Director of Public Prosecutions v Simmonds

[2019] VCC 288

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01823
Indictment No: J109165596

DIRECTOR OF PUBLIC PROSECUTIONS

v

CRAIG SIMMONDS

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JUDGE:	HIS HONOUR JUDGE SMITH
WHERE HELD:	Melbourne
DATE OF PLEA HEARING:	21 February 2019
DATE OF SENTENCE:	8 March 2019
CASE MAY BE CITED AS:	DPP v SIMMONDS
MEDIUM NEUTRAL CITATION:	[2019] VCC 288

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:   Sentence – aggravated burglary – theft – false imprisonment – attempt to obtain property by deception – possess drug of dependence – unlicensed driving – possessing a thing without authority in a police jail

Legislation Cited: Sentencing Act 1991

Sentence:Total Effective term of imprisonment of 12 months and a fine of $500.---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Triandos	Solicitor for the Office of Public Prosecutions
For the Accused	Mr M. Kozlowski (Plea) Ms A. Fassions (Sentence)	Mario Vaccaro Lawyer

HIS HONOUR:

1Craig Raymond Simmonds, you have pleaded guilty to offences of aggravated burglary, theft, false imprisonment, attempting to obtain property by deception, and possessing a drug of dependence, namely cannabis. 

2In addition, you have pleaded guilty to three summary offences, and have consented to this court sentencing you in relation to them.

3They are two counts of unlicensed driving of a motor vehicle, and one count of possessing a thing, namely, a mobile telephone that jeopardises or is likely to jeopardise the security or good order of a police gaol without authority.

4The maximum penalty for those offences are, respectfully: 

·Aggravated burglary, 25 years' imprisonment.

·False imprisonment, ten years' imprisonment.

·Theft, ten years' imprisonment.

·Possess drug of dependence, five penalty units.

·Attempting to obtain property by deception, five years' imprisonment.

·Unlicensed driving, ten penalty units or one month's imprisonment.

·Possessing a mobile phone in a police gaol, ten penalty units.

5The penalty unit at the time that you were convicted of these offences was $158.57.

6Your offending behaviour constituting each of those offences was described in a written summary of the prosecution opening, tendered at your plea hearing, which was Exhibit A.  In summary, the circumstances of your offending are as follows.

7The complainant lived in a unit close to where you lived.  He was aged 38 and he suffered from schizophrenia, and the condition known as Guillain-Barre syndrome, a condition that affected his nervous system and which made it difficult for him to walk without crutches.  You did not know him, but you would see him on various occasions, and you were aware of his physical disability.  You formed the opinion that he was likely, in his unit, to have medication that would be useful to you.

8On 7 April 2018, at about 8.40 pm, the complainant was in his lounge room watching television.  He lived alone.  You removed a fly wire screen on the window of his unit and entered the unit.  You were wearing a black balaclava, with eye holes cut out, a black hoodie, and black jeans.  You held a baseball bat in your hand.  This conduct constitutes the offence of aggravated burglary.

9The complainant saw you.  You ordered him to get on to the floor.  He had difficulty manoeuvring himself, due to his disability, but nevertheless complied.  You ordered him to put his hands behind his back and you then bound his hands using a thin black rope.  He wanted to leave the unit but was unable to do so.  That conduct constitutes the offence of false imprisonment.

10You removed his wallet from the pocket of his pants; it contained a number of items, including a credit card, and some cash.  You took those.  That conduct constitutes the offence of theft.

11You then demanded that he advise you of his pin number and threatened him if he lied to you about it.  You then went through a number of prescription medications which were in his unit.  You demanded that he tell you what those medications were for.  In the main, they were for his schizophrenia.  You then tied his feet together with his shoelaces and placed two socks into his mouth. 

12You left the unit and later that evening, attempted to use his credit card at a bank ATM on four occasions.  The wrong pin number was entered by you on each occasion, and in due course, the machine seized the card.  This action constitutes the offence of attempting to obtain property by deception.

13On the following day, you showed your friend that you had a new mobile phone.  This was the complainant's phone.  On Saturday 7 April 2018, you were observed by police driving a motor vehicle in Vermont Street, Wodonga.  At the time, you did not hold any driver's license or permit; such conduct constitutes the first occasion of unlicensed driving.

14On 9 April 2018, you were observed by police driving a motor vehicle in
Docking Street, Wodonga.  You did not hold a driver's license or permit, and that conduct constitutes the second count of unlicensed driving.

15On 9 April 2018, police attended at your home, executed a search warrant.  Amongst other things found in your lounge room, was a snap-lock bag containing green vegetable matter, which was later found to be cannabis.  Such conduct constitutes the offence of possessing a drug of dependence.

