DPP v Comensoli [2019] VCC 1741

1. A detailed summary of prosecution opening was exhibited and read on the plea and may be summarised as follows:

1. On 19 June 2018, at approximately 1.00pm, Melissa Clifford was in the poker machine area of the Bells Hotel, South Melbourne. Ms Clifford hung her black leather jacket over the back of her chair whilst she walked around the venue, the jacket having the keys to her black Toyota Yaris Hatch in the pockets.
2. You were also at Bells Hotel and approached Ms Clifford's chair. You felt the pockets of the jacket before stealing it. You went outside to the car park, where you used Ms Clifford's car keys to unlock and steal her Toyota Yaris.

1. Between 8.00pm and 10.30pm on the same night, you drove to an address in Kingdom Avenue Kings Park. You removed two registration plates from another Toyota Yaris, YGH 013, then stole a wallet containing personal identification and cash from within the vehicle before leaving the street.
2. You then drove to Kurung Drive, which is located at the end of Kingdom Avenue and parked the stolen Toyota Yaris on the nature strip outside 73 Kurung Drive. You attached the two stolen registration plates to the stolen Yaris before discarding the plates from Ms Clifford's car on the ground.

1. You discarded various other items out of the stolen Yaris before rummaging through a Ford sedan and Toyota Hilux outside the address stealing various tools from the Toyota. You smashed a window of the Ford sedan belonging to Leanne Hayek to gain entry.

1. You then entered 73 Kurung Drive at approximately 10.30pm by jimmying the front door. Ms Hayek was inside the address with her four month old baby and 8 year old daughter. She was lying in bed in the front bedroom when she observed a shadow near her bedroom door. Ms Hayek got up and started screaming when she saw you dressed in dark clothing with her black 'Mimco' purse in your mouth.
2. Ms Hayek chased you out of the house before you jumped into the driver's seat of the stolen Black Toyota Yaris. Ms Hayek approached the Yaris and attempted to grab the steering wheel whilst calling out for help. You exited the vehicle and chased Ms Hayek back up the driveway. You then returned to the Yaris and Ms Hayek could see you holding something, possibly a bat. You then drove the car towards Ms Hayek forcing her to run back up the driveway to the rubbish bins. Ms Hayek did not think you intended to hurt her but it was enough to scare her. Ms Hayek then called '000' and reported the incident. You fled the address in the stolen Toyota Yaris.

Summary Charge 9 (Failing to comply with police direction)

1. While travelling to Kurung Drive in response to the 000 call, Senior Constable Holt and Detective Senior Constable Verbeek who were conducting crime duties noticed a black coloured Toyota Yaris with the front number plate half affixed. They observed the registration plates to be YHG 013 and the vehicle driving in an erratic manner south along Station Road, Deer Park. You drove the vehicle onto Furlong Road and right into Parklea Avenue before pulling into the driveway of a residence in Parklea Avenue. Senior Constable Holt pulled up behind you before activating the police vehicles lights and sirens to indicate their presence. You reversed your vehicle towards the police vehicle in an erratic manner causing police to take evasive action to avoid a collision. You fled the area and were last seen driving erratically along Furlong Road, Cairnlea.

1. At about 9.30am on 21 June 2018, a black Toyota Yaris was observed driving in an erratic manner in Forrest Street, Albion. Police followed the vehicle, observing you driving and a male passenger inside the vehicle. Police observed the registration plates affixed to the vehicle to be ZTV 657, which were identified as being stolen. At approximately 9.43am the vehicle was located parked outside 69 McIntyre Road, Sunshine North with you seated inside. The passenger was not in the vehicle at this time.
2. As you tried to reverse the Yaris, a police vehicle parked directly behind you preventing you from driving away. You ran from police along McIntyre Road into the direct path of another unmarked police vehicle, causing you to fall to the ground. You were then arrested.
3. Amongst the items located by police in the black Toyota Yaris were a set of car keys previously stolen from John Coleman as well as a large quantity of mail and personal documentation belonging to multiple people residing in Southbank, South Melbourne, Templestowe, Burwood and Toorak.

Summary Charges 10 (Driving whilst disqualified) and 15 (Committing indictable offence whilst on bail)

1. At the time of driving, you were on a P2 probationary licence, which had been cancelled and as such, you were disqualified from driving.
2. You were on bail at the time of offending.
3. You were taken to Sunshine Police Station and interviewed in a tape-recorded record of interview. You largely made a 'no comment' interview save that you admitted being present in the Toyota Yaris which you claimed to have borrowed from an unnamed friend.

