Director of Public Prosecutions v Sichoundis

[2013] VCC 1047

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

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-13-00762

DIRECTOR OF PUBLIC PROSECUTIONS

v

NICHOLAS SICHOUNDIS

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	25 June 2013
CASE MAY BE CITED AS:	DPP v Sichoundis
MEDIUM NEUTRAL CITATION:	[2013] VCC 1047

REASONS FOR SENTENCE
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Subject:  
Catchwords:            
Legislation Cited:    
Cases Cited:            
Sentence:                

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr G Hayward
For the Accused	Mr D Ferguson

HIS HONOUR:

1       Nicholas Sichoundis, you have pleaded guilty to one charged of aggravated burglary and one charge of damaging property intentionally. 

2       You are 41 years of age. 

3       Those crimes carry maximum penalties of 25 years and ten years respectively. 

4       You plea of guilty was at a reasonably early opportunity.  I accept it is accompanied by appropriate remorse and you must get the utilitarian benefit of that plea of guilty. 

5       You do have a number or prior convictions and they are essentially for threats, forms of violence and the use of weapons.  In a situation such as yours, they are of genuine concern. 

6       You have been gaoled once, that was about five years ago, for a period of seven months. 

7       The circumstances surrounding the offending were that on 31 October 2012, a Leanne Moore and a William Wellington drove to the Safeway supermarket in Swan Hill.  Leanne Moore is William Wellington's auntie.  One Harold Harrison, the brother of a co-accused was at the supermarket with you.  A fight broke out between Wellington and Harrison, during which they punched each other.  During this fight, Harrison also hit Leanne Moore to the cheek.  There is no suggestion that you were involved.

8       The other two drove away.  You and Harrison, who was 17 years of age and now in custody in New South Wales, went to 1 Makepeace Street in Swan Hill, where you spoke to Leanne Harrison and Rosalie Moore.  Rosalie Moore is your partner, Leanne Harrison is Harold Harrison's sister. 

9       At about 7.45 pm, Harrison, Leanne Harrison and Rosalie Moore went to an address in Swan Hill, where a Naomi Green and a Dan Sweeney lived.  Out of that visit, Rosalie Moore faced a charge of assault, which is not your problem. 

10      At about ten to nine, Harold Harrison, you, Leanne Harrison and Rosalie Moore walked to Barwick Court, Swan Hill.  You arrived within a few minutes of the others arriving.  At that unit were Matthew Moore, his girlfriend Stephanie Jackson and his cousin, Robert Egan, each of whom were 16 at the time.  Matthew Moore is Leanne Moore's son.  Ms Jackson was about 30 weeks pregnant.  Matthew Moore was living at that unit. 

11      You did arrive some time after the others and you were armed with a golf putter.  It is not put that you entered the premises with that golf putter nor does that give rise to the aggravated burglary with a weapon, however it is of concern, bearing in mind your prior convictions, that you did go with it.  Harold Harrison had a boondy stick and Matthew Moore also had a boondy stick. 

12      There had been, as was explained to me during the course of Koori Court, of which you of course were not a participant, a simmering family feud, if it can be put that way, over an extended period of time, relating to the death of a grandfather. 

13      Whilst you are in a relationship with Ms Moore, it really was not your fight.  There was some yelling and swearing about what had happened earlier at Safeway and the three went into the unit and locked the front door.  They tried to hold it closed while someone tried to force it open.  Windows were smashed and they ran into a bedroom.  Each of you entered the unit.  Though you are, as I understand it, charged with aiding and abetting the others entering, as opposed to entering yourself. 

14      You had left the golf putter, after you had damaged a front window with it.  You entered unarmed.  Even as I have indicated, there is a difficulty in trying to work out exactly what that is all about.  Rosalie Moore entered unarmed.  Harold Harrison went in with his boondy stick.    

