Director of Public Prosecutions v Cini

[2024] VCC 1443

IN THE COUNTY COURT OF VICTORIA

Revised

(Not) Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 24-00557

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANDREW CINI

---

JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:	17 July 2024
DATE OF SENTENCE:	13 September 2024
CASE MAY BE CITED AS:	DPP v Cini
MEDIUM NEUTRAL CITATION:	[2024] VCC 1443

REASONS FOR SENTENCE

---

Subject: Aggravated burglary, theft, possession of a drug of dependence and drive whilst disqualified

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:Total effective sentence of five years and six months with a non-parole of three years eight months

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. McCarthy	Office of Public Prosecutions
For the Accused	Mr O. Smith	Nelson Brown Legal

HER HONOUR: 

1Andrew Cini, you have pleaded guilty to the following offences – aggravated burglary, theft and possession of a drug of dependence.  You have also agreed to have dealt with by me, and pleaded guilty to, the summary offence of driving whilst disqualified. 

2The maximum penalties for these offences are 25 years, 10 years and one year respectively.  For the summary offence it is two years or 240 penalty units with a discretion regarding licence disqualification.

3The circumstances of your offending are set out in the Summary for Prosecution Opening dated 2 July 2024 (Exhibit A) and can be summarised as follows:

4You, together with your co-accused Steven Cachia and Barbara Babic concocted a plan to steal money from the Golden Fleece Hotel. (the hotel).  I was informed that they have both pleaded not guilty in respect of their involvement.

5The plan was to stage an armed robbery of the hotel – you played the role of the 'armed robber', Cachia assisted you to gain entry to the hotel after hours and Babic (a hotel employee) used her inside knowledge of the hotel to plan the 'armed robbery' posing as the fake victim.  The 'armed robbery' occurred on 12 October 2023 and $321,990 cash was stolen.

6Babic was employed at the hotel from January 2022.  In July 2023, she was a gaming supervisor primarily working night shifts.  Babic and Cachia were in an intimate relationship at the time of the offending.

7There were in place particular security measures at the hotel relating to:

·the proper processes when taking money out of machines,

·the number of employees in the gaming room,

·the accessibility of exits to the hotel at different operational hours,

·cash clearance timing and procedures from machines,

·use of the hotel strong room and procedures for counting cash, and

·security cameras positioned in various places at the hotel as indicated in a map that was only accessible to supervisors and managers.

8Babic withdrew an excess amount of cash, including a large sum of $10 notes which she put in the strong room, and she also told the security guard he could go home.  In the early hours of the morning of 12 October 2023, as captured on CCTV footage:

i.you hid in an alcove / window recess outside the hotel entrance for approximately 10 minutes;

ii.you were called by Cachia (see phone records) from within the hotel and he then exited the hotel near where you were positioned;

iii.you then entered the hotel armed with a taser.  Once inside the hotel, you entered the dining area, then a storage room where you remained for about an hour, before you went to the strong room which was opened by BABIC.

9You holding the taser, were then assisted by Babic to place large amounts of cash into a blue duffle style bag.  You tied up Babic’s hands with cable ties then exited the hotel running across Smith Street.  Babic immediately freed herself from the cable ties, exited the strong room and pressed a red alarm button in another part of the hotel.  The cable ties were located in a bin in the bar area of the hotel.  The cable ties were not broken but had been 'slipped off'.

10$321,990 cash was stolen.  Police arrived at the hotel at approximately 6:00 am and discovered that the offending had been captured on CCTV.  Event based monitoring also placed Cachia’s phone in the vicinity of the hotel at the time of the offending – a hotel employee also saw him at the hotel in the early hours of the morning, at the relevant time.   

11At approximately 8:14 am you were captured on CCTV at Crown Casino in Melbourne wearing some of the same clothing you were wearing when you committed the offences at the hotel.  You are depicted depositing cash into gaming machines and cashing in a ticket, receiving $1,002. The prosecution case is you used money stolen from the hotel at the Casino.

12On 1 November 2023, your car was intercepted by police – you were arrested and a plastic zip-lock bag with a small amount of a white crystal substance, which was found later and analysed to be cocaine.  At the time you were disqualified from driving (Summary offence)

13Items were seized by police from your home including clothing that you can be seen to be wearing on the CCTV from the hotel, and a 2023 planner, in a backpack in your bedroom, which contained pages with information relevant to the hotel and the armed robbery. 

