Director of Public Prosecutions v Amato

[2017] VCC 145

IN THE COUNTY COURT OF VICTORIA  Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01531

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOHN AMATO

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:	28 November 2016
DATE OF SENTENCE:	30 January 2017
CASE MAY BE CITED AS:	DPP v Amato
MEDIUM NEUTRAL CITATION:	[2017] VCC 145

REASONS FOR SENTENCE
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Subject:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms B. Bleazby	Office of Public Prosecutions
For the Accused	Mr M. J. Gumbleton	Theo Magazis & Associates

HER HONOUR: 

1John Amato, you have pleaded guilty to the following charges:  One charge of criminal damage.  One charge of intentionally causing injury.  Two charges of blackmail.  One charge of stalking.  Two charges of persistent contravention of a family violence order.

2Additionally, you have consented to me dealing with and pleaded guilty to the following summary offences:  Charge 9, harass witness.  Charge 4, assault with weapon.  Charge 11, possess prohibited weapon.  Charge 12, commit an indictable offence when on bail.  And Charge 6, contravention of a family violence protection order.

3The maximum penalties for each of these offences are as follows:

4For stalking, intentionally cause injury and criminal damage, ten years;

5Blackmail, 15 years;

6Persistent contravention of a family violence protection order, five years;

7Assault with weapon, possessing prohibited weapon, and contravening a family violence protection order, 240 penalty units or two years;

8Harass witness, 12 months or 120 penalty units;

9Committing an indictable offence whilst on bail, three months.

10The circumstances of your offending are fully set out in the prosecution opening for plea dated 8 December 2016, Exhibit A.  Between June 2015 and August 2015, you were in a relationship with Danielle Boys.  She lived near you with her three boys, aged 16, 13 and 11.

11As to the circumstances of offending of Charges 1 to 4, your initial offending related to events in the early morning of 30 August 2015, after Ms Boys had stayed the night.  In the morning, you were aggressive and abusive, and followed her to her car outside.  You damaged her car side mirror, dashboard, and rear-view mirror.  That is part of Charge 1, the criminal damage.

12You then hit her with the back of your hand twice to her face, causing bleeding and swelling to her eye.  That is Charge 2, intentionally cause injury.

13You demanded she go back in the side house, and she remained there until about 1.45 the next morning.  During that time, you were aggressive, verbally and physically abusive, rambling and not making any sense.  You stopped her leaving the house and made threats to her with both a knife and a lighter.  You also smashed her phone.  That also constitutes parts of Charge 1, criminal damage.

14You made various threats to Ms Boys and her children, the details of which are included in the prosecution opening.  You continually demanded $20,000 throughout the night from her, telling her no one gets away without paying you.

15Your mood and demeanour had changed by the early hours of Monday 31 August 2015, and you told Ms Boys to go home to her children, which she did.  Later that day at approximately 5 pm, you called Ms Boys and blamed her for your anger.  You continued to demand payment of $20,000.

16Nick Vallidis, an associate of yours, spoke to her and told her to obtain a loan for the money.  Vallidis told her that she had no choice but to pay, and that if she did not, you both would bring unnecessary pain to her life.  You continued to contact Ms Boys over the next few days demanding the money.

17On Friday 4 September, you told Ms Boys she had until the end of the day to provide you with $5,000, or that she would be bashed in front of her children.  You also threatened to take her car as an alternative.  From that point, you began demanding money owed for a new bed as part of the $20,000.  You stated she had, "Pissed and shit all over the bed".  Throughout the day, your demands dropped to $5,000 then to $500.  You said you would carve her up and rip every hair from her head in front of her children.  Fearful for her life and as a consequence of your threats, she came to your house and paid you $500.  That is the circumstances in respect of Charge 3, blackmail.

18On Wednesday 9 September, you repeatedly phoned Ms Boys and threatened to attend her house.  You told her you and your boys would be attending her workplace to intimidate and humiliate her in front of her work colleagues.  The next day, you went to her workplace with Nick Vallidis.  Ms Boys managed to hide from you under a desk, and also left the workplace, hidden in a friend's car.

19On Thursday 17 September 2015, Ms Boys' 13-year-old son was home alone.  You rang her and told her that you were driving past the home.  Ms Boys immediately contacted her son and told him to get out of the house, and picked him up around the corner.

