Director of Public Prosecutions v Tonon

[2019] VCC 520

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-02371

DIRECTOR OF PUBLIC PROSECUTIONS

v

JEMAHL TONON

---

JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	5 April 2019
DATE OF SENTENCE:	8 April 2019
CASE MAY BE CITED AS:	DPP v Tonon
MEDIUM NEUTRAL CITATION:	[2019] VCC 520

REASONS FOR SENTENCE
---

Subject:  CRIMINAL LAW

Catchwords:  Aggravated burglary – possess controlled weapon – possess drug of dependence.

Sentence:Total effective sentence of three years and six months imprisonment with a non-parole period of two years and four months before being eligible for parole.

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S Devlin (Plea) Ms V Worrell (Sentence)	Director of Public Prosecution
For Accused Tonon	Mr S Moglia	Amad Lawyers

HIS HONOUR:

1Jemahl Tonon, on 5 April 2019, you pleaded guilty to three charges on indictment No.C1811646: 

Charge 1, is a charge of aggravated burglary of Unit 8/7 Lawford Street in Doncaster on 5 January 2018.  This offence has a maximum penalty of 25 years' imprisonment. 

Charge 2, is a charge of recklessly cause injury to James Brown on the same date.  This has a maximum penalty of five years' imprisonment. 

Charge 3, is the charge of possessing a drug of dependence; in your case, it was cannabis L.  This has a maximum of five penalty units.

2Pursuant to the provisions of s.145 of the Criminal Procedure Act. You pleaded guilty to two related summary charges:

Charge 5, which is possess a prohibited weapon - in this case, OC spray.  This offence has a maximum penalty of two years' imprisonment. 

Charge 10, possess controlled weapons.  This charge relates to the hatchets, an axe, and a knife in your car that were not part of the other offending.  This charge has a maximum penalty of one year's imprisonment.

3You admitted your prior criminal history.  You have eight prior court appearances.  Your offending includes burglary, theft, assault charges and drug offending.  The court penalties never resulted in an actual prison sentence to be served on those occasions.  You have completed suspended sentences in the past. 

4In 2012, you spent 14 days on remand for one of the charges. You have been on remand for these offence since 5 January 2018.  The total pre-sentence detention, in your case, on my calculations, is 458 days not including today.

The circumstances of your offending 

5You knew your victim James Brown from previous dealings with him over drug matters in the Collingwood area.  You did not know Adam Basso, the second victim of the aggravated burglary. 

6On 5 January 2018, you and Mr Lovett met up in Collingwood.  You wanted to see Mr Brown to resolve a dispute, in which you took Mr Lovett along with you.  It was your idea to involve Mr Lovett.

7You accompanied Mr Lovett who drove to his premises in your car, and parked outside 15 Lawford Street, Doncaster, just up the road from where Mr Brown lived.  You arrived at approximately 1.50 am in the morning.  You placed the steering lock on your car and you left the car.  You then, together with Mr Lovett, went to the premises.  You were armed with canister of Black Hawk-brand Oleoresin Capsicum spray (“OC spray”).  That is relevant to summary Charge No.5.

8Mr Lovett knocked on the outside screen door that was external to a locked wooden door.  At that stage, you were hidden behind a brick pillar. 
Mr Basso, who was living at the premises, was awoken by the noise at the front of the premises.  He got up and opened the doors.  Mr Lovett asked for "James", meaning Mr Brown.  Mr Basso went and woke up Mr Brown, who walked towards the front door.  Mr Basso went back to his bedroom.

9As Mr Brown walked to the door, you suddenly appeared and stood next to Mr Lovett.  You reached out and grabbed Mr Brown and tried to pull him outside of the premises.  Mr Brown resisted, and you discharged the OC spray into his face, affecting his vision.  Mr Brown has then called out to Mr Basso to assist him.  At this point, you were still trying to pull Mr Brown outside of the unit. 

10Mr Basso arrived and attempted to close the screen door, but Mr Brown's arm was jammed in the doorway.

11You and Mr Lovett then tried to push yourselves into the premises.  Mr Brown yelled, "I’m calling the police."  Mr Brown got his arm inside the screen door and he and Mr Basso shut and locked the wooden door. 

12You have then smashed the front window next to the door and the reached in and tried to unlock the door.  Mr Lovett was kicking the door.  Mr Brown moved to the broken window and yelled at you to stop kicking the door and to "fuck off." 

13You then sprayed him again with the OC spray.  Mr Lovett kicked in the wooden front door, and both you and Mr Lovett entered the premises.  That is the aggravated burglary charge.

14You then approached Mr Brown.  By this time, Mr Brown had armed himself with a wooden chair leg which had nails in it, in order to defend himself from you. That was photographed in Exhibit “B”. 

15Both Mr Brown and you struggled with each other, and during the course of the struggle, both men used the chair leg against each other. Mr Brown ultimately overpowered you and punched you in the head.  You then said, "Let me go and I'll leave."  At the end of the struggle, you left the premises holding the chair leg. 