Record of interview

14You were interviewed by police and:

·You maintained that you had heard about the armed robbery at the hotel but did not know much about it. You admitted that you had attended the hotel at other times but you could not remember the last time you were there.  You said you could not recall where you were the night of the offending, but you could have been at home;

·You said you had won $13,000 at the Ashley Hotel probably two weeks prior and used that money to buy the Holden Commodore in which you were arrested that morning.  You went to Crown Casino on 12 October 'for something to do' and had gone back there two or three times. 

·You maintained that on 12 October you went to a Gary Hope’s house on your bike – that it would have been early.  You said you dropped off Cachia then went to Crown for a couple of hours then took the train home.

·You maintained that the bag you threw in the bin on the way into Crown was 'just rubbish' (Q284) and that you sometimes went to the club with Cachia – that you are friends but not much in contact anymore.

·When challenged by police that you were the person at the hotel in the CCTV, you denied involvement in the offending.  You could not explain why your phone was pinging at the hotel.

15You provided an explanation for your offending to a psychologist, Sandra Cokorilo, namely that you were provided information and instructions regarding the burglary by a man with whom you had not had contact before, and were threatened if you did not participate – that you were, as a consequence, fearful and played the role as you were directed.

Personal History

16I received a report from Psychologist Sandra Cokorilo dated 10 June 2024 (Exhibit 1).  She also gave evidence and was cross examined on the plea hearing.

17You are currently aged 57.  You were born and raised in the Deer Park/St Albans area by both your parents and are the second youngest of a sibship of seven children.  All except one of your siblings are deceased, as are your parents.  You reported to Ms Cokorilo that you had a difficult relationship with your parents with you being subjected to physical violence, purportedly discipline, at the hands of your father.  Your mother was supportive of your father.

18You do not currently have a partner.  You have one adult child from a past relationship and have limited contact with him. 

19You have a history of homelessness, though I understand that you have available to you accommodation, through a friend, when you are ultimately released.  There was confusion as to whether housing was available to you at the time of this offending or soon after it had occurred.  In any event you have experienced periods of homelessness and unstable living circumstances.

20You left school in about Year 9 though you had a reasonable employment history working as a welder and tanner after leaving school.  This remained the case until you reached your mid 20s and the business closed down.  Since that time, you have had various casual or seasonal jobs, both in Victoria and interstate, as a labourer, manufacturing garden hoses, a truck driver, and undertaking warehouse work.  You last worked in 2017 and have been in receipt of Centrelink benefits since.

21You are currently in reasonably good physical health.   

Drug and Alcohol

22You had significant issues with alcohol and cannabis use between the ages of 17-30.  Ms Cokorilo noted the link between your child maltreatment and early initiation of alcohol and substance use.  You commenced using amphetamines when you were about 28, using daily until 2009 when you met your most recent long-term partner.  I was informed that you were able to be remain abstinent with her support for some extended periods.  Unfortunately, you relapsed into methylamphetamine use when you commenced working in the trucking industry, where such drug use was rife.  You continued to use methamphetamine, up to 1 gram daily intravenously, until you were remanded in custody.    

23You have never received any sustained professional assistance or counselling with respect to your substance use issues.

Mental health

24As to your mental health, you described to Ms Cokorilo in suffering chronic anxiety, a tendency to catastrophise and you experiencing generalised worry since childhood.  You described panic, palpitations and disturbed sleep.  She noted that your childhood background, as reported to her, resulted in you experiencing high levels of anxiety and that your substance use was a means of dealing with these significant issues.  Ms Cokorilo diagnosed you with Generalised Anxiety Disorder (GAD) and Persistent and Major Depressive Disorder.  She indicated her opinion was based on information or personal history provided by you, in addition to relevant psychological testing utilised to corroborate her findings.  She opined that your GAD played a key role in your functioning at times preceding, during and after your offending and that your depression and other personality traits played a less significant role.  These matters were the subject of evidence including cross examination of Ms Cokorilo, with the prosecution challenging the link of your mental health to this offending, a matter to which I will return.

Prior Criminal History

25You have a number of relevant priors for dishonesty, driving and some drug offences – your offending commenced in 1997 and you have served numerous terms of imprisonment.  I accept that this is your first time before the Court for serious violent offending. 

