Director of Public Prosecutions v Traiforos

[2015] VCC 407

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -14-01887

DIRECTOR OF PUBLIC PROSECUTIONS

v

JASON CHRISTOPHER TRAIFOROS

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JUDGE:	HER HONOUR JUDGE CAMPTON
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	1 April 2015
CASE MAY BE CITED AS:	DPP v Traiforos
MEDIUM NEUTRAL CITATION:	[2015] VCC 407

REASONS FOR SENTENCE
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Subject: Aggravated Burglary, ICI, Criminal Damage, theft and handling stolen goods
Catchwords:
Legislation Cited: Sentencing Act
Cases Cited: Boulton v The Queen [2014] VSCA 342, Hogarth v The Queen [2012] VSCA 302
Sentence: CCO 3 years

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr G Hayward
For the Accused	Mr S Preece

HER HONOUR:

Charges

1Jason Christopher Traiforos, you have pleaded guilty to one charge of handling stolen goods, one charge of aggravated burglary, one charge of intentionally cause injury, one charge of criminal damage, and one charge of theft.  The maximum penalty for aggravated burglary is 25 years.  The maximum penalty for handling stolen goods is 15 years.  For theft, intentionally cause injury and criminal damage, it is ten years.

Circumstances of Offending

2The full circumstances with respect to your offending were set out in the prosecution opening. In summary, with respect to Charge 1 of handling stolen goods, on 24 April 2014, Rebecca Brown stole a caravan from an address in Boronia and arranged for her friend, Benji Newman, to sell the caravan.  In the meanwhile, Ms Brown and Mr Newman arranged for the caravan to be towed to your house in Lilydale for safekeeping until it was to be sold.  The caravan remained at your home for about eight days.  You were aware the caravan was stolen and you were aware that the plan was to sell it. 

3

With respect to Charge 2 of aggravated burglary, this charge relates to your actions in joining with Mr Newman and his friend, Mr Graham, to go to

Mr Logan's house to confront him about a dispute over money connected to the sale of the caravan.  You and Mr Graham were both armed with aluminium baseball bats.

4Charge 3

, intentionally causing injury.  Mr Logan lived in the garage connected to his mother's house in Lilydale, and Charge 2 and 3 concern your actions in following Mr Newman into the garage and striking Mr Logan to the calf with the baseball bat.  Mr Newman demanded to know why Mr Logan had stolen the money.  You and Mr Graham told Mr Logan he was "fucked". 

Mr Logan's left leg showed significant swelling. 

5Charge 4 of criminal damage relates to the fact that you struck a television set belonging to Mr Logan with the baseball bat and damaged it.  After this you left the garage.  Mr Logan ran away.  His mother called 000 and you left quickly afterwards. 

6Charge 5 of theft relates to Mr Logan’s discover that a mobile phone had been stolen during this run-through.  Although you did not take the phone, you were a party to the theft of the phone. 

Personal Circumstances

7Now your personal circumstances are that you are 38 years old.  You were born in Victoria and you have resided here since.  You were schooled at Murrumbeena High School and left after Year 11, aged 16. 

8After leaving school, you were employed as a fencer for about two years, before commencing work as a concreter.  You have continued to work as a concreter.  Presently you are employed by a company called "Bolco Proprietary Limited". 

9You married in approximately 1996 and you have two children, two boys.  When you separated from your wife in about 2004, the children resided with her.  While you had regular contact with them for the first three years, for the next seven or so years, you had very little contact with them, because they moved some distance away from you.  However in about October 2014, their mother decided that she did not want custody of the children any longer and she dropped them off to you.  They have been in your sole custody since then.

10You are now in a de facto relationship with your current partner who has two children.  You had a previous relationship before this, which lasted for about three years. 

11In 2012 and 2013, you operated your own concreting business.  This business ceased in early 2014, after four builders you contracted to went out of business. 

Mitigating Circumstances

12In mitigation of your offending, your counsel relied on your instructions to him that you had not planned to enter Mr Logan's premises or to injure him.  While you had agreed to go with Mr Newman and Mr Graham to Mr Logan's property, you believed that the purpose of the visit was to put some pressure on him to repay money you believed he owed. 

13Your counsel also put in mitigation that your plea of guilty had been at the earliest possible stage and that you had shown remorse for your actions.  He submitted that your chances of rehabilitation were good, given the fact that you had only one prior and you had a solid employment history.  You were the sole carer of two children and step-father to your current partner's two children.  You were also the sole contributor to the mortgage on the house in which you all live.  Your instructions to your counsel were that you no longer have any involvement with any of your co-offenders. 

