Director of Public Prosecutions v Sweeney

[2022] VCC 1747

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

AT Melbourne

CRIMINAL DIVISION

CR-22-01134

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOSHUA SWEENEY

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JUDGE:	HIS HONOUR JUDGE LAURITSEN
WHERE HELD:	Melbourne
DATE OF HEARING:	29 September 2022
DATE OF SENTENCE:	7 October 2022
CASE MAY BE CITED AS:	DPP v Sweeney
MEDIUM NEUTRAL CITATION:	[2022] VCC 1747

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW

Catchwords:  Four charges of burglary – two charges of theft – one charge of theft of a motor vehicle – one charge of committing indictable offence on bail  - general deterrence and denunciation important sentencing considerations – relevant criminal history – pleas at the earliest reasonable opportunity – no factors to lower moral responsibility – burglaries in the mid-range of seriousness – uncertain prospects of rehabilitation – application of principle of totality – application of the Renzella discretion

Legislation Cited:                Sentencing Act 1991

Cases Cited:Worboyes v R [2021] VSCA 169; R v Verdins 169 A Crim R 581; DPP v O’Neill [2015] VSCA 235; R v Renzella [1997] 2 VR 88

Sentence:Total effective sentence of 30 months imprisonment with a non-parole period of 18 months’ imprisonment – disqualified from holding any licence or permit to drive a motor vehicle for 18 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Pezzimenti	Office of Public Prosecutions
For the Accused	Ms S. Joosten	Tyler Tipping & Woods

HIS HONOUR:

Introduction

1Joshua Sweeney, you have pleaded guilty to four charges of burglary, two charges of theft, a charge of theft of a motor vehicle, and a charge of committing an indictable offence while on bail. 

2The circumstances underpinning these charges are set out in the document 'Summary of Prosecution Opening for Plea', which is Exhibit A.  Your counsel agrees with its contents. 

Circumstances

3Between 21 and 22 September 2021, you went to a property on Settlement Road in Cowes and entered the house after breaking the locks to the security door and a sliding glass door.  These circumstances constitute Charge 1, a charge of burglary. 

4Inside the house, you stole a makeup bag.  This constitutes Charge 2, a charge of theft. 

5Between 20 and 21 September 2021, you went to a property on Red Rocks Road, Cowes.  You entered the house.  The front door key was in a lock box, which you broke open, and cut the wires to the alarm system.  Your entry into the house constitutes Charge 3, a charge of burglary. 

6Inside the house, you stole a .22 Winchester rifle, a passport, and a firearms licence.  This constitutes Charge 4, theft.  The rifle was in a gun safe.  Its lid had been prised open.  The passport and licence were recovered by the police, but not the rifle. 

7Between 21 and 23 September 2021, you entered a house at Beach Road, Rhyll, by forcing a lock to a window.  This constitutes Charge 5, a charge of burglary. 

8Between 25 and 26 September 2021, you entered a warehouse at The Concourse, Cowes.  You cut a padlock to a gate and broke an internal door.  This constitutes Charge 6, a charge of burglary. 

9Inside the warehouse, you stole a Mercedes-Benz van.  Later, it was found abandoned in a street in Woolamai.  I assume it was undamaged.  This constitutes Charge 7, theft of a motor vehicle. 

10During September 2021, you were on bail while committing these offences.  This constitutes the summary charge, committing an indictable offence while on bail. 

11You explained your offending as needing to steal to support your drug habit and to have somewhere to live, being homeless.  You aimed to enter unoccupied Airbnb homes. 

Criminal History

12Between 22 April 2002 and 16 November 2020, you have appeared in a criminal court on 12 occasions and have been convicted of 107 charges. 

13You have been sentenced to some form of imprisonment on seven occasions, with extensive imprisonment over the past eight years.  Your longest total effective sentence of imprisonment was 18 months with a non-parole period of 12 months, imposed on 26 May 2015.  You have been convicted of burglary 10 times. 

