DPP v Guruge
[2019] VCC 2015
•9 December 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-01514
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CHAN GURUGE |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 November 2019 | |
DATE OF SENTENCE: | 9 December 2019 | |
CASE MAY BE CITED AS: | DPP v Guruge | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 2015 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Indictable charges of handling stolen goods, intentionally exposing emergency worker to risk by driving, theft and negligently dealing with proceeds of crime, together with two summary charges of driving whilst disqualified and committing an indictable offence whilst on bail
Legislation Cited: Sentencing Act 1991; Confiscation Act 1997
Cases Cited: R v Verdins (2007) 16 VR 269;
Sentence: TES 20 months’ imprisonment, with non-parole period of 14 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms A Singh | Solicitor for the Director of Public Prosecutions |
| For the Accused | Mr D De Witt | Greg Thomas Solicitor & Barrister |
HER HONOUR:
1 Chan Guruge, you have pleaded guilty to one charge of handling stolen goods, which carries a maximum penalty of 15 years’ imprisonment; one charge of intentionally exposing an emergency worker to risk by driving, which carries a maximum penalty of 20 years’ imprisonment; one charge of theft of a motor vehicle, which carries a maximum penalty of 10 years’ imprisonment; and one charge of negligently dealing with the proceeds of crime, which carries a maximum penalty of 5 years’ imprisonment. In addition, you have consented to the transfer from the Magistrates’ Court of two summary charges and have pleaded guilty to those charges: Summary Charge 7, driving a motor vehicle whilst disqualified, carries a maximum penalty of 240 penalty units or 2 years’ imprisonment, and Summary Charge 11, committing an indictable offence whilst on bail, carries a maximum penalty of 30 penalty units or 3 months’ imprisonment.
2 The circumstances of your offending are contained in the summary of prosecution opening (Exhibit “A”). On 9 March 2019, a security guard at ALT Towers in Travancore observed you sitting in a white Kia van with Queensland registration plates, 204XXA. Those registration plates belonged to a different vehicle owned by one Christian Moderl. This vehicle had been left parked in a car park for approximately 10 weeks and, on 9 March 2019, the owner had reported that his registration plates were missing. The registration plates are the subject of Charge 1, handling stolen goods.
3 The security guard at ALT Towers had noticed you lurking around the car park in the van at 9.30pm and, when you had not left by 10:30pm, he asked you to leave and took a photograph of you. At 12.40am he again observed you in the car park and called “000”. At 1.40am on 10 March 2019, two police officers, Constable Williams and Constable Thompson, arrived at the car park dressed in police uniform and wearing high visibility vests. The security officer directed them to the car park. As the police officers arrived at the entrance to the car park, they noticed you driving the Kia van in their direction at low speed. Constable Williams directed you to stop. He was standing on the front passenger side of the vehicle you were driving and told you “Police. Stop vehicle now.” Constable Thompson was standing in the middle of the car park driveway approximately 15 metres from the front of the vehicle you were driving. He instructed you to stop by holding his right arm in the air. You then accelerated towards Constable Thompson who was obliged to take evasive action by jumping quickly out of the path of the vehicle in order to avoid being struck. You made no attempt to stop and accelerated out of the car park. This is the conduct comprising Charge 2, intentionally exposing emergency worker to risk by driving. Police attempted to pursue you and located you approximately five minutes later. They activated their lights and sirens but you, again, accelerated away and they lost sight of you.
4 On 13 March 2019, workers at the Melbourne Market, Epping, telephoned police as they were concerned that you were drug-affected. When police arrived they found you asleep in a white Mazda utility, registration 1HN‑6RY. The previous day the owner of the white Mazda utility had reported it stolen. The owner had been completing a delivery in Elizabeth Street in the city and, whilst doing so, had left his car unlocked with the key in the ignition. He returned to find his vehicle missing. These facts comprise the basis for Charge 3, theft of a motor vehicle.
