Director of Public Prosecutions v Baiocchi
[2019] VCC 1196
•31 July 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-19-00583
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DINO BAIOCCHI |
---
| JUDGE: | HIS HONOUR JUDGE CARMODY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 26 July 2019 |
| DATE OF SENTENCE: | 31 July 2019 |
| CASE MAY BE CITED AS: | DPP v Baiocchi |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 1196 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms D. Craven | |
| For the Accused | Mr R. Lawrence |
HIS HONOUR:
1Dino Baiocchi, on 26 July 2019 at the County Court here at Melbourne, you pleaded guilty to the following charges on Indictment No.J12101581.
Charge 1 - engage in conduct endangering person to serious injury. This charge has a maximum penalty of five years' imprisonment.
Charge 2 - dishonestly retain stolen goods. This charge has a maximum penalty of 15 years' imprisonment.
2There were two related summary charges that were transferred to this court with your consent, pursuant to 145 of the Criminal Procedure Act. You pleaded guilty to the following summary charges.
Charge 7 - unlicensed driving. This charge has a maximum penalty of 60 penalty units or 6 months imprisonment.
Charge 8 - failing to wear a helmet whilst riding a motorcycle. This charge has a maximum penalty of 10 penalty units.
CIRCUMSTANCES OF OFFENDING:
3The circumstances of your offending are as follows: On 7 August 2018, your friend Zoran Kotevski died as a result of a collision between a motorcycle ridden by him and another car on High Street, Melton. The prosecution do not allege any activity on your part caused the death of Zoran Kotevski. It is an event and day you will remember and live with for the rest of your life.
4The prosecution tendered a summary of prosecution opening dated 25 July 2019. It was Exhibit A on the plea. At the time of these offences, you were 32 years old.
5On 7 August 2019, you were riding a grey and white 2016 CFMoto 150NK motorbike. That motorbike belonged to Navine Saireddygari which had been stolen from a car port at his home in Flemington sometime between 15 and 16 May 2018. The owner of the vehicle subsequently reported the theft to police. Kotevski was riding a Yamaha, registration number YZF R6. That motorbike had been stolen from St Kilda on 25 and 26 September 2017.
6Your counsel advised the court you paid $300 for your motorbike. This was the basis for Charge 2 on the indictment. At the time of riding the motorcycle, you did not wear a helmet and did not have a licence to ride a motorcycle or drive a motor car. That is the basis of Charges 7 and 8. The background to Charge 1 on the indictment is as follows.
7On 6 August 2019, your friend Kotevski and his de facto partner Aysun Hanay were together at a friend's house situated at Unit 1 Erica Street in St Albans. Mr Kotevski was observed to ingest three Xanax tablets. He then rode his motorcycle to 7 Rsscrea Road in Melton. This was the house of Cassie Finch.
8At approximately 2 am on 7 August 2018, Ms Hanay and Kathryn Mesiti drove to Ms Finch's house where they met with Mr Kotevski. At about 6 am on 7 August 2018, you sent numerous text messages to Finch trying to arrange a meeting with Kotevski. Whilst at the Roscrea Road premises, Kotevski and Hanay had an argument. Kotevski assaulted Ms Hanay in the bathroom. Ms Mesiti left the premises and drove away. Ms Hanay called Ms Mesiti and asked her to come back to the premises and collect them. Ms Hanay was waiting outside the house when Ms Mesiti returned.
9At that time, you and Kotevski were seated on your motorbikes at the front of the house. Ms Hanay got into Ms Mesiti's car. You and Kotevski blocked Ms Mesiti's car from leaving the property. You said, “You're not going to get away, Ace.” Ms Mesiti saw an opportunity to leave and drove away from the house. You and Kotevski then gave chase to the car driven by Ms Mesiti with Ms Hanay as a passenger. The chase went on through the streets of Melton South for approximately four to five kilometres and came to an end when and where your friend Mr Kotevski was killed.
