Director of Public Prosecutions v Szalma

[2018] VCC 1982

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00970

DIRECTOR OF PUBLIC PROSECUTIONS

v

SANDOR SZALMA

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JUDGE:	HIS HONOUR JUDGE GAMBLE
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	28 November 2018
CASE MAY BE CITED AS:	DPP v Szalma
MEDIUM NEUTRAL CITATION:	[2018] VCC 1982

REASONS FOR SENTENCE
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Subject:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. McNeal	Office of Public Prosecutions
For the Accused	Mr R. Foley	Ann Valos Criminal Law

HIS HONOUR:

1Sandor Szalma, you fall to be sentenced for one charge of contravention of a community correction order that was imposed by me as part of a combination sentence on 6 February 2017, for one charge of aggravated burglary.

2You have admitted contravening that community correction order in the terms set out in the contravention report, dated 11 October 2018. 

3In essence, your failure to comply included an unacceptable failure to attend for supervision and for community work on a number of occasions, as well as by the commission of a number of dishonesty offences whilst subject to the community correction order.  The maximum penalty for an offence of contravention of a community correction order is three months' imprisonment.

4In my view, the relevant circumstances of your case are such that I consider it appropriate, indeed unavoidable, to cancel the community correction order, set aside the four month custodial component of the combination sentence and sentence you afresh for the offence for which you were originally placed on that community correction order, namely aggravated burglary.  The maximum penalty for that original offence is 25 years' imprisonment. 

5As noted in the contravention report, Mr Szalma, you commenced on the
18 months community correction order when you were released from custody at the expiration of the four month custodial component of the combination sentence, namely on 25 June 2017.  It was due to expire on 24 December 2018.

6Your performance on the order was initially satisfactory, but things began to unravel fairly quickly when you lost your job.  It was a job you valued and had held for about six years.  That termination led to you disengaging with Community Corrections.  More particularly, you failed to attend for supervision on four occasions between 7 February and 26 April 2018, and for unpaid community work on six occasions between 7 October 2017 and 5 April 2018.  You also failed to notify a change of address or employment. 

7In addition you committed 15 offences of dishonesty while the order was in force, three of which were burglaries.  The commission dates of those offences range between 2 March and 11 July 2018.  The burglaries were committed in April, June and July 2018 respectively.  I note that you pleaded guilty to those breaching offences and were sentenced in the Magistrates' Court on 24 July 2018 to an aggregate sentence of seven months' imprisonment.  According to your counsel, Mr Foley, that sentence is due to expire on 9 February 2019.

8Of course I am required to consider the nature and extent of your compliance with the conditions of the community correction order up until you were charged with having contravened it and I do so.  Part of the compliance involved the performance of 18.15 of the 100 hours of unpaid community work that you were ordered to undertake. 

9It is of relevance to note that you were subject to an earlier CCO imposed on
30 July 2015 for an offence of burglary when you committed the subject aggravated burglary on 17 October 2015, for which I placed you on the combination sentence on 6 February 2017.

10The circumstances of that aggravated burglary offence were outlined by me in my detailed sentencing reasons of 6 February 2017, a copy of which was tendered as Exhibit E on this contravention hearing.  I refer to but will not now repeat those circumstances.  Whilst I accepted that you played a lesser role than your co-offender, Ms Loffler, I also found that your role was an important one.  I note again that the intention on entry was to steal, not to assault, and that the offence was committed in company.  There were three other males and Ms Loffler.  I also noted your personal circumstances to that point in time, which again I refer to now but will not repeat. 

11Your counsel in the current matter, Mr Foley, submitted that the court should place you on a further community correction order and asked the court to take into account the fact that you have found your time in custody recently very difficult and are now more motivated to comply with the obligations of a community correction order. 

12He also informed the court that you have the continuing support of your father and partner.  Through the efforts of your father, you have a new job to go to on your release, at which time you intend to reside with your partner. 

13Mr Foley explained the context in which you committed the fresh offences.  You had lost your job and could no longer pay the bills at the caravan park at which you were then living.  So it was out of need rather than to fuel a drug addiction. 

14In assessing the nature and gravity of your contravention of community correction order offence, I take into account the degree to which you complied and did not comply with the order.  As conceded by your counsel, quite appropriately in my view, it was a serious example of this type of offence. 

15I also take into account the fact that you pleaded guilty to that charge at the earliest reasonable opportunity.  For taking that course at the time you did, you are entitled to and will receive a significant discount in the sentence you receive for that offence. 

16In my view, the circumstances of your case are such that the court has no option but to impose an immediate term of imprisonment in respect of both the contravention offence and the original offence of aggravated burglary.  However, in order to avoid doubly punishing you, I propose to effect total concurrency between those sentences, and in light of the totality considerations that arise in your case, I also propose to ensure that the sentence I impose today will be served concurrently with the remainder of the sentence that you received from the Magistrates' Court on 24 July 2018.

17Clearly the sentencing principles of denunciation and deterrence, both general and specific, are very relevant considerations, as is the need to provide a just punishment and a suitable measure of protection to the community.  I consider your prospects of rehabilitation to be less favourable now than when
I sentenced you on 6 February 2017, moderate as opposed to good.

18Would you please stand, Mr Szalma.

19I find the charge of contravention of a community correction order proven and hereby cancel that order. 

20For the contravention offence, you will be convicted and sentenced to a term of one months' imprisonment. 

21Pursuant to s.6AAA of the Sentencing Act 1991, I indicate that had you pleaded not guilty to that charge and been found guilty of it, I would have sentenced you to a term of six weeks' imprisonment.

22I also set aside the four months' sentence of imprisonment that was imposed as part of the combination sentence on 6 February 2017. 

23In respect of the original offence of aggravated burglary committed on
17 October 2015, you will be sentenced afresh to a term of nine months' imprisonment.

24As I have not ordered otherwise, those sentences are to be served concurrently with each other, making a total effective sentence of nine months' imprisonment. 

25That sentence will, absent any order for cumulation, also be served concurrently with the remainder of the seven months sentence you received in the Mildura Magistrates' Court on 24 July 2018.

26As observed by the Court of Appeal in the case of DPP v Luu, a judge in this situation must declare the entire period you have served in custody for the original offence.  In your case, as agreed between the parties, that period is 119 days, not including today. 

27Accordingly I declare that you have already served a period of 119 days
pre-sentence detention in respect of the sentence that I have imposed today and I order that the details of that declaration be entered in the records of this court.

28Is there anything that counsel need to raise at this point?

29MS McNEAL:  No, Your Honour.

30HIS HONOUR:  Mr Foley?

31MR FOLEY:  No, I'm just thinking, Your Honour.  Just so I can - my client's got it clear, he finishes ‑ ‑ ‑

32HIS HONOUR:  Do you want me to do the maths for you, do you?

33MR FOLEY:  Well he finishes his sentence in February.

34HIS HONOUR:  I think all you need to understand to explain it to him, Mr Foley, is that I have sentenced him to a period of nine months' imprisonment today.

35MR FOLEY:  Yes.

36HIS HONOUR:  He has already served 119 days of that nine months.

37MR FOLEY:  Yes.  Of course, yes.

38HIS HONOUR:  Which leaves approximately five months he has to serve from today's date. 

39MR FOLEY:  Thank you, Your Honour. 

40HIS HONOUR:  Yes.  And no part of that is cumulative on his Magistrates' Court's sentence.

41MR FOLEY:  Yes.  Yes.

42HIS HONOUR:  So he has got to serve some more, but not a lot more.  Yes, all right, adjourn the court until 9 am tomorrow morning, thank you.

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