16On the following day, 10 April 2018, you were in custody at the Wodonga Police Station with another prisoner.  Whilst in custody, you were found to be in possession of a mobile phone.  Such conduct constitutes the offence of being in possession of a thing which jeopardizes or was likely to jeopardize security or good order of a police gaol without authority.

17The complainant was seen by a medical practitioner on 11 April 2018, that is, four days after you entered his unit.  The doctor reported that he was still visibly shaken, anxious, and emotional, recalling the incident.  The victim impact statement made by him was tendered by the prosecutor.  I accept without hesitation the accuracy of its contents.  He was scared when you entered the unit, he thought he was going to be hurt by you, and he has suffered from anxiety since that event.

18By way of background, you are currently aged 46.  You were born and raised in the Albury-Wodonga area.  Your parents separated when you were aged
12 or 13.  Both re-partnered.  Neither of them apparently were able to have you in their care.  You were effectively raised by your maternal grandmother, and some of your father's friends.

19Around this early age, you ceased schooling when you were expelled at the start of Year 7, due to behavioural problems.  You found your first job when you were aged about 16 in the concreting industry.  Since, you have worked in a number of different jobs, including timber mills, tobacco picking, and at a local meatworks.

20You have a long history of drug use.  Initially, this was cannabis, and then amphetamine or speed, and later methylamphetamine or Ice.  Your usual intake of methylamphetamine was one or two points per week.

21I was informed by your counsel that you suffer from a relatively significant back industry, involving vertebral discs and cracked vertebrae.  You suffered this injury approximately ten years ago.  I was informed that you experience chronic pain and are on medication for it.  You have, as I was told, used illicit drugs on occasions to self-medicate.

22For the past 18 years or so, you have been in a de facto relationship.  You have lived with your partner in a number of different locations around north-east Victoria.  You were living in Wodonga, prior to being taken into custody. 

23Reports from a Mr Michael Crewdson, psychologist, dated 8 December 2018, and Mr Matthew Staios, neuropsychologist, dated 21 February 2019, were tendered on your behalf. 

24Mr Crewdson reported that:

·Your mental-state examination overall, was unremarkable. 

·Your actions have long been of an anti-social nature, and he diagnosed an anti-social personality disorder.

·There was no mental-state defence available, he considered, and there were psychological issues which might be germane to the assessment of general culpability and be relevant to sentencing dispositions.

·He reported that you had reported to him, that since being in custody, you had made some positive changes, and that you had refused all offers of illicit drugs and were clean.

·He considered that your diagnosis would be one of methylamphetamine and cannabis dependence, currently in controlled remission, defuse cognitive deficits likely to have arisen directly from that abuse, dysthymic disorder (best described as a persistent depressive disorder). 

25Mr Crewdson reported that you had informed him that you would welcome the idea of treatment for your psychological conditions.  He opined that without some consolidation of your circumstances and attitude, you were likely to re-offend, albeit in a minor way. Your dependence on legitimate and illicit drugs, combined with your general background and personality, put you at risk of re-offending in the future, even though there were some protective issues operating.

26Mr Staios noted your difficult upbringing and lack of meaningful parental supervision.  He considered that your long-term substance use in conjunction with limited intellectual function had likely impacted on your emotional regulation skills, and reasoning skills, during a crucial development period.

27He considered that your functioning skills were likely to improve if you were able to abstain from substance use in the community in the future.  He said that you would benefit from referral to a drug detoxification program to assist with managing your history of chronic cannabis and amphetamine addiction.

28Notwithstanding your unsatisfactory and difficult upbringing, you have only limited prior convictions, although going back to 1993.  In April 1994, you were sentenced to a total of 14 days' imprisonment for attempted burglary and going equipped to steal.  That conviction aside, you do not appear to have been sentenced to any other further term of imprisonment.

29You were sentenced to community-based orders in 1994, 1995, and 1998, all of which you appear to have completed satisfactorily.  You appear to have had only one prior conviction involving violence, and that was for assault in 1992 in Albury.

30The only purposes for which sentences may be imposed in Victoria are as follows:

·To punish the offender to an extent and in a manner which is just in all of the circumstances.

·To deter the offender or other persons from committing offences of the same or of similar character.

·To establish conditions within which it is considered by the Court that rehabilitation of the offender may be facilitated.

·To manifest the denunciation by the Court of the type of conduct in which the offender engaged.

·To protect the community from the offender.

31I am conscious of the provisions of s.5(4) and (4C) of the Sentencing Act of 1991, which provide in substance, that in determining the sentences to be imposed in respect of offences, the court must not impose a sentence that involves the confinement of the offender, unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a sentence that does not involve the confinement of the offender, or cannot be achieved by a community correction order with certain conditions attached.

32I am required by the Sentencing Act to take into account a number of matters, including:  

·The nature and gravity of the offence.

·The offender’s culpability and degree of responsibility for the offence.

·The maximum penalty prescribed for the offence.

