Director of Public Prosecutions v Spyropoulos

[2017] VCC 1053

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

AT MILDURA
CRIMINAL JURISDICTION

CR 16-01419

DIRECTOR OF PUBLIC PROSECUTIONS

v

NICK SPYROPOULOS

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JUDGE:	HIS HONOUR JUDGE M. BOURKE
WHERE HELD:	Mildura
DATE OF HEARING:
DATE OF SENTENCE:	4 August 2017
CASE MAY BE CITED AS:	DPP v Spyropoulos
MEDIUM NEUTRAL CITATION:	[2017] VCC 1053

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

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms F. Skepper
For the Accused	Mr C. Terry

HIS HONOUR:

1Nicolas Spyropoulos, you are to be sentenced for one charge of intentionally damaging property, and one charge of making threat to inflict serious injury.  Respective maximum sentences are ten and five years' imprisonment.  You pleaded guilty before me on 13 July. 

2When interviewed by police on 13 November 2015, you falsely denied the offences.  There was a contested committal, and the matter was listed for trial in this court on 14 March 2017.    You had been charged, committed and presented on trial indictment for further offences, including attempted aggravated burglary and threatening to kill.  Those were withdrawn, and the matter resolved to a plea of guilty to these two offences.

3You receive the benefit of your plea of guilty l and the level of cooperation that short history of the proceedings shows.  I bear in mind that the plea became a negotiated position in which the Crown has not proceeded on more serious charges.  Your plea has facillitated the interests of justice, and expresses remorse. 

4At your plea hearing, which ran on 3 July, 17 July and today, Ms Karamicov for the Crown tendered a written Crown opening  and a booklet of photographs, mainly depicting the damage you caused the home of your victim, Hayley Fisher.   Mr Terry for you tendered the letter of your general practitioner Dr Ayman Michail,  dated 17 July 2017, and also provided a written outline of plea submissions.

5The circumstances of and surrounding these offences are extensively set out in the written Crown opening, which is tendered as Exhibit A.  My summary may therefore be relatively short.  It includes reference to matters raised on your behalf by Mr Terry.

6You are a 46-year-old man with a relatively limited criminal record prior to these offences.  Until your early 40s, you had lived a modestly productive life.  After an apprenticeship in garment construction, you worked in the clothing industry for a number of years.  After that  you worked in demolition, as a licenced  security guard, owner delivery driver  and ultimately in traffic management.  You had been able to purchase an apartment in Essendon;  but lived at home with your parents in Airport West.  You had a good relationship with them  and with your older sister.  They are all law-abiding people.

7A back injury ultimately caused retirement.  You had earlier received a substantial WorkCare payment.  At 44, you had retired and sold your apartment, clearing almost $500,000.

8As put by Mr Terry, your life has thereafter declined into drug and alcohol abuse and gambling.  You developed friendships in that milieu.  By the latter part of 2014 into 2015 and the time of this offending, your situation had become dysfunctional and chaotic.  A series of offences over this time resulted in several sentences of imprisonment imposed on four different occasions, during April to November 2016.  You served a total of nine months in prison until released upon a community corrections order of 12 months' duration in January of this year.  That was imposed combined with a term of imprisonment in April 2016; but its commencement was delayed by the further sentences of imprisonment. There is no period of presentence detention applicable to my sentence. 

9This offending before me occurred in November 2015.  You had been in a friendship with Hayley Fisher for about six months.  On 10 November you went to her flat in Hawthorn East.  You, she and a third person used drugs.  Later that night, you were evicted from a Camberwell Hotel, having fallen asleep at a poker machine.  You went to sleep in Hayley Fisher's bedroom.  She went out again at about 3 am. 

10You awoke not long after, highly agitated and drug-affected.  The other person managed to evict you, but you broke back in, damaging the door, and he fled.

11At 3.20 am, you rang the police, now being at another hotel.  You accused Fisher of arranging assault and robbery of you soon before at the flat.  You had won money on the poker machines.  You seem to have maintained this claim since to police and others.  For example, you rang Fisher at about 6 am on that morning and made similar allegation to her.  Its truth, or at least your belief in it, is possible, but difficult to positively determine.   For example, you have also made explanations and assertions to police about this night which are clearly false.  Police went to the hotel after that phone call, but could not find you.  You must have returned to the flat. 

