Director of Public Prosecutions v Coppolino
[2023] VCC 155
•24 January 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-22-01074
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANDREW COPPOLINO |
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| JUDGE: | HIS HONOUR JUDGE HIGHAM |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 9 January 2023; 24 March 2023; 4 August 2023; 23 November 2023; 8 December 2023; 19 January 2024. |
| DATE OF SENTENCE: | 24 January 2024 |
| CASE MAY BE CITED AS: | DPP v Coppolino |
| MEDIUM NEUTRAL CITATION: | [2023] VCC 155 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Aggravated burglary reckless as to whether person present – theft of vehicle – arson of vehicle – arson of hedge – arson of house - plea of guilty.
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited: -
Sentence:Total Effective Sentence 3 years; Non-Parole Period 1 year and 10 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Angela LIANTZAKIS | Office of Public Prosecutions |
| For the Accused | Laura BUCKBY | Slink & Keating |
HIS HONOUR:
1Andrew Coppolino you have pleaded guilty to:
· two charges of aggravated burglary (Charges 1 and 5), for which the maximum penalty is 25 years’ imprisonment;
· one charge of theft (Charge 2), for which the maximum penalty is 10 years’ imprisonment; and
· four charges of arson (Charges 3, 4, 6 and 7), for each of which the maximum penalty is a term of imprisonment of 15 years’ imprisonment.
2Exhibit 1 on the Plea was a Summary of Prosecution Opening which set out the agreed facts of your offending. In brief, the circumstances of your offending were as follows.
3On 17 February 2022 at approximately 11:30 PM, you parked your silver Alfa Romeo on Bergins Road, Rowville, and walked to The Waverley Country Club (WCC), a retirement village, at Bergins Road. You climbed the metal boundary fence and forced entry into the main building through a side door using a small wooden-handled pick. There were six elderly residents asleep in the main building at that time (Charge 1).
4You ransacked the bar, service desk and administration areas. You attempted, unsuccessfully, to access a small safe using the pick. You then broke into a key safe and removed the key to a white Toyota Hilux Utility vehicle, the WCC’s maintenance vehicle. You walked outside, got into the Hilux, and drove through the automatically activated exit gate (Charge 2). Your departure was captured on CCTV.
5Later that same night, at approximately 12:09 AM 18th February 2022, you rang the doorbell of a nearby property at Bergins Road, Rowville, before leaving the property. At approximately 1:30 AM, you parked the WCC’s Hilux vehicle on the nature strip of Bergins Road and lit a fire in the centre console before leaving (Charge 3). A short time later, Fire Rescue and Police arrived and extinguished the fire and photographed the scene. Police later confirmed the Hilux vehicle was stolen from the WCC.
6Then at approximately 2:00 AM, you set fire to the front yard hedge of a property on Bergins Road (Charge 4) and then left the property. Emergency services attended to extinguish the fire. You remained in the area of both fires for several minutes, driving in and out of Streeton and Village Courts in your Alfa Romeo.
7At approximately 3:14 AM, you parked on Garnett Road, Wheelers Hill, and walked to the house at Garnett Road. Denzil and Sheila Symms were asleep inside. You forced entry into the garage through a side window and set a fire near the front left side of the SYMMS’s Mercedes C Class vehicle parked inside (Charge 6).
8You then took a jerry can of petrol and left the garage through the same window that you had used to enter (Charge 5). The Symms were woken by the sound of popping and the smoke detector being activated. Realising there was a fire in the garage, the SYMMS’s left the house and went next door where they called emergency services. Within 10 minutes, the fire had spread from the garage to the house. An estimate of the fire damage caused to the property and vehicle was $256,640.
9Meanwhile, you walked to Mulgrave Reserve and, using the petrol from the jerry can, you ignited a fire in the bushland with the jerry can (Charge 7). You later discarded the jerry can on Ferntree Gully Road where it was located and seized by police.
10That evening at 5:45 pm, police attended your home and spoke to your parents, who advised that you were not home. At 7:05 pm 18 February 2022 you attended Knox Police Station in the company of your brother, where you were arrested.
11You participated in a record of interview, in which you stated that you had been in Endeavour Hills at a friend’s house the previous evening, that you did not remember what time you got home and that you had attended your brother’s old property on Bergins Road as you had forgotten he no longer lived there. You did not recall being “on anything”, but you had consumed alcohol which you knew you should not mix with your prescribed medication. You responded no comment to all allegations put to you, as of course you were entitled to do.
12You were remanded in custody where you remained until the 7th August 2023. I note that part of the delay prior to that date can be explained by your seeking to be placed upon a DATO, which application was later withdrawn.
13On 7 August 2023 sentence was deferred and you were bailed to attend a 16-week programme at The Cottage residential rehabilitation facility in Shepparton. You successfully completed the programme on 23 November 2023 and were bailed to your mother’s address pending the final determination of this matter.
14You were born in September 1981 and are now 42 years of age. You were 41 at the time of this offending. You are the youngest of three children with an older brother and sister. Due to your mother’s postnatal depression you were raised by your maternal grandparents until the age of five when you then returned to the care of your birth parents.
15You report a stable and loving childhood with no exposure to sexual or family violence, and positive relationships with your parents and siblings. Your father I note has recently passed away during your period on remand. None of your immediate family have had any interaction with the criminal justice system, nor experienced substance use issues. You attended local schools and, following VCE, enrolled in an IT course which you gave up after 18 months. You then worked in construction as a concreter for the next eight years until such time as your escalating drug use severely impacted your ability to maintain employment.
