DPP v Tedge [2019] VCC 1653

4. At about 11.30am on the day of the offending, Ms Fleming was sitting on a couch in a room at the back of the house and Mr Nacamuli was standing outside the house with Mr Nygard. You drove up in a white 4WD ute, jumped out of the car and approached Mr Nacamuli. Mr Nacamuli then ran into the house from the back yard. You entered the back of the house through the back door, following Mr Nacamuli, and you asked Ms Fleming, 'Where is he?' Mr Nacamuli continued through the house and left using the front door.
5. Once you became aware that Mr Nacamuli had left, you retreated back out of the house and into the backyard. You were inside the premises for a short period of time.
6. An unknown male associated with you, wearing a light-coloured singlet and dark board shorts, also entered the house through the back door. This male threatened to 'fucking smash' Ms Fleming unless she moved out of his way.

He also requested Ms Fleming's car keys so that he could locate

Mr Nacamuli ([1]). The unknown male produced a pocket knife with a 4 to 5 inch long blade.

7. The prosecution cannot say whether you remained in the house at this time. You had made no demands of or threats to Ms Fleming whilst inside the house.
8. Tracey Dunn, the mother of Mr Nacamuli's ex-partner, then attended the house. Ms Fleming told Ms Dunn that the two men were trying to hurt Mr Nacamuli ([2]). Ms Dunn then walked to the back door and asked you what was going on.

9. While this conversation was taking place, the unknown male left the house and smashed the windscreen and front passenger window of Ms Fleming's car.

10. The Crown case against you was put on the basis you had an intention to assault Mr Nacamuli. The Crown did not allege you knew that the unknown male who entered the house had a weapon in his possession. Furthermore, the Crown does not allege that you and this unknown male entered into an agreement to commit an offence.
11. This means the conduct of the unknown male inside and outside the house cannot be attributed to you, and therefore, I must not factor his actions in when sentencing you, other than to observe that the other person was an associate of yours who apparently attended the house with you, or a short time together, and that you left together.
12. On 4 February 2018, you were arrested and taken to the Frankston Police Station. Investigators conducted a taped interview with you in which you stated the following:

'I went around to see Dylan because he owes me money for - like a legit jet ski - I mean, a legit go-kart. And the back gate was open and Dylan was there. And then Dylan decided that he wanted to run from - and so

I sat there talking to his girlfriend and then I left." (Q20-24)

'I - well, the - the back gate was open, I walked in the back gate yelling out, "Dylan". And he saw me, and then he, yeah, just pretty much didn't wanna talk to me and just walked inside.' (Q26-28)

1. You said that Dylan had 'taken off', and that an 'old lady' told you, 'You better leave'; that when you were speaking to Ms Fleming, the person who had come to the house smashed the window on her car, which was not your expectation or intention (Q34-36); that you spoke to Dylan for a brief second before 'he just ran off on me.' You said you did not set foot inside the house, nor did the other male.
2. Mr Tedge, your offending is serious and deserving of a punishment which is just in all of the circumstances and your conduct must be appropriately denounced
3. You entered the victim's home, a place where he was entitled to feel safe, as were the other occupants, with the intention of assaulting the victim in an apparent bid to recover money that he owed to you. In doing so, you frightened a number of people who were also at the house, and, as I have said, were entitled to feel safe.
4. I make it clear that I do not sentence you on the basis of what your co-offender did, although it is an aggravating feature that you chose to attend the victim's home with another person apparently to back you up.
5. Having said this, I do not sentence you on the basis that you knew that this individual had a weapon at the time that each of you entered the house. I have also taken into account that you were in the house for a brief period before leaving, that you did not threaten anyone at the house, and were not party to any of the poor conduct engaged in by the co-offender.
6. There are no victim impact statements, but clearly your actions would have been most frightening for those who were at the house.
7. I was told that at the time of the offending, you were affected by drugs.

You have battled an addiction to ice and GHB for a number of years. You were so affected that you have a hazy recollection of your offending, which is a matter of concern in itself. Your intoxication on the day in question is neither an aggravating nor a mitigating feature, although it provides some explanation for your actions.

8. However, I put you on notice, if you need to be, that there is a clear link between your drug use and committing criminal offences, such that if you choose to take drugs in the future and commit criminal offences in that context, your decision to take drugs may well be regarded by court as an aggravating feature. Do you understand that?
9. OFFENDER: Yes.
10. HER HONOUR: You have a relevant and fairly substantial criminal history which reflects your battles with alcohol, then with drugs. In the past, you have committed offences of violence, drug possession charges, as well as dishonesty offences, you have committed driving offences, including driving under the influence of a drug, dangerous driving, and failing a drug blood test within three hours of driving.
11. The last-mentioned driving offences resulted in you being convicted and sentenced to 1 month's imprisonment in respect of dangerous driving and a

12-month community corrections order in respect to the other offences.

