DPP v Sotiropoulos [2021] VCC 417 (12 April 2021)

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

CRAIG SOTIROPOULOS

JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:	3 March 2021
DATE OF SENTENCE:	12 April 2021
CASE MAY BE CITED AS:	DPP v Sotiropoulos
MEDIUM NEUTRAL CITATION:	[2021] VCC 417

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr B. Nibbs

For the Accused	Mr H. Rattray with Mr C. Oldham

1 I will proceed to sentencing on the trial matters. Craig Sotiropoulos, you were convicted by jury verdict of two charges of theft, two charges of destroying property and one of burglary. You were acquitted of two other charges. In the early hours of the morning of 4 July 2018, you and a number of other accomplices stole a tipper truck and used a 14 truck tractor, with a front end loader, to perform a ram raid at the central South Morang Shopping Centre. The front end loader rammed through the bollards destroying the glass doors and floor tiles. It was being driven by an accomplice.

2 This entry was captured by CCTV footage both outside and inside the entrance to the centre. While the tractor is seen to be driven into the centre, you entered on foot and directed the driver, waving your hand in the air. An item can be seen to fall from you onto the floor where it remained until police arrived. The tractor dislodged the small Westpac ATM from its moorings and pushed it aside. The larger Commonwealth ATM was then taken up into the loader and taken out of the centre and loaded onto the tipper.

3 DNA analysis later found a single source DNA, which matched your DNA, with the likelihood of 100 billion that you were the source. The stolen Hino Dutro tipper truck was valued at 26 and a half thousand, was owned by Merc Homes Pty Ltd in Mill Park. The tractor, with front end loader used, belonged to a concrete and garden supplier business in South Morang, about one and a half kilometres from Merc Homes. It was left at the scene once it had been used. You were found not guilty of its theft.

4 Once the Commonwealth ATM was taken, loaded, all within a few minutes, you ran out of the centre and you drove the tipper truck as you left the scene. A sedan followed it towards South Morang. The fabric, which you had left behind on the floor of the centre, was retrieved by police and subsequently tested. It was a sleeve from an item of clothing. It had holes punctured in it to resemble a balaclava with eyes and mouth openings. The DNA was found around the hole at the purported mouth of that balaclava.

5 Later, on 4 July, a trailer carrying the MTCBA ATM were found in a reserve in Reservoir. The ATM contained a single $50 note of the $297,370, which it had originally contained at the time of the theft. Damage to the ATM was some $12,850. You were acquitted of the damage of the Westpac ATM. On the following day, 5 July, you called a Mr McCabe about a 2013 Holden ute which had been advertised for sale. You identified yourself by your first name. You met him and he sold you the car for 32 and a half thousand dollars in cash, which he counted out in $50 notes you had handed him.

6 The cost to the shopping centre damage was 177,000. A further 25,000 related to replacement of bollards, plumbing, electrical, cleaning, ATM removal, till repairs and security costs. The tip truck was returned to the owner. You were entitled to put the prosecution to its proof of these offences and the jury rationally gave you the benefit of the doubt on two charges. The fact that you ran a trial and were convicted does not aggravate either your offending or increase your penalty, which must properly reflect your criminality.

7 However, you have lost the opportunity for a reduction on your sentence, which would have been applied upon a plea of guilty. It follows that there is no remorse to speak of or take into account on your behalf. It is clear from your extensive criminal record that you are a man who has taken up a life of criminal offending and has been unable to turn away from recidivist dishonesty. Your priors are too extensive to recite. Suffice to say that the record begins in 2002 and proceeds on a yearly basis, with a few exceptions, to the present, 2017, over some 48 pages, primarily, of dishonesty offences, weapons offences, drug offences and driving offences.

8 The full panoply of sanctions and punishments have been imposed upon you from time to time, with periods of imprisonment, after many breaches of alternative dispositions, such as community based orders and suspended sentences. As I indicated during the plea, your behaviour is contumacious, seemingly beyond the capacity of sanctions to deter you. And you are committed without any regard for lawfulness, property rights, consequential damage, loss and the impact of your criminality on those affected by specific deterrents; right punishment and denunciation must accompany general deterrence as the primary consideration of this sentence.

