Director of Public Prosecutions v Ciancio
[2021] VCC 2110
•13 December 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-21-01715 & CR-21-01716
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TIFFANY CIANCIO & ANDREW WHITHAM |
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JUDGE: | HIS HONOUR JUDGE LAURITSEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 November 2021 | |
DATE OF SENTENCE: | 13 December 2021 | |
CASE MAY BE CITED AS: | DPP v Ciancio & Anor | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 2110 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Aggravated home invasion – aggravated burglary – using an unregistered firearm – recklessly causing injury – cultivating a narcotic plant – possession of a drug of dependence – commit indictable offence whilst on bail – special reason to avoid the imposition of a non-parole period of less than 3 years found not to apply – parity – one accused’s responsibility to care for a child a significant factor in sentencing
Legislation Cited: Sentencing Act 1991
Cases Cited:Hogarth v R [2012] VSCA 302; Suckling v R [2013] VSCA 278; DPP v Meyers (2014) 44 VR 486; Filiz v R [2014] VSCA 212; Worboyes v R [2021] VSCA 169; Bugmy v R (2013) 249 CLR 571; Marrah v R [2014] VSCA 119; Jawahiri v R [2021] VSCA 287; DPP v Green [2020] VSCA 23; Verdins v R (2007) 16 VR 269
Sentence: Ciancio: Community Correction Order for a period of 18 months.
Whitham: total effective sentence of five years and nine months’ imprisonment with a non-parole period of three years imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P. Pickering | Office of Public Prosecutions |
| For the Accused Ciancio | Ms C. Marcs | Anthony Isaacs Lawyers |
| For the Accused Whitham | Mr M. Allen | Emma Turnbull Lawyers |
HIS HONOUR:
Introduction
1Andrew Whitham, you have pleaded guilty to the following charges:
(a) aggravated home invasion;
(b) using an unregistered firearm;
(c) recklessly causing injury;
(d) cultivating a narcotic plant;
(e) possessing a drug of dependence;
(f) committing an indictable offence while on bail.
2Tiffany Ciancio, you have pleaded guilty to a charge of aggravated burglary.
3The maximum penalties for the offences to which both of you have pleaded guilty are:
(a) aggravated home invasion – 25 years’ imprisonment;
(b) aggravated burglary – 25 years’ imprisonment;
(c)
using unregistered firearm – seven years’ imprisonment or a fine of
600 penalty units;
(d) recklessly causing injury – 10 years’ imprisonment;
(e) cultivate a drug of dependence – 15 years’ imprisonment;
(f) possess cannabis – one year or a fine of 30 penalty units.
(g)
committing an indictable offence while on bail – three months’
imprisonment or 30 penalty units.
4
With the offence of aggravated home invasion, a court must impose a
non-parole period of at least three years’ imprisonment unless a special reason exists. I will deal with the issue of special reason later.
Circumstances
5The circumstances of the alleged offending are set out in the document entitled, 'Amended Summary of Prosecution Opening', which is Exhibit A.
6
You, Ms Ciancio had been in a relationship with Taro Pitts. He, along with three others, lived in a boarding house at Cambridge Crescent, Werribee. You ended the relationship on 22 July 2020. However, on the next day and the day after, Mr Pitts tried to contact you. He left a series of voice messages and sent text messages. A summary of these messages appear as a schedule to
Exhibit A.
7Shortly after midnight on 24 July, Mr Pitts went to a house where you and your sister, Rochelle, were present. He sent messages to you, insisting you come outside and speak to him. You refused, telling him to go away. His messages became more threatening and aggressive. He left but during the afternoon of that day sent you further threatening messages, which included threats against your brother and father. Instead of reporting the matter to the Police, you contacted Mr Whitham and Ben Nefzi to confront Mr Pitts if he did not leave you alone.
8By 28 July, you, Ms Ciancio, were encouraging those men to assault Mr Pitts if he did not stop his threats or harassment. Both you, Mr Whitham, and Mr Nefzi said you were willing to do so. Both of you, Ms Ciancio and Mr Whitham, had been in a relationship.