5 When police searched the stolen Mazda utility, they located a 130W Rotary tool kit, and an AEG power drill. These items did not belong to the owner of the utility. They are the basis for Charge 4, negligently dealing with the proceeds of crime.
6 On 15 February 2019, at Broadmeadows Magistrates’ Court, your licence to drive had been cancelled and you had been disqualified from driving for a period of 3 months. Hence, when police had observed you driving in the early hours of the morning on 10 March 2019, you were driving during a period of disqualification. This is the basis for Summary Charge 7.
7 On 8 March 2019, you had appeared before the Broadmeadows Magistrates’ Court and had been granted bail in relation to charges of handling stolen goods and dealing with property suspected of being the proceeds of crime. Whilst on bail for those offences, you committed Charge 3, theft of a motor vehicle. This is the factual basis for Summary Charge 11, committing an indictable offence of theft of a motor vehicle whilst on bail.
8 On 13 March 2019, police arrested you and conducted a record of interview later that day. During that interview, you claimed that you had no idea how you had ended up in police custody and did not remember what you had been doing that day and attributed your lack of memory mainly to use of drugs. You claimed you did not know anything about the theft of a motor vehicle and had been given permission to sleep in the vehicle by security guards at the market. You claimed that the items inside must belong to the owner of the vehicle. As far as your offending on 9 and 10 March 2019 was concerned, you claimed to have no memory of being in the car park of the Travancore apartment complex or seeing any police there, although later admitted to remembering some conversation with the security guard. You initially stated that you had rented the white van in Queensland but, later, stated that you had rented the van from someone in St Kilda and claimed the plates were on that vehicle when you obtained it. As far as your licence was concerned, you claimed that you thought that the Magistrate at Broadmeadows had told you that you had finished serving your sentence and had completed the period of suspension of your licence whilst in custody.
9 You are presently aged 37 years, having been born on 30 April 1982. You come before the Court with a significant criminal history dating back to August 2012. You have prior convictions for multiple dishonesty offences including burglary, theft and handling charges; many driving offences including unlicensed driving and driving whilst authorisation was suspended and careless and dangerous driving; charges of possession of a variety of illicit drugs and charges of failing to answer bail and committing an indictable offence whilst on bail. Over the years you have received sentences comprising fines, Community Correction Orders which you have breached, and have served sentences of imprisonment of 7 days, 51 days and 175 days respectively. You had been released from serving your last sentence on 15 February 2019, only approximately 3 weeks before the offending for which I must sentence you.
10 In a plea on your behalf by Mr De Witt, the Court was told that you were born in Sri Lanka. You had a stable family environment and are close to your parents and your one sibling, a younger sister. When you were aged approximately 21 years, you married your first wife, Tanya, by whom you have two children, now aged 13 and 12 years respectively. You apparently operated a rental car business for a time in Colombo but, in 2008, came to Australia on a student visa. You undertook some form of study at Chadstone University for two semesters, but then ceased to study and, thereafter, Mr De Witt said you undertook some form of casual employment from time to time in the hospitality industry. Your wife and two children moved to join you in Australia in 2009 but, in 2010, the marriage ended and your wife and children returned to Sri Lanka and you have not had any further contact with either of your children.
11 It seems that, in 2012, you were advised that your visa was going to expire and so you married a friend’s sister, Mary, in order to qualify for a spousal visa. It would appear that this was not a real marriage and, in any event, shortly after the marriage you commenced a relationship with your wife’s younger sister, Elaine, who then became pregnant to you.
12 Once the Department of Immigration became aware that you were not in a genuine marriage, you were taken into Immigration Detention, and were detained there between 2012 and 2014 before being deported to Sri Lanka.