9 Your criminal history is not mentioned in order to punish you again for any of your past offences, but in order to base the application of appropriate punishment for those offences, in deterrence of you specifically, and to assess your prospects of rehabilitation, when viewed together with your personal circumstances, which I shall come to in a moment. Each of the offences of which you have been convicted carries a maximum penalty of 10 years. By the maxima which attaches to each offence, the legislators have indicated the seriousness of these offences. That's a yardstick which is an initial matter to take into consideration when setting an appropriate penalty.

10 The offending was planned, well organised, brazen and quickly carried out. Neither have funds been recovered nor have others been identified as your accomplices. The raids were carried out late into the night. The risk of personal injury was low, but not beyond the realm of possibility. You are 36 years of age; you were 33 years of age when the offences took place. You were born in Melbourne. Your mother was diagnosed with schizophrenia when you were two years old and your father spent his time in prison at a time when you were still young.

11 As a result, you were raised by your grandparents, who have both passed away since. At about age 15, you left school, and although you did not obtain any trade qualifications, you worked for a while as a labourer, spray painter, panel beater and car detailer. You have not worked for the last six or seven years. You had been released from prison shortly before these offences, on 27 May 2018, having been convicted on 28 August 2017 for possession of a firearm, burglary, theft, theft of a motor vehicle, dealing with property, suspected being proceeds of crime, traffic amphetamine amongst other offences and sentenced to one year imprisonment, with 54 days as pre-sentence detention served.

12 You have never married, but at the time of your arrest, you were living with a woman, a relationship which has since ended. You have four children to three previous relationships; a 14 year old daughter, a 12 year old son, to your first long term partner, a six year old to a second partner and a three year old to your most recent partner, with whom you have little contact. You do have some contact with your older children, although it seems unlikely that this is a protective factor to your conduct going forward.

13 Their welfare and lives appear upon your record to have made little difference to you, frame of mind and disposition, for dishonesty. You have contact with an older sister and two younger stepbrothers from your father's second marriage. You started using cannabis when aged 12 and graduated to heroin and methamphetamine aged 14. You have struggled with the use of drug most of your adult life. You are currently on daily doses of suboxone to treat an opioid addiction and receive regular doses of methadone.

14 You were arrested eight months after the ram raid, on 15 October 2018, and you've been in custody since that time. It is necessary to set out a chronology in relation to the issue of delay and the COVID-19 emergency. Bail was applied and refused on three occasions, in February and March of 2019, as well as May 2020. A month prior to this offending, in June 2018, I was properly told you had been arrested for possession of heroin and methylamphetamine, possession of a weapon and driving offences. And you were dealt with at the Magistrates' Court for these offences in November of 2018 and sentenced to 45 days imprisonment, with 37 days by way of pre-sentence detention.

15 There was a committal mention for this matter on 9 January 2019, and the committal proceeded on 5 March 2019. A final directions hearing proceed on 27 February 2020. On the adjourned date of the 12th of March, the defence needed time to file a defence response by the end of March. On the 26th of March, the hearing was adjourned due to the COVID-19 pandemic response, with the defence yet to file a response. A defence was not readied by the 15th of April. The other bail application, which I have mentioned, was made in early May and a defence response was filed dated 29 May 2020. A committal case conferenced proceeded on 1 June 2020.

16 I take into account that the necessary response to COVID-19 pandemic caused a delay in this matter coming before the court for trial. I note that in June of 2020, the court proceeded with an examination of technical witness from Optus, whose evidence was eventually not relied on, but which the defence sought to examine. The effect of the day, which was not caused or can be blamed on you in any manner, is a matter that I take into account. The restrictions which the pandemic response required, prevented you from undertaking programs and courses of benefit as a remand prisoner.

