Director of Public Prosecutions v Audino
[2022] VCC 438
•31 March 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-21-01237
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JACK AUDINO |
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JUDGE: | HER HONOUR JUDGE RIDDELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 November 2021 | |
DATE OF SENTENCE: | 31 March 2022 | |
CASE MAY BE CITED AS: | DPP v Audino | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 438 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW -- Sentence
Catchwords: Plea Guilty -- Reckless Conduct Endanger Life -- Dishonesty Offences -- Driving Offences -- Imitation Handgun -- Childhood Trauma -- Drug Induced Psychosis -- Underlying Mental Health Conditions -- Moderate Intellectual Disability -- Young Offender -- Remorse -- Imprisonment and Community Corrections Order
Legislation Cited: Sentencing Act1991 (Vic) -- Control of Weapons Act 1990 (Vic) -- Confiscation Act 1997 (Vic)
Cases Cited:R v Verdins [2007] 16 VR 240
Sentence: Total Effective Sentence of 19 months imprisonment plus a 12 month Community Corrections Order
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr E. Dober | Office of Public Prosecutions |
| For the Accused | Mr M. Page | Haines & Polites |
HER HONOUR:
1 Jack Audino, you have pleaded guilty to five charges of Theft, one charge of Obtaining Property by Deception, one charge of Make Threat to Kill, one charge of Robbery, one Charge of Handling Stolen Goods, one Charge or Reckless Conduct Endangering Life, and one charge of Prohibited Person Possess Imitation Firearm.
2 You were born in August 1997. At the time of the offending, you were aged 23 and you were living in Dandenong. You are now aged 24.
Circumstances of the offending
Offending on 5 October 2020
3 On 5 October 2020 at approximately 5:15 am, Karan Wahi started his white Ford Focus in his driveway. He left the vehicle running and went back inside.
4 While Mr Wahi was inside, you entered the car and drove off. Charge 1: Theft of motor vehicle.
5 Between that time and 7:15 am you made three unauthorised purchases using his credit card – one for $50 worth of petrol, one for $83.98 at 7-Eleven Keysborough and the third for $51.90 at Jacksons Road service station, Noble Park. Charge 2: Obtaining property by deception.
6 Shortly after 1:20 pm on the same day, 5 October 2020, police observed the stolen white Ford Focus travelling through Dandenong. They activated police lights and sirens in an attempt to intercept you. You failed to stop and drove off at a fast rate of speed onto Stud Road. Summary Charge 18: Fail to stop vehicle on police request.
Offending on 9 October 2020
7 Four days later on 9 October 2020 at approximately 11:30 am, Brent Howard started his grey Volkswagen Golf in his driveway. He then went back inside leaving the car running and keys in the ignition.
8 While Mr Howard was inside, you entered the car and drove away. Charge 4: Theft of motor vehicle.
9
On the same day, 9 October 2020, at about 4:50 pm, you and a
co-accused, Glenn Bowers, entered Dande Lotto on Thomas Street, Dandenong. You asked the staff member, Mandeep Singh, to purchase cigarettes and scratchies.
10
You attempted to pay using a debit card. The transaction was declined.
Mr Singh observed you pull out several debit cards from your black satchel bag. You said to Mr Singh to leave the cigarettes and you will just take the scratchies. You used a different debit card to attempt to purchase the scratchies, which was also declined.
11 You started to get angry that the cards were not working. Mr Singh refused to serve you and went on to serve other customers. You moved to the other side of the counter and Mr Singh kept an eye on you. That frustrated you and you said you were not going to steal anything.
12 Mr Singh asked his colleague to call the police. You became angry and said to Mr Singh that you had people outside that would kill him before the cops arrived. You said 'I've got a gun in my bag. I'll show you. I'll shoot you.' As you said this, you were trying to show Singh what was in your bag. Charge 4: Make threat to kill
13 Mr Singh asked you to leave which aggravated you. You then grabbed an EFTPOS machine from the counter and ran out of the store. Charge 5: Theft
14 On the same day at around the same time, a pizza delivery driver, Leela Kumar, parked in Hutton Street, Dandenong and crossed the road to deliver a pizza order to the home of Bradley Bugelaar.
