Director of Public Prosecutions v Antonio

[2023] VCC 1259

IN THE COUNTY COURT OF VICTORIA

 Revised

Not Restricted

 Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 22-01482

THE DIRECTOR OF PUBLIC PROSECUTIONS

v

DAMIEN ANTONIO

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JUDGE:	HIS HONOUR JUDGE BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	13 July 2023
DATE OF SENTENCE:	17 July 2023
CASE MAY BE CITED AS:	DPP v Antonio
MEDIUM NEUTRAL CITATION:	[2023] VCC

REASONS FOR SENTENCE

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Subject:

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D Brown
For the Accused	Mr M Senia

HIS HONOUR:

1Damien John Antonio on indictment number M12527225 you are to be sentenced for one charge of attempted armed robbery, and two charges of resisting an emergency worker on duty.  Respective maximum sentences are 20 and five years' imprisonment.  You will also be sentenced for the summary offences of committing an indictable offence on bail and contravening a condition of bail;  both attract a sentence of three months' imprisonment. 

2When interviewed by police on 8 December 2021 you made some admissions but denied criminal offending.  This included that you asserted  self defence and denied possession of a weapon.

3There was a short committal hearing in August 2022.  Ultimately a trial was listed at these Geelong circuit sittings.  However, after a mention of the matter before me on 12 July, you were arraigned and pleaded guilty to these offences.

4You receive the benefit of your plea of guilty.  It expresses remorse, accepts responsibility and has facilitated the interests of justice.  That assistance must be seen as greater, given the past and still ongoing impacts of the COVID pandemic and its restrictions upon the criminal justice system.

5At your plea hearing which ran on 13 July, Mr Brown for the Crown tendered a written prosecution opening for plea.  Mr Turner for you, provided an outline of submissions. 

6I was  provided with police summaries of offending by you for which you were sentenced to five months imprisonment in June 2022, whilst on remand for these matters; also the reasons for sentence of  your co-offender in these offences,  Mark Richards, and the criminal history of Richards.

7I have now also received a report of assessing officer Christopher Conway as to your suitability for a Community Corrections Order.

8The circumstances of your offending are comprehensively set out in the tendered Crown opening which is Exhibit A.  My own summary may therefore be shorter.  It is also informed by matters put on your behalf, not challenged by the Crown.

9At about 6.30 am on 8 April 2020, you and Richards attended a 7-Eleven service station in Corio and came across your victim David Cairns there. 
You were on bail for other offending.  You had worked with Cairns and there is some suggestion of ill feeling, although there is no clear uncontested picture of that.   At the 7-Eleven there was an unfriendly exchange between Richards and Cairns; Richards had asked him for drugs.  A short time later, you and Richards on bicycles confronted Cairns as he left a nearby supermarket.  You each possessed a knife.  You both lunged and at least brandished your weapons toward him.  During this you demanded his wallet and threatened to stab him.  You both abused him.

10Cairns presents as being made of stern stuff and the enterprise was a failure.  Punches were thrown.   You and Cairns threw your coffees on each other.  Richards at one stage was on the ground.  Ultimately Cairns backed away and managed to leave.  You and Richards left on bicycles.

11At home soon after Cairns reflected on things and decided to go to the police.  When making a statement to police he noted a small, two centimetre cut on his arm. 

12No victim impact statement has been tendered.  As I have said
David Cairns presents (for example, in the short cross-examination at committal)  as a robust individual,  I was told of very large stature.  However, to police he stated that he was shaken by the event, including particularly the possession of knives.  But for the knives, he has stated,
he would not have reported the matter.

13You were not arrested until 8 December at an address in Thomson, Geelong.  You attempted to escape through a window and then resisted apprehension,  by stiffening your body, without it seems real violence.  The  conduct condition of bail you breached was that you live consistently at your mother's home.

14You are a 44-year-old man presently placed in remand in custody awaiting this sentence.  You were 41 at the time of offending.  You have had a dysfunctional family life.  Your father was a violent drug user and  you have no contact with him  Your mother has re-partnered.  She suffers the mental health conditions, schizophrenia and a bipolar disorder and receives a disability pension. 
You have a brother who also has mental health problems and has been in prison.  Your half-brother serves in the Australian Army.

15In the situation of an unstable family, you left school before the end of year 10, aged 16.  In that context there are a number of early court appearances, running from March 1995, when then aged 15.  The Victoria Police criminal record filed states several early appearances as in the Magistrates' Court.  This is likely wrong.  Dates of appearance indicate that they must have been in the Children's Court.   That offending continued consistently until 2003,.  You were then aged in your early 20s.  There are mainly offences of dishonesty and related to drug use, including heroin.