15      The intention was to cause damage, and that is the charge to which you have pleaded.  Windows to the unit were smashed, bedroom door had holes knocked in it, a television was smashed, the front door lock was broken and the door frame damaged.  It is clear from the materials that Harold Harrison caused a substantial amount of the damage inside the unit.  It is put that each of you, and Harold Harrison, who is not before me, aided and abetted each other in the damage that was caused and I accept that that is the case.

16      On the material before me, the two girls and Harold Harrison were at the premises and there must have been discussion about people going in.  You were there.  There is no material before me that suggests that you tried to stop anybody and in fact you smashed a window. 

17      I do not accept that you were endeavouring to - not that it was put in those specific terms, endeavouring to stop this, you allowed it to occur and the two girls, neither of whom had any relevant prior convictions, were thereby put at serious risk. 

18      The victim impact statement that have been filed in the matter indicate the terror and concern that home invasions of this sort cause.  It is unusual in that it is for the infliction of damage to the property, not for assault and not for theft, so I am not quite sure what would be said about that in terms of current sentencing practices, but be that as it may. 

19      There was subsequently an arrest made, Leanne Harrison was charged with assault police and it has got again, nothing to do with you.  You said that you were intoxicated and I have no doubt that that is correct, since you had been drinking all day and you were in no condition to be making decisions.  You were sufficiently sober to go to the premises, sufficiently sober to get a weapon and sufficiently sober to be a party to all this. 

20      I agree with the Crown's submission that it is a serious offence and I agree also that general and specific deterrence must play a part in this, though I think in your situation, are to be moderated.  There must also be denunciation and appropriate punishment.

21      It is has occurred within a milieu of family dispute.  Matthew Moore has a boondy stick.  It is clear that there was a belief that Wellington may have been inside the house.  Be all those things, as they may.  You cannot do it. 

22      The submission on your behalf was that a Community Corrections Order would be sufficient punishment in all the circumstances.  The Crown position was that a period of imprisonment was required and that a range was, as I understand what they are saying, two to three years as a head sentence.

23      I simply refer, at this point in time to the second reading speech, insofar as Community Corrections Orders are concerned.  It is clear to me that the reading speech and the purpose of this bill was not to simply replace CBOs.  It is not the intention of this legislation.  Anybody who had previously received a suspended sentence now goes to gaol, that cannot be right.  This bill is to endeavour to replace the public distrust that existed in suspended sentences, with an intermediate disposition. 

24      The reading speech has said, "The purpose of the CCO conditions is to allow a court greater flexibility to impose a less restrictive order than imprisonment, where appropriate, potentially leading to a reduction in sentences of imprisonment, with advantages such as the promotion of the offender's rehabilitation and the preservation of family and community ties.  This supports the broader purposes of the Sentencing Act to prevent crime and promote respect for the law by providing sentences that deter re-offending and allow the court to denounce the criminal conduct, including the harm caused to the community by the crime and to provide sentences that facilitate the rehabilitation of offenders and ensure that offenders are punished to the extent justified by the offence." 

25      "A CCO sits between imprisonment and fines in the sentencing hierarchy.  The CCO will be available for any offence punishable by more than five penalty units.  The CCO will also provide an alternative sentencing option for offenders, who are at risk of being sent to gaol.  These offenders may not yet deserve a gaol sentence, but should be subject to significant restrictions and supervision, if they are going to live with the rest of the community.  The broad range of new powers under the CCO will allow courts wide flexibility to tailor their response, to address the needs of offenders and to set appropriate punishments."  It went on to say that these were a proper sentence and not a legal fiction as was - some regarded the suspended sentence.       

26      Insofar as suspended sentences were concerned and of course a head range of two to three years would fit within what would have been capable of being suspended, being an aggravated burglary, I am well aware of the remarks of Nettle JA who said that, "All things being equal, effectively, it would be a rare case indeed where a suspended sentence, when it is within the head range of two to three, would be manifestly inadequate."  I think this is a situation where a CCO is pertinent and I think it is exactly what His Honour was describing, however I will be going to that in a little bit more detail in a moment.  So that is what CCOs are all about. 