15 You stopped Mr Kumar and asked him about the pizza. You pretended that the pizza was for you, claiming to have paid online. Mr Kumar would not give you the pizza to you as it had been a phone order, to be paid on delivery
16 Mr Kumar called his boss and his boss advised him that the order had not been paid. You became angry and argued with Mr Kumar. Mr Kumar's boss advised Mr Kumar to go to his car for safety. You snatched the pizza, but Mr Kumar snatched it back and returned to his vehicle.
17 Mr Kumar stopped in front of his vehicle and had a further argument with you. You tried again to snatch the pizza. You then tried to snatch Mr Kumar's phone from his hand but were unsuccessful.
18 You said, 'I'm giving you a second chance.' Mr Kumar was very fearful so handed over the pizza bag to you. Charge 6: Robbery
19 You then fled in the Volkswagen.
20 Soon after, at approximately 6:30 pm, Ali Saadian Shakib parked his vehicle – a red Volkswagen Golf in the underground carpark of Dandenong Plaza Shopping Centre. On his return he saw that his number plates had been stolen from the car and someone had attempted to break in. The removal of the number plates constitutes Charge 7: Theft.
21
On the same day you and your co-accused can be seen on CCTV outside the Dandenong Seventh Day Adventist Church. Witold Wawruszak was in the church setting up equipment for a recording. Sometime between 5:30 pm and 10:00 pm you and your co-accused smashed the front passenger window of
his car and stole camera equipment and $50,000 cash.
Charge 8: Theft.
Offending on 10 October 2020
22 On 10 October 2020 at approximately 9:05 am, your co-accused Mr Bowers walked into Woolworths at Keysborough. Bowers looked around the store. He asked the clerk at the service desk if she had seen a black folder. She said she had not. Bowers wrote a note with 'Glenn' on it and provided a mobile number to contact him if the black folder appeared.
23 About 10 minutes later, you walked into the store and asked the same store clerk if she had seen a black folder. She said no. You asked her to check the cameras. The clerk spoke to her manager and asked the manager to look at the CCTV footage for them. You left the store before the cameras were checked.
24 The manager found the black folder you and Bowers had been looking for. It contained numerous cards in different people's names – none of which was you or Bowers.
25 CCTV footage showed you drop the black folder on the floor near the service counter and leave. Charge 9: Handle stolen goods.
26
At approximately 11:00 am, Police air wing commenced observations of
Mr Howard's Volkswagen Golf bearing false number plates. You were driving. You travelled along the South Gippsland Highway away from Cranbourne. Air wing followed the vehicle for approximately an hour throughout several different suburbs in southeast Melbourne.
27 Police air wing footage shows you driving at 172 km/hr on the Monash freeway where it was an 80 km/hr zone due to road works. You failed to stop for several red lights, driving into traffic and almost causing several collisions. At times you were unable to keep control of the car which swerved into other lanes resulting in other drivers having to swerve out of the way.
28 There were several vehicles and people on the roads and footpaths at the time, including a lady crossing the road pushing her baby in a pram just prior to you entering the intersection.
29 You were driving the vehicle in that manner, and you did so while under the influence of Alprazolam. Charge 10: Reckless conduct endanger life
30 At the time, you were disqualified from driving due to being convicted of theft of motor vehicle and failing to stop on police direction on 20 May 2019. The disqualification period imposed in the Magistrates' Court was for four years. Summary charge 13: Drive whilst disqualified
31 While you were driving the stolen Golf, you were observed holding a dark coloured handgun on the dashboard of the vehicle.
32
You drove from Cranbourne all the way to the South Wharf shopping centre
multi-level carpark in the CBD. You and your co-accused fled the vehicle on foot. As you ran from the vehicle, you put a black imitation handgun down the front of your pants.
33 When you were confronted by police you grabbed the black imitation handgun from your pants and threw it away before getting on the ground and complying with police demands.
34 You were a prohibited person within the meaning of the Control of Weapons Act 1990 because you had served a term of imprisonment within five years of that offending. Charge 11: Prohibited person possess imitation firearm.