14Between 2005 and 2013, you did not offend.  You explained to the psychologist Sandra Cokorilo:[1] 

‘There is a non-offending period between 2005 and 2013, which Mr Sweeney attributed to positive effects of consistent employment and his willingness to accept family support. Although he acknowledged his drug use over the course of the non-offending periods, he described himself as a “functioning addict”, and explained his drug use escalated from 2013 after his father died, contributing to relapse into association with antisocial peers and criminality.’

[1] Report dated 13 February 2022 at page 2

Victim Impact Statements

15There are no victim impact statements.  I daresay some of the owners were upset because some damage occurred when you entered their premises. 

Personal Circumstances

16You are now 38.  You were born in Gippsland.  You have three older sisters and a younger brother.  Your parents drank heavily, often argued, were violent to each other and separated in 2012.  Your father died in 2014.  You have never been close to your mother.  At present, for different reasons, you have no contact with your sisters and brother. 

17You left home at 14 and lived at the home of a friend until you were 17.  You left and returned to live with your parents because of the suicide of your friend's younger brother.  At 20, you left your parents and thereafter lived with friends or partners, interspersed with periods of homeless. 

18Your formal education is limited.  You were expelled from school before completing Year 8. 

19After school, you had consistent employment between the ages of 20 and 25, working in various industries.  However, in the past 13 years, you have worked only two years.  You last worked 18 months ago as a concreter. 

20You have had about 12 relationships, of which two are significant. These two occurring when you were 20 and 23, and 26 and 29.  You believe these relationships broke down due to your drug addiction.  However, you have maintained friendly contact with a partner in the relationship which ended when you were 29.  You describe her as your main support. 

21You started drinking alcohol at 16, and did so to excess between the ages of 28 and 34.  You now drink very infrequently.  Alcohol has been replaced by illicit drugs.  You started using cannabis at 15 and your use was heavy between the ages of 15 and 23.  Since then, you use cannabis once a week or fortnight. 

22More significantly, you started using amphetamine at 17, injecting yourself daily between 19 and 25.  Between 25 and 28 you stopped using the drug but restarted on methamphetamine when your father became ill due to cancer.  You have used the drug ever since with doses of up to 0.3 grams per day. 

23You have experimented with ecstasy and heroin, and used Xanax intermittently between the ages of 33 and 35. 

Psychologist

24As I said earlier, Sandra Cokorilo is a psychologist.  At the request of your solicitors, she interviewed you on 4 February 2022. 

25Using various psychological tools and her impression of you during the interview, Ms Cokorilo diagnosed you as suffering from several recognised psychological disorders, particularly post-traumatic stress disorder and borderline personality disorder.  She said:[2] 

‘Mr Sweeney’s untreated PTSD and BPD are thought to be of particular relevance to his negative behavioural outcomes due to inherent emotional dysregulation, which impairs problem-solving and healthy information processing and can deter prosocial responses.

Such restriction in information processing capacity along with impulsivity stemming from disinhibition in BPD and PTSD, manifest as reckless and self-destructive behaviours, and are thought to play a key role in Mr Sweeney’s offending conduct. Whilst his drug abuse is undoubtedly a significant contributing factor, it is noted that both PTSD and BPD are consistently identified as risk factors preceding onset of substance dependence.’

[2] Report at paragraphs 76 and 77

26Not unexpectedly, Ms Cokorilo considered your risk of reoffending generally as high.  This was so based on variety of factors, including your criminal history.  She says you will need to abstain from drug usage as it is necessary to reduce your risk of reoffending. 

27After noting the support of your former partner, Ms Cokorilo commented:[3]

‘Whilst he acknowledged the need to address his substance use, he recognised that his untreated chronically compromised mental health leads him to self-medicate. He appeared genuine in his motivation to engage with mental health services, grief counselling, and expressed belief that he requires pharmacological treatment.’

[3] Report at paragraph 85

28She recommended psychological intervention to develop functional coping strategies and techniques to manage your depression, anxiety, trauma, and unresolved grief.  She also recommended the use of Dialectical Behaviour Therapy to deal with your BPD and also to use drug services. 