1. The most serious offence to which you have pleaded guilty is aggravated burglary. Aggravated burglary is recognised by Parliament as a serious offence which is reflected in the maximum penalty of 25 years imprisonment. However aggravated burglary offences are committed in a wide range of circumstances and, as has been recognised by the Court of Appeal, an aggravated burglary would rarely attract a sentence near its maximum penalty, given the available maximum penalties attached to serious offences that may be committed after entry.[1]
2. In this case the aggravated burglary was committed on the basis that you entered the victim's home with an intent to steal knowing or being reckless to the fact that a person was present. In this instance, while I accept that you did not have any initial intention to confront persons in the house, your actions resulted in what would have been a very frightening experience for the victim.
3. Ms Hayek was in her bed when she saw you near her bedroom door. It is

self evident that anyone in their own home at night being confronted with a person near their bedroom door, would instil significant fear. Further, at the time, Ms Hayek was in her home with two young children.

4. Mr Portelli who appeared on your behalf, submitted that this example of aggravated burglary is at the 'lower end in terms of gravity'. For the reasons discussed during the plea hearing, I do not agree. True it is that some of the aggravating features relevant to an assessment of the objective gravity of an aggravated burglary are not present here, such as possession of a weapon or being in company or where a physical assault has occurred. However other factors that are present in this instance add in my view to the seriousness of the offence. For example, the fact that you jimmied the front door, the fact that you entered at night, and the fact that in the course of stealing the items there was the confrontation with Ms Hayek, in my view elevates your offending above what your counsel submitted is a an offence 'at the lower end in terms of gravity'.
5. Further, while the offence of aggravated burglary was complete when you left and attempted to drive off, while attempting to stop you (presumably in an attempt to prevent you stealing her bag) you again confronted the victim first, by getting out of the car, and secondly by driving the car towards her in order to make your escape. These acts are of course uncharged but as noted by the victim in her statement, it was her view that they were designed to scare her.
6. The primary offence of aggravated burglary was preceded by three other thefts and damaging property. You stole keys to a car, the car itself, and then found a similar vehicle where you removed the plates and reattached them to the stolen vehicle. Those actions clearly involved a degree of planning in order to avoid unwarranted attention to the stolen vehicle you were driving.
7. I do accept however that your offending occurred over a short period of time and was linked to your long term drug addiction. In other words, you were resorting to the commission of these crimes in order to obtain property and money that you could convert into cash to purchase drugs. It was also put that the offences themselves were committed while you were drug affected. These facts it was conceded do not mitigate your crimes however they do provide explanation and context and further demonstrate the destructive nature of addiction to drugs such as ice.

1. You are 27 years of age and were 25 at the time of the commission of these offences. Therefore while not a young offender, you are still a relatively young man.
2. You were born and raised in Melbourne. You have two sisters aged 29 and 17. Your parents separated when you were aged 10 and your parents have both formed new relationships, however you do not have any step siblings. You do not describe your parents' relationship positively and note that your father drank heavily and would often not be home. Nonetheless, you say that you lived comfortably and you described a very close relationship with your grandparents who you would visit often spending school holidays with them on their farm in Avoca.
3. Following the separation of your parents, your mother moved to Western Australia to form a new relationship and as such you have had little contact with her. One of your sisters also lives in Western Australia and your other sister, while supportive of you and visits you in custody, is disappointed in your behaviour.
4. You attended Sunshine College until year 10. You were in trouble at school, became truant and received detentions for drinking and smoking. You attended the Australian Technical College to continue your schooling, however you left halfway through year 12. It was around this time that your mother left for Western Australia.
5. You worked part time at a butcher's shop however you were dismissed as you would often attend work hung over form the previous evening. You were evicted from your accommodation and moved in with your grandparents in Ballarat. Your grandfather passed away in 2018.
6. You have had other casual work in labouring and warehouse employment and completed four months of an apprenticeship as a chef. However as you informed your psychologist, your total employment over various jobs would not add up to two years.
7. You have had some short term relationships in your teenage years however you have been with your current partner for the past 16 months and the relationship has continued since you have been in custody. Your partner does not use drugs and the relationship is positive.
8. You began smoking cannabis during your teen years and have used alcohol since age 13. By age 17 you were dinking every second evening, consuming up to a bottle of spirits. At age 19 you stopped using alcohol and began to use methamphetamines. You have used at least a gram a day for the past eight years noting that you have never remained abstinent for any substantial period each time you are released from custody, the longest period being a week.
9. You have used other drugs such as GHB often together with methamphetamines.
10. You have an extensive criminal history which largely has resulted from drug related offending. You have been given a number of rehabilitative orders however you have been unable to rid yourself of your addiction. As noted, on your own admission the longest time you have remained drug free after being released from prison is a week. I also note that the latest entry on your prior history, while not a prior conviction for these offences, was committed one day after your last release and these offences committed some six weeks later.
11. A report was prepared by consulting psychologist, Warren Simmons and tendered on the plea. Mr Simmons does not seem to have conducted any psychometric testing and indeed does not offer any conclusions or opinion other than to say that on his clinical observations there was no evidence of psychiatric disturbance and no evidence of depression or anxiety.
12. Also tendered on the plea were three references, two from family members and one from your current partner. Your grandmother remains supportive of you and is willing to have you return to her to live upon your release from custody. She notes the anger you feel towards yourself as you had to attend your grandfather's funeral last year in handcuffs and a retraining belt. Your mother, in her letter, also notes that this event made you realise the effect of the choices you have made. Your mother states that in recent months you have considerably changed and you have greater insight into the effect your offending has had on yourself and your family.
13. A number of certificates representing your participation in rehabilitative programs in prison were also tendered on the plea which further support that you are committed to continue your path to rehabilitation.
14. Following the plea hearing I received a number of drug screens demonstrating you have remained drug free whilst in custody.