13 You currently have a seven year old son to Elaine and, although your counsel’s submissions stated that Elaine and your son returned to join you in Sri Lanka in 2014, I note that Ms Cidoni, forensic psychologist, has provided two reports (Exhibit “2”) which state that Elaine “visited” Sri Lanka in 2015, at which time you and she married, and that she then returned to Australia in early 2016. You apparently returned to Australia in August 2017 on the basis that you were Elaine’s spouse and, hence, held a spousal visa. However, your counsel stated that, upon your return, you discovered that Elaine had re-partnered. You spent time being accommodated by her mother and, later, her brother, but it seems that you became a heavy user of illicit drugs and ultimately became homeless. You have not held any employment since some time in 2017.
14 Your counsel stated that, at one stage in Sri Lanka, you had been taken captive by Tamil Tigers who believed that you were a spy for the Sri Lankan government and you were interrogated and exposed to extreme violence for several days. He submitted that this and other violence to which you have been subject whilst homeless on the streets of Melbourne had led to a Post-Traumatic Stress Disorder. He urged the Court to also note that Ms Cidoni had diagnosed you as suffering an Adjustment Disorder which, along with your drug use, would have most likely produced a psychosis and impaired your judgment and clear thinking. For these reasons, he relied on limbs five and six of the principles in R v Verdins[1].
[1](2007) 16 VR 269
15 I have read carefully the reports of Ms Cidoni following her assessments on 12 April 2018 and 1 November 2019 respectively. I note that, notwithstanding that she records a history of you being exposed to civil unrest and witnessing death and destruction of villages during the civil war in Sri Lanka, she makes no mention of you having been captured and tortured by Tamil Tigers. She opines that you are of low-average intellectual function, with a full scale IQ of 85, and assesses you on testing to have indications of a depressed mood and some symptoms of Post-Traumatic Stress Disorder originating from your exposure to civil war in Sri Lanka and falling victim to acts of violence in Australia. She noted that you had been a methamphetamine user since about 2012. You claimed that you commenced taking ice because you were worried about facing deportation and, after returning to Australia from Sri Lanka, you resumed ice use when you found that your wife, Elaine, had re-partnered.
16 Ms Cidoni stated that, when she saw you in 2018, you had signs of delusion and drug induced psychosis and that you relapsed into using ice once you were released from custody in 2018. She noted that you had been homeless since your marriage to Elaine broke down. However, at the current time, testing indicated only very mild delusions. She also considered that your symptoms are consistent with an Adjustment Disorder following your relationship breakdown. She described this as a psychological reaction to overwhelming emotional or psychological stress resulting in depression and other symptoms and that, secondary to this, you suffered a Stimulant Use Disorder which is now in remission. However, she also noted that the Adjustment Disorder can be a feature that is linked to the development of behavioural issues, including drug dependency.
17 I found Ms Cidoni’s reports overall to be unimpressive. Whilst she referred to symptoms of depressed mood and Post-Traumatic Stress Disorder, she did not make a full blown diagnosis of either depression or Post-Traumatic Stress Disorder. In her most recent report, she stated that your symptoms “are consistent with an Adjustment Disorder following [your] relationship breakdown.” However, the breakup of your relationship with Elaine was well before her earlier report in 2018, yet she made no mention of it at that time. Her earlier report also made no mention of symptoms of Post-Traumatic Stress Disorder from the time that you had moved to Australia in 2008. In her second report, she gave no analysis as to what particular symptoms she thought were consistent with an Adjustment Disorder. Indeed, her reports contain no history that, following your arrival in Australia in 2008, your first wife and two children subsequently joined you here.
18 Although I accept that exposure to the horrors of civil war in Sri Lanka may well have a long lasting psychological impact, I am not satisfied that you suffer any psychological condition of sufficient magnitude to attract the principles of R v Verdins. The fact is that you have been a user of methamphetamine since, at least, 2012, albeit that there were periods in Immigration Detention and back in Sri Lanka when you did not use illicit drugs. Generally speaking, there is no evidence that you have been a particularly productive person since you first came to Australia in 2008. After doing only two semesters of a business and human resources course at Chadstone University, you effectively remained in Australia under false pretences, namely, on a student visa, until the Immigration authorities became aware that your marriage to Mary in 2012 had been contrived in order to obtain a spousal visa. During the periods that you have been in Australia, and at liberty, since 2012 you have committed many criminal offences to which I have previously referred.