27      Your two co-accused were each given a Community Corrections Order simplicita.  And for two years and with conviction.  One was 19 and one was 28.  Clearly both are therefore significantly younger than you.  They had no relevant prior convictions.  They did, however, have an extra charge each.  This was their fight and if you like, they started it. 

28      I accept that if they had not gone there, you would not have.  But the difficulty is that at your age, albeit intoxicated, you knew better than this and you had done gaol before and you had been to courts many times before.  I think it is a shame to you that you have - and you probably feel - I am not trying to rub it into you, that you have allowed the girls to get into this situation. 

29      Tendered on your behalf were a report from a Dr Janev, as well as some references.  I have read the references and take them obviously into account.  The report of Dr Janev, who is a psychologist, goes into quite a bit of detail and I do not need to go into a lot of it here. 

30      Your background is that you were born in a Greek family, 41 years ago.  Your father died when you were about 20, that triggered a severe grief reaction that you have been unable to resolve.  It is clear from that report that you have had mental difficulties since you were very young.  As it was put to me by your counsel, your family would not allow psychiatric or psychological intervention because of the concern that you would be perceived as a "nuffy". 

31      You, at school, I would have thought, clearly had attention deficit and hyperactive disorder.  Nothing was ever done about any of this.  You found school really difficult and you often struggled.

32      Your father had been physically abusive.  It would seem that you were spoiled, as it was put to me and I have no reason to doubt that.  You left school in Year 8, subject to a negative peer group and basically the only work you did was on farms for the family, on and off for years.  For the last five years, you have been on a disability support pension.  You have had, over the years, what is described in that report as "tumultuous" relationships with women, and I do not think that has got anything to do with this.

33      You have a number of complaints.  You are blind in your right eye and have early signs of cirrhosis.  There are other medical conditions that have existed.  There is a, what is described as a history of psychopathology, including a - there is display of an intention to commit suicide when you were very young.  You have been treated at the Swan Hill Community Mental Health Service between 1991 and 1996 for psychological issues.  Ms Janev had seen the files, which documented the presence of auditory hallucinations, probably from drug induced psychoses, I suspect. 

34      You were admitted to the psychiatric department of the Bendigo Hospital in 1997, 2001 and 2005.  The documentation provided to Ms Janev, found a history of alcohol and substance abuse and major depression with psychotic features.  You have been diagnosed antipsychotic medications since 2001. 

35      Your abuse of substances began at 13 with cannabis and around about the same age with alcohol.  There is some disagreement that what was said to her, you appeared to be saying that you were, so far as she understood it, currently consuming alcohol to intoxication levels on a daily basis and two or three casks of wine were an intake on a good day.  You told her you had been trying to cut down your alcoholism for years.  She reported, indeed, that at your presentation to her, she viewed you as being affected by both cannabis and by alcohol.   

36      You seemed to be putting this down to a combination of alcohol and Largactil, which you only took spasmodically, which of course would not do you any good.  That combination is - theoretically could have caused such conduct, but the trouble is, you have done it before.  Perhaps not in the sense of an aggravated burglary, but certainly threatening people and using and carrying weapons.

37      You, I accept, have a major depressive disorder, with a history of psychotic features and I think that that gives rise, in your particular situation, to some of the principles in Verdins.  I think that moral culpability in your unfortunate position could be moderately reduced, as with general and specific deterrence.

38      

When specifically asked about incarceration, the psychologist said, "In my opinion, incarceration will be more arduous and counterproductive for

Mr Sichoundis than the average prisoner because (1) His current psychological conditions reduce his level of coping below the norm, suggesting that he would be at high risk of mental deterioration and quite possibly suicidal behaviours, especially under conditions of stress, (2) His anti-social personality traits, and are likely to attract similar minded individuals, often with more severe forms of this order, entrenching his maladaptive personality pathology further, which increases the risk of re-offending.  I note now that after some seven years the sentencing advisory counsel has finally realised that and in a report that has been released recently, that gaol does not stop people offending at all, in fact it makes it more likely that they will."   Whether that fits with within Verdins, I do not know, I am not so sure. 

