Director of Public Prosecutions v Stephen

[2016] VCC 2081

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00217

DIRECTOR OF PUBLIC PROSECUTIONS

v

KRISTOPHER STEPHEN

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:	6 December 2016
DATE OF SENTENCE:	6 December 2016
CASE MAY BE CITED AS:	DPP v Stephen
MEDIUM NEUTRAL CITATION:	[2016] VCC 2081

REASONS FOR RE-SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms Hammill
For the Accused	Mr Chernok

Pages 1 - 9

 

 

HIS HONOUR: 

1Kristopher Stephen, stay seated for the time being, you have pleaded guilty to an indictment which charges you with reckless conduct endangering a person and being a prohibited person in possession of a firearm.  Both of those offences occurred on 26 April of 2015.  You have also admitted a breach of a Community Corrections Order which I imposed upon you on 17 March of 2015.  In accordance with the recommendation of the report from the Department of Corrections, that the Community Corrections Order I imposed be cancelled and that you be re-sentenced on the original charges, I propose to take that course.

2Those charges involved three offences, each of which you pleaded guilty to, namely aggravated burglary, theft and false imprisonment which arose from events of 22 June of 2014.  You pleaded guilty to those offences before me and they were set out in Charges 2, 3 and 4 respectively on Indictment C14089694.  You have also admitted prior convictions which are set out in the criminal record that was submitted today. 

3The prosecution tendered and read to the court, a summary of prosecution opening on the plea in respect of the matters, the subject of Indictment F1145915 to which you pleaded guilty today.  I am not going to read that document again; it was read this morning but it sets out the circumstances in which you attended a property at Blind Bight during the evening of 26 April of 2015, about 40 days after the Community Corrections Order that I imposed in March of 2015. 

4You went there with a shotgun at about 9 pm and discharged a shot from the shotgun into the front window of the house.  That window looks into the lounge room of the house.  The occupants of the house, or some of them, were present and naturally enough were surprised and frightened by your conduct.  It seems the reason you went there was for the purpose of recovering a drug debt and indeed, during the early hours of the following morning, you followed it up with at least one telephone call threatening further conduct of that kind if the money was not paid.

5You were arrested the following day and you had an empty shotgun cartridge in your possession.  When interviewed by police you denied that you had committed the offence of firing a shotgun. 

6In respect of the matters to which you pleaded guilty before me on Indictment C1409694 on 17 March 2015, the prosecution case was to the effect that you with a co-offender, went to a home in Main Street, Pakenham where you committed an aggravated burglary apparently for the purpose of recovering a debt said to be owed by one of the persons that you expected to find in that property, in the sum of $100 to your co-offender.

7During the course of the events that followed the aggravated burglary, you and your co-offender falsely imprisoned the victim, took him in a car and drove him around with a view to his obtaining money from an ATM or from his grandmother.  In the event you carried out some assaults upon him and told him to remove his clothes. He was then left by the side of the road whilst you and co-offender made good your escape.

8The victims in that matter made Victim Impact Statements and the victim of the reckless conduct endangering a person, at least one of them, Michelle Drysdale, gave a Victim Impact Statement which was read to the court today.  All of those victims were considerably affected emotionally and psychologically by your conduct and I am bound to that those matters into account. 

9When I sentenced you in March of 2015 I made it clear that ordinarily offending of the kind for which I was sentencing you then, attracted significant terms of imprisonment.  You had already served 196 days in prison. I was persuaded that you were motivated to deal with your drug problems and that it was therefore possible for me to impose a much more lenient sentence than would otherwise have been required for the offending conduct and sentence you to a combination of the time served up to that point, 196 days and a Community Corrections Order for a period of three years with punitive elements and also further rehabilitation elements.

10The unfortunate fact is that you did not take that opportunity.  You were back on Ice again and within 40 days you were committing these further offences with the use of a shotgun for apparently similar reasons, although it was you who were seeking to recover the drug debt from your victim or victims, for the purposes of paying off your supplier.