20On Saturday 19 September, you called Ms Boys, who was at home, and told her you were out in the street.  She saw your car close by and called 000.

21Additionally, between 31 August 2015 and 21 September 2015, you sent approximately 500 voice messages via a phone application to Ms Boys.  The messages were full of vulgar and obscene language, with accompanying insults and threats directed towards Ms Boys.  She feared for her own and her children's lives.  Many of the messages referred to money owed, as well as threats to Ms Boys' life if the money was not provided.  Examples of some of the messages are included in paragraphs 21 and 22 of Exhibit A.  That conduct relates to the stalking charge, Charge 4.

22You were interviewed by police on 22 September 2015 in relation to the events encompassing Charges 1 to 4.  You denied assaulting Ms Boys at your home and denied causing any damage to her car or phone, or demanding any money from her.  You maintained that she owed you money.  You denied sending her the 500 messages.  However, your phone was seized and an analysis revealed the existence of those messages.

23On 12 October 2015 at the Sunshine Magistrates' Court, a final intervention order was granted and served on you.  The conditions included that you were prohibited from approaching or contacting Ms Boys, or getting another person to do so.  Later that day, you were bailed with the condition that you comply with the order.

24As to Charge 5, that relates to persistent breaches of that order between 22 October and 18 November.  You breached the order on a number of occasions.  On 22 October 2015, an unknown female rang Ms Boys six times and told her she was making a mistake and that you still loved her.  A similar call was made to Ms Boys by an unknown male on 11 November.  On 13 November at 11.26 pm, Ms Boys received a call from an unknown female who said she was calling from a funeral home, and that they were on the way to collecting the dead body of "Mrs Boy".  You had frequently referred to her as Mrs Boy on Facebook.  Ms Boys hung up and called 000.

25On Sunday 15 November at 5.46 am, you called Ms Boys.  You said you were desperate to speak to her and that your freedom was on the line.  You said you were looking at five to seven years' gaol time and told her you had a criminal record for extortion.  You said you were the victim of a set-up and offered to pay her $20,000 and $30,000.  You told her you would win in court and you would pay people to lie for you.  This call was recorded by Ms Boys.

26Later that morning, at 8.10 am, Nick Vallidis rang Ms Boys to confirm you had spoken to her earlier in the day.  You also posted a photo of yourself with Ms Boys to your Facebook account that night.

27On Wednesday 18 November at 2.30 pm, your sister went to Ms Boys' work with some flowers and said she would not leave, and would not leave until Ms Boys threatened to call management.

28Each of the incidents outlined above were reported to police by Ms Boys.  On 19 November 2015, police attended at your home, though you were not there.  Police were advised by your sister that the flowers were delivered as it was your dying wish.  It was arranged that you attend the police station at a later date, though this did not occur due to your hospitalisation as a consequence of your self-harming.

29In respect of Summary Charge 9, harass witness, the informant in respect of these matters was First Constable Vale.  Analysis of your Facebook account revealed several posts between 1 November and 16 December 2015 that were derogatory, inflammatory and threatening in nature relating to the police officers.  The details of some of these posts are included in paragraph 38 of Exhibit A.  As a result of this harassment, Informant Vale was removed from further investigation of the matter.

30In respect of Charge 6, persistent breaches of intervention order between 24 November and 16 December, additionally you posted on Facebook four posts relating to Ms Boys.  The content was intimate, derogatory, and was displayed for public viewing in breach of the intervention order made on 12 October.  The details are included in paragraph 40 of Exhibit A.

31The next charges relate to a dispute that you had with Vincent Disensi regarding some plumbing.  On Saturday 14 November 2015, you had arranged for Vincent Disensi to do some plumbing work.  When he did not attend, you telephoned him and left a voice message saying, "Your son has one hour to come to my house with $2,000 or else I will batter him in front of you. 

Your son's a fucking lying dog.  He's fucked me around for three weeks with my veranda and fridge.  You want a war, I'll give you a war.  I better have my $2,000 in an hour, cunt."

32You left further abusive messages in a similar vein during the day.

33At about 1.30 pm on Saturday 14 November, you drove to Mr Disensi's house and became involved in an argument over the plumbing work.  You produced an extendable baton and struck Mr Disensi about six times to the torso and left arm, causing swelling to his left forearm and minor lacerations to his left arm and shoulder.  Those are the circumstances relating to Charge 7, blackmail, and the summary charges four and 11.

