Director of Public Prosecutions v Zaharopoulos
[2019] VCC 90
•25 January 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-16-00951
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANDRONIKI ZAHAROPOULOS |
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JUDGE: | Lewitan | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 October, 22 November 2018 and 22 January 2019 | |
DATE OF SENTENCE: | 25 January 2019 | |
CASE MAY BE CITED AS: | DPP v Zaharopoulos | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 90 | |
BREACH OF COMMUNITY CORRECTION ORDER
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Subject:CRIMINAL LAW
Catchwords: Contravention of Community Corrections Order – Contravention by non-compliance
Legislation cited: Sentencing Act1991
Sentence:Original order cancelled – resentenced on charge 1
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms E. Heggie | Office of Public Prosecutions |
| For the Accused | Mr N Tehan | Slades & Parsons Ms Mason |
HER HONOUR:
1 On 22 December 2016 the County Court at Melbourne convicted you of one charge of obtain financial advantage by deception. You were ordered to serve a Community Correction Order for a period of 30 months.
2 It is now alleged pursuant to s 83AD(1) of the Sentencing Act 1991 (Sentencing Act) that you have contravened the Community Correction Order without reasonable excuse as follows:
1. You failed to attend supervision on 13 occasions.
2. You failed to attend community work on 3 occasions.
3. You failed to attend a compliance review hearing on 7 June 2018.
3 Section 83AD of the Sentencing Act provides:
(1)An offender who is subject to a community correction order must not contravene that order, unless the offender has a reasonable excuse.
Penalty:3 months imprisonment.
4 Your counsel conceded that you contravened the Community Correction Order imposed by this Court on 22 December 2016. You are convicted of breach of the Community Correction Order and fined $200.
5 Section 83AS of the Sentencing Act sets out the powers of the court on a finding of guilt for contravention of a Community Correction Order in the following terms:
(1)If a court finds a person guilty of an offence under section 83AD (in addition to sentencing the offender for the offence) the court must –
(a)vary the order in any manner set out in section 48M(2)(d),(e), (f), (g) or (h); or
(b)confirm the order originally made; or
(c)cancel the order (if it is still in force) and, whether or not it is still in force, subject to subsection (2), deal with the offender for the offence with respect to which the order was made in any manner in which the court could deal with the offender as if it had just found him or her guilty of that offence; or
(d)cancel the order and make no further order with respect to the offence with respect to which the order was originally made.
6 Section 83AS(2) provides that in determining how to deal with a person who has breached a Community Correction Order, the Court must take into account the extent to which the offender has complied with the order.
7 Melissa Mason, Case Manager at Coolaroo Community Correctional Services, provided a contravention report dated 15 June 2018. In this report, Ms Mason stated that you cited employment and medical conditions as barriers to your compliance with the Order. However, you failed at that time to provide any supporting documentation to substantiate your claims.
8 In a report dated 22 November 2018 by the Court Assessment and Prosecutions Officer (Broadmeadows Community Correctional Services (Department of Justice and Regulation) you were assessed as unsuitable for a Community Correction Order.
9 In an addendum report dated 7 December 2018 the case manager, Melissa Mason, reviewed the medical documentation you provided and confirmed the recommendation made by the Coolaroo Community Correctional Service that the Community Correction Order be cancelled and that you be resentenced on the original charges.
Supervision
10 While you reported to Broadmeadows Community Correctional Services within two working days of the Order, you notified the Service at that time that you had an 8-day holiday booked in Queensland in January that you claimed you needed due to “very ill health”. This was not disclosed at the time of your assessment of suitability for a Community Correction Order. Permission to travel was granted.
11 You appeared before me on 12 October 2018 in relation to contravention of the Community Correction Order. On that day the Court adjourned the matter to 22 November 2018 to allow you an opportunity to provide medical reports to substantiate your assertion that your ability to comply with the order was impacted by your medical issues.
12 You failed to provide medical documentation to the assessing officer on three occasions.
13 You submitted your medical reports to the Court on 22 November 2018. The medical documentation supplied by you indicates that you have a diagnosis of Alopecia Areata, an autoimmune medical condition in which hair is lost from some or all areas of the body, usually from the scalp. The medical report also indicated that you suffer with Pernicious Anaemia. Anaemia is a medical condition in which the blood is low in normal red blood cells. Pernicious Anaemia is one of the vitamin B-12 deficient anaemias.