12I find that it was then, between approximately 3.30 and 9 am, that you went on a rampage of destructive behaviour. 

13When alerted by the neighbours, police came to the flat at about 9.45 am.  They found you in a confused state.  The flat was littered with rubbish  and there was damage to the door, walls, furniture, other objects such as a phone and television, and to Hayley Fisher's clothing.  You had written abusive, threatening messages on the walls, which included the allegation that she had drugged and stolen from you.  This is Charge 1, damaging property.  You lied to the police about what had happened. 

14On 12 November, you began texting Hayley Fisher's phone, repeating the allegation, abusing and threatening her.  This is Charge 2, threatening serious injury.  You were arrested on 13 November. 

15Hayley Fisher has not made a victim impact statement.  She was offered the opportunity to do so.

16As stated, you are 46 years of age. You still live with your parents.  They are aged and have health problems.  Your mother suffers pancreatic cancer.

17The criminal record filed with the indictment states three prior court appearances.  In 1996, therefore 20 years ago, charges of possession and use of cannabis were adjourned without conviction.  This is not relevant.  On October 2013, you were convicted and fined for possession of a drug of dependence.  In August 2014, you were convicted and fined for possession and use of methylamphetamine and possession of weapon charges.

18I have earlier referred to subsequent matters.  They were raised and became relevant largely because of Mr Terry's argument that the principle of totality is an important consideration for my sentence.  He also argues that you are capable of, and have moved toward, rehabilitation.  The offending leading to the four sentences of imprisonment imposed and served during April 2016 to January 2017 seems to have been committed in a period dating from the latter part of 2014.  Broadly described, and as noted by Ms Karamicov, it includes similar offences of stalking and threatening to kill and injure.   There are also offences of dishonesty, mainly deception, perhaps explicable by your drug use and now depleted financial circumstances.  Mr Terry stated that your money is gone.

19He has also stated you were released from prison in January of 2017, upon a community corrections order. 
Mr Terry stated to me fundamentally satisfactory compliance, based on his instructor's enquiry of Community Corrections Victoria. 

20This was serious offending, a destructive attack on a person's home, also including frightening and malevolent threat.  Perceived provocation or grievance can be no excuse.  You have prior convictions and other offending of a similar kind.  Intoxication provides no mitigation.

21In such circumstances, the sentencing considerations of deterrence, your moral culpability, the need to express condemnation and proportionately punish are relevant.  The usual sentence for offending in a such circumstance is imprisonment. 

22However, there are also relevant moderating factors.  They include the following.

231.  Your plea of guilty;

242.  Your personal history and circumstances.

253.  You are said to have genuine prospects for rehabilitation.  That is supported by such matters as your family support and prior stable life and employment over many years.  Rehabilitation would depend greatly on your capacity to reform from drug use.

264.  Particularly, the principle of totality is important.  My aim must be a sentence which reflects a just, total punishment for the whole of your offending in 2014-2015.  This includes consideration of the prison sentence imposed in 2016  and the community corrections order imposed, which still operates.

27That there has been delay has some relevance. 

28The result must be a sentence by me for these matters which is very significantly moderated.  Mr Terry argued for a community corrections order.  The Crown has conceded,  in the particular circumstances here,  that this is within range. 

29Accordingly, on 13 July I adjourned the matter for sentence, and to obtain a report as to your suitability for such an order.  I have now received the report of Terrence Sequeira of Community Corrections.  That report is dated 13 July 2017;  and in part noted that you were, as viewed then, unable to undertake community work.  That has led to further submissions before me on 17 July and today.

30On 17 July, your doctor's letter was tendered.  You have a chronic back injury, which restricts your working capacity.  I was told today that arrangements have been made  and community corrections are able to provide suitable work for you to perform. 

31It was also clarified that you are presently subject to two other community corrections orders imposed in the Magistrates' Court.  One requires that you perform 150 hours of unpaid work.  On 1 August, an application for variation, which was foreshadowed to me on 17 July, was withdrawn.  I refer further to the exchange between myself and Mr Terry this morning.  Stand up please, I am going to formally sentence you.