10As Mesiti attempted escape from you and Kotevski, numerous CCTV cameras captured the car and the motorcycles. The footage depicts you and Kotevski driving erratically, at high speeds and at times on the wrong side of the road, placing others at risk.
11The compilation of CCTV was on a DVD which, with the agreement of the parties, I viewed in chambers.
12This DVD was Exhibit C on the plea. The route taken in this chase was set out in a map which was Exhibit D. Both you and Kotevski rode your motorcycles at excessive speed with erratic manoeuvres in suburban streets that had other cars moving in either direction as well as the car driven by Ms Mesiti. Ms Mesiti described the riding of the bikes as a chase or pursuit by you and Kotevski.
13You and Kotevski continued to ride the motorbikes dangerously and erratically in an attempt to get the attention of the women in the car and forcing them to stop. By that time, Hanay and Mesiti were extremely fearful of both of you. Mesiti wanted to drive to a police station.
14You and Kotevski were travelling on either side of that car. You were riding so close to the car that you were able to kick it on a number of occasions. Mesiti was driving fast and doing her best stay on the road. The two of you kept changing positions and you continued to kick the car. You were attempting to run the girls off the road. These actions petrified Mesiti and Hanay. Mesiti later told police, “I knew that if they got us, they would hurt us or even worse.”
15At one point, Hanay managed to called 000 from the car. During the call, both the women could be heard calling out and screaming in fear. The 000 call was Exhibit B on the plea. Whilst it was unclear what the occupants of the car were saying to the 000 operator, it was clear that the two women were frightened and panicking.
16Given the dangerous and erratic manner in which they were driven, the car and the motorbikes were noticed by a number of other people. One of those was a Craig Albani. He noticed that there were two bikes and a car driving erratically behind him. The car was very close behind him, as were the motorbikes. The car overtook him on the right and one of the motorbikes did so on the left which forced him to slow down. The other motorbike overtook him on the right-hand side. It entered the lane of traffic travelling in the opposite direction. Within seconds, it collided head on with the oncoming car. That was Kotevski's motorcycle.
17Albani looked back and saw the collision. He later described it to police as:
“I looked back at the bike as the bike hit the car. I could see the driver flinging in the air. He was thrown away from his bike.”
18Albani returned to check on the rider’s welfare. He was faced down on the ground. Albani saw you return and described your actions in the following manner:
“The other bike rider also did a U-turn and came over to him. He stayed on his bike as he grabbed the injured guy by the jacket, flipped him over like a rag doll and looked at him. He then looked at me face on. He didn't say anything and then rode off, leaving his mate for dead. He rode off east down High Street.”
19Another witness, Matthew Shrayner, described the motorbikes passing him to the right of his car. Where they did so, he said as follows:
“There was no room for the two motorcycles to pass me on the right as it was still a single lane. At this time, the environment was dark. Every car had its headlights on.”
20As they overtook him, the motorbikes then both increased their speed significantly. To him, it looked like they were racing. Shrayner saw the motorbikes catch up very quickly to Mesiti and Hanay about 150 m in front of him. He then saw Kotevski cross the solid white line marking and collide with the oncoming car.
21Shrayner described your actions as follows:
“I saw the other rider roll him over and back off. He looked shocked. He then turned around, ran away to his own bike and rode off at a fast rate of speed.”
22Another driver on the road that morning was on his way to work. Steven Horley was his name. At about 6.35, he was driving past St Catherine's Primary School when Mesiti approached him quickly from behind and tooted the horn. He noticed a motorbike on the outside of the car on the centre white line. After the vehicles drove around the roundabout, Mesiti and the motorbike overtook Hawley on the wrong side of the road. He described what happened next as follows:
“I could see that the motorbike was tailing this car. Both the car driver and the motorcycle driving was still erratic. The car was tooting the horn in front of - again. For a period of time, they continued driving erratically. It was like a chase. The two motorbikes were still following the car that he'd been chasing when the first motorbike veered out for what looked like an overtake on the wrong side of the road, and when it hit the oncoming Commodore sedan.”