14 Your counsel submitted that since 22 December 2016 you have endured significant difficulty and misfortune. He submitted that you now have significant work commitments and are time poor. He submitted that your ability to fulfil the conditions of the Community Correction Order have been impaired by ill health. You instructed your counsel that the alopecia condition has had an effect on your mental health. Some of the symptoms of pernicious anaemia include fatigue, lethargy, depression and weakness . Your counsel conceded that he is not in a position to rely on R v Verdins.[1]
[1] (2007) 16 VR 269.
15 You commenced employment with the Gange Group on 25 April 2017. A certificate from the Gange Group tendered as exhibit 3 states that you are employed to work from 11pm to 7am. That certificate also outlines the leave taken from that employment. You have been promoted to team leader and manage the night shift. You work at the Gange Group with your daughter.
16 In more recent times your father has been diagnosed with a rare form of prostate cancer. He has been in your care since that diagnosis. That has been a physically and emotionally exhausting experience. You live in a 4 bedroom house. The lounge room is currently set up as a bedroom for your father who is 81 years old. The other bedrooms are inhabited by your eldest son Johnny who is 22, your daughter Patricia who is 19, your youngest son Mondus and yourself. You are 48 years old. Mondus is attending school at Craigieburn Primary School.
17 You enjoy strong support from your two older children. They contribute to the rent and living expenses. Johnny has been employed by a food, transport and storage company in a warehouse for a large period of time. Your daughter Patricia is employed by the Gange Group for silvertop taxis and attends the same night shift. You earn approximately $1000 per week. Your rent payment is $400 per week. Your living expenses are $100 per month.
18 Your counsel submitted that your personal circumstances have changed significantly since the making of the order. Your counsel admitted the breach but submitted that your health, work and family obligations contributed to your non-compliance with the Community Correction Order.
19 Your counsel submitted that the Court should not sentence you to a term of imprisonment. Section 5(4C) of the Sentencing Act provides that a court must not impose a sentence that involves the confinement of the offender unless it considers that the purpose for which the sentence is imposed cannot be achieved by a community correction order to which one or more of the conditions referred to sections 48F, 48G, 48H,48I and 48J are attached. Your counsel submitted that you well understand that if given another opportunity that it will be the last opportunity to avoid imprisonment.
Community Work
20 You have not completed any of the 300 hours of community work that were ordered on 22 December 2016. You declared to the Service that you had a pre-existing illness or injury, which would need to be considered before undertaking community work, and that you could only undertake light duties due to a medical condition. When you were directed to attend an Occupational Health and Safety course, where your participation would be credited towards your community work hours, you failed to attend.
21 A certificate of capacity was provided to the Service in November 2017, which stated that you could work up to 4 hours and lift up to 2 kilograms. The Service contracted you to a site which would be able to fulfil these conditions and would not affect your stated employment hours. However, you reported that you would rather return to Court to request variation of your Order and the removal of the community work condition. You did not do so.
22 You attended Dr Jagannath Chatterjee from Craigieburn Central Medical Centre on 4 December 2017 whereby you requested a letter to support your claim that you cannot perform more than 3-4 hours of community work. Dr Chatterjee declined this request based on the fact that you were working on a full-time basis.
Treatment and Rehabilitation – Mental Health
23 During your initial plea, I ordered that a Forensicare report be prepared to assist in sentencing you. Dr Adam Deacon provided a report dated 9 November 2016. Dr Deacon was of the opinion that you would benefit from therapy aimed at assisting with your self-esteem and coping skills. You reported to Dr Deacon that you were participating in psychological counselling at that time.
24 The Service directed you to obtain a mental health care plan from a general practitioner. On 6 December 2017, Dr Jagannath Chatterjee from Craigieburn Central Medical Centre referred you for mental health treatment. You failed to provide the Service with relevant documentation to support your engagement with a psychologist. As such, this Order condition remains outstanding.
Treatment and Rehabilitation – Programs aimed at Reducing Reoffending
25 You were referred to Corrections Victoria Offending Behaviour Programs for assessment and were then referred to the First Women’s Bridge Program. You failed to attend the program on two occasions and were subsequently removed from the program. You cited your employment as the reason for your non-attendance. As such, this Order condition remains outstanding.
26 The medical documentation provided by you excuses you for only three unacceptable absences on 23 April 2018, 30 April 2018 and 7 May 2018. The allegations that you failed to perform unpaid community work on those dates have been withdrawn.