·Current sentencing practices.

·The degree to which you have shown any contrition for the offence.

·Whether you have pleaded guilty to the charge in respect of the offence and, if so, at what stage of the proceeding.

·The degree to which you have cooperated with the law-enforcement agencies.

·The deterrent effect that any sentence may have on you or other persons.

·The need to ensure that you are adequately punished for the offence.

·Your character, antecedents, age, means and your physical and mental condition.

·Your prospects of rehabilitation.

33I find the circumstances of your offending, and in particular, the aggravated burglary and false imprisonment, to be serious.  Your presence in the house, dressed as you were, with a balaclava and a baseball bat, must have been terrifying for the complainant.  Further, you knew that he was a person with significant physical problems, who required crutches to get around.  He was on any view an easy and soft target for you.  Your selection of him does you no credit at all.

34I note your counsel’s submission that you selected him because of those physical impairments, and the fact that it made it likely that he had pain relief medication in his unit.  Your further conduct in restraining him would have made the experience even more distressing for him. 

35There are, nevertheless, a number of matters which go in mitigation of your sentence.

36You have pleaded guilty to these offences at an early time; you are entitled to a discount of sentence accordingly.  In addition, that plea has utilitarian value, in that a trial is not required, witnesses will not be inconvenienced or required to give evidence in court, and valuable court resources will not be wasted.  Your counsel submitted, and I accept, that you have shown some remorse for your conduct.  You appear to have made frank statements concerning this to the psychologists who examined you, and to your counsel.

37You have completed whilst in custody a number of courses within the prison system; these deal with emotions, coping with loss, and a number of practical qualifications for preparation of food.

38When you were initially placed in custody, you were prescribed methadone to help with pain, however, you have ceased methadone and appear now to be drug free.  That is to your credit.  Drug test results for the period between
April 2018 and January 2019 were tendered on your behalf as Exhibit 3 and show that you have effectively been clean of illicit drugs during your period on remand.

39Your counsel has submitted, and I accept, that you have reasonable prospects for rehabilitation.  You have the support of your long-term partner, who was in court throughout your plea hearing.  You are intending to move back to Queensland with her, I was told.  You have a brother there who conducts a construction business, and you are hopeful of obtaining work with him.  It would seem that you have benefited from your ten and a half months on remand.

40Taking all of the circumstances into account, I am satisfied that the purposes for which I have to sentence you cannot be satisfied by an entirely
non-custodial sentence.

41On the charge of aggravated burglary, you are convicted and sentenced to a term of imprisonment of 12 months.  This shall be the base sentence.

42On the charge of theft, you are convicted and sentenced to a term of imprisonment of two months, to be served concurrently with the base sentence.

43On the charge of false imprisonment, you are convicted and sentenced to
six months' imprisonment, such sentence to be served concurrently with the base sentence.

44On the charge of attempting to obtain property by deception, you are convicted to two months' imprisonment, such term to be served concurrently with the base sentence.

45On the charge of possessing a drug of dependence, you are convicted and fined a sum of $500.

46In relation to the two charges of unlicensed driving, you are convicted and on an aggregate basis, sentenced to two months' imprisonment, such term to be served concurrently with the base sentence.

47With the charge of being a detainee and possessing the phone without authority in the police gaol, you are convicted without further imposition of penalty.

48It follows that I have imposed a total effective sentence of 12 months' imprisonment, together with a fine of $500, in respect of the possession of cannabis. Pursuant to s.6AAA of the Sentencing Act, I declare that you had not pleaded guilty to the indictable charges, I would have sentenced you, with conviction, to a total effective sentence of two years.

49Counsel are in agreement that you have served on remand a total of 333 days by way of pre-sentence detention, and I direct that such time be reckoned as served under this sentence and recorded in the records of this court accordingly.  Now, Mr Triandos, there was a disposal order.

50MR TRIANDOS:  It has already been signed by Your Honour.

51HIS HONOUR:  I signed it before.  I thought I had, yes.  Thank you, and that relates to the cannabis I think, not the baseball bat.  There you go.  I make that disposal order accordingly.  You understand, Mr Simmonds, that although I have sentenced you to 12 months' imprisonment, the ten and a half months' that you have already served by way of pre-sentence detention will be counted as part of that 12 months.  So, in round terms, you have got something like
six weeks, a month and a half to serve.

52I wish you every luck in the future, but I suspect in your case, continued use of illicit drugs will only have you coming back and forward to court such as this with inevitable terms of imprisonment to follow.  Yes, Mr Simmonds can be taken downstairs.  Thank you.  Anything else I should turn my mind to at this point, Mr Triandos?

53MR TRIANDOS:  No, Your Honour.

54HIS HONOUR:  Ms Fassions?

55MS FASSIONS:  No, Your Honour.  Thank you.

56HIS HONOUR:  Thank you.

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