23Horley later told police that the manner of the driving of the car and the motorbikes looked like more like just a road rage incident. It looked like it was a chase and the motorbikes wanted to catch the car.
24Ms Mesiti drove towards the Melton police station where she became stuck in traffic. Mesiti drove around the cars in front of her and turned into High Street. Meanwhile, you were on the left side of the road, riding in the emergency lane. You continued to yell out to Hanay and Mesiti.
25After you became aware of the collision you returned to check Kotevski who was lying motionless on the ground. You then became aware that Kotevski was dead. You decided to flee the scene, leaving him lying dead on the road. You did not leave any contact details with anyone.
26Another driver saw you as you fled the scene. She was driving alone McKenzie Street, approaching a roundabout. She stopped at the roundabout and thought to herself, “Thank God I stopped because that motorbike came flying through. The motorbike was traveling south down Palmerston Street and it was flying.”
27Mesiti and Hanay were not aware of the collision that killed your friend. At about 6.56 that morning, Hanay sent a message to you. You have then called Hanay and said, “He's dead, you fucking mutt. He's left for dead on the side of the road.” You said that a car had hit Kotevski.
28At about 9.15 that morning, you sent a number of text messages, one of whom was your girlfriend Samantha Hobbins. You told others that Mr Kotevski had died in your arms.
29You are not to be sentenced for the manner in which you left your friend on the road after he was killed. You did not contact the police for four days after this accident. You were located at Ms Hobbins' house and arrested. You exercised your right to make no comment in the record of interview. The intention of you and Kotevski was at the very least to intimidate and threaten the two females in the car. At the time and in the moments prior to the collision, you and Kotevski were both riding in a dangerous and erratic manner as you chased that car.
30As I have said, you are not responsible for the death of Mr Kotevski and you do not fall to be sentenced on that basis. The death of Mr Kotevski is not an aggravating feature of this offence, however, it is relevant to the manner and speed in which you were riding your motorcycle at the time. It serves to illustrate just how dangerous your driving was at the time of offending. The risk the men created by their conduct was very real. It was not artificial or hypothetical. It is relevant to the gravity of the offending and illustrates the reality of the danger created by your riding.
31It was submitted on your behalf that the CCTV shows that for the majority of the pursuit you were some considerable distance behind Mesiti's car. It was submitted you were only close to Mesiti's car for approximately 1 km near the Bulmans Road and High Street part of the chase. You could have withdrawn from the pursuit at any time. Your riding endangered not only Mesiti and Hanay but all other road users along the course of the chase. So much was obvious from a reviewing of the CCTV video.
YOUR PERSONAL CIRCUMSTANCES:
32I turn to your personal circumstances. You are now 33 years old. At the time of the offence, you were 32. You grew up in the Diamond Creek area. At the age of 12, your parents separated and you moved to live with your auntie in Melton. Your mother then moved to live in Melton with her new partner.
33In 1999, you moved back to live with your mother, stepfather and family. You conflicted with your stepfather. In 2002, you completed your education at the Year 10 level. You commenced work at Victoria Container Management. You remained in that employment for some 18 months. In 2002, you recommenced your relationship with your father.
34In 2003, you commenced your relationship with Season Souter. In 2005, your son Tayshawn was born. In 2009, Ms Souter moved to New South Wales with your son Tayshawn. The dispute between you was over your drug use. In 2010, you commenced a relationship with Samantha Hobbins. This relationship has been on and off for the past eight years.
35In 2004, you moved back to live with your father in Reservoir. You worked in fish and chip shops, a bottle shop and a pizza shop. In 2005, you were an apprentice chef at Ballarini’s Pizza & Pasta in Reservoir. By 2007, you completed your apprenticeship and obtained a Certificate III in cookery.
36In 2009, as I have said before, you commenced your ice use. Ms Souter left you because of your drug problem. Between 2010 and 2014, you worked for Multiplex as a plasterer and concreter. This was not consistent work. Since 2014, your work has been sporadic, consistent with your decline into drug addiction and use of ice.