9Near midnight on 26 or 27 July 2020, you, Mr Whitham drove to Ms Ciancio’s home with a co-offender called Pete. You were armed with a 0.22 calibre handgun. You, Ms Ciancio, then drove the three of you to a house in Wyndham Vale where you collected a fourth co-offender, Mr Nefzi. You then drove to the boarding house where Mr Pitts lived. After arriving at 12.44 am, the three men left the car to enter the house while, you, Ms Ciancio, remained in the car. These circumstances constitute for you the charge of aggravated burglary. Although you did not enter the house and were unaware Mr Whitham possessed a handgun, you expected the three men to assault Mr Pitts.
10
After knocking on the front door, it was opened slightly by a Ms Van Den Bink. It was fully opened by Mr Nefzi and the three men pushed past
Ms Van Den Bink and entered the house. One of three men said to her, 'We’re here just to sort out some issues'. You, Mr Whitham, were armed with a handgun. These circumstances constitute the charge of aggravated home invasion.
11You, Ms Ciancio, sent a message to Mr Whitham directing him to Mr Pitts’ bedroom. Nevertheless, you, Mr Whitham, asked Greg Cahill, who was lying on a couch, where Mr Pitts’ room was. He pointed it out.
12You, Mr Whitham, then kicked the door of the bedroom open. As you entered, Mr Pitts was climbing out of the bedroom window. You said to Mr Pitts: 'Get the fuck here, here cunt'. You then fired the handgun, hitting the sole of his foot. These circumstances constitute Charge 2, using an unregistered general category handgun and Charge 3, causing injury recklessly.
13The three men then ran from the house and you, Ms Ciancio, drove them away at high speed.
14Mr Pitts attended the Sunshine Hospital and a bullet was removed from his foot. By 16 December 2020, his foot was still sore and 'pussey'.
15The handgun was homemade. The police have not recovered it.
16You, Ms Ciancio, were interviewed by police members. You made some admissions. You declined to give the names of your co-offenders and denied knowing any of them were armed.
17You, Mr Whitham, were also interviewed by the police. You made 'no comment' answers to their questions.
18At the time of these offences, you, Mr Whitham, were subject to a grant of bail for charges of affray and behaving in a riotous manner. Those circumstances constitute the charge of committing an indictable offence while on bail.
19
In a different matter, between 4 and 15 November 2020, police members intercepted five phone calls and a text message made by you, Mr Whitham, concerning the cultivation of cannabis. One of the phone calls and the text message were made or sent to Karen Saddington. She lived at
18 Oldershaw Road in Melton. On 18 November, police members searched the house at that address and found in a bedroom seven cannabis plants, growing under lights. Also found was a garbage bag containing loose leaf cannabis. The total weight of the plants and loose leaf cannabis was 2.283 kilograms. These circumstances constitute the charge of cultivation of a narcotic plant.
20Following your arrest, Mr Whitham, a search of your home in Kurunjang found three zip lock bags containing cannabis. These circumstances constitute the charge of possessing a drug of dependence.
Victim Impact Statements
21Today, Mr Pitts made a Victim Impact Statement. He speaks of the significant psychological impact of the shooting upon him. Apparently, he is undergoing counselling and is prescribed medicine to counteract the symptoms he experiences. A year after the event, he remains somewhat pessimistic about his recovery. Physically, he does not walk as 'perfectly' as he did before the shooting. He finds standing on hard surfaces painful, presumably if he stands too long on those surfaces.
22Although unclear, it seems he lost work due to the injury and ascribes his current unemployment to the psychological effects of the shooting.
Pre-sentence detention
23Excluding today, you, Mr Whitham, have spent 356 days in custody. While you, Ms Ciancio, spent a day in custody before being granted bail.
24While in custody, Mr Whitham, you have proven a model prisoner. Your counsel quoted extracts from observations by prison officials about you. You work in the prison canteen. Apparently, in this role you are considered an essential worker and not subject to the same restrictions upon movement that other prisoners have experienced during the pandemic. I daresay you have experienced some restrictions but their extent is unclear. I will treat them as minor. Whether you have been anxious about the possibility of infection while in custody is unknown. You have remained drug free and continued to take your anti-depressant medicine. You have undertaken rehabilitation programmes.