12. You were to serve the one month's imprisonment with a sentence imposed upon you on 25 November 2016 for a fairly large consolidation of offences, including theft of a motor vehicle, burglary and other dishonesty offences, as well as contravening an interim family violence order, committing an indictable offence whilst on bail, contravening a conduct condition of bail, criminal damage, and some assorted driving offences.
13. You were sentenced to an aggregate term of 6 months' imprisonment, to be served in combination with a community corrections order which was to run for two years. Pre-sentence detention of 92 days was declared as already being served.
14. You were released from gaol in respect of these sentences in February 2017, such that at the time of the offending before me, it appears that you were subject to two community corrections orders. This is of great concern to me - that you committed an aggravated burglary when you were subject to two court orders, each of which were designed to assist you.
15. In the past, you have been given chances to rehabilitate through community corrections orders, one of which you breached in 2014, in addition to the two that you breached by the offending for which I now sentence you. None of the community corrections orders served to help you to remain crime free.
16. I note that in December of last year, I dealt with you in respect of two appeals from the Magistrates Court in relation to a significant number of offences, and sentenced you to time served in respect of each of the appeals in addition to a further community corrections order. The time that you had served was substantial, being 255 days in one case and 180 days in relation to the other.
17. The community corrections orders that I imposed involved supervision for

18 months as well as treatment and rehabilitation, whereby you were required to remain on the regime with Odyssey House, and you have done so thus far. You were also required to undergo mental health assessment and treatment if necessary.

18. I understand that the only offences which you committed after the offence for which I now sentence you were a drug possession matter and a breach of bail.
19. I have taken into account the psychiatric report prepared by Dr Leon Turnbull, dated 2 August 2018. There is no impairment of mental function which would serve to reduce your moral culpability in relation to the offending now before me, such that I find your moral culpability is high. However, I have taken

Dr Turnbull's report into account in a general way in sentencing you, noting that you have no mental illness which might pre-dispose you to further offending. Clearly, the problem for you is your propensity to abuse drugs.

20. I take into account your background. You come from a fine family. Your parents were at the original plea hearing in support of you, and your family, I see, are here again today in support of you. Your parents are still together and you now enjoy a good relationship with them, although, no doubt, this has been sorely tested over the years, due to your offending.
21. I was told that when you were using drugs in the past, you removed yourself from your family. Upon your release from the current regime, you intend to live with your parents, and they are willing and able to give you every support, including the offer of work with your father, who runs a plumbing business.
22. You have two older siblings, one of whom, like you and your father, is a plumber. Your sister is a nurse, and your mother works in sales.
23. You grew up in the Frankston area, attending a local primary and secondary school. However, unfortunately, you were expelled in Year 10 after being suspended on a number of occasions for being disruptive. You enjoyed playing football and cricket, and played these sports both at school and with a club. You continued to play cricket till you were 18 and played football a little longer than this.
24. After leaving school, you worked at a takeaway food outlet and you completed a four-year plumbing course. This involved a TAFE course and a one-year apprenticeship which you undertook with your father. You worked with your father for another three years. You then worked with a different plumbing business for a time, before returning to your father's business when you were 23 or 24. I understand that your specialty is maintenance plumbing.
25. I was told at the original plea hearing that you are not in a relationship and have that you have no children.
26. I was told that you started binge drinking about once a week when you were

13 years old, and then from the age 16 to 18, you occasionally used speed, albeit irregularly on weekends. When you were about 18, a so-called 'friend' of yours introduced you to ice, and you became addicted to the drug quite quickly. You also started to use GHB at about this time.

27. I was told that when you were released from gaol in February 2017, you commenced working and that you were doing quite well on the community corrections orders. However, you snapped an Achilles tendon in one of your feet which prevented you from working for four months. You were prescribed Endone, and unfortunately, you commenced to abuse it. You then commenced associating with your old friends from the drug scene, and sadly, you fell back into illicit drug use and abuse, so by September/October 2017, things started going off the rails.
28. At the original plea hearing, I received some impressive character material in support of you, including a heartfelt letter which you wrote to your family from gaol, expressing your regret for all you had put them through.
29. I also heard evidence from Mr Nicholls, who is a childhood friend of yours, and who is also a health coach and leader of his Church. He has had a very difficult time himself, having served in the armed forces in war zones, which led him to suffer PTSD and to self-medicate. He overcame his own addiction and now helps others such as you in their bid to overcome their own difficulties in this regard.
30. Mr Nicholls' letter and evidence was most impressive, and he spoke highly of you and your resolve to end your addiction once and for all. Mr Nicholls has been visiting you in prison, and said that you had also been attending AA whilst in gaol, as you were determined to stop taking drugs.
31. Since the day you were remanded, you have stopped taking drugs, and this was evidenced by nine drug screens tendered on your behalf. I have also taken into account the letter from your father, who spoke very highly of you, saying that your offending on this occasion was out of character and your offending generally was out of character when you were not on drugs.
32. Your solicitor arranged for you to apply for residency at Odyssey House and to undergo a program which would endure for 12 months. It was submitted to me that I ought defer sentence in this matter in order to see whether you were able to complete the program, and if so, that I ought sentence you to time served in combination with a suitably crafted community corrections order. Mr Nicholls said that he would support you upon completion of the program.