27 I am not satisfied on a balance of probabilities that the documentation you have provided to the court and tendered as exhibits 1-3 substantiates your claim that your ill health and mental health issues prevented you from working or complying with the terms and conditions of the Community Correction Order.
28 Your counsel referred to Markovic v R[2] (Markovic) and referred to the family hardship that would result from imprisonment. Your father was diagnosed with cancer on 27 September 2018 and your responsibilities include his daily care. Your counsel submitted that imposing a custodial sentence would cause family hardship. In Markovic the Court of Appeal stated:
It has long been the position at common law that, unless the circumstances are shown to be exceptional, family hardship is to be disregarded as a sentencing consideration.[3]
[2] [2010] VSCA 105.
[3] [2010] VSCA 105, [2].
29 In response to a submission that the sentencing judge had failed to give proper weight to the effect that the applicant’s incarceration would have upon his elderly and disabled parents, Winneke P in R v Panuccio [4] stated:
Although the court is not, both as a matter of compassion and common sense, impervious to the consequences of a sentence upon other members of the family of a person in prison, such factors will need to be “exceptional” or “extreme” before the court will tailor its sentence in order to relieve the plight of those other family members. Such a principle is clearly an obvious one, because the court’s primary function is to impose a sentence which meets the gravity of the crime committed by the person who is being sentenced. There will rarely be a case where a sentence of imprisonment imposed does not have consequential effects upon the spouse, children or other close family members who are dependent in one form or another upon the person imprisoned.
[4][4] Unreported, Court of Appeal, 4 May 1998 BC9801713, [6] – [7].
30 Although your father is very unwell and relies on your daily care, I do not accept your counsel’s submission that the circumstances are exceptional in this case.
31 The prosecutor submitted that specific and general deterrence are significant in this case. It was clear from the original sentence that you had engaged in this type of activity before.[5] In terms of general deterrence, your crime had some element of planning. It is not a case where you had acted on a whim. There were attendances prior to the auction before the offending took place. This is a dishonesty offence where general deterrence is significant.
[5]DPP v Zaharopoulos [2016]VCC 1968 [37].
32 I refer to the reasons for sentence delivered on 22 December 2016. The victims of your crime suffered significant financial hardship and emotional stress.[6]
Conclusion
[6] [2016] VCC 1968 [9], [16] and [17].
33 You have failed to engage in any of the conditions of the Community Correction Order imposed on 22 December 2016.
34 The prosecutor submitted that you are unsuitable for the further imposition of a Community Correction Order and that a sentence of imprisonment would be appropriate in the circumstances of this case. The prosecutor submitted that you attended upon corrections some four times. You indicated your willingness to engage with the terms and conditions of a Community Correction Order. The non-compliance with the Community Correction Order has been significant. All of the conditions have not been complied with.
35 The prosecutor submitted that the objective gravity of the offending is serious. It involves the avoidance of a debt of some $335,000. Although you did not directly benefit from your crime, the loss and suffering occasioned to the victims of your crime was considerable.
36 The Court has extended a significant leniency to you in imposing a Community Correction Order as opposed to a term of imprisonment for an offence which is serious in nature. You engaged with corrections in a minimal way in the sense that you attended upon corrections on 4 occasions, and did not complete any of the 300 hours of community work which was required. In terms of treatment and rehabilitation conditions, you were directed to obtain a mental health assessment from your general practitioner. You did so and the general practitioner referred you to mental health treatment but that was where your compliance ended. You did not provide documentation to support engagement with a psychologist as required. As stated above, you were referred by corrections to the First Womens Bridge Program and were removed from that program after you failed to attend.
37 There are a total of 17 unacceptable absences in terms of your engagement which have been prevalent since December 2017.These breaches are not failures on occasion to comply with the Community Correction Order that was imposed. The breaches go to the core of the Community Correction Order. In those circumstances it is appropriate to take into account that breaching behaviour in determining whether you should be afforded further leniency by the Court.
38 Having considered the whole of the evidence and the submissions made by counsel which include your health and circumstances, I propose to cancel the Community Correction Order imposed on 22 December 2016 and to resentence you on the charge of obtain financial advantage by deception. I order that you are convicted and sentenced to a term of imprisonment of 4 months. The total effective sentence is 4 months imprisonment.
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