Arrest
35 You were arrested in possession of $28,355, predominately in $100 notes. That money is part of the money stolen from the Hyundai iLoad the previous night. Your co-accused was arrested nearby in possession of $17,100 in $100 notes.
36 You were taken to the Alfred Hospital due to your level of drug intoxication. You admitted to taking six Xanax (Alprazolam) earlier that day.
37 The camera equipment stolen from the Hyundai iLoad the night before and several letters in various names were located in the stolen Golf.
Record of interview
38
You participated in a record of interview after your release from hospital on
10 October 2020. You made no comment in relation to most of the incidents save the robbery but did make admissions to having your brother’s toy gun with you when arrested and having a fair bit of money with you but said you were saving to buy a car. You admitted you were not licensed to drive.
Sentencing Principles and Objective Seriousness of Offending
39 This is a spate of offending which was dangerous, in particular, your two episodes of driving. Your driving on 10 October was reprehensible. You drove under the influence of drugs at high speed, through traffic lights and intersections, swerving across lanes and placing innocent people at high risk. That type of driving warrants significant punishment. The fact your licence was cancelled at the time is an aggravating feature.
40 The sentence I impose must deter other young men from driving in a similar matter. The sentence I impose must reflect the community and the court's denunciation for that behaviour. The sentence I impose must seek to protect the community and justly punish you.
41 Your repeated thefts of vehicles cause not only inconvenience to the owners, but it causes them anxiety and stress. That is particularly so when you have stolen those vehicles from their home addresses. They are brazen offences, taking people's cars from their driveway. Those vehicles, no doubt, are items of value. It also represents an invasion of the owner's personal space. Often people have belongings in their cars which are important to them and are of value.
42 The damage caused to Mr Wawruszak’s car, outside the church, must have caused great inconvenience as it was being repaired. More significant the theft of expensive camera equipment and a large amount of cash, which was no doubt important to him, and must have been distressing.
43 Your ongoing and repetitive offending is reflected in your use of the stolen credit card from the first vehicle, and your possession of a number of other people's cards in a black folder. While I accept the low value of amounts stolen, and the fact that your offending was unsophisticated, it is reflective, as I have said, of ongoing repetitive offending.
44 You have also committed offences of violence – both the robbery and the threat to kill. They both reflect what was no doubt your drug affected, aggressive state at the time. They must have been frightening experiences for those two victims. You have prior convictions for both types of offences.
45 Taken separately there are some serious aspects of the individual offences as I have described. Taken together they reflect a serious spate of offending. There is no issue that this offending, occurring over a period of five days, must be met by a term of imprisonment.
46 The questions raised on the material were whether the term of imprisonment would be a head sentence and non-parole period, or a term of imprisonment in combination with a Community Correction Order.
Personal Circumstances
47 You are now 24 years old.
48 Your father worked as a truck driver and your mother worked casually at a printing company. You are the eldest of three, with a younger sister who is now 21 and younger brother who is 15.
49 Your parents' relationship, while not one of physical violence, was tumultuous at times warranting police intervention. They separated when you were 12 or 13. For reasons that are still unclear to you, your mother left with your two younger siblings, leaving you with your father.
50 You have experienced a range of significant traumatic events in your past. You recall a particularly traumatic event at the age of eight or nine where you allege that someone tried to kidnap you. You were riding your bike at the school oval at about 5:00 pm by yourself when a white Hilux truck pulled up with three men in it. One of the men tried to take your bike and put you in the car, but you managed to run away. Your parents did not believe you when you recounted this story, and no investigation or charges ever came from it. You believe it was random and cannot think why you would be targeted in that way. You continue to think about this incident and feel anxiety about it at times.
51 When you were 14, your sister, who was 12, was seriously assaulted. You experienced vicarious trauma following that event. You vividly recall your sister's state when she returned home following the assault, the subsequent legal process and your own distress related to your sister's mental health decline. You remember finding her having self-harmed or attempting suicide on multiple occasions in the subsequent years.
52 As a child you were diagnosed with ADHD, but you did not ever receive treatment because according to you, your "Parents didn't believe in it and so [you weren't] ever medicated".