34You then threatened to come back in an hour, tie him up with duct tape and stick him in the car boot if he did not pay the $2,500.  During this altercation, you also threatened to cave Mr Disensi's son John's head in.

35On 30 December 2015 you were arrested and made a no comment interview.  At the time of this offending, you were on bail re, Charges 1 to 4.

36As to Summary Charge 6, on 25 March 2016 at 4.15 pm, Ms Boys received a phone call from you.  You said, "Hey, I know you don't want to speak to me or hear from me.  You know who it is".  She was in shock and replied something similar to, "What do you want?"  You said, "I can't live with myself.  Really, really, really, really sorry.  I had to ring you.  I have to say I'm sorry".  During the conversation, one of Ms Boys' children entered the kitchen, took the phone and ended the call.  She was observed to be distraught and shaking in shock and fear.  Again, this call was in contravention of the order made on 12 October 2015.

37As to your personal circumstances, you are currently aged 41.  You are the second youngest in the family, with five siblings.  Both your parents are deceased.  Your parents separated when you were a teenager.  Prior to this, your father had been violent towards your mother and the children, including you.  As a consequence, your education was interrupted and you left school midway through year nine.  You obtained factory work after leaving school.

38You were placed on a Disability Support Pension after receiving a shotgun wound when you were aged 21.  Approximately seven years later, you worked on a part-time basis lawn-mowing, and had various other jobs.  You became involved in debt collecting, which you did until this time of this offending.

39You were in a relationship for a period of about 15 years when you were aged between 20 and 35, and some of your prior matters relate to incidents of domestic violence that were perpetrated by you on your partner at this time.  I note that in 2012, you were sentenced to a period of imprisonment of nine months, which I was informed related to offending in the context of that relationship.  As previously indicated, you had been in a relationship with Ms Boys at the time of this offending.

40As to substance use, you have engaged in methylamphetamine, or ice, use since you were aged 24, and cannabis use from the age of 32.  Your habit was described as daily use of both substances in the period leading up to this offending.

41I have been provided with and taken into account a number of psychological and or psychiatric reports and hospital records that have been prepared over the years, the most recent dated 4 December 2016 from Consultant Psychiatrist Dr Anthony Cidoni, Exhibit 1.1.  Your past psychiatric history is detailed in Dr Cidoni's report, and I take that material into account.

42More recently, it is noted that your mental state deteriorated towards the end of 2015, with an admission to Maroondah Hospital's psychiatric unit.  At this time, it was indicated that you had ceased your antidepressant medication, and that you were self-harming.  There were a number of other instances of self-harm after this offending, with attendances on 20 November 2015, 19, 24, 25 January and 10 February 2016, and there have been additional instances of self-harm whilst you have been in custody.  These are outlined in Dr Cidoni's report.

43Dr Cidoni opines:  You have suffered from an array of mental health difficulties that have made it difficult for you to cope with life stresses, and significantly compromised your ability to cope in custody.  You have suffered from a history of persistent depression, consistent with a dysthymic disorder with associated anxiety and amphetamine-induced psychotic systems.

44Dr Cidoni is of the view that there is no convincing evidence that you suffer schizophrenia or have an underlying psychiatric disorder.  He notes your previous antisocial behaviour was exacerbated by your methamphetamine use.  You also have a history of anger, unstable moods, impulsivity and self-harm.  These features are consistent with antisocial and borderline personality traits, and are best treated with psychological input around assisting you to identify and manage triggers, and behavioural strategies to manage your moods.

45The majority of your offending occurred over the period from 30 August 2015 to mid-November 2015.  Your counsel highlighted the medical material relating to the subsequent period of time post this offending, and thus the context in which this offending occurred.  It was submitted that incidents of self-harm, anxiety and paranoia occurring in close proximity of time to this offending, was consistent with the lack of proper medication and use of methamphetamine, and that your offending should be seen in that context.

46Your counsel conceded that the material before me was not such as to invoke Verdins principles relating to your mental capacity at the time of the commission of the offences.

47Dr Cidoni also reported your significant past psychiatric history and evidence of self-harm and disturbance of mental state whilst in custody reflect significant vulnerability.  It is his opinion that there is a significant risk of your state further deteriorating, and that you have experienced and will continue to experience imprisonment as more difficult than a person in normal health.

