentence, you have been on bail and have not reoffended. This would support the conclusion that your prospects of rehabilitation are reasonably good.
Delay
47A significant matter on the plea was the impact of delay on this matter. It is now nearly five years since the offending. You were released on bail in July 2016 on a daily reporting regime under the CISP program. This occurred until 2018, when you were sentenced to a seven months' term of imprisonment for dishonesty and driving offences and contravening a CCO. That sentence expired on 3 May 2019. You remained in custody until 11 November 2019. In the period since the offending, you have been in custody for a total of 402 days, of which 243 days, nearly eight months, is presentence detention.
48The matter was originally listed for trial in August 2018, with no judge available. It was listed again in March 2019 and was the subject of legal argument and interlocutory appeal, which was unsuccessful. It was relisted in November 2019, when the witness, Mr Presnell, was unavailable. It was then listed again in March this year, when the trial proceeded. Thus, as submitted, you have had to live with the burden of uncertainty and anxiety over the entire period, including the period you are on strict bail conditions for part of that period. It was submitted that at least in the period since your release on bail in November 2019, you have rehabilitated yourself.
49Another matter submitted is that you have undergone a sentence in the period since the offending, but you have lost the opportunity for any concurrency with that sentence and a sentence for this offending.
50As I indicated in the course of the plea, any period on remand is more burdensome than being sentenced, due to the uncertainty as to its duration and a lack of access to programs. Similarly, the period that you were under sentence, you were facing, in the event that you were found guilty, a further sentence for this offending and that added to the burden of that period of that sentence.
51The delay in this matter is not to be sheeted home to you, but I regard it as a very significant matter to take into account in your factor.
Purposes of sentencing
52The basic purposes for which a court may impose a sentence of punishment include deterrence, both specific and general, rehabilitation, denunciation and protection of the community. In sentencing, I must have regard to a range of factors, such as the seriousness of the offences, your culpability for them, your personal circumstances and those of the victim, if any. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society.
Sentencing submissions
53The learned prosecutor, in his submission, noted that there was an element of vigilante justice in this matter, in that you sought to address the theft of your vehicle without recourse to the police, when you attended at the premises that day. He submitted that while this is a serious offence, it should be seen as in the lower end of the range of seriousness. In sentencing, the prosecutor submitted that general deterrence, just punishment and denunciation are relevant. He called for a head sentence and a non-parole period.
54In sentencing you, I am required to take into account the maximum penalty for each of the offences, but in particular, the offence of aggravated burglary, which is a 25 year maximum, which is at the high end of the calendar of criminal offences.
55Your counsel, in his submission, emphasised the principles of parsimony and totality. He submitted that you should not be required to serve any further time, or alternatively, a combination sentence should be imposed. I am unable to accept that submission as the seriousness of the offending here calls for a significant sentence.
56Neither counsel was able to assist the Court by pointing to any particular sentence that could be seen as comparable. This makes sentencing particularly difficult, but it is to be noted that the offence of aggravated burglary does occur in a multitude of different manners and individual sentences involve different antecedents, pleas of guilty or not guilty, offences in company, not in company, and offences with different types of weapons, or different circumstances of aggravation, which makes comparable sentences very difficult to find.
57The case of Meyers in the Court of Appeal, which was referred to by your counsel, must however, be considered, given the statements in that case that sentences for the offence of aggravated burglary were seen as being inadequate at that stage. A perusal of the Sentencing Manual does indicate that in recent times, sentences for this offence, albeit sentences that cover a wide range of offending, have increased. The courts must continue to vindicate the right of people to remain undisturbed in their own home. The courts must also deter people from taking the law into their own hands, or seeking to address grievances without recourse to the law.
58In this particular case, the impact on Ms Tarrant of your offending has been significant, as set out in her VIS. This is notwithstanding that there was some interactions between you and her subsequent to the offending, and similarly with Mr Tarrant.
59Overall, considerations of general deterrence and denunciation must weigh heavily in this case. It is absolutely unacceptable for you to attend at the home of your former partner, uninvited, armed with two significant weapons. This is notwithstanding that the occupants in the home may have had an involvement in the theft of your vehicle. The authorities are there to sort out property grievances and it is not for individuals to take the law into their own hands.
60At the same time, however, you come before the higher Courts, this higher Court, for the first time for serious offending and thus this conduct must be seen as somewhat out of character. You have had this hanging over your head for nearly five years and in that period, you have spent over 13 months in custody.
61As submitted by your counsel, I regard considerations of specific deterrence as having less salience, notwithstanding your denial of the offending and your plea of not guilty. The delays, the period of custody and on remand, as well as the strict bail conditions for at least a considerable part of the period since the offending, must be taken into account both in relation to your head sentence and in relation to the non-parole period.
62I regard it as appropriate to provide a longer than usual period during which you will be eligible for parole, to reflect these matters, including the loss of opportunity for any concurrency with the sentence that you served commencing in October 2018. The presence of COVID is something of a lesser factor than in the recent past, but I take into account that you will have a period of 14 day quarantine upon reception into the prison system and that programs are only in recent times getting back to normal after the COVID pandemic.
63The events of 21 May 2016 occurred over a very short period and can be regarded as a single transaction. In those circumstances, I regard it as appropriate to make an order for full concurrency of the individual sentences. Could you please stand?
Sentence
64The sentence of the Court on the charge of aggravated burglary is four years and six months' imprisonment. On the charge of damage to property, the coffee table, the sentence of the court is one month's imprisonment. On the charge of making a threat to damage property, Count 5, the sentence is six months' imprisonment. On the second charge of damage to property, the door to the bedroom, the sentence of the court is one month's imprisonment. All sentences are concurrent. I declare that you have served 243 days presentence detention. I order that you must serve two years and three months before being eligible for parole. Are there any other matters, gentlemen?
65MR LEE: No, Your Honour.
66MR BATES: I'm just putting on the record about my client's mental health issue, Your Honour, the antidepressants, so that he gets checked when he goes ‑ ‑ ‑
67HIS HONOUR: Yes, I'll make a note on the indent.
68MR BATES: And also ‑ ‑ ‑
69HIS HONOUR: So that he's been in prison before, but ‑ ‑ ‑
70MR BATES: And also the sleep apnoea. I think last time he was in prison they were trying to get him a sleep machine. So maybe the earlier they know the better.
71HIS HONOUR: All right, well, I'll put: anxiety, depression and sleep apnoea.
72MR BATES: Yes, Your Honour.
73HIS HONOUR: Yes, all right. No medication?
74MR BATES: Oh, he's on an antidepressant at the moment, Your Honour.
75HIS HONOUR: Sleep apnoea, antidepressant and anxiety and medication, I'll put that on the indent.
76MR BATES: Yes.
77HIS HONOUR: Yes. Well, thank you gentlemen for your assistance in the trial and in the plea. Adjourn the court sine die.
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