16I accept that this reflects your early dysfunctional family life, failing to do well at school and then decline into drug use.  You began with cannabis at about 14 and then have used heroin over a number of years. 

17There has been no offending between 2013 and 2020.  There was a marked change in your life in 2001 when you began an apprenticeship as a chef.  There was a solid work history over almost twenty years, working in hospitality,   in the construction and then recycling industry.  You were also supported by a stable relationship over about 10 years with your partner, the mother of your son who is now 20.  He has a positive lifestyle, working is a roof tiler and being a successful sportsman.  You describe a good relationship with him.

18In 2020 you were in a new relationship,  with a drug user,  and you lost your job in the circumstance of the business being sold.  You returned to drug use and offending, this and that  for which you were sentenced in June 2022.That was a series of offences in 2020 and early in 2021,  mainly featuring burglary, theft and breaching bail and what seem domestic violence intervention orders in respect of your then partner.  There was a consolidated hearing of these matters in the Magistrate's Court heard in early June 2022, leading to the
five month sentence I have described.  That offending is not put as prior convictions for my sentence, but has relevance to, for example,  the principle of totality. 

19When you leave prison, you are able to  live with your mother and,  given skill and capacity in the building industry,  you have good prospects for employment.  I accept that you have used remand in a rehabilitative way,  undertaking programs in construction and hospitality, despite these  having limited availability in remand and during COVID restrictions. 

20Self-evidently this was very serious offending. Despite aspects of its incompetence,  you and Richards mounted a dangerous and cowardly attack upon David Cairns.  It was in a public place and you used weapons.  I accept  the context of drug dependence and use of drugs, but that cannot be seen as mitigation.  You have a prior conviction,  albeit not of distinct similarity and with the 17-year gap I have identified. 

21In such circumstances  sentencing considerations and purposes of moral culpability, deterrence, that is both general and specific deterrence, denunciation of what you did and proportionate punishment of it are important. A punishment which includes a significant period of imprisonment is necessary.

22The Crown and defence both submit that a sentence combining imprisonment and a community corrections order is within the proper range.  That is the sentence I shall impose.  The Crown submits that a period of imprisonment should be longer than what you have already served.  Mr Brown cites the principle of parity, that is  with the sentence of your co-offender Mark Richards.  For very similar offences he was sentenced to a total effective sentence of
37 months with a minimum term of 22 months.

23I have decided to impose such a combined sentence which will allow your release, if not immediately, within the short term.  Internal corrections reduction of sentence,  for example,  because of the COVID lockdowns, may mean release in the very short term.  That is speculative and may not be,  and is not a part of my consideration.

24My reasons for proposing such a sentence, including that it is a different sentence to that of Richards are as follows.

(1)  Your plea of guilty, albeit Richards pleaded guilty much earlier.  I have stated the utilitarian benefit of your plea.  I also accept that there is some evidence of personal remorse.  I refer, for example,  to aspects of the report of your suitability for a Community Corrections Order.

(2)  Your personal history and circumstances.  This includes the disadvantage in your early life; but particularly that you have shown a capacity in a prolonged period to overcome that.

(3)  This is also relevant to your prospects for rehabilitation.  You have shown that capacity during a large part of your adult life.  You have family support, work experience and skill and a good work record.  You also have the motivation of recovering a close relationship with your son who was not able or did not visit you in custody. 

(4)  These matters give  some reason and justification for a different sentence to your co-offender.  Particularly on the question of parity or disparity there are the following factor.

There can be seen no logical difference in your role.  Both of you were on bail which is an adverse or aggravating factor in the offending.  Mark Richards pleaded guilty earlier. 

However, a number of things are balanced against these.  I find that it is significant that you have served your custody hitherto in the disadvantaged situation of remand.  That custody has been served in the situation of COVID-19 risk and restriction.  You have been in custody for over approximately 20 months since arrest for these matters.  Particularly I am told that there was a period of three months when your section was in full lockdown, meaning 24 hours each day within your cell.  The hardship of such an experience should not be understated.

(5)  The principle of totality also plays a role, given such delay in custody and delay of over two years since offending.  You were sentenced for other offences  (committed like these in an identifiable period, for example, after loss of your job and return to drug use)  without the benefit of what could have been judged a proper total sentence.  Some moderation and or concurrency can be seen as likely.

(6) I have also applied the principle of totality across the particular charges on the indictment. For example, the summary offence of committing an indictable offence on bail is made out by the attempted armed robbery, Charge 1 on the indictment. The resistance of both Charges 3 and 4 is fundamentally the same behaviour and strikes me as at the relatively low end of resistance. In the circumstances of this case, I shall sentence otherwise than in accordance with s16.3C of the Sentencing Act.