19 You appear to have been a person who relies heavily on the largesse of others. According to a reference from your father dated 27 November 2019 (part of Exhibit “2”), your father funded your moving to Australia with his hard earned money. He also supported you after you were deported back to Sri Lanka in 2014. A reference from your mother dated 20 November 2019 states that, after you returned to Australia in 2017, your parents sent you money to buy yourself a good vehicle. So great is your parents’ sense of obligation towards you, that they state that they are planning to sell one of their properties to help settle you in Australia permanently, although your chances of this occurring appear to be now unlikely.
20 Once you arrived in Australia in 2008, after your first marriage broke up, you accepted accommodation from a friend and then embarked upon a marriage of convenience to his sister, Mary. When you returned to Australia in 2017 and found that your third wife, Elaine, had re-partnered, you were accommodated initially by Elaine’s mother and then later by her brother. There is minimal evidence of you having carried out any work of any substance. You are 37 years old and appear to have very little to show for your life other than a trail of broken relationships, 3 children who have not known the constancy of love and support which they should be entitled to expect from a father, and a significant criminal record.
21 It was argued on your behalf by Mr De Witt that your criminal offending and the sentences which it has attracted and are likely to attract make it inevitable that you will not pass the character test pursuant to the provisions of the Migration Act and your current permanent residency spousal visa is most likely to be cancelled. I queried how you came to achieve a permanent residency spousal visa if, in fact, from the time of your return to Australia in 2017, you and your wife were not living in a spousal relationship as your wife, Elaine, had re-partnered whilst you were in Sri Lanka. Your counsel stated that this visa had been granted prior to your return to Australia and it seems that Immigration authorities were not advised of the lack of spousal relationship when you arrived here. The prosecution has conceded that the likelihood of deportation makes any period of incarceration more onerous for you because of the uncertainty and that you have thereby lost the opportunity to continue to reside in Australia. However, it seems to me that your residential status in Australia had a shaky foundation.
22 Mr De Witt also argued that deportation would cause significant hardship to you because it would deprive you of the opportunity to play a part in raising your seven year old son, Kayden.
23 I have analysed the material available to me and it would appear that the role you have played in the life of your son, Kayden, has been minimal. You were taken into Immigration Detention in August 2012 before Kayden was born on 25 September 2012. You remained in immigration detention until you were deported to Sri Lanka in or about February 2014. You told Ms Cidoni that Kayden and his mother, Elaine, visited Sri Lanka in 2015, at which time you married Elaine. Elaine and Kayden then returned to Australia in early 2016. At no stage after returning to Australia in August 2017 have you lived in the same household as Elaine and Kayden. Indeed, you spent 51 days in custody in 2018 and then a further 175 days and, subsequently, another seven days in custody in the second half of 2018 and into 2019 before your ultimate release on 15 February 2019. Although your counsel stated that Elaine had brought your infant son to see you in Immigration Detention and you had a period of time when he and Elaine lived with you in Sri Lanka in 2015/2016 and there were some occasions when you spent time with him in Elaine’s residence after you returned to Australia in 2017, I cannot be satisfied that you have played a close role in supporting, rearing or nurturing you son.