The prosecution did not oppose the submissions made by your counsel, submitting that such an approach was acceptable to them.

33. In such circumstances, last year, I deferred sentence for 12 months on strict bail conditions in order to see how you went at Odyssey House, and more generally.
34. You had been in gaol for a substantial period, having been incarcerated on

4 February 2018. The first week of this period was particularly difficult as it was served in the Melbourne Custody Centre, and I have taken that into account.

35. You had done well whilst on remand in terms of your drug problem. You have been drug free since being placed in custody as is evident from the clear drug screens which were tendered at the plea hearing.
36. Whilst on remand, you also completed a number of programs, and as I have indicated, you have good family support and work capacity. You will be able to live with your parents upon completing the various steps that you need to complete in relation to the program at Odyssey House. Accommodation and work are two protective factors which are in your favour, but your ability to lead a crime-free and productive life depends greatly on your ability to remain drug free. Another protective factor, of course, is the family support you have.
37. I allow for a fairly significant discount in the sentence that you would otherwise receive in view of the stage at which you entered a plea of guilty to the matter. You entered a plea of guilty at the contested committal hearing on 6 June 2018, before any witnesses were cross-examined. By entering a plea of guilty at this stage, you saved the witnesses the time and trouble of giving evidence, especially the lay witnesses, and you saved the community the time and expense of running a contested committal hearing and trial.
38. It was submitted that your plea of guilty is also reflective of remorse. This did not appear to be clearly the case, as at the time I heard the plea originally - that is, last year - and I say this: that in view of what you told the police in relation to not stepping inside the house, and also that you waited until the morning of the contested committal hearing before you decided to plead guilty to the offence.
39. However, the learned prosecutor at the original plea hearing last year most fairly advised me that you instructed your counsel that you did not wish to subject

Ms Fleming to cross examination, and that the matter resolved after this.

40. Also, your counsel Mr Chisholm told me that you acknowledged to him the impact that your actions might well have had on the victim or victims. Further, you now have done a great deal in a bid to address your drug addiction, which is reflective of some insight and remorse. So in the end, I accept that, in the clear light of day, and in light of the material now before me, you have appropriate insight and remorse for your actions insofar as the offending is concerned.
41. I have now been provided with a number updates in relation to your progress with Odyssey House, and it is most encouraging. You have worked very hard and very well in addressing your substance abuse issues.
42. Your conduct was described as exemplary in a report dated 4 April 2019, which was provided by Mr Campione, who is a therapist with this organisation.

In a letter dated 30 September this year, Mr Campione described the various stages through which you have successfully progressed to the point where you have been deemed suitable to commence transitioning back into the community, albeit in a stepped way. Mr Campione gave extensive evidence at the further plea hearing recently, and advised on the various stages you were yet to progress through, but that at this stage, you were on track to complete these stages sometime next year.

43. I must say, your efforts have been most impressive and fruitful, and I really hope that you can continue to progress in the way that you have shown you are capable of. Certainly, you have indicated you are willing to do so.
44. In sentencing you, I have taken into account that you have spent the past

12 months at Odyssey House, which, in its own way, is a form of custody and punishment, as the law recognises. You have also served substantial terms of imprisonment in fairly recent times which were declared in relation to your appeals, so only two days are available in respect of the matter before me. However, I must take into account that you have served substantial periods in gaol in recent times when considering totality.