Legal considerations
25Mr Whitham, you pleaded guilty to a charge of aggravated home invasion. For you, three of the material allegations are entering the home with the intent of assaulting Mr Pitts, being in the company of two other persons and being armed with a firearm. On sentencing on this offence, the court is required to impose a sentence of imprisonment, and set a non-parole period of not less than three years’ imprisonment. However, there are exceptions. You rely on that set out in s10A(2)(c)(i) of the Sentencing Act 1991 which says:
‘…a court may make a finding that a special reason exists if… the offender proves on the balance of probabilities that subject to subsection (2A), at the time of the commission of the offence, he or she had impaired mental functioning that is causally linked to the commission of the offence and substantially and materially reduces the offender's culpability…’
26Sub-section(2A) says the sub-section I have just quoted does not apply to impaired mental functioning caused substantially by self-induced intoxication.
27In relation to you, Ms Ciancio, the Court of Appeal in Markovic and Anor v R[1] affirmed the common law position that unless the circumstances are exceptional, family hardship is disregarded as a sentencing consideration. The effect on you of hardship caused to Rochelle by your imprisonment is not the subject of the same stern test.
[1] [2010] VSCA 105.
Luke Armstrong
28Luke Armstrong is a consultant psychologist. At the request of your solicitors, he interviewed you, Mr Whitham, on 18 February 2021. It was a very long interview, taking five and a half hours, during which you undertook three standardised psychometric tests.
29Mr Armstrong diagnosed you as suffering from Borderline Personality Disorder. Its important features are:
(a) chronic interpersonal difficulties;
(b) heightened and overwhelming states of abandonment and betrayal;
(c) chronically unstable self-image or sense of self;
(d)
chronic feelings of emptiness following the breakdown of your
relationships; and
(e) fleeting, disproportionate, intense anger.
30According to Mr Armstrong, your personality is the result of severe child abuse, which he described as follows:[2]
‘Mr Witham’s experience of the family was in my view a highly disturbing one. His identity and relationship expectancies were distorted by significantly, destructive attachment figures. Mr Witham was regularly overwhelmed by his mother’s experience of domestic violence. His mother in turn encouraged an enmeshed and parentified relationship, she was also a chronic amphetamine addict. His experience of a father attachment was equally disturbing. His experience of male figures was in the form of sadistic, violent and yet charismatic men. The result led to the development of a distorted view with regard to identity development and relationships.’
[2] Report dated 22 November 2021 at page 5.
31
Your childhood development has led you to overidentifying with the suffering of significant other persons in your life, specifically, here, Ms Ciancio.
Mr Armstrong concluded:[3]
‘It is my opinion that the combined effects of activated, personality disordered beliefs (a central identity feature of your client), further disinhibited by anxiolytic intoxication somewhat impaired your client’s capacity to:
a) Exercise appropriate judgement.
b) And make calm and rational choices or think clearly, both in his decision to offend and during the offending itself.’
[3] Report at page 8.
32
The reference to 'anxiolytic intoxication' are derived from the history
Mr Armstrong took from you. On that basis, he noted:[4]
‘…Mr Witham reports that in the months leading up to the offence he was consuming opioid and anxiolytic type substances on a daily basis. Mr Witham reports that within weeks a chain of events unfolded that brought about a further deterioration in his functioning. COVID-19 led to Mr Witham losing his job, his gun license was cancelled, in addition to his security license. Mr Witham reports that his relationship with his partner deteriorated within these circumstances, “Charlotte’s house got raided, it was my fault”.
Mr Witham reports that the consequent months were the worst in his life. He reports that he had no job, had to return to live with his mother, and his relationship was in crisis. His identity had become further destabilised by the loss of his security license. Mr Witham reports that his anxiolytic use escalated, as a means to “knock me out”. Mr Witham reports that the period, including the firearm offending was a blur, Mr Witham further recalls that on Xanax and Valium, “there was no care”.’
[4] Report at page 6.
33Mr Armstrong assesses you as intelligent. He believes you have insight into your problem. He considers you would respond well to intensive, long-term therapy:
(a) with a psychologist experienced in treating persons with personality disorders;
(b) improving your capacity to self-regulate without self-medicating;
(c)
to change the way you view relationships. He considers your identity
needs maturing; and
(d) outpatient drug treatment.
Personal Circumstances – Whitham
34Mr Whitham, you are now 27.
35You are an only child. However, you have two half-siblings through your father. Your parents separated when you were 9 or 10. Your father had been persistently violent to your mother and to you. He would often threaten to shoot you and your mother. You were so frightened of him that you would hide from him for hours under the house.