26Between June 1996 and July 2006 you were sentenced on 16 occasions to periods of imprisonment.  I note that there are two periods where there is no offending, between 2006-2010 and 2010-2016.  Before this current period on remand your most recent incarceration was imposed in November 2017 for a period of nine months.  This offending occurred whilst you were on a community corrections order that had been imposed on 15 June 2022 for dishonesty offences. 

Current Custody

27I was informed that you have used your time on remand productively, working in manufacturing.  I was also informed you have limited contact with others, as you are held in protection due to a historical incident that occurred in custody.  As previously noted, you have no family contact.  

Plea of guilty

28You indicated an intention to plead guilty at an early stage.  Your plea has a utilitarian value and no witnesses were required to give evidence.  You have saved the cost to the community of a trial or court proceedings and have assisted in facilitating the course of justice.  Your plea is evidence of some remorse though your level of contrition is limited given the different accounts of your offending you provided to police and Ms Cokorilo, which included your reason for involvement, the plausibility of which she conceded she had not tested or challenged.   

Verdins

29Your counsel submitted that Verdins principles applied.  Ms Cokorilo opined that your unmanaged anxiety disorder or GAD would likely have impaired your ability to think clearly, respond calmly, and exercise appropriate judgement.   Your counsel, relying on that opinion, submitted that your mental impairment or GAD was independent in origin, and as such Verdins principles ought not be diminished.  On that basis it was submitted that you are less blameworthy for the offending as a result, and your moral culpability ought to be reduced, as should the role of general deterrence. It was conceded that specific deterrence remained relevant, though would be difficult to achieve, given your GAD and the lack of availability of suitable treatment in the prison environment. 

30The prosecution disputed the application of Verdins.  The thrust of the prosecution argument was that there was limited or no connection between your mental functioning, or more particularly GAD, with your involvement in this offending.  This was so, given your drug use at the time of the offending and the contribution the ingestion of substances made to your state at the time of your involvement.

31Ms Cokorilo acknowledged that your substance use and mental health issues were intertwined, but maintained that your GAD had been persistent since childhood and reportedly chronic until now, affecting your ability to think clearly preceding, during and post the offending.  Ms Cokorilo conceded that depression played a less significant role but maintained that GAD had a key role.  That given your history, your drug use, though it contributed to your functioning at the time of your offending, was not such to reduce the impact of your mental conditions and functioning to sever any connection between that and the offending. 

32Further, it was submitted that your conditions may make imprisonment more onerous for you.  In support of that submission, reference was made to Ms Cokorilo identifying the severe deterioration in your mental health after you were remanded, which included suicidal ideation and necessitated psychological intervention in late 2023 through to early 2024.  Additionally, she expressed concern that your continued incarceration may cause your already compromised mental health to further to deteriorate.   As such it was submitted that imprisonment would weigh more heavily upon you than it would upon a person in normal health, and that incarceration has had, and may continue to have a significantly adverse effect on your mental health such that the sentence imposed ought to be mitigated. 

33Owing to the effects of you suffering untreated mental conditions upon your judgment and decision-making capacity, operating at the time of the offending, I accept that your moral culpability is reduced and general deterrence moderated though both only to a limited extent.  This is so, recognising the complicated interaction with your drug use and mental functioning.  I also take into account the impact of your mental functioning on your period of time in custody and opinion regarding the likely deterioration of it in the prison environment.

Objective seriousness

34I accept that given the unusual nature of this offending, or that it involved an inside job, elements that usually exist in respect of such offending were not present, including significant fear and trauma in the victim and/or property damage.

35There were however other aggravating features.  A significant amount $321, 990 was stolen and only $27,179.50 has been recovered.

36You were on a community corrections order imposed by the Sunshine Magistrates Court on 15 June 2022 for offences including relating to dishonesty at the time of your involvement.

37You played the role of the 'armed robber', disguised and armed yourself, waited for the cash count to occur, took possession of the cash and removed the cash from the premises.  You clearly had familiarity with the premises and internal processes with cash and or security.  You were given and trusted with the map and other information that was found at your house in the diary or planner that contained detailed instructions. 

38You were essential to the plan and central to its success.  Clearly an individual with no connection to the hotel was required by Babic, who as a consequence of her significant breach of trust of her employer, was also a key player.

39As to your role, I accept that you were not the main instigator or involved to a significant degree in the planning, which must have been comprehensive and detailed though you were willing to be involved.  I was informed that you were to receive monetary reward for your participation.  Your counsel submitted you were expecting $50,000 reflective of your more limited role as a proportion of all the takings. 