39       It also goes on to say that, "You are unlikely to have access to the right level of support and treatment in prison, due to limited resources" and I have no doubt that that is so.  So I think that you will do gaol harder.  I think the moral culpability is reduced and yours is a situation where I am very reluctant to place you in custody, despite the seriousness of the offending because of those problems.

40      On top of that, you do have no matters pending.  You have not been incarcerated now for some five years.  You have recently relocated to Bendigo and away from the area where this dispute has been taking place and you have good family support. 

41      You have already done 28 days on remand in relation to this matter and I am always concerned about putting a person back in, who has done a significant period of time. 

42      The prospects of your rehabilitation and the risk of you re-offending are entirely up to you.  The risk is described in the report as moderate and there is no real reason why, not having offended for the last five years, I should take any different view to that.  I think the offending is situational.   That may be giving you the benefit of the doubt.

43      When I take all those matters into account, I still have the view that there must be some more active custody involved in this.  I am very concerned, and I can only act on the report that is before me, that were I to give you a Community Corrections Order now, the prospect of it being abided by would be, in my opinion, virtually zero.  If that occurred, the type of range suggested by the Crown may well become an active sentence, rather than a, in effect, suspended sentence one.  I think that your chances of rehabilitating on a Community Corrections Order will be far more effective if you have a period of time to, in effect - I understand your instructions are to the contrary, but in effect, to dry out and get your head together.   

44      You are still with Rosalie Moore and you are expecting a child in October, as I understand it. 

45      In terms of the sentencing options open to me, I can impose a sentence which allows you to retain that family support, which allows you to have the carrot, I suppose, of there being a child born in a few months to determine to regulate your behaviour and determine to do programs and determine to not offend upon your ultimate release. 

46      However, as I have indicated, it is serious, you just cannot do this.  One of the reasons that these types of offences and I am not taking into account Hogarth, because this matter occurred before them, but that these type of aggravated burglaries attract custodial sentences, is what could happen, and indeed in - I have forgotten her second name now but in this - sorry Ms Jackon's victim impact statement, she describes the fear of what could have happened, and that is part and parcel of why aggravated burglary, when there are people present, is such a, if you like, dangerous crime.

47      However I have heard the Crown's submission.  I think that bearing in mind what Nettle J said, that an appropriate disposition will still involve an active custodial sentence, but not to the level suggested. 

48      Accordingly, on the charge of aggravated burglary, you are sentenced firstly to imprisonment of a period of 118 days.  On the charge of aggravated burglary and criminal damage, if you choose to enter into it, a Community Corrections Order for two years, with conviction, with a hundred work hours upon release, if you are medically fit, supervision and treatment for alcohol and drug offending. 

49      I direct that if you agree to this, 28 days will be reckoned having been served under the sentence, which fits within the 90 days that is operative and gets you out prior to the birth of your child.  I do not think I can, in this very, very unfortunate situation, do much more than that. 

50      I might say that your co-accused were dealt with in Koori Court and Mr Moore is a Koori.  That process enabled, I think, myself to get a much clearer view of what this was all about and what the motivations behind it all were.  I think you were caught up in it to a certain extent, but the fact remains, Mr Sichoundis, that you just cannot do it. 

51      

All right, so that is the - if you want him to - get him to sign that if he wants to,

Mr Ferguson. 

52      MR FERGUSON:  I am sorry, Your Honour?

53      HIS HONOUR:  I will get you to go down if he wants to sign that.  If he does not want to, I can give him a bit extra, I do not mind.  No, I am serious, if he reckons he cannot get through it, I will - - -

54      MR FERGUSON:  Yes. 

55      HIS HONOUR:  I am hoping he can.  All right, that order is made.  Any other orders I have got to make? 

56      MR FERGUSON:  No, Your Honour.

57      HIS HONOUR:  No.  All right, thanks gentlemen. 

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