R v Vecchi
[2023] ACTSC 410
•13 June 2023
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Vecchi |
Citation: | [2023] ACTSC 410 |
Hearing Date: | 13 June 2023 |
Decision Date: | 13 June 2023 |
Before: | Loukas-Karlsson J |
Decision: | See [30] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – breach of Good Behaviour Order – whether to impose suspended sentence of imprisonment – whether to resentence – where resentence appropriate to continue rehabilitative efforts |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT), s 110 Crimes (Sentencing Procedure) Act 1999 (NSW), s 10A |
Cases Cited: | Guy v Anderson [2013] ACTSC 5 Gyory v R [2012] ACTCA 28 R v Beniamini (No 2) [2017] ACTSC 32 R v Bennett [2017] ACTSC 104 R v PM (No 2) [2015] ACTSC 358 R v Vecchi [2021] ACTSC 70 |
Parties: | Director of Public Prosecutions Kieren Vecchi ( Offender) |
Representation: | Counsel L Etheredge ( DPP) L Vozella ( Offender) |
| Solicitors ACT Director of Public Prosecutions Vozella Lawyers ( Offender) | |
File Number: | SCC 198 of 2020 |
LOUKAS-KARLSSON J:
Introduction
1․On 15 April 2021, the offender, Mr Kieren Vecchi, was sentenced by Burns J to 20 months imprisonment for the offence of burglary, and a further 10 months imprisonment for the offence of theft. The balance of those sentences was suspended on 15 April 2021 and the offender was sentenced to a Good Behaviour Order (GBO) for a period of two years in relation to the offence of burglary, and a 12-month GBO in respect of the offence of theft. Burns J also imposed a reparation order in the sum of $81.12 to be paid within 14 days. Counsel for the offender confirmed that, on instructions, this reparation order was paid.
2․The terms of the GBOs directed the offender to accept the supervision of the Director-General for Corrective Services for a period of two years or such lesser period as deemed appropriate by the Supervisor, and to accept all reasonable directions of the Supervising Officer. The offender was directed to undertake such assessments, treatment or counselling for drug abuse as directed by the Supervising Officer.
3․Subsequently, the offender was convicted and sentenced in the Queanbeyan Local Court on 16 August 2022 for the following offences:
(a)possess prohibited drug;
(b)cultivate prohibited plant;
(c)drive recklessly/furiously or speed in a manner dangerous;
(d)destroy or damage property;
(e)stalk or intimidate with intent to cause fear of physical or mental harm;
(f)contravene prohibition or restriction in an Apprehended Violence Order;
(g)common assault; and
(h)contravene prohibition restriction in an Apprehended Violence Order.
Breach of GBOs
4․Upon conviction for these offences, the offender was in breach of the GBOs imposed by Burns J in this Court. Burns J having now retired, the breach falls to me to be dealt with. In relation to the facts relevant to the sentence imposed by Burns J, they are recited, in short, in his Honour's reasons at [2] in R v Vecchi [2021] ACTSC 70. That short summary is as follows:
It is sufficient to note that between the dates in question, you and your co-offender entered a shed at a commercial premises as trespassers and while at those premises, you stole a Bobcat and an auger driver.
5․The facts relevant to the breach of the offender's GBOs formed part of the prosecution tender bundle, Exhibit 1.
6․In relation to subjective circumstances, the offender's subjective circumstances are outlined in a Pre-Sentence Report (PSR) dated 5 June and the following documents were tendered by his counsel, Mr Vozella, in the defence tender bundle, Exhibit 3:
(i)Letter to the offender by Ms Carmel Monaghan expressing sympathy for the loss of the offender's brother;
(j)Character reference authored by Twana Costian, dated 29 May 2023;
(k)A letter of Simon Port from EveryMan Australia, dated 9 February 2023;
(l)Various certificates of completion and achievement dated between 14 May 2022-13 December 2022 for various development courses; and
(m)Letter of referral and mental health care plan from Capital Clinical Psychology, dated February 2023.