16Mr Brown received minor blunt force injuries and irritation and soreness from the OC spray.  You also received injuries which required treatment in hospital.  After you had being overcome in your fight with Mr Brown, you left the unit.

17You then ran to your car, but realised you had dropped the car keys at the premises.  You used the chair leg to smash the window of your own car.  
You then entered your car but realised that you did not have the key for the car lock, so left the car, leaving behind you some bloodstains in your own car.

18The dog squad was called in and you were arrested after the dog squad had located you and bitten you.  Your injury required medical treatment.  In your clothing, police found 5 grams of cannabis in a jean pocket.  That is the basis for Charge 3 on the indictment.

19Your car was also examined and blood was located in the car.  Police also found two hatchets and a Maxam hunting knife in the car.  That was the relevant summary charge, No.10. 

20None of these items were used in the incident.  These items are tools that you sometimes use on the family bush block in the Gembrook area.  It is not part of the prosecution case that you took these items for the purposes of this criminal escapade.

21On 13 February 2018, you made a lengthy record of interview which contained admissions and explanations for your offending.

Victim Impact Statement

22The victim impact statements submitted, set out the fear and effect these offences had on each of your victims. Mr Brown's victim impact statement was Exhibit “D” dated 4 April 2019.  Mr Basso's victim impact statement was Exhibit “E” dated 29 March 2019. 

23Mr Brown speaks of the bruising to his body and alleges the effect on his eyesight as a result of the OC spray.  There was no medical evidence to support the allegation in respect of the impact on his eyesight.  Mr Brown says he has lost his flat and possessions as a result of these events.  He states he is fearful in public areas and has withdrawn from his family.

24The prosecutor tendered Mr Brown's criminal history record, which was Exhibit “F”.  It is fair to say there are a number of criminogenic factors that may cause Mr Brown to feel unsafe in the community.  He has spent time in prison, and
I note he is eight years older than yourself at the time of the offending.

25Mr Basso also has a criminal history that was tendered by the prosecutor. 
That was Exhibit “G”.  Mr Basso is approximately the same age as Mr Brown.  His criminal history ran to some 26 pages in length.  He has a full career of criminal offending.  Your offending has not had much direct effect on Mr Basso.  Your co-accused, Mr Lovett, is principally responsible for his injuries and the sequalae to those injuries.

26All four of you have one common feature:  drug addiction.

Personal Circumstances

27You are 38 years old.  Your parents have never lived together.  You have an older brother who now runs the family Vespa business in Collingwood.  Each of your family members were in court on the day of your plea, and I note they are here again today to support you.

28You were initially cared for by your mother.  When you were approximately three, you then went to live with your father, but you were really cared for by your paternal grandmother.  You found your grandmother after she had committed suicide.  At that stage, you were approximately 12 to 13 years old.  At that time, you then moved to live with your brother over the road from your father. 

29Your education was completed prior to finishing Year 12.  You went to primary school in Collingwood.  You attended Cathedral College in East Melbourne, then Ivanhoe Grammar.  From there, you went to Redden College in Preston and Thornbury Darebin High School.  Your attempt at Year 12 was at Collingwood TAFE.  By that time, you were regularly using cannabis and heroin.

30You told your father about your heroin addiction.  You were packed off to Narconon in New Zealand, a residential drug rehabilitation centre, for some
18 months.  You then returned to Australia as a 19-year-old. 

31You then went to live with your mother, who at that stage was in Surfer's Paradise.  You relapsed into heroin use.  You attended Narconon in Spencer, New South Wales for approximately ten to 12 months.

32In terms of work history, you have worked for your father's business in Collingwood, Australia Post, and other factory jobs.  You started but never completed a light engine motor mechanic's apprenticeship at your father's premises. 

33At the time of the offending, you were living with your mother in Doveton.  You were, in effect, her carer.  You were well-known in the Collingwood area and that, in effect, is the connection of you to Mr Brown and you to Mr Lovett.

34You have been assessed by Mr Geoffrey Cummins, a forensic psychologist.  His report is dated 29 March 2019 and was Exhibit “T1” on the plea. 
Mr Cummins diagnoses you as probably suffering from borderline personality disorder with features of impulsivity and superficial relationships.  You have no partner and no children. 

35You have been assessed as a moderate risk of further offences for violence.  You do not have any mental health diagnosis, apart from polysubstance abuse.  I note you are on the methadone program whilst you are in custody.

Sentencing Considerations

36The basic purpose for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation, and denunciation of your actions, and the protection of the community.  In sentencing you, I must have regard to a range of factors such as the seriousness of your offending, your culpability for it, and your personal circumstances. 

37I am also required to balance the interests of community in denouncing your criminal conduct with the interests in the community in seeking to ensure, as far as possible, that you, as an offender, are rehabilitated and reintegrated into society.