1. I take into account your plea of guilty. This matter resolved in the week leading up to the trial however the matter proceeded from the Magistrates Court by way of straight hand-up brief and no witnesses have been cross-examined. The aggravated burglary was the only charge in dispute and ultimately that resolved on the basis upon which it is particularised on the indictment. Thus, I accept that your plea of guilty has saved court time and expense, has avoided the need for witnesses to give evidence and relive the events and thus has facilitated the course of justice.
2. As to genuine remorse there is little evidence. The letters of reference generally speak of your appreciation of your choices that ultimately have led to you being detained in custody however your realisations are self focused and do not reflect genuine remorse towards the victims of your conduct. I do note however that in the report of Mr Simmons, he reports that while annoyed at yourself, you do recognise that your behaviour 'may have had a negative impact on the various people involved'.
3. General deterrence is always an important and applicable sentencing consideration in cases of aggravated burglary. Others must be deterred from committing what is a very frightening offence against people who are entitled to feel safe in their own homes.
4. In your case, specific deterrence must also carry weight in the sentencing equation. While relatively young, you have an extensive criminal history involving offences of dishonesty and violence. I note in particular you have a prior offence of aggravated burglary in 2015 for which you received a period of imprisonment. Further, as noted above, you have only been able to refrain from further criminality upon release from prison for very short periods of time. I acknowledge that ridding yourself of your drug addiction has been a difficult road, however you have been given a number of community correction orders which have provided you an opportunity to address your drug problem and you have either failed to complete those orders or breached them by further offending.
5. As to your prospects of rehabilitation, for the reasons already noted in relation to specific deterrence, your prospects can only be approached with caution. As noted you have been offered assistance via community correction orders and you have received a number of terms of imprisonment. That said, having read the references from your family and partner it appears that you are beginning to gain greater insight into your criminal behaviour and the effects upon your family and those around you and in my view a substantial period of parole would be of benefit to you as you continue your rehabilitation.

1. Mr Comensoli please stand.
2. Billie Comensoli, on Charges 1, 3, and 7, theft, you will be convicted and sentenced to 3 months imprisonment on each charge.
3. On Charge 2, theft, you will be convicted and sentenced to 6 months imprisonment.
4. On Charge 4, theft, you will be convicted and sentenced to 4 months imprisonment.
5. On Charge 5, damaging property, you will be convicted and sentenced to

6. On Charge 8, handling stolen goods, you will be convicted and sentenced to

7. On Charge 6, aggravated burglary, you will be convicted and sentenced to

3 years imprisonment. This will be the base sentence.

8. On Summary Charge 9, driving a motor vehicle knowing that you had been given a direction by a police officer to stop, you will be convicted and sentenced to 14 days imprisonment.
9. On Charge 10, driving whilst disqualified, you will be convicted and sentenced to 2 months imprisonment.
10. On Charge 15, committing an offence whilst on bail, you will be convicted and sentenced to 1 month imprisonment.
11. I direct that 1 month of Charges 2, 4 and 8 be served cumulatively on each other and on Charge 6 making for a total effective sentence of 3 years and

12. I direct that you serve 1 year and 8 months imprisonment before becoming eligible for parole.
13. Pursuant to s 18 of the Sentencing Act 1991, I declare that 462 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.
14. I further order that pursuant to s 89(4) of the Sentencing Act 1991 any licences you hold will be cancelled and you will be disqualified from driving for a period of 12 months from today.
15. Pursuant to s 6AAA of the Sentencing Act 1991, if not for your pleas of guilty I would have sentenced you to 4 years imprisonment with a non parole period of 2 years and 3 months.

[1] DPP v Barnes [2015] VSCA 293 at [46] per Croucher AJA.