Consideration
7․Pursuant to s 110(2) of the Crimes (Sentence Administration) Act 2005 (ACT) (Sentence Administration Act) this Court must cancel the GBOs and impose the suspended sentence or resentence the offender for the offences, and I note that there is no presumption in favour of imposing the sentence that was suspended: see Guy v Anderson [2013] ACTSC 5 at [83]-[87]. However, I also note that failure of the Court to act where there has been a breach of the GBO by which the offender avoided being sent to prison is likely to bring suspended sentences into disrespect: see R v PM (No 2) [2015] ACTSC 358 (PM) at [19]. In determining the appropriate course, it is relevant to take into account the following matters.
Proportion of GBOs served
8․First, the proportion of the GBOs served: see R v Beniamini (No 2) [2017] ACTSC 32 at [52]. I note that the first reoffending occurred nine months and 24 days into the GBOs imposed by Burns J.
Rehabilitation
9․Second, any rehabilitation attained prior to the breaching conduct. The prosecution submitted there is no evidence of rehabilitation prior to the breaching conduct, referring to the PSR. I also note that counsel for the offender conceded there is no evidence of rehabilitation having been attained prior to the breaching conduct.
10․However, there is ample evidence of rehabilitation and cessation of offending since the offender completed the custodial portion of the sentences imposed for the breaching conduct. The offender has demonstrated earnest efforts at rehabilitation and at resentence sustained an active commitment to self-reform. The prosecution agreed with that assessment. It is clear to the Court, on the evidence, that the offender has demonstrated effort toward rehabilitation.
11․Further, counsel for the offender submitted much progress has been made in addressing criminogenic factors of drug use, anti-social relationships, management of finances and nurturing of pro-social relationships. That was a correct submission which is also supported by the prosecution's submissions in this case. The offender has now completed 20 sessions of Working with the Man program, completed EQUIPS and other programs while under custodial sentence, and is engaging with a psychologist and counselling regarding drug and alcohol and grief due to the recent death of his brother. The offender is now prescribed medication for anxiety and depression, and I note the death of his brother on 7 June 2022 as a significant intervening factor in the offender’s personal circumstances.
The breaching offences
12․I also note the following matters, being, the nature of the offence which breached the order, including whether it is of similar conduct. The fresh offences were of a different nature, involving domestic violence and drug offences, and the original offences were offences of dishonesty.
13․I further note the relative seriousness of the offence causing the breach. The prosecution submitted the offences of possess prohibited drug and cultivate prohibited plant are of relatively low seriousness and I note that s 10A Crimes (Sentencing Procedure) Act 1999 (NSW) sentences, being the recording of a conviction with no further penalty, were imposed in that regard in New South Wales.
14․The prosecution submitted the contravene Apprehended Violence Order offence from 16 March 2022 may be similarly characterised, and I note that a s 10A Crimes (Sentencing Procedure) Act 1999 (NSW) sentence was imposed. The prosecution confirmed that a conviction was recorded with no further penalty.
15․The prosecution submitted the other offences were all of a serious character. I agree with that submission. The offences involve domestic violence offending, while an Apprehended Violence Order was in place. Sentences of full-time imprisonment were imposed, and the offences involved the use of an axe occurring in the presence of the infant daughter of both the victim and the offender.
16․The offences are of particular seriousness. Counsel for the offender conceded that the breach conduct was undoubtedly serious, however, counsel for the offender submitted that the offending conduct does not necessarily reflect a lapse into a non-law-abiding life, but rather, may be viewed as a product of failure to address drug issues.
The facts of the matter before Burns J
17․I take into account the facts of the matter for which the offender was first sentenced before Burns J. In that regard I note that the offender and co-offender entered a rural commercial premises at night as trespassers and stole a Bobcat, an auger driver, motor, attachments and tools. There was no damage occasioned to the premises. There were no persons present, or likely to be present, and no repeat incursions. The offences involved premeditation and planning and the value of items stolen was high.
Intention to disregard the obligation to be of good behaviour
18․I take into account whether the breach offence evinces an intention to disregard the obligation to be of good behaviour or to abandon any intention to be of good behaviour.