11Turning to matters personal to you, your counsel provided me with a helpful outline of submissions on plea, along with a psychological report from Carla Lechner dated 26 July 2013, a report from Mr Martin Jackson, neuropsychologist, dated 8 March 2015 and finally, a more recent report from Carla Lechner, psychologist, dated 30 November 2016.  Those reports do deal in quite some detail, with your background and there is no doubt that you have had a very difficult upbringing.  You did not have the supports when you were a child that you were entitled to.  You unfortunately became involved in substance abuse from a young age, 12 or at least by 14 you were heavily into the use of one illicit substance or another.  From the age of about 16, you became involved in the use of Ice and this substance abuse has blighted your life.

12You started work early.  You left school at 12 and went to work. But no doubt your substance abuse would have interfered greatly with your capacity to hold down a regular job and to keep yourself out of trouble.  The criminal record that you have is typical of a person who has had the kind of background that you have had.  Often persons with difficult upbringings little support in their childhood and teenage years have succumbed to chronic substance abuse.  It seems that this more recent rash of offences is an escalation of that kind of unlawful conduct which is again typical of persons who are long-term substance abusers.

13You do not need a lecture from me to know that sooner or later you are going to have to get on top of your drug habits.  I have little doubt that the prolonged use of a variety of illicit substances, has contributed to if not caused, your cognitive difficulties.  It may have caused brain damage.  Other factors will no doubt have contributed, including the abuse that you received in your childhood and also the motor vehicle accident.

14I accept that all of those are matters that properly should have been and I think have been generally, taken into account in assessing moral culpability on a number of occasions during the course of your criminal history.  Indeed, I made particular reference to that in my sentencing remarks back in March of 2015.

15I am sure that you have other psychological issues including depression and it is extremely unfortunate that you have spent most of the last several years, three years at any rate, incarcerated.  You are missing some of the best years of your life and your capacity to overcome your drug problems and to live a productive life are not going to be improved by prolonged periods in custody.

16However, there comes a time when other sentencing factors have to come into play and this court is required to denounce your conduct; to punish you adequately for your offending.  Importantly I think in your case, to deter you from further offending and most importantly, to deter others from committing offences of this kind.  All of that, as your counsel rightly points out, has to be balanced against the desirability and the need to provide you with your best chance of rehabilitation. 

17There is some support in the material for the proposition that you have good prospects of rehabilitation.  Ms Hammill on behalf of the prosecution urges me to conclude that I should be guarded, indeed substantially guarded in my assessment of your prospects of rehabilitation.  I think I do have to be guarded.  I am quite sure that you are now and as the exhibits show, you have been drug-free for a considerable period of time whilst in custody, that you do have prospects of rehabilitation.  I doubt whether you have been able to avail yourself of the full range of rehabilitative courses that are available within the prison system.  It may well be that once you are sentenced you will have a better opportunity of taking part in those.

18You have no doubt either been to or heard of Marngoneet Prison and it seems to me that that really offers world-class facilities in the rehabilitation of persons like yourself.  You will ultimately do yourself credit and you will give yourself the best chance of parole if you avail yourself of every available opportunity at progressing your rehabilitation during the period of your incarceration.

19You have pleaded guilty.  That is in your favour and you pleaded guilty to all of the offences for which I have got to sentence you today.  I do take into account your low cognitive functioning and the early onset of your substance abuse problems.  And I am conscious of the fact that the longer you are in prison, the more chance you have of being institutionalised.  In many respects it is becoming too comfortable for you and the environment is one you have probably got quite used to.  That is unfortunate.

20Your prior criminal history is by no means as bad as many that come before the court and as I say, the offending for which I have to deal with you today, does seem to represent an escalation of the nature of your offending conduct.

21I was urged by your counsel essentially to impose a term of imprisonment which would permit you almost immediate release.  I cannot quite do that, but the sentence that I have in mind will add to the time that you are serving, will not be a crushing sentence and I hope you will not see it as such.  You have already served a very significant portion of that sentence by way of pre-sentence detention.

22I am very pleased to see your half-sister here.  I am sure that she will give you considerable support when you have completed your sentence and the prospects of your rehabilitation will depend quite significantly upon the kind of support that she is able to garner.  Also the progress you are able to make in the balance of the period you must remain in custody. 

23The sentences are designed to reflect current sentencing practice, to give you full credit for your pleas of guilty, to reduce your sentence somewhat by reason of the difficult background, including your addiction to illicit substances from a young age, at an age when you had little opportunity of exercising appropriate judgment.