Discussion

Purposes

29Section 5(1) of the Sentencing Act 1991 (‘the Sentencing Act’) sets out the purposes for which sentences may be imposed:

(a)   to punish the offender to an extent and in a manner which is just in all of the circumstances;

(b)   to deter the offender or other persons from committing offences of the same or a similar character;

(c)   to establish conditions within which it is considered that the offender's rehabilitation may be facilitated;

(d)   to manifest the denunciation of the type of conduct the offender engaged in; and,

(e)   to protect the community from the offender. 

30Each of the offences to which you have pleaded guilty are commonplace.  General deterrence and denunciation are important sentencing considerations. 

31Your criminal history emphasises the need to deter you from committing these or similar offences.  It also points to the need to protect the community from you. 

32Section 5(2) of the Sentencing Act sets out matters, where relevant, which will be taken into account in sentencing you. 

Gravity of the offences

33The offences of burglary of the residential properties and the warehouse are in the middle range of seriousness. 

34There is nothing to lower your moral responsibility for any of the offences. 

Maximum Penalties

35The maximum charges are: 

(a)   burglary – 10 years' imprisonment;

(b)   theft – 10 years' imprisonment; and,

(c)   committing an indictable offence while on bail – 30 penalty units or three months' imprisonment. 

Guilty Pleas

36In relation to the charges, in terms of the timing of your pleas, they were entered at the earliest reasonable opportunity. 

37By pleading guilty to the charges, you have avoided a trial.  You have saved the time and expense of a trial.  You have allowed other trials to be listed earlier than would otherwise be the case.  You have spared 12 witnesses the burden of giving evidence in the trial.  Giving evidence is never easy. 

38At the present time, pleas of guilty deserve a greater discount on sentence.  Why this is so was explained in the case of Worboyes v R[4], where the court said:[5]

‘As is abundantly clear, one of the pernicious effects of the current pandemic is that the lists of the criminal courts in this State have become severely congested.  Unacceptable delay in the disposition of criminal cases is endemic.  Indeed, it is not an overstatement to say that the system of criminal justice in this State is in crisis, requiring a response from the courts.  We therefore consider that, whilst the courts of this State continue to labour under the adverse effects of the pandemic, a sentencing court should view a plea of guilty as carrying with it a greater utilitarian benefit than at other times and in other circumstances, and, concomitantly, as attracting an augmented mitigatory effect on sentence, simply because the plea will benefit the beleaguered administration of justice.  Given the unhappy state of the courts’ lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead.  Such encouragement must come from an actual and palpable amelioration of sentence.’

[4] [2021] VSCA 169

[5] At [35]

Verdins

39Through your counsel, you rely upon the fifth proposition stated in R v Verdins[6]: 

‘The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.’

[6]169 A Crim R 581 at [32]

40Your counsel submits this proposition applies because of your complex mental health issues, which have influenced your drug addiction, together with your impulsivity and decision making.  More specifically, she submits imprisonment would weigh more heavily upon you than it would on a person in normal health. 

41Curiously, Ms Cokorilo lends no direct support for the application of the proposition.  The nearest she comes is in paragraph 79 of her report: 

‘It is important to note that Mr Sweeney has spent a total of six of the last eight years of his life incarcerated. Whilst this is a reflection of severity and frequency of his offending, the resulting exacerbation of hypervigilance, interpersonal distrust, suspicion, emotional deficits, isolation, and low self-worth limits his coping capacity in the community and increases the likelihood of self-destructive and impulsive behaviours already inherent in his psychopathology.’

42Even though one might suppose those attributes would make imprisonment harder for you than others, the evidence lacks the rigour demanded by Verdins and emphasised in cases like O'Neill[7]. Proposition five does not apply. 

[7]DPP v O’Neill [2015] VSCA 235

Prospects of Rehabilitation

43Judging from your criminal history and the views of Ms Cokorilo, your prospects of rehabilitation are most uncertain.  It depends on your ability to reform yourself through the use of various services.  Even though you expressed to Ms Cokorilo a willingness to do so, it is something you have resisted in the past for strong emotional reasons.  There is the fact my sentences should have a deterrent effect on you.  There is the support of your former partner even though you lack the support of your siblings. 

