DPP v Tsivicos, Mai [2015] VCC 1555

County Court of Victoria|2015-10-29

1 Savvacis Tsivicos and Peter Mai, you have both been convicted by a jury of one charge of theft. On 1 November 2013, a total of 123 large Sony televisions were delivered to the Toll IPEC logistics depot at the Chadstone Shopping Centre. At 3.20 pm that day, after the receipt of those televisions, a phone call was received by the manager of the depot. Someone purporting to be from Harvey Norman, the company that was to ultimately receive the televisions, claimed to need the televisions for a store promotion over the coming weekend. It was arranged that a truck would be sent to collect the TVs from the Toll depot.

2 The manager, Mr Watson, agreed to stay late to assist Harvey Norman's request. Unbeknownst to Watson, the caller was not from Harvey Norman, but someone from another Toll depot setting up the theft of the televisions. At 5.07 pm, a truck bearing false number plates and driven by you, Mai, arrived at the Toll depot. You, Tsivicos, were sitting in the passenger seat. Watson loaded the truck with pallets of televisions.

3 Only 110 televisions could be loaded. The truck was filled to capacity. After Watson asked for the appropriate paperwork, you, Mai, drove the truck away. Watson then made further enquiries with Harvey Norman and contacted the police. During the approximate one hour that the truck was being loaded, another vehicle arrived at the depot and its driver, a Mr Windsor, briefly spoke to you, Tsivicos. He recognised you as someone he had met 17 years previously and had seen a few weeks before 1 November 2013.

4 The televisions stolen were valued at $161,105 wholesale. One was recovered by police at an unrelated premises, subsequently. Police used telephone records to trace your movements, Tsivicos, and to reconstruct who you spoke to on the phone at relevant times. The truck used to steal the television was identified and was in the possession of a man called Sofos prior to the theft. Phone records show contact between you, Mai, and Sofos, two days before the theft.

5 You, Tsivicos, and you, Mai, had phone contact the day before the court, and you, Tsivicos, had telephone contact with Sofos. On the day of the theft, you were in phone contact with each other, and earlier in the day, you, Tsivicos, were with Sofos on separate calls on four occasions. You, Mai, also contacted Sofos before the theft. There were a number of SMS contacts, as well, between Sofos and you, Tsivicos, the contents of which are unknown. Calls were made by your phone, Tsivicos. They were relayed by mobile towers in the Chadstone area at the time of the theft.

6 Further relevant telephone contact occurred over the days following the theft. Further surveillance evidence showed that you, Tsivicos, visited Mai's home in November, and you met Mai at a milk bar thereafter. You were both arrested on 5 December of 2013 and you both made no comment records of interview. The jury verdict confirmed that the jury was satisfied beyond reasonable doubt that you two took the truck to Chadstone and stole the televisions. They accepted the circumstantial evidence and, it appears, the original identification of you, Tsivicos, by Mr Windsor, despite his subsequent change of position.

7 You both admitted prior criminal history. You, Mai, were fined $2000 for common law assault on 21 February 2005.

8 You, Tsivicos, have an extensive prior criminal history. Between 18 June 1992 and 1 October 2013, you were sentenced, firstly, for five dishonesty offences between 1992 and 1996. You received fines, an adjourned bond and a suspended jail sentence for this offending. Secondly, numerous drug offences, including trafficking and cultivation.

9 Thirdly, for even more numerous road traffic offences. They include driving whilst authorisation suspended. You have received a six month term of imprisonment to be served by an intensive corrections orders in May 2010. You received a six month suspended sentence for the same offence in September 2010. You went to prison for three months in May 2012 on seven charges of drive while disqualified and a community corrections order was also imposed.

10 Fourthly, on 25 March 2013, you were before the Sunshine Magistrates' Court on a charge of failing to comply with an intensive corrections order and sentenced to a six month imprisonment to be served by an intensive corrections order. You were serving that sentence when you committed the offence for which I am to sentence you. Fifthly, on 1 October 2013, you were sentenced to four months imprisonment, such sentence to be suspended for 12 months. You were serving that suspended sentence when you committed the theft on 1 November 2013.