53 You had persistent difficulties with education from early primary school. You were considered the 'bad egg' at school and regularly got into fights. While you had some friends, you were not invited to parties or to people's houses because of your aggressive behaviour.
54 You experienced high levels of distress when in the classroom. You felt unable to communicate with teachers or understand the teaching. In Year 7 you were diagnosed with an intellectual disability. The school expelled you shortly after this and you did not receive any further education. Despite talk of attending a specialist school, that did not occur. Your education therefore ceased when you were 12 or 13.
55 Your father was then in effect forced to take you with him to work. That involved getting up at 4 am six days per week for the next 18 months.
56 You started a panel beating apprenticeship at the minimum age, just before turning 15, however, this lasted approximately a year until the business closed. You did not seek further employment. You felt that your inadequate education and training had made it impossible for you to function in the workforce. At that time, you were assessed and found eligible for the disability support pension.
57 It is obvious that you started to drift. Your criminal behaviour coincides with that time frame.
58 You had already started using drugs – alcohol and cannabis at around 12-13 years of age. You smoked cannabis daily from 13-17 until you recognised it was worsening your panic attacks.
59 By mid-adolescence you used various benzodiazepines and then started using methamphetamines at age 16. You regularly used methamphetamine between 17 to 22, increasing to daily use during the weeks prior to this offending. From the age of 20 onwards you were also using GHB on a daily basis.
60 Efforts at drug and alcohol rehabilitation in the past have been unsuccessful. They have mainly been short-term detoxification programs.
61 You suffered a pattern of homelessness for several years, including immediately prior to your remand, where you and your father were primarily living in hotels and temporary accommodation.
Mental Health
62 At my request you were assessed by Dr Meredith Gray, consultant psychiatrist with Forensicare. You are someone with a complex mental health picture.
63 You first experienced symptoms of anxiety in childhood.
64 You started having panic attacks at the age of 11 or 12 of such severity that you were prescribed benzodiazepines (alprazolam) from the age of 14. These attacks worsened in the context of cannabis use. You have experienced pseudo seizures (physical seizures prompted by emotional states rather than epilepsy).
65 You also have social anxiety and were unable to leave the house for periods of time, including being unable to interact with any visitors to your home. Your substance use had in part been in response to that anxiety, as it enabled you to leave the house.
66 You were involved in a motorbike accident at the age of 18 where you crashed while travelling at 90 kph on a freeway, resulting in a lengthy hospital admission including a period in intensive care. You report that your memory has altered since this accident. There are question marks about whether this caused a traumatic brain injury.
67 You experience chronic pain from damaged nerves in your back requiring analgesia.
68 You experienced your first episode of psychosis at fifteen years of age, characterised by paranoia and beliefs that people were after you.
69 You have had multiple inpatient involuntary admissions to Dandenong Hospital and involvement with Mental Health Services there. Your longest admission to a psychiatric hospital was for four months as an involuntary patient. That is a significant inpatient stay.
70 In response to your poor mental health, you have been frequently prescribed injectable antipsychotic medication both in the hospital and custodial settings.
71 You have experienced hypervigilance, constantly being on the lookout both during your current period of incarceration and prior to this while you were in the community, which you attribute to being the victim of previous violent assaults. That also includes being the victim of a kidnapping and extortion in July 2020 by a group of men. They requested that you call people and ask them for money and commit offences to gain money for them. Dr Gray did not assess your description of this event as having a delusional quality. You described being severely beaten, tied to a chair and being fearful that you might die. That lasted for three days after which you were dropped off at a medical centre. Your jaw was fractured, and you were in very poor physical shape.
72 That experience markedly exacerbated your existing anxiety and sense of being unsafe in public, resulting in escalating substance use and subsequent deteriorating mental state, including paranoia and visual hallucinations of people in bushes pointing guns at you.
73 In the lead up to the current offending you described a deteriorating mental state and increasing substance use. You would use methamphetamine to stay awake in order to avoid falling asleep and having nightmares. That, in itself, only increased your paranoia.
74 You also suffer from excessive sweating which causes you a great deal of embarrassment and consequent anxiety. You deal with that by having four to five showers every day.