38I am also required to take into account current sentencing practices in fixing your sentence.  That enquiry is directed particularly but not exclusively to the kind of sentences imposed in comparable cases and the statistics for those sentences at the time. I have considered the statistics and current sentencing practices, mindful that each case must be considered in the light of its own particular circumstances and many of the cases would be distinguishable from your case, as indeed, they are from one another. 

39Of course, current sentencing practices is only one of the factors I have to take into account when sentencing you. This type of offending calls for terms of imprisonment to reflect the seriousness of your criminality.

40You have pleaded guilty to the charges.  Your plea of guilty was indicated at an early stage.  Your plea does have the utilitarian value of allowing for the orderly and effective administration of justice.  There is a certainty of outcome and a resolution of the substantive issues raised by your offending.

41Your plea allows for the preservation of court and police resources to deal with other matters, and your plea vindicates the public confidence in the legal process set up to protect the community.

42Your plea is also a clear acknowledgement by you that you accept responsibility for your criminal behaviour on this occasion.  Your plea also recognises you are willing to facilitate the course of justice in the community, and I accept that your plea of guilty to these charges indicates and demonstrates remorse on your behalf.

43I regard your plea of guilty as high in value.  The victim of your offending,
Mr Brown, has been spared the burden of giving evidence.  Further, a trial where the principal prosecution witnesses have extensive criminal histories tied up in the murky world of drug use and dealing would make such a trial problematic.

44In your past, you have only served 14 days' imprisonment on remand. 
You have now been in custody for some 458 days on remand for these offences.  Your criminal history is about drug addiction resulting in dishonesty and violence offending, including burglary.  In the past, you have received merciful court dispositions.

45You were the instigator of the idea to attend Mr Brown's premises in Doncaster.  You convinced or persuaded Mr Lovett to go with you as backup or, "the muscle."  The offence of aggravated burglary is a serious offence.

46I accept that your initial idea, not well thought out, was to confront Mr Brown outside his premises.  Once Mr Brown slammed the door in your face, events just took a turn for the worse, no doubt fuelled by alcohol, methylamphetamines and anger.

47The objective seriousness of your aggravated burglary offence is informed by the following factors: 

(a), this was not, from the outset, a planned aggravated burglary.  It evolved out of events outside of the premises;

(b), you were the instigator by getting Mr Lovett to go with you;

(c), you were armed with the OC spray when you went there;

(d), the approach to the premises was at approximately 2 am in the morning;

(e), you smashed the window of the premises first.  This was followed by Mr Lovett kicking in the door;

(f), you entered the premises in company with Mr Lovett;

(g), you had a history and grievance with Mr Brown.  You entered the premises to warn him off from bothering you over drug-related matters.

48I assess this aggravated burglary, though, at the lower end of confrontational aggravated burglaries due to the non-planned but opportunistic nature of this offence.

49In respect of the charge of recklessly cause injury to Mr Brown, it is clear the injury to Mr Brown is bruising to the body and face.  There was a fight between you and Mr Brown and basically, Mr Brown got the better of you with his home-made weapon - nails in the chair leg.  It is clear that after you entered the premises, you persisted to the extent of assaulting Mr Brown, the only occupant in the premises known to you.  This offending is clearly separate to the offence of aggravated burglary.

50I take into account the factors of totality and the additional criminality when assessing the appropriate cumulation between the offences in the case.

51I assess your prospects of rehabilitation as fair.  Your long-term drug addiction is yet to be controlled, and it has been the driver of your criminal history to date.

52I have fixed a conservative non-parole period to reflect my assessment of your risk of reoffending, whilst at the same time allowing you sufficient time to take full advantage of the Adult Parole Board supervision upon your release from prison.

53Would you stand, please?

54On charge 1, aggravated burglary, you are convicted and sentenced to three years' imprisonment;

55On charge 2, recklessly cause injury, you are convicted and sentenced to nine months' imprisonment;

56On charge 3, possessing cannabis, you are convicted and fined $200;

57On summary charge 5, possessing a prohibited weapon, you are convicted and sentenced to three months' imprisonment; and

58On summary charge10, possessing controlled weapons, you are convicted and fined $800.

59I order that six months in the sentence for Charge 2 - that is, the recklessly cause injury charge - be served cumulatively upon the base sentence of aggravated burglary of three years. 

60That is a total effective sentence of three-and-a-half years, or three years and six months' imprisonment.

61I order that a non-parole period of two years and four months be served before you are eligible for parole.

62Pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty, I would have sentenced you to five years' imprisonment with a three-and-a-half year non-parole period. 

63I declare that you have served 458 days pre-sentence detention in respect of this sentence.

64And I have signed the disposal order sought by the prosecution. 

65You can take a seat. 

66MR MOGLIA:  As Your Honour pleases.

67HIS HONOUR:  You can remain seated, Mr Lovett, until I get to the end.