36As revealed in many cases before the criminal courts, both your parents were deeply flawed. Sadly, your mother had an amphetamine addiction, so much so that she used the dexamphetamine, prescribed for your Attention Deficit Hyperactivity Disorder and told you to lie to your doctors in order to obtain more. She was also chronically depressed.
37Consequently, your relationship with your parents was extraordinary. For example, your mother did not treat you as a child but as a person to confide in as though you were an adult and your father showed you violent pornography before you were nine.
38When nine or 10, you and your mother moved to Adelaide. Your mother formed two relationships. Both men were violent to you and her. She formed a third relationship with a man called 'Bearing'. You viewed him as the ideal father even though he was a notorious criminal.
39Despite some attempts, you remain estranged from your father. With your mother, your relationship was strained for years but has become stronger recently.
40Although it is unclear when you arrived in Deniliquin, you went to school there. You were involved in regular fights there. You attended two schools in South Australia. You experienced significant learning difficulties, caused in part by your Attention Deficit Hyperactivity Disorder and Dyslexia. Those learning difficulties caused you to repeat grades in primary school. However, with treatment, your performance at school improved such that you continued at school until the age of 16.
41At some stage, you were removed from your mother’s care and placed with a family friend.
42At 14, you obtain a job with McDonalds, Starting part-time while at school, you became full-time after leaving school. You excelled in this work and were promoted to a shift manager and received a national award. You expected to be offered a McDonalds’ franchise, which is highly sought after. Unfortunately, you ended your involvement with McDonalds after being falsely accused of theft. Even though the falsity of the allegation was established, you felt you could not return to McDonalds because of your sense of betrayal.
43Apart from your time with McDonalds, the rest of your working life has been spent in security as a security guard or bouncer. You were good at this work and have managed other security guards at entertainment venues in Melbourne. In your 20s, you started two businesses, one in dog grooming, the other in photography. You would like ultimately, to become a paramedic.
44COVID-19 has caused hardship to many. You are one of the many. You lost your employment, left your rented premises and returned to live with your mother. As the restrictions eased last year, you opened a gym and started a personal training business. These ended when you were arrested on 22 December 2020 and remanded in custody.
45On and off, you have been prescribed dexamphetamines. In your early 20s, you were prescribed Seroquel for chronic pain-like symptoms, night sweats and anxiety. During 2020, you used steroids, Valium, Xanax, Dexamphetamine and Cocaine sufficiently extensively for Mr Armstrong to diagnose you as suffering from opioid and anxiolytic use disorder.
46At various times from the age of 19, you have received psychiatric and psychological treatment from Dr Kolesnikova, Dr Kiriella and Dr Asher.
47You have had a series of relationships. According to Mr Armstrong, these relationships were destabilised by your disturbed personality and inability to manage intimacy which resulted from your highly abusive childhood.
48In 2019, after your relationship with Monique ceased, you started using steroids. This intensified your mood swings. Your general practitioner prescribed Valium which stabilised your mood and steered you away from steroids. However, you became addicted to Valium, which you used excessively.
49Also in 2019, you started a relationship with Charlotte. You and she separated in about June of 2020 and then reconciled and were engaged to be married before you were remanded. This relationship continues despite you being in custody.
50
In the month before the incident, you became suicidal. On 27 August, you overdosed, lost consciousness, were admitted to a psychiatric unit of a hospital and were an inpatient for three or four days. This was an attempt at suicide. Following discharge, you were managed by a psychiatric outreach team and
Dr Kiriella, who prescribed an anti-depressant, Valdoxan, which has stabilised your mental state. Following your arrest, you were deprived of this medicine for 22 days, which caused you considerable distress.
Personal Circumstances – Ciancio
51Turning to you, Ms Ciancio, much of what I know about you comes from the report of Dr Walton and your counsel’s submissions. You too are now 27. You are the middle of three children. You have four half-siblings. You are now pregnant with your first child. For the past five years, you have cared for one of your half-sisters, Rochelle, aged 14.
52You were born in Swan Hill. Your parents separated when you were two. You stayed with your mother. You were led to believe your father was dead but found out that was not so when you were seven.
53Your mother had a series of male partners. They were violent to her, and one sexually abused you when you were six. Your mother abused alcohol and drugs. You saw your mother overdose and threaten suicide. She even used you to shield her from her violent partners.