37You have an established criminal history between 18 May 2014 and 20 April 2018. You have a total of seven separate court appearances. Your prior convictions include dishonesty charges, possessing weapons and ammunition, criminal damage, driving offences and drug offences. You even have a prior appearance for failing to wear a helmet.
38Most significantly, your last prior court appearance was on 20 April 2018. A sentence of six months' imprisonment was imposed and it was to be followed by a community corrections order. At the time of these offences, you had only been at liberty for six weeks after serving your term of imprisonment and you were on a community corrections order. A breach of that community corrections order is yet to be prosecuted and finalised. It is listed for hearing on 30 August 2019.
39You have been remanded on custody for 355 days for these offences.
40The charges in this matter were resolved to a plea of guilty at your committal hearing on 25 March 2019. No witnesses were cross-examined. The prosecution accept your plea was an early plea. In April 2019, whilst in custody, you learnt for the first time that you have a daughter with Ms Fiona Park. Your daughter's name is Holly.
SENTENCING CONSIDERATIONS:
41I turn to sentencing considerations. The basic purpose for which a court may impose a sentence are just punishment, deterrence - both specific and general, rehabilitation and denunciation of your actions and the protection of the community.
42In sentencing you, I must have regard to a range of factors such as the seriousness of your offending, your culpability for it and your personal circumstances. I am also required to balance the interests of the community in denouncing your criminal conduct with the interest of the community and seeking to ensure as far as possible that you as an offender are rehabilitated and reintegrated into society.
43I am also required to take into account current sentencing practices in fixing your sentence. That enquiry is directed particularly but not exhaustively to he kind of sentences imposed in comparable cases and the statistics for those sentences. I have considered the statistics and current sentencing practices, mindful that each case must be considered in the light of its own particular circumstances and that many of the cases would be disguisable from your case, as indeed they are from one another. Of course, current sentencing practices are only one of the matters I need to consider.
44I am mindful that provisions of the Sentencing Act, in particular s.5(4)C which directs the sentencing court to consider whether a community corrections order can achieve the purpose for which a sentence is to be imposed. I have reviewed the case of Boulton, considering if a community corrections order would be appropriate in your case and I have had you assessed for a community corrections order. Despite you facing a breach of community corrections order, you have been assessed as being suitable. But that is not the end of the matter.
45You have pleaded guilty to this charge. Your plea of guilty was indicated at an early stage and your plea does have the utilitarian value of allowing for the orderly and effective administration of justice. There is a certainty of outcome and a resolution of the substantive issues raised by your offending. Your plea allows for the preservation of the court and police resources to deal with other matters and your plea vindicates the public confidence in the legal process set up to protect the community.
46Your plea also is a clear acknowledgement by you that you accept responsibility for your criminal behaviour on this occasion. Your plea also recognises that you are willing to facilitate the course of justice in the community and I accept that your plea of guilty to these charges indicates and demonstrates some remorse on your behalf.
47Your plea obviates the need for Ms Mesiti and Ms Hanay to give evidence on an occasion that had placed them in fear for their safety.
48I assess your prospects of rehabilitation as guarded. You have had a long term use of ice, commencing in 2009. Your prior good work history took a downward turn from that time onwards.
49You continue to have good support from your mother. She attended your plea hearing and provided a reference, which was Exhibit 3, to support you. She continues to visit you in prison every three to four weeks. She has contact with your two children, Tayshawn and now Holly. She is prepared to provide you with an initial place to say upon your release from custody.
50Your mother's rules of residence are as follows: no friends, no drugs, no alcohol in her home. Break those rules and she will, in her words, 'kick you out'.
51I also note you have engaged in courses whilst you are on remand. The courses include harm reduction, drug rehabilitation and work training. They are Exhibit 2 on the plea.