24The degree of credit as I suggested to your counsel for that and the reduction has to be moderated somewhat by the fact that that was made clear to you on the last occasion that that was being taken into account.   And you chose to go back out and get back into taking drugs.  You chose not to avail yourself of the opportunity that you were given and therefore the amount of reduction of sentence that I apply on this occasion must be reduced accordingly.

25Doing the best I can to balance all of those competing considerations, I am ready to impose sentence upon you.  Would you please stand.

26The indictment to which you pleaded guilty today for the Charge 1 of reckless conduct endangering a person, I convict you and sentence you to imprisonment for a period of 20 months.  For being a prohibited person in possession of a firearm, I convict you and sentence you to imprisonment for a period of 15 months.  For the offence of breaching the Community Corrections Order, I convict you and sentence you to imprisonment of one month.  The Community Corrections Order imposed on17 March of 2015 is cancelled and I re-sentence you for the three offences to which you pleaded guilty on that occasion.

27For Charge 2 on that indictment aggravated burglary I convict you and sentence you to imprisonment for a period three years and six months.  For the offence of theft, I convict you and sentence you to imprisonment for a period of three months, and  for false imprisonment, I convict you and sentence you to imprisonment for a period of 15 months.

28The sentence of three years and six months on Charge 2 on that earlier indictment is the base sentence.   I order that three months of the sentence on Charge 4 of false imprisonment on that indictment, ten months of the sentence on Charge 1 on the indictment to which you pleaded guilty today and five months of the sentence on Charge 2 of the indictment to which you have pleaded guilty today, will be served cumulatively upon one another and upon the sentence of three years six months for the aggravated burglary. 

29The total effective sentence is therefore five years imprisonment and I order that you serve a period of three years before you become eligible for parole.  I declare 785 days as time served on the sentences that I have imposed, to be deducted administratively from the time that you will actually have to serve.   I have not done the calculations but that is something under a year that you will have to serve.  And I order that that matter be noted in the records of the court.

30But for your pleas of guilty, I would have sentenced you to a total effective sentence of six years and nine months' imprisonment with a non-parole period of four years and six months.  I make the orders, the ancillary orders for forfeiture and disposal.

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31MS HAMMILL:  One of them is opposed Your Honour.

32HIS HONOUR:  One of them is opposed, is that the telephone?

33MS HAMMILL:  The telephone.

34HIS HONOUR:  The telephone, yes.  Are you pressing that?

35MS HAMMILL: I am Your Honour I can very briefly address it. The application is made under s.32 of the Confiscation Act on the basis that the mobile phone is tainted property. The submission is that it's used in connection with the commission of the offence, effectively on the basis that Your Honour has referred to in your sentence. Following the commission of the offence, it was used to, in effect, reinforce the threat that it's said was the purpose of the reckless conduct.

36HIS HONOUR:  Yes.

37MS HAMMILL:  Yes all right.   Mr Chernok?

38MR CHERNOK: Very briefly Your Honour. It's sufficient that the phone is used in connection with the offence, but it is after the offence. It's not instrumental to the commission of the offence first of all. Second of all, Your Honour ought take into account the use that's ordinarily made of the telephone which is regular communications, not the sort of communications that were the subject of the offending. And it is a discretionary judgment. You're not obliged in my respectful submission to forfeit the phone under s.33 of the Confiscation Act. Those are the submissions Your Honour.

39HIS HONOUR:  Yes, all right I will forfeit the phone.  He's not going to have much use for it for the time being in any event.  It seems to me that it is an aggravating feature of the offending and it seems to me that it falls within the ambit of the section.

40MR CHERNOK:  If Your Honour pleases.

41MS HAMMILL:  Your Honour the proposed order that my instructor handed up referred to ‑ ‑ ‑

42HIS HONOUR:  Take a seat for the moment.

43MS HAMMILL: Section 34 which is the consent forfeiture provision. Given that the order is not made by consent there will need to be an amendment made for a further s.33.

44HIS HONOUR:  All right, would you like to make those amendments and I'll initial them?

45MS HAMMILL:  Yes I'll have my instructor make those Your Honour.  I'm not confident ‑ ‑ ‑

46HIS HONOUR:  That's all right, that's what instructors are for, amongst other things. 

47MS HAMMILL:  Those amendments have been made Your Honour.

48HIS HONOUR:  All right yes thank you. 

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