Director of Public Prosecutions v Tibos

[2022] VCC 55

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-18-02199

DIRECTOR OF PUBLIC PROSECUTIONS

v

PETER MICHAEL TIBOS

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JUDGE:	Judge Gwynn
WHERE HELD:	Melbourne
DATE OF HEARING:	20 January 2022
DATE OF SENTENCE:	20 January 2022
CASE MAY BE CITED AS:	DPP v Tibos
MEDIUM NEUTRAL CITATION:	[2022] VCC 55

REASONS FOR SENTENCE
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Subject:Criminal law

Catchwords:              Contravention of CCO

Legislation Cited:      Sentence Act 1991 (Vic)

Sentence:                  Community Correction Order confirmed; 2 months' imprisonment on contravention charge.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Connolly	Office of Public Prosecutions
For the Offender	Ms J. Kennedy	Leanne Warren & Associates

HER HONOUR:

1This is a contravention of community corrections order in relation to Peter Tibos, an order I imposed on or about 25 October 2019. 

2At that time there were two additional co-accused, Billy-Joe Matthews and Benjamin Patrick Hassall, who had been involved in far more serious offending than Mr Tibos, who himself seemed to have engaged in the offending at the latter end of what was otherwise a crime spree by the other two.

3In terms of determining this matter, I have had access to my reasons for sentence dated 25 October 2019 and they will not be repeated in full. 

4In short compass, Mr Tibos pleaded guilty, as I said, to the tail end of an offending spree by the other two. His original charges included charges of burglary, resisting an emergency worker on duty, retention of stolen goods, and theft of a motor vehicle.  The particular offending in which Mr Tibos was involved occurred on 5 January 2018. 

5All three of accused on that date attended a BP service station in Euroa in a stolen motor vehicle that had been rented.  The stolen vehicle was the subject of charge for all three and was put on the basis that they each drove or were a passenger in the motor vehicle.  A rear door of the premises was forced and a cigarette cabinet was also forced and cigarettes to the value of $7,000 were taken.

6Mr Tibos was not charged with the burglary, he was instead charged with handling the stolen goods, that is, the cigarettes taken. 

7Police did attend and the other charges then unfolded in circumstances where, upon identifying police presence, Mr Tibos jumped into the driver's seat of a vehicle and drove it forward into an unmarked police vehicle, then placed the vehicle in reverse, which hit a vehicle containing three police members and caused damage to the front panel of that vehicle.  It was not said to be an intentional act and he was sentenced on that basis.  He then refused to leave the vehicle when directed to do so.  It reached a stage where police smashed entry to the vehicle and OC foam was used.  Mr Tibos had to be taken to Shepparton Hospital for treatment and was not in a state to be interviewed.

8On that occasion I took into account Mr Tibos' personal circumstances, which included his significantly lesser role in the offending on that particular night.  I took into account his prior criminal history, which was serious and extensive, and  I took into account his failure to comply with previous court orders. 

9I also took into account matters personal to Mr Tibos, many of which have been repeated in the submissions provided to me today.  He had an extremely difficult upbringing in the sense that both his parents were drug users.  He was particularly close to his father, who died when he was 12 or 13 years of age from prostate cancer. His mother died from terminal liver cancer when Mr Tibos was around 18 years of age. 

10He had a limited education, leaving school by Year 9.  He had two sisters and a brother but only limited contact with the siblings.  

11Mr Tiobs had a long-term relationship with Kayla Fox McMahon, which I am told continues, and there is a daughter of that relationship who was eight at the time I previously dealt with Mr Tibos, so presumably has aged accordingly. 

12I took into account a report by Jeffery Cummins, psychologist. 

13And I took into account, at that stage, Mr Tibos' prospects for rehabilitation, bearing in mind he had some compliance with the CISP program and had some prospects of employment, and of course had the supports of a longstanding relationship.

14I took up the submission made by Ms Kennedy at that time and imposed a combination sentence, as already discussed, which included a sentence of 14 months' imprisonment in combination with an 18-month community corrections order which was wholly therapeutic.  I accept what Mr Connolly says, of course:  the duration of the order also represents punishment.

15In contravention of that order I have had access to the contravention package and it is a breach by non-compliance and a breach by further offending. 

16I accept Ms Kennedy's submission that the Heidelberg Magistrates' Court has dealt with the further offending and its gravity.

17Mr Tibos at this stage still hopes that he can find his feet ultimately in the community, but the Heidelberg Magistrates' Court imposed a sentence of 18 months' imprisonment with a minimum of 10 months on or about 22 October 2021, reckoning 149 days as already served.  That is of course relevant in relation to the principle of totality, which I must apply in determining this matter.

18I have received helpful submissions on behalf of the prosecution dated 18 January 2022 which invite me to cancel the order that I made and resentence.  That is not an uncomplicated exercise, bearing in mind Mr Tibos has had the credit of some emergency management days and would have 391 days available in relation to this matter by way of pre-sentence detention.

19In the alternative, Ms Kennedy submits that the proper sentencing exercise can be reflected in confirming the order that I made which did expire – or has expired, as I am being told – and to reflect the real punishment in the contravention.

20Section 83(AS)(2) of the Sentencing Act obliges me to consider Mr Tibo’s level of compliance with the correction order on which he was placed. In effect, the level of compliance, it has to be said, was relatively dismal, but I do accept that Mr Tibos tried, he just literally succumbed to the ravages of drug addiction once again.

21I do accept, in a general sense, it is very difficult for people with corrections orders during the COVID-19 pandemic.  That submission was not made, but I do accept in a general sense that remote contact with therapeutic supports is not ideal, particularly with someone who was assessed as being a high risk of offending.

22Ultimately I am persuaded by Ms Kennedy's argument, and that is with significant weight being placed on the totality principle, which has application to the resentencing exercise. 

23Accordingly, I will confirm the order that I made and take no further action, noting that the breach was acknowledged.

24In relation to the contravention itself, taking into account, firstly, the maximum penalty, secondly, totality and, three, the plea of guilty, Mr Tibos is convicted and sentenced to two months' imprisonment. 

25Again, taking into account totality, one month of that will be cumulative on the sentence imposed by the Heidelberg Magistrates' Court on 22 October 2021. 

26As such there are no pre-sentence days to take into account, as I understand it.

27Does that deal with everything I need to deal with?  Because you've both got scrunchy faces.

28MR CONNOLLY:  I think technically a 6AAA - - -

29MS KENNEDY:  No, I - - -

30MR CONNOLLY:  - - - declaration needs to be made.

31HER HONOUR:  I beg your pardon?

32MR CONNOLLY:  I think, as artificial as it is, a 6AAA declaration might need to be made.

33HER HONOUR:  No, you're right about that.  Ms Kennedy?

34MS KENNEDY:  Nothing further, Your Honour, the original order stands, so all you need to deal with is the breach, that's correct.

35HER HONOUR:  All right.  Well, in terms of 6AAA declaration – and thank you, Mr Connolly, it's something I routinely forget so I'm very grateful for the reminder. 

36But for the plea of guilty, Mr Tibos would have been at risk of having the entire three months maximum penalty imposed.  I mean I have taken into - - -

37MS KENNEDY:  As Your Honour pleases.

38HER HONOUR:  - - - other factors, but that's the 6AAA declaration.

39MR CONNOLLY:  As Your Honour pleases.

40HER HONOUR:  All right.  If for any reason, Ms Kennedy, you run into trouble with the sentencing calculation people because of what I've done, let me know, won't you?

41MS KENNEDY:  I will, Your Honour, thank you.

42HER HONOUR:  All right.  Otherwise I'm standing down temporarily.  Thank you.

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