45. In all of the circumstances of your case, I regard your prospects of rehabilitation as guardedly good and I place moderate weight on specific deterrence and the need to protect the community. But I must place strong weight on general deterrence in a bid to deter others from offending as you have.
46. Usually, a person in your position would serve an immediate term of imprisonment for such serious offending, especially in view of your criminal history. However, I regard your situation as exceptional and warranting leniency in the hope that you continue on your path of rehabilitation.
47. In this regard, I note that the Director of Public Prosecutions now instructs that it is appropriate - when I say the Director of Public Prosecutions, the Office of Public Prosecutions - now instructs counsel, Mr Albert, that it is open that you not be required to serve a combination sentence or a term of imprisonment in combination with a community corrections order, but rather, that a community corrections order is within the range in view of your exceptional rehabilitation and the other matters in mitigation in your case.
48. It is in your interests and in the interests of the community that you do continue on your path on rehabilitation. But if you slip up, Mr Tedge, I make it clear, I will have little hesitation in sending you back to gaol. So please, stick to the path that you have taken in the past 12 months. Would you please stand up?
49. You are convicted of the offence. I make a forfeiture order in the terms sought by the prosecution, which is not opposed by you.
50. You are sentenced to a community corrections order for a period of three years with the following proposed conditions. Before I tell you about these, I must point out that I cannot put you on a community corrections order unless you consent to it, so please listen carefully to the order that I propose.
51. As I say, the order would run for a period of three years. The conditions of the order would be as follows: firstly, the mandatory terms that apply to all Community Correction Orders, which are: firstly, you must not commit another offence for which you could be imprisoned during the time that the order is in force. Secondly, you must comply with any obligation or requirement prescribed by regulation 17 of the Sentencing Regulations 2011.
52. Thirdly, you must report to, and receive visits from, the Secretary to the Department of Justice (or his or her delegate). You must report to the South Morang Community Corrections Centre before 4 pm within two clear working days of today.
53. Next, you must let a community corrections officer know within two clear working days of you changing your address or job. Next, you must not leave Victoria without first obtaining permission to do so from the Secretary to the Department of Justice (or his/her delegate). Next, you must obey all lawful instructions from and directions of the Secretary to the Department of Justice (or his/her delegate).
54. The conditions that will apply in addition to the mandatory terms listed are: you must undergo 300 hours unpaid community work within the next three years. Up to 150 hours of this condition will be satisfied by the satisfactory completion of the equivalent period in respect of any of the treatment and rehab conditions. Further, you must be under the supervision of a Community Corrections Officer for a period of three years.
55. Also, you must undergo assessment and treatment including testing for drug and alcohol abuse or dependency as directed by the Regional Manager.

It is my expectation, I should say, that you will be directed to continue on the path that you are on with Odyssey House.

56. Finally, I am going to monitor your progress, so you are to attend this court from time to time to be monitored by me. Your first appointment will be on Friday

13 December at 9.30 am. So that is this year, Friday 13 December, at 9.30 am.

57. Ahead of each monitoring appointment, I will have community corrections - and if necessary, in liaison, I would say, with Odyssey House - provide a report as to how you are going on the community corrections order. You are not to be represented at these appointments, as they are an opportunity for me to have a chat with you about your progress, and also with community corrections, who will also attend. Now, having heard the order that I propose, do you consent to the terms and conditions of the order?
58. OFFENDER: Yes, I do.
59. HER HONOUR: I should tell you that if you do not comply with all of the requirements of the community corrections order, you will face breach proceedings before me. You will be sentenced in relation to the breach, and you will be re-sentenced in relation to the charge, in which case you may well be sentenced to a period of imprisonment.
60. I would regard a breach of the community corrections order as a most serious matter, whether it be because of further offending or because of

non-compliance with any of the other conditions of the order. Do you understand this?

61. OFFENDER: Yes, I do.
62. HER HONOUR: Do you still consent to making of the order?
63. OFFENDER: Yes.
64. HER HONOUR: All right, thank you. Therefore, in relation to the charge, you are convicted and sentenced to a community corrections order in the terms and conditions that I have just set out, and I will ask your counsel to assist you with the signing of the order.
65. I indicate, pursuant to s.6AAA, if not for your plea of guilty, I would have sentenced you to a total effective sentence of four years' imprisonment with a non-parole period of three years. Take a seat, please.
66. MR CHISHOLM: May I approach?
67. HER HONOUR: Yes, thank you, Mr Chisholm. I have signed the order,

Mr Tedge, and I do hope to hear good news when I see you in December.

68. MR CHISHOLM: No, Your Honour.
69. MR ALBERT: Your Honour, in the sentencing remarks, if you could change the Crown position from saying it was 'appropriate' to 'open' in the sentence.
70. HER HONOUR: All right. I will make that adjustment.
71. MR ALBERT: We're being very careful about the wording these days, I think.
72. HER HONOUR: I see. Yes, it was 'open', then. I will change that.
73. MR ALBERT: Yes, thank you, Your Honour.
74. HER HONOUR: Thank you. Anything further?
75. MR CHISHOLM: No.
76. HER HONOUR: All right, thank you. I will now adjourn. I have some people to speak with who I think are in the back of the court, so I will come back in a moment. I have not forgotten. Thank you.

[1] Statement of Fleming, p2 depositions

[2] Statement of Fleming, p3 depositions