54Between the ages of nine and 11, you lived with your father as your mother would not have you and two of your siblings. Owing to his violence, you returned to live with your mother. This was short-lived. She attempted suicide. You returned briefly to your father. From the age of 13, you were frequently homeless. With the aid of the Department of Health and Human Services, you found accommodation at 16.
55The frequent shifts in accommodation disrupted your schooling. Nevertheless, you completed Year 10. In more recent times, you commenced studying for a Certificate IV course in Mental Health. You are well advanced in the course. You hope to become a social worker.
56After leaving school, you had continuous employment until the restrictions due to the pandemic.
57In about March 2021, you formed a relationship with Ben. Although not living with him, you are now pregnant. Apart from this relationship, the only other significant relationship was with Mr Pitts. It started about two years ago and ended, from your perspective, shortly before the commission of these offences. The relationship was characterised by his violence to you. Even during the lead-up to your offence, you did not enlist the aid of the police for fear of losing the care of Rochelle.
58Since February 2018, you have cared for Rochelle. You share the same mother. Under your care, Rochelle attends school regularly where previously not doing so.
59You started using cannabis at 14 and amphetamine at 16. However, you stopped using drugs five years ago.
60You have had mental health issues for many years. You received treatment in 2010. In February 2021, you started a mental health plan and are prescribed, Mirtazapine.
61Judging from the number and content of the references submitted on your behalf, you have a wide circle of supportive friends.
62The fact you obtained an interim family violence order recently where Mr Pitts is the respondent is relevant as showing you are now willing to adopt lawful means to protect yourself rather than take the law into your own hands. It is a positive step even though belatedly taken.
Dr Lester Walton
63
Lester Walton is a Consultant Psychiatrist. At the request of your solicitors,
Ms Ciancio, he interviewed you on 7 October 2021.[5]
[5] Report dated 8 October 2021.
64He diagnosed you as suffering from an anxiety disorder with depressive and post-traumatic features. The disorder is both chronic and severe. He considers your past drug abuse to be in remission. He also considers your state of high anxiety contributed to your decision to enlist Mr Whitham and others to help you.
65Dr Walton has some confidence about your future through your ability to rid yourself of drugs, find suitable accommodation and having no history of aggressive behaviour.
66He considers you need psychiatric treatment with the longer term possibility of being prescribed with mood stabilising medicine.
Community Correction Order
67You were assessed for a community correction order. Interestingly, using the 'Level of Service Risk Assessment Tool', the assessor identified you as a high risk of general re-offending and recommended the order with the following conditions:
(a) unpaid community work;
(b) supervision;
(c) drug and alcohol treatment;
(d) mental health treatment;
(e) offender behaviour programmes.
68
On 9 November 2021, you were assessed by a Senior Psychiatric Nurse,
Brenda Hughes. She recommends a mental health condition be attached to any Community Correction Order to continue your treatment under the current mental health care plan.
69As I raised with your counsel at the start of today's proceeding, the Corrections assessor noted you have an existing knee and back injury. In light of your pregnancy and responsibilities caring for your half-sister and undertaking employment, I raised the issue of unpaid community work with your counsel, in the sense that it may overburden you and prevent you satisfactorily undertaking the conditions of the order. Your counsel raised no objection to its imposition.
Discussion
70Unless I say otherwise, the following remarks apply to both of you, Mr Whitham and Ms Ciancio.
71Section 5(1) of the Sentencing Act 1991 sets out the purposes for which sentences may be imposed. Section 5(2) sets out the factors which I must, if they are relevant, take into account in sentencing you.
72Plainly, the purposes of deterring you and deterring others from committing these offences or similar offences are important. My sentences should manifest a denunciation of these offences. They should also act to protect the community from you, and that is both of you. Aspects of these purposes may be achieved through your rehabilitation. For if you are rehabilitated, then you will not re-offend by committing these or similar offences again.
The nature and gravity of the offences
73Ms Ciancio, it is true to say, as the prosecution does, that you were the instigator of the home invasion by the three men. You wanted Mr Pitts warned off. You expected some violence but did not know that Mr Whitham was armed with a handgun.
74With you, Mr Whitham, the ingredients of the offence of aggravated home invasion are several and each is serious. That is why the offence has a maximum penalty of 25 years’ imprisonment. In your case, you used the firearm and injured Mr Pitts. It is a significant example of a serious offence.