11 It's clear that your criminal history is significantly more relevant to sentencing than is Mr Mai's.

12 Turning to your personal circumstances and commencing with you, first, Tsivicos, you are 42 years of age, being born on 24 January 1973. You were born in Melbourne. Your parents were Cypriots. Your personal history is set out in Exhibit T1, your counsel's submissions, and need not be repeated in detail in these reasons. You struggled at school, possibly because you had sustained serious head injuries when you were both eight and 11.

13 You left school in year 11 to commence an apprenticeship, but didn't finish, after your employing company closed. You returned to Cyprus, completed your military service, and worked in a bar for two years. At the age of 22, you returned to Australia and worked at Holden as a courier and as a builder's labourer. You opened a tattoo shop in St Kilda, but it was not a success. Three and a half years ago, you established a transport business. You are the director of two companies involved in that business. You borrowed some $90,000 to establish the business.

14 You had commenced using drugs whilst at school. When you returned from Cyprus, you were using stimulants, illicit drugs, and abusing alcohol. Your drug use continued when you ran the tattoo parlour in St Kilda. Your health is poor. In 2012, you were diagnosed with insulin dependent diabetes. You've suffered recurrent kidney problems. You've been hospitalised, as a result, on a number of occasions. Medical reports, Exhibit T3, outline your various medical problems. Your counsel informed me that these medical issues prompted a change in your lifestyle.

15 You have ceased using illicit drugs and alcohol completely. You now suffer from kidney stones and they need to be treated. You take medication for this and for your diabetes condition. Your counsel submitted that the establishment of your recent business and your cessation of drugs and alcohol demonstrate your capacity to change your life and to rehabilitate yourself. He submitted that the court should impose a term of imprisonment, together with a community corrections order, for your offending. I will return to this submission, subsequently.

16 Turning to you, Mai, you're 33 years of age. You were born in Australia, a year after your parents arrived from Vietnam as refugees. You have four siblings. Your family moved to Melbourne when you were an infant, and in 1987, purchased a house in Myers Street, Sunshine West. Your father worked in a chicken factory until 2010, when he died at the age of 53 from cancer. You looked after your mother thereafter at that home. You left school at the end of year 11 and obtained work in a processing factory, warehouses, and in 2011, with a demolition company.

17 You were so employed until you were remanded in custody at the conclusion of this trial. You've been in a long-term relationship since 2007. Your counsel submitted that your solid work history and your supportive family and friends, and your lack of relevant prior criminal history ,support the proposition that you have good prospects for rehabilitation. References tendered, Exhibit M3, attest to your reliability at work. Your offending is said to be out of character. I accept your counsel's submission that these factors make specific deterrence of limited relevance in sentencing you.

18 Your counsel filed a written outline of submissions, Exhibit M1. He made various submissions as to the nature of your offending. However, it is clear that your offending is well planned, well organised and involved inside assistance from Toll. The theft you were involved in was a serious crime. The value of the televisions stolen was significant and I view your conduct as serious criminal activity. Your counsel submitted that a community corrections order would be appropriate for your offending. Alternatively, he submitted a short term of imprisonment, combined with a community corrections order, would be appropriate.

19 Sentencing considerations - both counsel for each of you submitted the court should consider the imposition of a community corrections order. Clearly, the principles set out in Boulton v The Queen [2014] VSCA 342 have application. The court is able to impose a community corrections order with various special conditions. The community corrections order can be imposed with a term of imprisonment up to two years. Pursuant to s.5, sub-s.(4C), of the Sentencing Act, this court cannot impose a term of imprisonment if the purposes or purpose for which a sentence is imposed can be achieved by the imposition of a community corrections order.