Mental Health Diagnoses
75 In 2019, you were approved for a support plan, pursuant to the National Disability Insurance Scheme (NDIS). You had limited engagement in the community. During this period of remand in January 2021, you were assessed by Occupational Therapist, Sally Lamshed. She records your diagnoses as intellectual disability, schizophrenia, anxiety disorder and post-traumatic stress disorder (“PTSD”).
76 You have received psychiatric intervention in custody. You have been housed in the Marlborough Unit since December 2020 which is a specialist unit for persons with intellectual disability and mental health concerns.
77 You see a psychiatrist approximately once a month. On 7 January 2022, the consultant psychiatrist on review noted 'symptoms suggestive of severe anxiety with somatic complaints necessitating frequent code blacks and medical investigations.' The diagnoses listed are Complex Post Traumatic Stress Disorder, Mixed Personality Disorder (Emotionally Unstable Borderline and Antisocial Type) and Drug Induced Psychosis. Your anxiety medication was increased.
78 You are currently taking an antidepressant, antipsychotic and anti-anxiety as well as the gabapentin for chronic back pain. Notes of your care team meeting indicate that follow up with a General Practitioner on your release is required.
79 Dr Gray in her assessment on 3 March 2022 diagnoses you as having a 'moderate' intellectual disability.
80 Further, she says you have experienced complex trauma in your childhood as well as car accidents, kidnapping and intervening in your sister's suicide attempts as well as later assaults. Your resulting behaviours according to her warrant a diagnosis of PTSD.
81 She confirms your diagnosis of Mixed Personality Disorder (Emotionally Unstable Borderline and Antisocial Type).
82 She says the fact your psychotic symptoms have reduced during the period of enforced abstinence in custody suggested they have been primarily drug induced, but are chronic. She agrees with the diagnosis under DSM-V of Drug Induced Psychosis.
83 In addition, she confirms you have underlying Social Anxiety Disorder associated with your fears of humiliation or rejection. She notes your ongoing anxiety, including around your sweating issues, and your hypervigilance regarding your personal safety, leave you vulnerable to episodes of psychosis triggered by stress or low mood, i.e., not only from substance abuse.
84 Dr Gray diagnoses you with severe substance use disorder. She observed that your severe substance use disorder was in remission in the contained environment of custody. Dr Gray also noted you may have a possible co-morbid neurocognitive disorder secondary to traumatic brain injury.
85 Your mental health has stabilised over the past 12 months although you still experience anxiety regularly. This is largely triggered by your issues with excessive sweating. Your social anxiety is reasonably well managed on your current medication regime, however, you report ongoing flashbacks of previous traumatic experiences and occasional nightmares.
R v Verdins
86 After receipt of the thorough psychiatric report detailing that history, the prosecution fairly conceded that a term of imprisonment in combination with a CCO is within the range of sentencing options available to me.
87 Given that concession, the issue of applicability of R v Verdins[1] was not ventilated in full. In addition, I understand that in light of the comment by Dr Gray that there does not appear to be a direct link between symptoms of mental illness and your offending, your Counsel did not pursue that issue.
[1] R v Verdins [2007] 16 VR 240
88 In my view, however, Verdins is enlivened here. The fact that your psychotic symptoms have occurred in the context of significant substance use and not during periods of sobriety does not detract from your underlying anxiety, PTSD and cognitive deficits. Many of which are continuing in the enforced period of abstinence in custody. Dr Gray states that it is likely your ability to exercise good judgment was impaired by substance intoxication and drug induced psychosis, but that that is superimposed on those deficits secondary to your underlying intellectual disability. It follows that it would also be an overlay on your personality disorder, anxiety disorder, and PTSD.
89 To my mind there can be some moderation of sentence in your case in taking into account how those features affect your moral culpability, the type of sentence which is appropriate and also considerations of general and specific deterrence.
90 Of course, those considerations are not eliminated. Factors which point to moderation of those considerations also point to the need for community protection.
91 Dr Gray makes plain that although you have stabilised in custody, prolonged incarceration is likely to be more burdensome on you than on another person due to your history of trauma and mental illness. That enlivens both limbs 5 and 6 of Verdins in my view.