17 Visits were restricted. Access thereto was limited. I take these matters into account. It was submitted you had these matters hanging over your head for an unreasonable time. I do not accept that proposition. Although delay can exacerbate the burden of passing time, awaiting determination, this delay was multi-factorial. That portion, which can be assigned to the pandemic, is clearly to be given greater weight. The passage of time in 2019, in effect, leading into 2020, appears to me to be not exceptional, but rather reflective of the time frames involved at that time and the processes required to bring the matter before the court.

18 Having recited these matters, I am of the view that the aspect of delay must have an appropriate place of consideration in this sentence. Although it was conceded by the defence in submissions, that a head sentence and non-parole period is appropriate in this case, it was submitted you would be unlikely to be admitted to parole. That is a matter which I will not and cannot speculate about and is in the hands of other authorities. In relation to my sentence, it is my view that your prospects of rehabilitation, given all the matters mentioned, are very poor and it is likely that, to a large extent, you are at risk of institutionalisation.

19 Even if there is a mere hope, such hope is to be maintained even in the face of your history, by the imposition of a sentence which is not crushing, in my view. Some cases were mentioned in the context of current sentence practices, one matter to be considered, but were distinguished in defence submissions. I have considered them and find them sufficiently – not sufficiently helpful in my task, although I have considered current sentencing practices, which is only one aspect of the sentence indiscretion by reference to past decisions.

20 In my view, the sentences here should reflect the course of conduct embarked upon by you. Each sentence should reflect a cumulative portion consistent with the discrete offence committed, but a large measure of concurrency is appropriate, reflective of the overall enterprise of offences committed over the relevant time period, which will now include the summary related offences to which mention was made, and I made findings at the beginning of this process.

21 On Charge 1 of theft of the tipper truck you are convicted and sentenced to 18 months' imprisonment. On Charge 3 of destroying property pertaining to the shopping centre you are convicted and sentenced to two years' imprisonment. On Charge 4 of burglary upon the shopping centre you are convicted and sentenced to three years' imprisonment. On Charge 6 of destroying property pertaining to the Commonwealth Bank ATM you are convicted and sentenced to 18 months' imprisonment. On Charge 7 of theft of the safe containing money belonging to the Commonwealth Bank you are convicted and sentenced to four years' imprisonment.

22 I order that six months on Charge 1, three months on Charges 3 and 6, and one year on Charge 4 be cumulative on Charge 7, making a total of effective sentence of six years. I order a non-parole period of four years. In relation to the summary offences, on Charge 8 of driving whilst disqualified, you are convicted and sentenced to one month concurrent. On Charge 9 of driving while suspended you are convicted and sentenced to one month concurrent. On Charge 10 of committing an indictable offence whilst on bail, that is the burglaries and theft – burglary and theft - you are convicted to two month concurrent. And on the dealing with property suspect that have being proceeds of crime you are convicted and sentenced to two month concurrent.

23 Charge 11 will be adjourned sine die to a date to be fixed upon advice. I

MR NIBBS: I will tender no evidence in respect of that charge and you can dismiss it.

HIS HONOUR: Now, my calculation in relation to pre-sentence days of detention is 910. Is there some agreement or disagreement about that figure? I took the days which were, at the point of the plea, served and I added the, I think, 40 days or so that have elapsed since the plea. And I have come with 910. Is that a figure that is agreeable?

HIS HONOUR: Yes. It was 870 at the time of the plea and that was on 3 March, if I remember correctly, and we are, today, as of 12 April and I have excluded today from that calculation.

25 I declare that you have served 910 days by way of pre-sentence of detention, excluding today. Your licenses are cancelled. You are disqualified for a period of five years from today. I have signed forfeiture and disposal orders in relation to the matters pertaining in the schedule as to both of those orders.

MR NIBBS: I expect there would be in respect of the car, but I don't have those with me at this very second.

HIS HONOUR: Just let me check. I think – well the current disposal order relates to the cloth. The forfeiture order, in fact, relates to the motor vehicle,

County Court of Victoria

DPP v Sotiropoulos [2021] VCC 417 (12 April 2021)