25All of these matters seen in combination justify the sentence I shall impose. 
It is a sentence I judge to meet the relevant sentencing principles.  I add this; that the comparison  between a sentence of head and minimum term and a combined sentence is not a simple exercise.  The Community Corrections Order portion here must contain aspects of further punishment after release, 
for example, not only the duration but also particularly a requirement of unpaid community work.  The appropriateness and the effect of a combination sentence it seems to me must be assessed in the light of the whole combination.

26You are found suitable for a Community Corrections Order.  Having considered and weighed what we see as being the relevant matters I will sentence you as follows;

27For Charge 1, attempted armed robbery you are sentenced to 15 months imprisonment.

28For Charge 3 and Charge 4 you are sentenced on both, to one month imprisonment.

29For the summary offences,  for committing an indictable offence on bail, you are sentenced to one month imprisonment.  For contravention of a conduct condition of bail you are sentenced to one month imprisonment.

30As to cumulation, applying as I have indicated the principle of totality, I direct that two weeks of the sentence for Charge 3 on the indictment be served cumulatively on the sentence for Charge 1.  That is a total effective sentence of 15 months and two weeks.

31Under s18 I declare 444 days of pre-sentence detention.

32Also on all charges, I impose a community corrections order with conviction a duration of two years.  The usual conditions will apply, in addition you will serve 250 hours of unpaid work, 50 hours of therapeutic paid work can be set off against that.  The additional conditions will include supervision and assessment and treatment for drug abuse and dependence.

33Do you agree with all of that Mr Antonio.

34OFFENDER:  Pardon Your Honour?

35HIS HONOUR:  I'll read out for you the term of the assessment of the Community Corrections Order upon which you will be released when that time comes.  It will run for two years.  The usual terms are that you do not commit (indistinct) during that time.  That you do not attend any work program or appointment affected by alcohol or drugs or in possession of illegal drugs.  And upon release you attend (indistinct words) the relevant community corrections centre within two days. 

36That you receive visits from a community corrections officer.  That you inform community corrections of a change of address or job within two days of that.  And that you otherwise obey all lawful directions and instructions of community corrections.  As I said to you in my sentence, the usual terms I have just stated apply and the additional term of 250 hours of unpaid community work over the two years.  Although 50 hours of the program work, for example in relation to drug abuse is set off against that.  Did I say 50 hours, that's what I have got written here.  That you will be under supervision and that you undergo programs as directed to assess and treat drug use and dependence.

37Now do you understand all of that?

38OFFENDER:  Yes, Your Honour.

39HIS HONOUR:  And you agree to it?

40OFFENDER:  Yep.

41HIS HONOUR:  Do you - sorry?

42OFFENDER:  What was that?

43HIS HONOUR:  Do you agree to it?

44OFFENDER:  Yes, yes Your Honour.

45HIS HONOUR:  Well that document will be sent to you for your signature after I have signed it.  What is the best way to run this Mr Senia?

46MR SENIA:  Your Honour I understand Your Honour's associate will get it sent through the registry to the prison.

47HIS HONOUR:  All right well that's what happens these days is it.  Is there anything else I need to do or say Mr Brown.  No other - - -

48MR BROWN:  No Your Honour.

49HIS HONOUR:  All right.

50MR BROWN:  6AAA Your Honour.

51HIS HONOUR:  I see yes.

52MR BROWN:  Yes that's probably the - - -

53HIS HONOUR:  Had you not pleaded guilty I would have imposed a sentence of four years, a minimum term of two and a half years before parole.  Anything else?

54MR BROWN:  No, Your Honour.

55HIS HONOUR:  But that reminds me I didn't say the s6AAA though in relation to the sentence of 1:33:58.  But failing to do that doesn't invalidate the sentence does it?

56MR BROWN:  No it doesn't.

57HIS HONOUR:  All right.

58MR BROWN:  I suppose in an appeal it's a bit - yes artificial but - - -

59HIS HONOUR:  Indeed it is, yes all right.  Well Mr Antonio some people might think that's a pretty generous sentence, in fact I think it's a very, I think it's a (indistinct) sentence.  As I said the other day and I accept that you're genuine about this.  You intend to live by a law abiding life from here on.  Well I wish you the best in that.  If, as I said to you the other day if you don't do that, the course will likely be return to drug use and I think I said it to you, that will mean in
10 years' time you'll be living poor or in a cemetery.  So that's the task that stands before you.  All right thank you for assistance in this matter.  Thank you Mr Brown, thank you Mr Senia.

60MR SENIA:  Thank you Your Honour.

61MR BROWN:  As the court pleases.

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