Prospects of rehabilitation
92 Your prior criminal history is serious. It is reasonably extensive for someone your age, although care must be taken to allow for repetition where there have been breaches. You have been sentenced in the past for a range of dishonesty matters similar to those before me. You have been sentenced previously for robbery, for reckless conduct endangering serious injury in relation to driving, as well as failing to stop and exposing an emergency worker to risk of harm.
93 You have breached numerous orders, including bail, family violence orders and CCO's.
94 Your Counsel outlined the following matters which he submits means this time will be different and mean your prospects of rehabilitation are enhanced this time around. Those matters are as follows.
95
This is the longest period of incarceration you have undergone. Dr Gray notes you have insight into your offending and the triggers behind it. You told me directly that you feel, despite your past breaches you have a
'fair chance to succeed' with the services in place this time around.
96 You have been abstinent from drug use in custody.
97 You are stable on prescribed medication.
98 On release, you will live with your father. He has now obtained government housing which is a long-term arrangement and provides stability. He was on the video link during the plea and is again present today. He is clearly supportive of you. You plan to be a carer for him, as he has physical difficulties. You want to care for him given he stood by you as a child.
99 You have a new partner who has also been present on the video link. She is aware of your history including both your mental health struggles and your offending history. She is supportive of you.
100 You told me you are 'very religious' and have been praying every day. You understand the risk and danger your offending posed to others in the community. You told me you are ashamed of your offending. You want to start on a new footing on the outside. You repeated those reflections in your interview with Corrections Victoria.
101 You are in regular contact with Ms Sally Lamshed who is part of your NDIS team. You have spoken with her every week or second week in custody. You have worked on making plans and goals for your release, including for employment, for hobbies and re-engagement in sport.
102 You have also been in communication with Mr Dean Fisher of Phoenix Lifestyle Support Association. They are coordinating your NDIS plan. He proposes to set you up with a dual diagnosis clinician who can look at your mental health and substance issues.
103 You have a family General Practitioner who you have seen for seven or eight years and who knows you well. That General Practitioner is located near where you will be living.
104 Those matters – but most importantly your attitude – bode well for your rehabilitation. It seems to me you are at a point where after your longest period in custody you may be in the best position to achieve rehabilitation. That will largely depend on your ongoing compliance with your medication regime and your ability to resist illicit drug use.
105 You are a young offender, still only 24. Higher Courts have emphasised the greater focus on rehabilitation of young offenders before they become entrenched in the criminal justice system. It is not only in their interests, but also in the community's interest to see young offenders fully rehabilitated and reclaimed.
Remorse and Pleas of Guilty
106 I accept your expression of shame at your offending. That demonstrates your remorse.
107 I accept your pleas of guilty and find that they also reflect remorse. You are entitled to a discount in sentence on account of a plea which does demonstrate true remorse.
108 Your plea of guilty more generally entitles you to a discount in sentence. It has a utilitarian benefit of saving the community the time and expense of what could have been several trials here. It saves the victims from giving evidence.
109
Higher Courts have stated that a plea of guilty during the period of the
COVID-19 pandemic where there are significant backlogs in the criminal justice system must be given a palpable discount.
Remand during the Covid-19 Pandemic
110 Your period of remand has also been during the period of the COVID-19 pandemic. That has been a most difficult time for prisoners in this state. While the pandemic and lockdowns have caused general anxiety in the community, prisoners are not at liberty to make autonomous choices about their movements and distancing. Lockdowns have been more frequent in the custodial settings in keeping with the need for limitation of movement. Visits from family and friends and programs have been limited. I take those matters into account.
111 I also take into account that for someone with your mental health profile, those circumstances must have served to increase your anxiety and distress.
112 In all the circumstances, my view is that the time you have already served in custody is close to the appropriate period of incarceration to achieve deterrence and punishment in this matter. The sentence I impose will see you released very soon to commence a CCO.