19․The prosecution submitted that the offender committed eight offences on three different days, over an approximate three-month period. The offences are varying in their nature. The prosecution submitted, correctly, that the period of offending behaviour is indicative of an intention to disregard the obligation to be of good behaviour.
20․I note that counsel for the offender submitted the conduct does not necessarily reflect a lapse into a non-law-abiding way of life, but rather can be viewed as a product of a number of criminogenic factors. The offender is now working on rehabilitation.
Additional considerations
21․I take into account the question of whether the offender had received any warnings with respect to breaches. The prosecution submitted the offender had not received any formal warnings in relation to the breaches.
22․I take into account the level of understanding of the offender of his obligations under the terms of the order of the consequences of the breach: see PM at [20]-[22]. The prosecution appropriately submitted there was nothing to indicate the offender did not understand his obligations under the orders.
23․I take into account the nature of judicial and community resources previously devoted to the offender: see R v Bennett [2017] ACTSC 104 at [11]. The prosecution submitted some resources have been devoted to assisting the offender, but they are not above what would ordinarily be expected in this kind of matter.
Re-sentence
24․The prosecution correctly submitted that, if the court decides to resentence, a resentence is conducted under the same terms as the original sentence, referring to s 110(4) of the Sentence Administration Act and Beniamini at [52]. The prosecution referred to the Court possessing all of the relevant information and material of the original proceedings: see Gyory v R [2012] ACTCA 28. I note that the CCTV footage was played at the hearing today before me.
25․The offender and the prosecution both correctly submitted that, as the offender is currently serving a sentence of imprisonment in New South Wales by way of parole and supervised Intensive Correction Orders, the Court is required to consider the principle of totality. I do so, noting that the period of custody ends in February of next year.
26․Counsel for the offender submitted that a resentence is the appropriate disposition in all of the circumstances and conceded in written submissions that terms of imprisonment are warranted in all of the circumstances. That is correct.
27․Counsel for the offender also submitted that the PSR ultimately opines that the offender's risk level makes him suitable for a low level of intervention by the ACT Corrective Services and the offender is also gainfully employed on a full-time basis in circumstances in which his employer is reportedly very satisfied with his work standards and attitude to work.
28․Counsel for the offender correctly submitted the court should take into account the period spent under the GBOs without offending. The prosecution agreed with this submission, that is specifically nine months and 24 days from the GBOs being imposed before the reoffending conduct, and four months and two days since his release from custody in New South Wales on 13 December 2022. Counsel for the offender submitted that this represented a significant period of the GBOs which had been complied with. The prosecution properly agreed with that submission.
29․The submission made by counsel for the offender was that a sentence of 10 months would be appropriate for the burglary and five months for the theft. The prosecution did not cavil with such a sentencing approach. Counsel for the offender indicated that a GBO of eight months may be appropriate. The prosecution, in my view, correctly cavilled with such a short period. In my view, a period of 12 months is appropriate in all the circumstances to ensure that the rehabilitation that Mr Vecchi has undertaken continues.
Orders
30․For those reasons, I make the following orders:
(1)On the charge of burglary, the Good Behaviour Order is cancelled pursuant to section 110 of the Crimes (Sentence Administration) Act, and the offender is resentenced to 12 months imprisonment.
(2)For the charge of theft, the Good Behaviour Order is cancelled pursuant to section 110 of the Crimes (Sentence Administration) Act, and the offender is resentenced to five months imprisonment.
(3)The sentence for both offences commences today, 13 June 2023, and is to be suspended immediately upon Mr Vecchi entering into a Good Behaviour Order for a period of 12 months with the following conditions:
(a)To accept the supervision of the Director-General for Corrective Services for a period of 12 months or such lesser period as deemed appropriate by the supervisor; and
(b)To comply with all reasonable directions concerning suitable programs, including drug and alcohol and domestic violence programs as directed by the Supervising Officer.
| I certify that the preceding thirty [30] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Loukas-Karlsson. Associate: Date: 14 February 2023 |
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