Aggravated home invasion
75Mr Whitham, your counsel sought to establish a particular special reason so as to avoid the imposition of a non-parole period of at least three years’ imprisonment. The provision creating that reason is qualified by another provision which says that the special reason does not apply if your impaired mental functioning was caused substantially by self-induced intoxication.
76Clearly, Mr Armstrong attributes part of the reason for your offending to the disinhibiting effects of your anxiolytic intoxication. You told him the circumstances of the offending was a 'blur' and under the influence of Xanax and Valium, there was 'no care'. On that material, your intoxication shared an equally, or even more, important part in your offending, than the effects of your personality disorder. Historically, you had controlled your conduct despite the disorder. On this occasion, you did not and the reason lies in your self-induced intoxication. I would find your impaired mental functioning was caused substantially by your self-induced intoxication. The special reason does not apply to you.
77More generally, your counsel submitted the circumstances of your drug taking should have a mitigatory effect. The difficulty with compartmentalising issues in sentencing is the tendency to treat an issue more than once and overemphasising its significance.
Aggravated burglary
78Turning back to you, Ms Ciancio, your counsel drew my attention to judgments of our Court of Appeal regarding the sentencing of the offence of aggravated burglary.[6] In particular, she referred to the case of DPP v Meyers[7] and the factors outlined in the court’s judgment.
[6] Hogarth v R [2012] VSCA 302, Suckling v R [2013] VSCA 278, DPP v Meyers (2014) 44 VR 486 and Filiz v R [2014] VSCA 212. .
[7] (2014) 44 VR 486.
Current Sentencing Practice
79Again with you Ms Ciancio, your counsel drew my attention to cases where a non-custodial sentence was imposed for the offence of aggravated burglary. It was a partial attempt at showing the sentencing practices for that offence.
Guilty Pleas
80
The following consideration applies to both of you Mr Whitham and
Ms Ciancio. Your pleas of guilty were made at an early opportunity.
81In almost every case, a plea of guilty deserves a mitigation of the sentence which would otherwise be imposed if the person was found guilty at trial. At the very least it avoids the need for a trail, saving time and expense. It allows other trials to be heard earlier than would otherwise be the case. It avoids the need for witnesses to give evidence at a trial. Generally this is an onerous task for most witnesses and I daresay for the victim in this case. These reasons for the mitigation of the penalty are well-known in legal circles, but I doubt they are well-known outside of legal circles. The same can be said of the additional mitigatory effect of a guilty plea made at this time.
82Due to the restrictions caused by the pandemic, the courts have struggled to deal with criminal cases efficiently. This has prompted the Court of Appeal in a case of Worboyes v R[8] to explain that pleas of guilty are worthy of a greater discount of the sentence if made at this time. It is worth quoting a passage from the Court’s judgment which shows the emphasis it placed on pleas of guilty in this time of restriction:[9]
‘As is abundantly clear, one of the pernicious effects of the current pandemic is that the lists of the criminal courts in this State have become severely congested. Unacceptable delay in the disposition of criminal cases is endemic. Indeed, it is not an overstatement to say that the system of criminal justice in this State is in crisis, requiring a response from the courts. We therefore consider that, whilst the courts of this State continue to labour under the adverse effects of the pandemic, a sentencing court should view a plea of guilty as carrying with it a greater utilitarian benefit than at other times and in other circumstances, and, concomitantly, as attracting an augmented mitigatory effect on sentence, simply because the plea will benefit the beleaguered administration of justice. Given the unhappy state of the courts’ lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead. Such encouragement must come from an actual and palpable amelioration of sentence.’
[8] [2021] VSCA 169.
[9] At paragraph 35.
83For both of you, your respective pleas of guilty entitle you to very significant discounts on the sentences that would have otherwise been imposed if you had not pleaded guilty. In both instances I accept your pleas of guilty are evidence of remorse.
84
Before I leave this issue, Ms Ciancio, your counsel drew my attention to the delay in the finalising of the case against you. She submitted it was of some little mitigatory effect. I consider it has none on its own. It does emphasise the benefit to the administration of justice of your pleas of guilty and those of
Mr Whitham.
Criminal history
85Mr Whitham, you have a modest criminal history. Both matters resulted in a fine and an adjourned undertaking. Convictions were not recorded. Your criminal history is of little relevance to my sentencing of you.
86Ms Ciancio, you have had three appearances in court answering criminal charges between 2012 and 2014 with two of those appearances in the Children‘s Court. Your last appearance was in 2014 where you were sentenced to an adjourned undertaking on four charges. As with Mr Whitham, your criminal history is of little relevance in sentencing you.