52You have a job in the metal shop as a welder at Barwon Prison. Your offending in respect of Charge 1 on the indictment is serious. The factors relevant to assessing the objective seriousness of your offending are as follows:
a)the factor of a chase through suburbs streets;
b)the speed of your vehicle;
c)the attempts to cut off or get Ms Mesiti to stop her car;
d)the number of other vehicles passed as shown on the CCTV;
e)the erratic driving occurred in the dark - all cars had their headlights on; and
f)the early time of the day of the driving was when people were all going to work.
53You are not to be punished for your friend's death. You are not to be punished for leaving the scene at the time of his death. The driving offences require a term of imprisonment to be imposed to satisfy the sentencing factors of general and specific deterrence, denunciation of your actions, protection of the community and just punishment.
54On the dishonesty charge of handling stolen goods - that is the motorcycle, a sentencing disposition of a community corrections order is appropriate to enhance and reinforce your rehabilitation and re-entry into society as a contributing member of our society. The fact that you have offended in both these charges whilst on a previous community corrections order is a concern. But if given a further chance now that you have had the sobering experience of seeing your friend die whilst engaging in the same behaviour as yourself, this reinforces the second chance concept. Would you stand please?
55On Charge 1, you are convicted and sentenced to 18 months' imprisonment. All licences are cancelled and you are disqualified from obtaining a licence for a period of nine months from this date.
56On Charge 2, you are convicted and placed on a community corrections order for a period of two years. That community corrections order is to commence on your release from custody. The conditions of the community corrections order are that you are to be supervised; that you receive treatment and rehabilitation for drugs, alcohol and offender reduction programs; that you are to attend for a judicial monitoring on 8 April 2020 at 9.30 am.
57On the summary charges, Charge 7, you are convicted and fined $750. On summary Charge 8, you are convicted and fined $250.
58That is a total effective sentence of 18 months' imprisonment. I declare that you have served pre-sentence detention of 355 days. Is that the correct number today?
59MS CRAVEN: That is correct, Your Honour.
60HIS HONOUR: Three hundred and fifty-five days. Pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty I would have sentenced you to two and a half years' imprisonment with a non-parole period of 18 months. Is there anything else I need to deal with?
61MS CRAVEN: Your Honour, just with respect to the related summary offence of Charge 7, unlicensed driving, I understand that you announced at the beginning that the maximum penalty is one month and 10 penalty units.
62HIS HONOUR: Yes.
63MS CRAVEN: With respect to s.18(1), the Crown would submit that neither sub-s.2 or 3 applies and so in this instance, the penalty should be that of 60 penalty units and imprisonment that does not exceed six months.
64HIS HONOUR: Right. He had a prior. The fine is still the same but thanks. And I will amend the reasons for sentence to reflect the maximum penalties for him.
65MS CRAVEN: May it please the court.
66HIS HONOUR: Thank you. Thanks.
67MR LAWRENCE: As Your Honour pleases.
68HIS HONOUR: Thank you. You may remove the prisoner. Thanks. Sorry, sorry. Stop. You have got a CCO. You can take a seat. We have got to prepare the CCO. Thank you.
69Mr Baiocchi, I will see you in April. The main thing you are going to concentrate on, as I see it, is you are going to get rid of this ice addiction. And it is easy for me to say, very hard for you to do. But I you do not do it, you will just go on the rotator. That is, keep coming back here. It is up to you. Thanks.
(Prisoner removed.)
70Just before, first of all, Ms Craven, Mr Lawrence, thank you both for your assistance. I will just get a copy of the CCO so that you have got one for your records, Mr Lawrence. The other - it is going to be sent to you via email. Your client will get a copy through Corrections.
71MR LAWRENCE: Thank you, Your Honour.
72HIS HONOUR: Mr Lawrence, just for the record, I will hand - because your client does not have a fixed address. Just the licence disqualification and cancellation - if I can hand that to you, but if you give it to his mother.
73MR LAWRENCE: Yes, I could even take it downstairs put it as his property, Your Honour.
74HIS HONOUR: Yes, thanks. Thank you.
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