113 The benefit of imposing a combination of imprisonment and a CCO, rather than a sentence with a parole period, is that you will have a set release date. You will be released to a structured assessment and treatment regime which I determine by way of the conditions of the order. In addition, I will impose judicial monitoring, so that you will need to reappear before me so that I can hear about your progress on that order. Any breach of the order will also return to me.
114 I agree with the assessment of Corrections Victoria that some transition planning should take place immediately and prior to your release if possible. To that end, these reasons and the report of Dr Gray will be provided to Corrections Victoria today.
115 Dr Gray makes a number of recommendations which I commend to both Corrections Victoria and to your NDIS providers. They include:
(a) Further psychiatric exploration of your mixed personality disorder;
(b) Further exploration of your ADHD and determination of any neurocognitive disorder secondary to traumatic brain injury i.e., existence of an acquired brain injury;
(c) A risk assessment informed by a Level of Risk Need Responsivity assessment;
(d) Linking you to your General Practitioner for prescription medication;
(e) Referral to Disability Forensic Assessment Treatment Service (DFAT) for a review of medication and recommendations provided with a disability lens;
(f) If you are not accepted to DFAT, referral for psychiatric assessment in the private sector by your general practitioner;
(g) Psychiatric review via your local area mental health service with a low threshold for triage in the event your mood destabilises, your anxiety increases or your psychotic symptoms re-emerge;
(h) Neuropsychological assessment to inform how your ADHD, intellectual disability and possible brain injury are interacting to inform your psychological treatment;
(i) Psychological treatment for your anxiety, PTSD, mood regulation and strategies relating to impulse control;
(j) Assertive drug and alcohol intervention via a specialist service with external monitoring and early consideration of inpatient options if you relapse;
(k) Dr Gray supports the range of further interventions outlined in the Occupational Therapy plan via your NDIS package and;
(l) Recommends liaison with NDIS co-ordinator;
(m) Assistance with Centrelink application to resume your pension so that financial stressors are limited.
Sentence
116 Mr Audino, I propose to sentence you as follows.
117 On Charge 1 of Theft of motor vehicle you are convicted and sentenced to 6 months' imprisonment.
118 On Charge 2 of Obtaining Property by Deception you are convicted and sentenced to 2 months' imprisonment.
119
On Charge 3 of Theft of motor vehicle you are convicted and sentenced to
6 months' imprisonment.
120 On Charge 4 of Make Threat to Kill you are convicted and sentenced to 6 months' imprisonment.
121 On Charge 5 of Theft of EFTPOS machine you are convicted and sentenced to 3 months' imprisonment.
122 On Charge 6 of Robbery you are convicted and sentenced to 8 months' imprisonment.
123 On Charge 7 of Theft of registration plates you are convicted and sentenced to 2 months' imprisonment.
124 On Charge 8 of Theft of the camera equipment and cash you are convicted and sentenced to 5 months' imprisonment.
125
On Charge 9 of Handling Stolen Goods you are convicted and sentenced to
4 months' imprisonment.
126 On Charge 10 of Reckless Conduct Endanger Life you are convicted and sentenced to 12 months' imprisonment. That is the base sentence.
127 On Charge 11 of Prohibited Person Possess Imitation Firearm you are convicted and sentenced to 5 months' imprisonment.
128 On Summary Charge 13 Drive Whilst Disqualified you are convicted and sentenced to 4 months' imprisonment.
129 On Summary Charge 18 Fail to Stop Vehicle on Police Request you are convicted and sentenced to 2 months' imprisonment.
130
I direct the following cumulation on the base sentence. 1 month of Charge 1,
2 months of Charge 3, 2 months of Charge 4, 1 month of Charge 6, and 1 month of Charge 8. The total effective sentence is therefore 19 months' imprisonment.
131 I declare that you have already served 537 days of pre-sentence detention and that that period should be reckoned as having been served against this sentence.
132
In addition, on Charges 10 of Reckless Conduct endangering life, and
Charge 11 being a prohibited person in possession of a firearm, you are convicted and sentenced to undertake a Community Correction Order. I have received an assessment report attesting to your suitability for that Order.