44Your expression of remorse for these offences is genuine but I doubt whether it will translate into a sufficient determination to not reoffend unless you embrace professional assistance. 

Conditions in custody

45You have contracted the virus while in custody and were quarantined for two weeks.  More importantly, during your time in custody, there have been marked restrictions in the provision of programmes, educational or otherwise.  There were long periods of lockdown and visits.  These considerations have a mitigatory effect. 

Section 16(3C)

46Section 16(3C) of the Sentencing Act provides: 

‘Every term of imprisonment imposed on a person for an offence committed while released on bail in relation to any other offence or offences must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term.’

47Unless I order otherwise, each sentence on Charges 2 through to 7 should be served cumulatively upon themselves and upon Charge 1. That would lead to a very large sentence of imprisonment. Although s16(3C) modifies the effect of the principle of totality, that principle still has an important part to play. I will order otherwise to realise a sentence commensurate with your criminality but paying due regard to s16(3C).

Renzella Discretion

48Your counsel raised the so-called ‘Renzella discretion’.  You were remanded in custody on unrelated charges on 1 November 2021.  These charges are listed to be heard on 31 October 2022 at the Magistrates' Court at Sale.  Since 1 November 2021, you have been in custody for a total of 340 days.  Your counsel submits this larger period in custody is relevant in my sentencing you on these offences.  She relies upon the principles in R v Renzella[8] and subsequent cases. 

[8][1997] 2 VR 88

49The anomaly identified in Renzella's case of double warranted detention was rectified through amendment to s18 of the Sentencing Act. Subsequent cases have extended the principle to situations where time in custody is not declarable under s18. It has been called 'dead time'. At this stage, because you are yet to be sentenced in the Magistrates' Court, I cannot say whether all or some of the difference between 234 and 340 days (i.e. 106 days) will be dead time and capable of influencing the sentences in this proceeding. Equally, in light of the unresolved state of the charges in the Magistrates' Court, I cannot say what effect, if any, the application of the principle of totality would have in this case.

50To take the whole period of 106 days' detention into account in sentencing you for these offences assumes the sentences imposed in the Magistrates' Court will be ‘dead time’.  Nevertheless, taking the period into account complies with the requirement to take such time into account at the first opportunity.  This is the first opportunity, and I will take it into account in a ‘broad way’ in sentencing you. 

Sentence

51On Charge 1, a charge of burglary, I sentence you to 18 months' imprisonment. 

52On Charge 2, a charge of theft, I sentence you to three months imprisonment. 

53On Charge 3, a charge of burglary, I sentence you to 18 months' imprisonment. 

54On Charge 4, a charge of theft, I sentence you to 12 months' imprisonment. 

55On Charge 5, a charge of burglary, I sentence you to 18 months' imprisonment. 

56On Charge 6, a charge of burglary, I sentence you to 12 months' imprisonment. 

57On Charge 7, a charge of theft of a motor vehicle, I sentence you to 12 months' imprisonment.  In addition, I disqualify you from holding any licence or permit to drive a motor vehicle for 18 months. 

58On the summary charge, committing an indictable offence while on bail, I sentence you to one month's imprisonment. 

59The base sentence is the sentence on Charge 1.  Four months of the sentences upon Charges 3, 5, and 6 will be served cumulatively upon themselves and the base sentence.  The sentences on the remaining charges will be served concurrently with each other and the other charges. 

60The total effective sentence is 30 months' imprisonment.  I will set a non-parole period of 18 months' imprisonment. 

Pre-Sentence Detention

61Excluding today, you have been in custody for 234 days in relation to these charges from 25 January 2022.  I declare the 234 days as time served under my sentences today. 

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62In the absence of your guilty pleas, I would have sentenced you to a total effective sentence of imprisonment of 45 months. 

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