40As indicated above, you told Ms Cokorilo and I was informed by your counsel, that you maintain you became involved in this offending as you had been threatened and you were fearful that if you did not comply with those instructions or directions, you would be harmed.  The prosecution submitted that there was no sound evidentiary basis to accept that submission as it was based on your own self report in relation to your role.  There was no evidence corroborating your self-report, the version of events relied upon by you were not raised by you in your record of interview, you have a history of dishonesty, and some of the other matters you raised with Ms Cokorilo were demonstrably false, such as your denial of the possession of the taser in the course of you attending the hotel.  There had not been a suggestion you were claiming duress as a defence.  I am not satisfied that you have established a sound evidentiary basis in respect of that matter in mitigation.  It would appear that you were motivated by financial reward. 

Rehabilitation prospects

41Given your extensive prior history, your counsel recognised your limited prospects of rehabilitation however he relied upon:

·The periods of time when you have been able to remain incident free as revealed in your criminal history, that you have accommodation available to you on release;

·That your prior history does not involve violent offending;

·Ms Cokorilo's assessment of you as a moderate risk in respect of general offending (see para 63) and low risk in relation to the future likelihood of you committing violent offences (see para 74);

·That you have involved yourself in employment in custody and have capacity to work;

·Ms Cokorilo's opinion that with adequate and targeted management of both your mental health and substance abuse problems, your prospects for rehabilitation are reasonable.

42I am not so optimistic.  I regard your prospects as guarded.  You have a significant criminal history involving dishonesty and drug offences.  You have spent a substantial period of time in custody, though admittedly you have had periods where you have remained out of trouble.  Your involvement in this incident is a step up in seriousness from the criminal activities in which you previously engaged.

43Clearly you have mental health and drug issues that need to be addressed and you will require assistance, engagement and supervision both in custody and in the community.

44I was provided with a Table of Comparative cases and though some of them are factually similar they are of limited assistance given the nature of this offending, the charges that you face, your role and personal circumstances including your prior history and rehabilitation prospects. 

Sentencing Principles

45Principles of general deterrence, just punishment and denunciation loom large in this sentencing exercise.  Given your significant prior history and commission of these offences whilst you were on a CCO, specific deterrence is also important.  You, together with Cachia and Babic, executed an audacious plan that involved staging an armed robbery.  You were provided with all the relevant information including essential and important security mechanisms and plans of the hotel.  You played a crucial role as the pretend robber and carried out the plan in accordance with instructions.  The amount of funds stolen, a significant amount, has not been recovered.  Your conduct must be denounced.  These considerations must be balanced against matters in your favour, including your plea of guilty and other matters personal to you.  

Sentencing submissions

46Both parties provided written sentencing submissions and ultimately submitted the only appropriate sentence was a term of imprisonment with a non-parole period.  If you could please stand up, Mr Cini.

47In respect of Charge 1, aggravated burglary, you are convicted and sentenced to a term of imprisonment of three years.

48In respect of Charge 2, theft, you are convicted and sentenced to a term of imprisonment of five years.

49In respect of Charge 3, possessing a drug of dependence, you are convicted and sentenced to a term of imprisonment of seven days.

50In respect of the summary offence, driving whilst disqualified, you are convicted and sentenced to a term of imprisonment of two months.

51Six months of the sentence imposed on Charge 1 will be cumulative on the sentence imposed on Charge 2, the base sentence of five years, giving a total effective sentence of five years and six months with a non-parole period set at three years eight months.

52Your licence will be cancelled and you are disqualified from obtaining a licence for a period of two years.

53Application was made for forfeiture of a number of items.  Initially that in respect of the mobile phone was disputed with defence counsel, though no further submissions were made. I propose to make the orders for forfeiture and disposal as requested by the prosecution.

54Pursuant to s6AAA of the Sentencing Act, if you had not pleaded guilty to this matter, I would have imposed a sentence of eight years with a non-parole period of six.

55What is the PSD please?

56MR McCARTHY:  Your Honour it is ‑ ‑ ‑

57MR SMITH:  317 days, Your Honour.

58HER HONOUR:  317?

59MR McCARTHY:  That's agreed, Your Honour.

60HER HONOUR:  Thank you.  I declare 317 days PSD.  Is there anything else?

61MR McCARTHY:  No, Your Honour.

62MR SMITH:  As the court please.

63HER HONOUR:  Thank you.

‑ ‑ ‑