32On both charges, damaging property and threatening serious injury, you are convicted, and I impose a community corrections order of two years' duration.  The usual terms apply, and I impose the following additional terms:  you are over that time to perform 250 hours of unpaid community work; there will be a condition in respect of drug abuse; there will be a condition in respect of mental health assistance; and there will be a condition in respect of programs,  as directed, aimed at the specific offending before me; there will be supervision, and a condition of judicial monitoring, in accordance with the recommendation of the report of Mr Sequeira.

33All right, now, we will set the judicial monitoring date, and that can be on the document we send out.  It should be three months from today.  What is that?

34Whilst that is happening, I indicate this to you.  Had you not pleaded guilty, I would have imposed a sentence of three years, with a minimum term of 18 months.  You will be required to attend before me on
8 November of this year for a judicial monitoring hearing, on which day I will have a report as to your progress on this order. 

35All right, now, when the order is printed out, I will check it, and then it will be sent to the fax number that has been provided. 

36Whilst that is happening, I will go onto the forensic sample order.  It is not opposed, Mr Terry?

37MR TERRY:  It is not opposed, Your Honour.

38HIS HONOUR:  All right, now.  This is an order I am going to make, Mr Spyropoulos, that you need to provide a sample of your saliva.  And you need to make arrangements with, I would think, the Broadmeadows police station for that to happen.  After the period of four weeks, but before the end of the next four weeks, so you have got eight weeks to do it. 

39The reason why I am doing it is the serious nature of the circumstances of this offending, your prior history, and the subsequent matters, the order is in the public interest as I see it.

40Now, what happens is that you supply a sample of your saliva by cotton swab inside your mouth.  If you do that cooperatively, that is the end of it.  If you do not, a sample of blood may be taken by injection, and reasonable force used to do that.

41Today is the 4th, is it?  Today is the 4th?

42MS SKEPPER:  Yes Your Honour.

43HIS HONOUR:  Thank you. 

44MR SPYROPOULOS:  May I just approach Mr Spyropoulos, Your Honour?

45HIS HONOUR:  Our records system, which never fails to inconvenience me, has recorded, and therefore automatically prints out - in yet again an erroneous way, what is seen to be the trial counts.  Now, he was to be tried for attempted aggravated burglary, common law assault, intentionally damage property, make threat to kill and theft, I take it?

46MR TERRY:  Yes Your Honour.

47HIS HONOUR:  But that got resolved to these two charges, am I right?

48MR TERRY:  Yes, that is right Your Honour.

49HIS HONOUR:  I do not know, what do we do about it?  I will cross it out by hand.  It is a system that never fails to let you down.  Never fails.  Now, you can come out of the dock and stand near Mr Terry, please.  Now, as I have just said to you - as I have just said to you, I am imposing a community corrections order of two years' duration.  The usual terms are as follows:  you must not commit another offence for which you could be imprisoned; you must comply with a regulation that prohibits you from attending any program, appointment or such thing affected by alcohol or drugs, or in possession of illegal drugs; you must report to and receive visits from Community Corrections.  You must report to the relevant Community Corrections Centre at Broadmeadows within two days of this sentence; you must let Community Corrections know within two days of a change of address or job; you must not leave Victoria without getting their permission; you must obey all lawful instructions by them to you.

50The additional conditions are; that you perform 250 hours of unpaid work over the two-year period; that you be under supervision; that you undergo assessment and treatment for drug abuse; that you undergo any mental health assessment and treatment that is directed; you must participate in programs that address factors specifically related to this offending as directed; you must attend for review before me on 8 November 2017 at 10 am at the County Court.  Now, do you understand that?  Sorry, I cannot hear you?

51OFFENDER:  Yes.

52HIS HONOUR:  Yes, and do you agree to it?

53OFFENDER:  Yep.

54HIS HONOUR:  Yes, well we will send the document down to you now, and we will also send - we will send the forensic sample as signed by Ms Skepper in due course.

55MS SKEPPER:  Yes Your Honour.

56HIS HONOUR:  Well, I will sign it.  Now, that is happening now, so we can turn it off, can we not?  Look, we will keep the line open, but I am going to deal with Mildura matters.

57MR TERRY:  Yes Your Honour.

58HIS HONOUR:  But they are being sent down to you now.

59(At this stage the court proceeded with another matter.)

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