20 The Court of Appeal in Boulton recognised the serious detrimental effects of prison for a prisoner and, hence, for the community. See para.108. The court stated at para.131: "It follows from what we have said that a community corrections order may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment, such as, for example, aggravated burglary, intentionally causing serious injury, some forms of sexual offences involving minors, some kinds of rape and some categories of homicide. The sentencing judge may find that, in view of the objective gravity of the conduct and the personal circumstances of the offender, a properly-conditioned CCO of lengthy duration is capable of satisfying the requirements of proportionality, parsimony and just punishment, while affording the best prospects for rehabilitation".

21 It is clear, then, that the court must give consideration to the objective gravity of the crime and the personal circumstances of each of you in determining the appropriate sentence. The Court of Appeal recognised in Bolton, at para.140, "That there will, of course, be cases where the sentencing concludes, after engaging in the deliberation now required by s.5, sub-s.(4C), that certain sentencing purposes - typically, just punishment, denunciation and/or deterrence - cannot be sufficiently served by the making of a CCO, even with onerous conditions. Consistently with the principle of parsimony, the court will then impose the shortest term of imprisonment consistent with the achievement of these purposes. The availability of the combination sentence option adds to the flexibility of the CCO regime. It means that, even in cases of objectively grave criminal conduct, the court may conclude that all of the purposes of the sentence can be served by a short term of imprisonment coupled with a CCO of length duration, with conditions tailored to the offender's circumstances and the causes of offending".

22 If this court is of the view that a sentence of two years or less cannot serve the purposes of sentencing, a community corrections order can no longer be imposed. There is nothing to distinguish between you insofar as the roles you each played in the offending. There is, however, a significant distinction to be drawn between you in your personal circumstances. You, Tsivicos, are older and have a significant relevant prior criminal history. You, Mai, do not. As I said, your offending was significant criminal offending, but the decision of Boulton establishes that community corrections orders are available for very serious criminal conduct.

23 I had each of you assessed for suitability for a community corrections order. Those assessments found each of you suitable for such an order. You, Mai, were assessed as a low risk of offending, while, you Tsivicos, were assessed as a medium risk. Having considered the seriousness of your offending and your personal history, I am of the view that, in your case, Tsivicos, a term of imprisonment in excess of two years is required to reflect principles of general deterrence, specific deterrence and denunciation and just punishment, so no community corrections order is available in your case.

24 So far as you are concerned, Mai, the seriousness of your offending, in my view, requires a term of imprisonment, but I propose to impose a sentence that reflects the serious nature of your offending and your personal circumstances, and combine that term of imprisonment with a community corrections order. Would you both stand up, please. Sentences of the court are, on the one charge of theft, you, Savvacis Tsivicos, are sentenced to be imprisoned for three years, and I order that you serve two years of that sentence before being eligible for parole.

25 You, Peter Mai, are sentenced to be imprisoned for 20 months. In addition, I order that you undertake a community corrections order for 12 months. It's a special condition of that order that you perform 200 hours of unpaid community work. You are to report to Sunshine Community Corrections Centre within 48 hours of your release from custody. I make the ancillary orders sought by the prosecutor. And what's PSD?

29 HIS HONOUR: I declare that 16 days of the sentences I have just imposed on each of you, not including today, as already being served by way of pre-sentence detention. Are there any other orders required?

31 HIS HONOUR: All right. Would you remove the prisoners, please. No. Sorry, Mr Mai. Remove Mr Tsivicos. Mr Mai, have a seat. You've got to sign your CCO. Somebody has asked for my sentencing remarks. They're handwritten. They're not typed, so I can't release them until they're edited. Access to the exhibits can be granted to the press. Mr Oldis, can you go down with my associate and have your client sign the CCO? Mr Oldis, will you explain to him that what will happen is he has to go, as soon as they release him from custody, effectively, to the - - -

33 HIS HONOUR: All right. Very well. I will stand down until 10 o'clock.

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