Bugmy v R
87Both counsel referred to passages from the judgments in Bugmy v R[10] and subsequent cases. In the criminal context, these cases discuss the impact of a highly dysfunctional childhood on a person.[11] There is no doubt the upbringing of both of you was both deprived and traumatic. I agree the effect upon you of this upbringing affects my assessment of your moral culpability and general deterrence.
[10] (2013) 249 CLR 571 at [43] to [44].
[11] Marrah v R [2014] VSCA 119, Jawahiri v R [2021] VSCA 287 and DPP v Green [2020] VSCA 23.
88However, the prosecutor pointed out the court in Bugmy[12] noted an offender’s deprived background does not have same mitigatory effect for all of the purposes of sentencing. In your cases, the effects of your deprived backgrounds do not mitigate the sentencing purposes of specific deterrence and the protection of the community from you.
[12](2013) 249 CLR 571.
Verdins v R
89Mr Whitham, your counsel relies upon four of the six limbs stated in the case of Verdins v R[13]. The prosecutor submitted there was insufficient evidence to justify the application of any of the limbs in that case to your case or indeed to Ms Ciancio. I disagree. There is ample evidence in the report of Mr Armstrong and Dr Walton to justify its application broadly.
[13] (2007) 16 VR 269.
90In relation to Charges One, Two and Three, in relation to you Mr Whitham, he, that is your counsel, submits your moral culpability is reduced due to your impaired mental functioning at the time.
91Speaking of moral culpability, the court in Verdins said that impaired mental functioning could reduce an offender’s moral culpability. Where applicable, it also affected the sentencing considerations of just punishment and denunciation.
92Relying on the opinion of Mr Armstrong, your counsel pointed to the impairment of your ability to exercise proper judgment and make calm and rational choices or think clearly. Mr Armstrong noted this innate impairment was worsened at the state of the offences by your anxiolytic intoxication. Disregarding the heightened effects caused by your anxiolytic intoxication, there is merit in the submission, justifying a moderate effect on sentence.
93Your counsel relied upon the second limb stated in Verdins where the court said impaired mental functioning could have a bearing on the kind of sentence imposed and the conditions in which it was served.
94Again, your counsel relied on the opinion of Mr Armstrong. Owing to the insight you showed by realising you have a significant personality disturbance, he considers you may respond well to intensive, long-term treatment. The length of this intensive treatment would be one to two years. The submission has merit and, subject to other considerations, could be reflected in the length of the head sentence and the non-parole period.
95Finally, in relation to Verdins, your counsel relied upon limbs three and four.
96The former concerns general deterrence. The purpose of general deterrence as a sentencing purpose is to deter other persons from committing the same or similar offences to those which you have committed. To be effective as a deterrence, there must be a similarity between you and other persons sufficient for those persons to identify with you and learn from the sentence imposed on you. Many people who are sentenced for serious criminal offences have dysfunctional childhoods which leave them scarred. However, your personality disorder has left you significantly disturbed. This would reduce the degree of identification with you by other persons and moderate the sentence accordingly.
97Limb four deals with specific deterrence, which is the deterrent effect of my sentences upon you. Although your personality disorder affected your behaviour, I do not consider it works to moderate my sentences in this respect. My sentence should have the effect of persuading you from acting on your perception of the need to protect certain others as you did with Ms Ciancio.
98In relation to you, Ms Ciancio, you rely on limb five. Your impaired mental functioning could mean a sentence of imprisonment would weigh more heavily on you than a normal prisoner. Based on Dr Walton’s opinion of the likelihood of a worsening of your states of anxiety and depression, that would be so. It points against a sentence of imprisonment.
Family responsibilities
99
Ms Ciancio, you are in an unusual position. You are the sole carer for Rochelle. There are no other persons in your wider family who can care for her. Rather than see her in foster care, you have assumed responsibility for her care for the last five or so years. Judging from the material, you have done a good job. Your imprisonment would result in Rochelle going into foster care. That would be hard for her after all these years of your care following a traumatic earlier life. An indication of how hard it would be, emerges from the report of
Pamela Matthews, a forensic psychologist.[14] On pages five and six6 of her report,
Ms Mathews says:
‘Rochelle presents with a very difficult developmental history marked by exposure to family violence, physical, verbal and sexual abuse in the home with her mother; a place she is meant to feel safe. Her mother’s poor mental health and transient, disorganised lifestyle has meant that Rochelle has never experienced a stable nurturing parent -child relationship or a stable secure home, until she came into the care of her siter Tiffany approximately four to five years ago.’