48On the basis of this material your counsel submitted, and the prosecution conceded, that your condition at the time of sentence was such that principles five and six in Verdins were enlivened.

49Further, I note that additional material in the form of a further written submission from your counsel were received by me on 27 January 2017.  This document purportedly set out conditions which have been imposed during much of your period on remand in custody, 331 days.

50However, the information that was provided in that document was not consistent with that which was provided by the prosecution, obtained from Corrections, which I received today.  The document from the prosecution was prepared for the purposes of verifying and or confirming the information in the additional material.

51I do, however, accept that there have been various periods of 23-hour lockdown, as set out in the document filed on behalf of the prosecution, Exhibit AA, and that there have been other restrictions placed on you during your time in protection.  The prosecution did not seek to make any further submissions in reply after receipt of the additional material.

52I accept you will find custody burdensome, and that you have had significant restrictions imposed on you during some of your time on remand, and I take those matters into account.

53You have a number of prior convictions, dating back to 1993.  Those include assaults and breaches of intervention orders.  Additionally, you have a relevant prior conviction for extortion.  Your last two court appearances were on 30 April 2012 at Sunshine Magistrates' Court for two charges of recklessly cause injury, three charges of unlawful assault, and three charges of contravening a family violence order.  You were sentenced to 18 months' imprisonment, partially suspended for nine months, with an operational period of two years; and on 16 May 2012 at Sunshine Magistrates' Court for assault and resist police and other related offences, and you were sentenced to one month imprisonment wholly suspended.

54I also note that you have previously been sentenced to orders with community-based dispositions, which have been breached.  The last time you were breached on such an order was in 1993.

55No victim impact statements were provided.  It is clear, however, particularly in respect of Ms Boys, your conduct towards her over an extended period of time was frightening, and significantly impacted on her and her children's sense of security in both their home and her workplace.

56I take into account your plea of guilty.  You have pleaded guilty at an early opportunity and there is a significant utilitarian benefit in the plea, saving the community the cost and inconvenience of a trial.  Additionally, Ms Boys and other witnesses were not required to give evidence and relive the events relating to this offending.

57Your plea is also indicative of your acceptance of responsibility for your actions, and shows a willingness to facilitate the course of justice.  Additionally, I accept your plea as indicative of remorse.  Such is consistent with the material tendered on your behalf, including your own letter to the court, Exhibit 1.12, and that from the prison chaplain, again Exhibit 1.12.

58Your counsel highlighted a number of matters in respect of your rehabilitation prospects and submitted you had good prospects relying on the following:

(1) You had engaged with Meg Foreman, psychologist, prior to being remanded for these matters and attended sessions with her in the early months of 2016 (see Exhibit 1.2);

(2)  There have been periods in your life where you have been able to remain offence free illustrative that you can function in the community when properly medicated and drug free;

(3)   Your acceptance of the end of the relationship with Ms Boys and your indications of a preparedness and motivation to engage with treatment providers regarding your mental health and drug issues and to obtain employment; 

(4)  That you have not had the opportunity for drug assessment and treatment or psychological treatment before in the community. 

59Further I accept that during your time in custody you have taken some positive steps towards your rehabilitation having completed an ice effects program in custody (Exhibit 1.13).  I also note that your capacity to engage in other programs has been limited given your conditions in prison.

60I am, however, more cautious regarding your rehabilitation prospects given your significant drug history and your proven inability to comply with court orders when in the community.  I regard your rehabilitation prospects as fair. 

61There are aggravating features in relation to your offending.  It involved three different victims.  It was sustained offending in respect of Ms Boys and there was a significant impact on Ms Boys and her children.  The seriousness of the offending related to both the terror felt because of your threats and conduct, but also your use of associates in the offending.  The commission of the offences occurred whilst you were on bail and other court orders including the family violence order.  The commission of the blackmail offence was while you were on bail for the same offence.

62Sentencing considerations of specific deterrence are important as is general deterrence though that is subject to some moderation given the matters I have referred to above. 

63The prosecution submitted an immediate custodial sentence was warranted in this case and that the time that you have already served was insufficient.  It was submitted the imposition of a community correction order in combination with a period of imprisonment of less than two years was outside the range of sentencing dispositions available to me. 

64Your counsel submitted I should impose a sentence of imprisonment combined with a community correction order to commence upon your release.  I ordered a pre-sentence report from Corrections Victoria regarding your suitability for a community corrections order and you have been deemed suitable with conditions to address both your drug and mental health issues.  I note that you are assessed as high risk of general re-offending.