133 That order will be of 12 months duration and in addition to the core conditions it will contain the following –
a.that you be under Supervision;
b.that you undertake assessment and treatment for drug abuse as directed;
c.that you undertake assessment and treatment for mental health as directed;
d.that you comply with the recommendations of your NDIS co-ordinator;
e.that you comply with the recommendations of your mental health treatment service;
f.that you return to me for Judicial monitoring on Wednesday 1 June 2022 at 9:30 am so that I can receive an update regarding your progress. That hearing will proceed via video link.
134 I cannot impose a Community Corrections order without your consent to that order, Mr Audino. Do you consent to undertake that order?
135 OFFENDER: Yes.
136 HER HONOUR: Do you understand that if you breach that order, either by reoffending or by not complying with the conditions, you will be brought back before me for re-sentencing on the relevant charges?
137 OFFENDER: I understand.
138 HER HONOUR: All right. I have not made that order overly long for two reasons; one, you have already served the punishment aspect for your offending by way of your time in custody; and secondly, the NDIS supports are with you for life and will be able to continue to access them beyond what I envisage will be an intense period of supervision and treatment.
139 I declare pursuant to s6AAA of the Sentencing Act 1991 but for your plea of guilty, the sentence I would have imposed would have been one of 4 years' imprisonment with a non-parole period of 2 years and 8 months' imprisonment.
Licence Disqualification
140 In addition to the sentences imposed, I am required to impose a disqualification on your licence in relation to the Summary Charge 18 of Failing to Stop on police request. That is a mandatory requirement with a minimum period of 12 months disqualification. Further, on Charges 1 and 3, Theft of Motor Vehicle and Summary Charge 13 Drive while Disqualified, once a conviction is recorded there is mandatory disqualification of your licence. The length of that disqualification is at my discretion.
141 Disqualification is entirely appropriate here given the circumstances of your driving and the fact that you were disqualified at the time. On those Charges 1 and 3, and Summary Charges 13 and 18, along with Charge 10 Reckless Conduct Endangering Life, your licence is cancelled, and you are disqualified for a total period of 18 months. That timeframe will be backdated to the date you entered your plea before me, namely 11 November 2021.
Forfeiture
142 Application was made by the prosecution for forfeiture. Those applications were not opposed.
143 I grant the prosecution's application, under s32(1) of the Confiscation Act 1997, for forfeiture as outlined in the filed application.
144 In addition, upon the finding of guilt on the offence of being a prohibited person possess imitation firearm, that black imitation handgun is automatically forfeited to the Crown.
145 So, Mr Audino, you have done about 18 months in custody. The sentence I have imposed is 19 months plus a 12 month Community Corrections Order. So, you will be released shortly, probably before that period is up, because of the number of lockdowns et cetera. I anticipate and I hope and expect there will be some transition planning with you, with Corrections Victoria, and I know there already has been communication with NDIS providers.
146 So, that is all positive and will see you released very soon to commence that order. I will see you on the first day of winter, 1 June. I will get a report about your progress before that date. I will look forward to reading good things about how you have been going.
147 Are there any matters, Mr Dober, or Mr Nikakis?
148 MR NIKAKIS: No, Your Honour.
149 MR DOBER: Just two things to raise for me, Your Honour, and the first of those is basically an issue of my note keeping. Can Your Honour state again which charges the CCO is imposed upon?
150 HER HONOUR: Yes, it is Charge 10, the Reckless Conduct Endangering Life. That is the driving matter.
151 MR DOBER: Yes.
152 HER HONOUR: And the associated charge of Charge 11, being the Prohibited Person Possess Firearm.
153 MR DOBER: Thank you, Your Honour. The second matter is the judicial monitoring on 1 June. Will Your Honour require a prosecution appearance on that day?
154 HER HONOUR: I anticipate not. It will depend on what is in the report. But I anticipate not.
155 MR DOBER: As Your Honour pleases.
156 HER HONOUR: All right, thank you very much. Mr Audino, we spoke on the last date about that high risk period that happens when someone is released from custody. I know you are aware of that, so be on your guard. I hope you can get stuck into that order as soon as you can and engage with your NDIS providers.
157 OFFENDER: Thank you.
158 HER HONOUR: All right. Thank you very much. Thank you, counsel. We will now adjourn.
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