[14] Report dated 23 November 2021.
100After noting that childhood exposure to family dysfunction and abuse causes recognised psychological disorders including borderline personality and post-traumatic stress disorders and the supports offered by Ms Ciancio, Ms Mathews concluded:
‘It is the writer’s view that to give this young woman Rochelle a better chance at life than her sister Tiffany Ciancio it is imperative that Rochelle is not be separated from her primary care giver who is Tiffany Ciancio. The adverse consequences of such a separation are developmentally, psychologically and psychiatrically too significant to consider.’
101In light of that opinion, the hardship caused to Rochelle by the imprisoning of Ms Ciancio is exceptional. The hardship it would cause would be so severe that it becomes a very important sentencing consideration.
Prospects of Rehabilitation
102I would not describe either of you as being of good character before the commission of these offences. Your character is not just a function of your criminal history for it also includes your admitted use of drugs. While previous good character is a mitigatory factor, in your respective cases, it is a neutral factor. Your respective characters have no effect on the sentences I will impose.
103As to your prospects of rehabilitation, Mr Whitham, Mr Armstrong identified your insight into your significant personality disturbance. You are remorseful for your actions. There is a determination to change with the help of appropriate treatment. I consider your prospects of rehabilitation are good.
104With you, Ms Ciancio, I note the Corrections’ assessment places you at a high risk of re-offending according to its risk assessment tool. I also consider you are remorseful and are determined not to re-offend. You have the incentive of the responsibility for caring for your sister. I also consider your prospects of rehabilitation are good.
105In reaching the conclusions about your respective prospects of rehabilitation, I am uninfluenced by your ages. My assessment is based on other factors.
Sentence
106Mr Whitham, I will sentence you as follows:
(a)
on Charge 1, the charge of aggravated home invasion, five years’
imprisonment.
(b) on Charge 2, the charge of using an unregistered general category handgun, two years’ imprisonment.
(c) on Charge 3, the charge of causing injury recklessly, two years’ imprisonment;
(d) on Charge 4, the charge of cultivation of a narcotic plant, one year imprisonment.
(e) on the charge of possession of a drug of dependence – convicted and discharged. Seems to me imposing a penalty would serve - appropriate penalty would serve no useful purpose.
(f) on the summary charge of committing an indictable offence while on bail, one month imprisonment.
107The sentence on Charge 1 is the base sentence. Six months of the sentence on Charge 3 and three months of the sentence on Charge 4 will be served cumulatively upon the base sentence and themselves. The other sentences will be served concurrently. The total effective sentence is five years and nine months’ imprisonment. I will set a non-parole period of three years’ imprisonment.
108Excluding today, I declare the 356 days of your pre-sentence detention as the period of imprisonment already served under my sentences.
109Ms Ciancio, subject to your consent, I will sentence you to a Community Correction Order of 18 months’ duration with these conditions:
(a)
you are supervised, monitored and managed as directed by the
Secretary;
(b) you undergo assessment and treatment (including testing) for drug abuse or dependency;
(c) you undergo assessment and treatment (including testing) for alcohol abuse and dependency;
(d) you undergo any mental health assessment and treatment;
(e) you undertake programmes which address your offending behaviour; and
(f) you perform 100 hours of unpaid community work over the period of the order.
110I will direct that all of the hours undertaken satisfactorily for treatment and rehabilitation are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition.
Section 6AAA Declaration
111Mr Whitham, absent your pleas of guilty, I would have sentenced you to a total effective sentence of eight years’ imprisonment with a non-parole period of five and a half years’ imprisonment.
112Ms Ciancio, also absent your plea of guilty, I would have sentenced you to six months’ imprisonment together with the community correction order of the same duration and with the same conditions.
Parity
113Finally, there is an obvious difference in the sentences I have imposed on both of you. The reasons are also obvious. Apart from the different nature of the charges, and the sentencing requirements of the charge of aggravated home invasion, there is the difference of Ms Ciancio’s responsibility for caring for Rochelle, which has weighed heavily in my sentencing.
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