24 Your son is now seven years old and it is apparent that, in or about January 2019, his mother took out a Family Violence Intervention Order against you. You were found to have contravened that order when you appeared before the Broadmeadows Magistrates’ Court on 15 February 2019. Your counsel conceded that the last contact you had had with your son pre-dated the Family Violence Intervention Order. You appear to have given little or no thought to your son’s welfare when you engaged in illicit drug use and committed various offences since he was born. Although Ms Cidoni’s reports mention that you were stressed and depressed by your breakup with Elaine, neither report mentions anything at all about your relationship with your son. Indeed, your behaviour which apparently lead to the making of a Family Violence Intervention Order clearly jeopardised your opportunity to see your son. It may well be that, upon sober reflection whilst in custody you wish that you did have and could have a relationship with your son, but I cannot be satisfied that hardship is made out on this basis. However, I take note of the lost potential opportunity in a general way as part of your personal circumstances.
25 In your favour I take into account that you pleaded guilty to these offences at the earliest opportunity. You have written a letter to Constables Williams and Thompson stating that you are remorseful for putting them at risk while they were doing their job (Exhibit “3”). It may be that your time in custody, whilst you have apparently remained abstinent from illicit drugs, has enabled you to develop some remorse which was not evident in your record of interview on 13 March 2019. I find it difficult to determine this one way or another, and find that Ms Cidoni’s bare assertion that you are remorseful (without articulating the basis for stating so) should be given no weight. Nevertheless, your plea of guilty has significant utilitarian value which entitles you to a discount on the sentence which otherwise would have been imposed.
26 Your counsel has submitted that you have fair prospects of rehabilitation based upon the fact that your family are clearly prepared to support you when you return to Sri Lanka and you have developed some insight into the relationship between your drug use, deterioration in your mental health and offending. Further, you have apparently completed a number of courses whilst in custody by way of drug education and to address strategies to help with relapsing into drug use, as well as a first aid and traffic management course. In addition, you have been working five days a week in a factory at Port Phillip Prison cleaning furniture and preserving nuts and bolts. These matters are all to your credit, particularly remaining abstinent from illicit drugs, as your drug addiction had resulted in a pitiful state of homelessness when you committed the subject offences and, at some stage last year, you had been admitted to Northern Hospital in a delusional state necessitating anti-psychotic medication for a period. However, it is early days in the context of a significant drug problem and related criminal history since 2012. Hence, I am somewhat guarded in my view as to your prospects of rehabilitation.
27 The most serious offence is Charge 2, intentionally exposing an emergency worker to risk by driving. The gravity of this offence is reflected by the maximum penalty of 20 years’ imprisonment assigned to it. Police have a difficult enough job without being attacked in the course of their duty. To drive a motor vehicle, which can be a powerful weapon, in the direction of a stationary human being who is trying to do his duty is obnoxious behaviour. You particularly put Constable Thompson’s safety at risk. In his statement made on 19 June 2019 he states that he was approximately 15 metres in front of your vehicle and you approached him at a speed of approximately 20 kilometres per hour notwithstanding that he was clearly signalling for you to stop. You put him in fear of being struck by your vehicle such that he needed to take evasive action by jumping approximately 2 metres to his right to get out of the way. He landed on his feet and narrowly avoided being hit by your vehicle. In your endeavour to escape detection you have intentionally exposed the police officers to risk, although I accept that the other police officer, First Constable Williams, was not exposed to the same level of risk as Constable Thompson.
28 Courts must denounce conduct exposing emergency workers to risk, particularly when it is done intentionally, and must emphasise general deterrence which means sending a strong message to members of the community that this conduct will not be tolerated. Although I accept that your primary objective was to escape from police, you did so in such a manner that, had it not been for the quick reaction by Constable Thompson, you may well have caused nasty injuries to him. The legislation which created this offence is designed to protect emergency workers who carry out difficult work in circumstances where they are often dealing with challenging behaviour of members of the public. Their work is for the benefit and safety of the entire community and they must feel vindicated when their safety is intentionally jeopardised. Although there are more serious examples of this offence, I consider that the principles of general deterrence and protection of emergency workers require the imposition of a term of imprisonment. I note that this offence is an escalation in offending when one looks at your criminal history which contains quite a number of driving offences ranging from unlicensed driving to careless driving and driving in a manner dangerous. Hence, there must also be emphasis on specific deterrence in sentencing you.