14Your counsel conceded that your offences are serious.  However he submitted that the various sentencing considerations, including denunciation of your conduct and general and specific deterrence could be met by the imposition of a Community Corrections Order, with a large work component. In making this submission, he relied on the principles set out by the Court of Appeal in this state, in a case called Boulton's case.  This decision by the Court of Appeal referred to the Sentencing Act, which provides that, "A period of imprisonment can only be imposed when a sentencing court does not believe that the purpose of sentencing can be met by a Community Corrections Order." 

15In addition, the court emphasised in that decision that a Community Corrections Order is intrinsically punitive.  It can be imposed with conditions which elevate them to the status of being highly punitive.  Because of this, the nature of a Community Corrections Order is such that it can provide substantial general deterrence and specific deterrence. 

16However in your case, the prosecutor submitted that general deterrence and denunciation would not be met by a Community Corrections Order.  You offending was described as being a "confrontational aggravated burglary", weapons were used and there was an invasion of the complainant's house. Regardless of any lack of prior knowledge as to the home invasion, your role was submitted to be an active one.  It was submitted that you should be sentenced to a term of imprisonment, or alternatively, a term of imprisonment, in combination with a Community Corrections Order.

Sentencing Remarks

17It has been stated in recent years that home invasion is a particularly nasty form of criminal conduct.  In Hogarth, the Court of Appeal said that, "It typically involves multiple offenders entering a person's home, carrying weapons, intending to rob or injure the victims in revenge for some actual or perceived wrong."  I would add to this that unfortunately it is not unusual for people to take part in home invasions, out of a misguided desire to assist their mates to settle a score.  Now this applies to you.  You did not even know Mr Logan.  You were not owed any money by him, and yet you went with these other people to his premises on that date. 

18While there was no victim impact statement, I am sure that the incident was a confronting one for Mr Logan.  However despite the serious nature of your offending, I consider that a Community Corrections Order is within range.  You have no prior convictions, essentially.  You are the sole bread-winner in a house with two children.  At the time of offending your concreting business had gone out of business, and I accept that you came involved with the wrong group of people through a friend of yours. 

19The nature of a Community Corrections Order means that the court can impose work hours which are capable of being highly punitive.  Not only will you have to perform work in the community, but you will be supervised and subject to the restrictive conditions of a Community Corrections Order, which include that you cannot leave the state of Victoria without permission, for example.  If you contravene the Community Corrections Order, not only is that offence punishable by three months' imprisonment, you will also face the prospect of being re-sentenced on the original order. 

20I had you assessed for a Community Corrections Order.  You were found suitable and you were assessed as being at a low risk of re-offending. 

Sentence

21Would you please stand up.

On Charges 2, 3, 4 and 5, you are convicted and sentenced to a Community Corrections Order of three years, with the conditions of supervision, and that you perform 250 hours of community work. 

On Charge 1 of handle stolen goods, you are convicted and fined the sum of $500.

6AAA

22But for you plea of guilty, I would have sentence you to four years and nine months, to serve three years and three months. 

23If you were to commit an indictable offence while you are on the Community Corrections Order, you would come back before me and you would be doing a substantial time inside.  Do you understand that?

24OFFENDER:  Yes, Your Honour.

25HER HONOUR:  You have been given an opportunity and you must grasp that opportunity and make sure that you comply with that Community Corrections Order.  Do you understand that?

26OFFENDER:  Yes.

27HER HONOUR:  All right, there is some paperwork that has to be filled out.

28MR PREECE:  As Your Honour pleases.

29HER HONOUR:  Yes, there was an application for a 464ZF, is that correct? 

30MR HAYWARD:  Yes, Your Honour. 

31HER HONOUR:  Now the police station that he would have to go to would be, where?  Do I need to know that?

32MR HAYWARD:  Yes, Your Honour. 

33HER HONOUR:  Dandenong?

34MR PREECE:  Yes, Dandenong would be the closest, Your Honour. 

35HER HONOUR:  There is no objection to that?

36MR PREECE:  No.

37HER HONOUR:  There was no time in custody?

38MR HAYWARD:  No, Your Honour. 

39MR PREECE:  No time in custody, Your Honour, no.

40HER HONOUR:  All right, I make the order because of the seriousness of the offending, the granting of the order is in the public interest and it was not opposed.

41COUNSEL:  As Your Honour pleases.

42HER HONOUR:  I am bound to inform you that what you have to do is basically go along to the Dandenong Police Station.  They will take a scraping from inside your mouth to get your DNA.  It is not a painful process, but if you were to resist them doing this, they can use all necessary force to take the sample.  I am sure it will not be a problem with you. 

43The core conditions of a Community Based Order are set out in the documentation that you just signed.  I will expect that your counsel will go through those core conditions with you when we close the court.  I have already informed you of the most important condition and counsel will take you through the other conditions. 

44Any other matters?

45MR PREECE:  No other matters, Your Honour.

46MR HAYWARD:  No, thank you, Your Honour.

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