65I regard this offending as serious, particularly because of the aggravating features referred to above.  By your actions you invoked fear and terror into the lives of individuals who had the misfortune of becoming involved with you whether as a consequence of a personal relationship with you or other connection.

66Also relevant is specific deterrence and general deterrence, the latter suitably moderated, and just punishment.  I must balance these with other sentencing considerations including your plea of guilty, rehabilitation prospects and matters personal to you, including your conditions in custody and your capacity to cope with imprisonment given your psychological functioning.

67Taking into account all relevant matters, further imprisonment is the only available option.  However, I am prepared to have you released after a further period of imprisonment on a community correction order with conditions regarding drug and mental health treatment which you will receive in the community.  If you could please stand up, Mr Amato.

68In respect of Charge 1, criminal damage, you are sentenced to one month imprisonment.  In respect of Charge 2, intentionally cause injury, you are sentenced to two months' imprisonment.  In respect of blackmail, Charge 3, you are sentenced to 12 months' imprisonment.  In respect of stalking, Charge 4, you are sentenced to six months' imprisonment.  In respect of Charge 5, persistent contravention of a family violence order, you are sentenced to three months' imprisonment.  In respect of Charge 6, persistent contravention of a family violence order, you are sentenced to three months' imprisonment.  In respect of Charge 7, blackmail, you are sentenced to eight months' imprisonment.

69In respect of the summary matters, Charge 9, harass witness, you are sentenced to one month imprisonment.  In respect of assault with a weapon, Charge 4 (sic), two months imprisonment.  In respect of Charge 11, possessing a prohibited weapon, two months imprisonment and in respect of summary Charge 12, committing an indictable offence when on bail you are sentenced to one month imprisonment.  Summary Charge 6, contravening a family violence order, you are sentenced to one month imprisonment.

70In respect of this matter Charge 3 on the indictment will be the base sentence, which is 12 months.  One month of the sentences imposed on Charge 2, 5 and 6 and one month of the sentence, or the whole of the sentence, imposed in respect of the summary Charge 6 will be cumulative.  Three months of the sentence imposed in respect of Charge 4 is cumulative and four months of the sentence imposed in respect of Charge 7 is cumulative.  Which gives a total effective sentence of 23 months. 

71You will be then placed on your release on a community corrections order for a period of two years.  In relation to that order there will be conditions.  One, that you attend for any assessment and treatment including testing for drug abuse or dependency.  You will attend for any mental health assessment and treatment and also in respect of any program that addresses factors relating to your offending behaviour.  There will also be a condition regarding supervision and Werribee Community Corrections Services will be the relevant office.  I think I have indicated the period of the community corrections order will be for a period of two years. 

72Mr Amato, I am giving you the opportunity to address some of these issues that you have had when you are released from custody which I think will be in about another year's time.

73OFFENDER:  Thank you, Your Honour.

74HER HONOUR:  It may be a bit less but please understand that if you breach the community corrections order I will have no other options but to send you back to serve the remainder or to serve an additional, period of time imprisonment.  I have not imposed a community work order given that you will have already served 23 months and that is a punitive element of your sentence and also recognising that you may have difficulties in respect of undertaking such work given your issues that you will have to deal with when you are released.

75Now were there any other - sorry, pursuant to s.6AAA, if you had not pleaded guilty to this matter I would have sentenced you to a period of imprisonment of five and a half years with a minimum of three years.  What is the PSD please?

76MS BLEAZBY:  332 days, Your Honour.

77HER HONOUR:  I declare PSD of 332 days.  Now there was a disposal order and forensic sample order.  Have I already signed those?  I have already.

78MS BLEAZBY:  That must have been provided at the committal hearing.

79HER HONOUR:  There was a disposal order for the baton.

80MS BLEAZBY:  I don't think that - that's not required, Your Honour.

81HER HONOUR:  All right.

82MS BLEAZBY:  It's automatic.

83HER HONOUR:  Thank you.  All right, now my Associate will come and give you the order to sign, Mr Amato.  If you could assist there please, Mr Gumbleton?

84MR GUMBLETON:  Yes, if it please the court. 

85HER HONOUR:  Thank you, are there any other matters?

86MR GUMBLETON:  No.

87HER HONOUR:  Thank you.

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