29 Your offending on Charge 3 is a brazen example of theft of a vehicle. You apparently have been the victim of the theft of a vehicle which you purchased with money sent to you by your parents. You know the extraordinary inconvenience that such theft can cause. In this case, the victim of Charge 3 was the owner of a refrigerated delivery van which he used for his work to deliver sandwiches to Woolworths. It was necessary for him to leave the key in the ignition because the engine needed to remain running in order to keep the refrigerator operating. He left his car unattended for only about a minute. The shock to him in finding that his car had been stolen and he had thereby lost his means of carrying out his employment was very considerable. It is fortunate that police were able to recover his vehicle as quickly as they did.
30 Although Charge 1, retention of stolen number plates, and Charge 4, negligently dealing with the tools which were the proceeds of crime, are far from the most serious examples of those two offences, you have a long history of dishonesty and, again, there is a need for emphasis upon specific, as well as general, deterrence, and also just punishment.
31 I note that it is an aggravating feature of your offending on Charge 2 that you were driving whilst disqualified. Further, it is an aggravating feature that all offences were committed whilst you were on bail.
32 I have taken into account the matters put on your behalf by Mr De Witt, including your pleas of guilty and the concessions made by the prosecution in relation to your likely deportation. Having considered the circumstances of offending and your own personal circumstances I am of the view that the only appropriate sentence to reflect the gravity of this offending overall is a term of imprisonment with a non-parole period.
33 On Charge 1, handling stolen goods, you are convicted and sentenced to be imprisoned for a period of 6 months.
34 On Charge 2, intentionally exposing an emergency worker to risk by driving, you are convicted and sentenced to be imprisoned for a period of 12 months.
35 On Charge 3, theft of a motor vehicle, you are convicted and sentenced to be imprisoned for a period of 8 months.
36 On Charge 4, negligently dealing with the proceeds of crime, you are convicted and sentenced to be imprisoned for a period of 3 months.
37 On Summary Charge 7, driving a motor vehicle whilst disqualified, you are convicted and sentenced to be imprisoned for a period of 6 months.
38 On Summary Charge 11, committing an indictable offence whilst on bail, you are convicted and sentenced to be imprisoned for a period of 1 month.
39 The sentence imposed on Charge 2 is the base sentence. I direct that 2 months of the sentence imposed on Charge 1, 3 months of the sentence imposed on Charge 3, 1 month of the sentence imposed on Charge 4 and 2 months of the sentence imposed on Summary Charge 7 be served cumulatively upon the sentence imposed on Charge 2 and upon each other. Save for such cumulation, all sentences are to be served concurrently. The total effective sentence imposed this day is 20 months’ imprisonment. I order that you serve a period of 14 months before becoming eligible for parole.
40 I declare a period of 271 days pre‑sentence detention to be time reckoned as already served under the sentence imposed this day.
41 As you have been convicted of Charge 2, which is a serious motor vehicle offence pursuant to s87P(ba) of the Sentencing Act1991, I am obliged to make an order pursuant to s89 of the Sentencing Act cancelling all licences and permits to drive and, disqualifying you from driving pursuant to s89(2)(b). I specify that the period of disqualification is 3 years.
42 On Charge 4, negligently dealing with the proceeds of crime, I order pursuant to s78(1) of the Confiscation Act 1997, the forfeiture to the State of one 130W Rotary Tool Kit and one AEG power drill. I further direct that such property be placed in the custody of the Chief Commissioner of Police and be held by him until 28 days from this date or the conclusion of any appeal proceedings where it may be tested and/or analysed and then destroyed.
43 Pursuant to s6AAA of the Sentencing Act, I state that had it not been for your pleas of guilty the total effective sentence imposed would have been 30 months’ imprisonment with a non-parole period of 20 months.
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