16You were introduced to methamphetamine in your late 20s, and quickly became dependent. Such dependence has set the subsequent course of your life. Unable to work, you would commit burglaries, primarily of commercial premises, and would typically steal computers and like items that were easy to sell so as to fund your drug use. Thus began a seemingly endless cycle of substance driven offending, imprisonment, release and almost immediate return to further substance driven offending. Since the age of 30 you have, in your own words, “been out of jail hardly nothing” a reference to the 11 years spent in custody.
17Your prior criminal history is consistent with such a narrative. In 2011, for offences including burglary and attempted burglary, theft, going equipped to steal and dealing with proceeds of crime you were sentenced to a term of imprisonment of 14 months. Since that time, you have received further prison sentences (both immediate and suspended) for like acquisitive offending, driving matters and bail offences. To date the longest prison sentence you have received is a term of 21 months imposed in September 2018. In October 2021, you were sentenced to an aggregate sentence of 15 months imprisonment for offending including stalking and contravening a family violence intervention order in relation to a former intimate partner (which offending you were dismissive of when questioned about (ex 9)). You had been back in the community for no more than a week before your arrest on these new matters.
18Also of significance is that 4 out of the 5 parole orders to which you were subject were cancelled due to on-order offending or other order non-compliance. In 2015 you were placed on a drug treatment order which order was cancelled due to on order offending. In 2021, your only CCO (imposed in 2018) was cancelled due to on order offending.
19Whilst of course you do not fall to be sentenced for matters in respect of which you have already been dealt with by the courts, your criminal history, and your response to community-based orders, does impact my assessment of the need in your case for specific deterrence, your prospects rehabilitation, your moral culpability, and the need to protect the community from you.
20As to your mental health and cognitive functioning, in 2013 you were assaulted when in custody, and since that time you have experienced depressed mood and indicators of cognitive impairment. I note from the material that there was also a suggestion of neurodevelopmental delay from childhood. In August 2021, you made a successful application to the National disability insurance scheme, due to an apparent acquired brain injury and learning disability (see Exhibit 7AC). However, despite engagement when in custody you have disengaged from the support when back in the community (Exhibit 5 AC).
21Exhibit 5AC was a neuropsychological report from Dr Harriet Downing, clinical neuropsychologist, dated 3rd January 2023. You told Dr Downing that you knew that this offending was “not acceptable” but that you were: “spontaneous. I don’t think before I do something… Thrill seeking – always been like that.” You also stated that you do “jail pretty easy”.
22Dr Downing assessed your full-scale IQ at 75, in the borderline range. She noted significant variability within some indices. Your immediate memory span was below expectation, and complex attention tasks ranged from the borderline to extremely low. She noted:
“his background is significant for long-standing emotional and social problems, mental health symptoms, (including those of anxiety and depression), significant substance use history, various head injuries and vascular risk factors.
Based on all available information, the aetiology of his information-processing inefficiencies may be multifactorial. There are various reports of long-standing behavioural and emotional problems, as well as various vascular risk factors (including prolonged use of amphetamines and cigarettes)….that pose a risk of structural or functional neurological abnormalities…… In addition there could be contributions to his current neuropsychological profile from acute mental health symptoms, such as those of anxiety. The likelihood of acquired brain injury from his head injury history is less convincing (although cannot be excluded entirely).”
23As to this offending, she stated:
“his cognition was likely acutely negatively impacted by his reported heavy intoxication with GHB. Further: I do not believe that there is a tangible connection between Mr Coppolino’s neuropsychological impairments and his offending. His offending appears much more likely to be related to the impactful reported acute substance use at the time, as well as the psychiatric/psychological factors relating to personality/pro criminal attitudes.
He reported poor memory for the offending behaviour, due to then acute substance use; and easily identified that substance use was a key factor that contributed to his actions. He articulated how the alleged offending would likely have affected victims and indicated that he was responsible and regretted his behaving. However, while he reported that arson related charges were”out of character” for him, in relation to general offending, he reported a long-standing history of impulsive, thrill seeking behaviour, without regard for consequences, despite knowing that it was wrong.”
24Exhibit 9 was a court ordered report from Prof Michael Daffern Principal Clinical Psychologist, Forensicare, dated 20 February 2023, intended to assess any neurocognitive origin for your lack of recall of this offending.
25You provided to Prof Daffern an extremely limited account of the index offending, recalling nothing:
“other than consuming alcohol and drugs with his friend prior to the offending, and a vague memory of jumping a fence before being woken in your car.”
26You also reported a vague account of auditory and visual hallucinations on the night of the offending. You attributed these unusual experiences to the use of GHB, which you claim to have not taken prior to this night (despite a prior conviction for possession of GHB).
27You had no recollection of breaking into the retirement village (Charge 1), stating you had no animosity towards old people. You could not recall stealing the car from the retirement village (Charge 2) and did not know why you had set fire to the tree on the road (Charge 4). You had no explanation for why you targeted the Symms’ home on Garnet Road (Charges 5 and 6), nor why you set a fire:
“I don’t know how to explain it. I’ve got no idea. It’s not me; I don’t do this. It’s out of my character.”
28You did not know the elderly residents of the house and had no issue with luxury cars. You also had no recollection of attending the Mulgrave reserve and setting the final fire.
29In response to the three questions asked by the court professor Daffern stated as follows:
“the memory problems related to his offending are, in my opinion, most likely a consequence of his overall poor memory, intoxication with alcohol and other drugs, and the impact of what appears to have been a brief acute drug induced experience of psychosis.
It seems reasonable to speculate that he was intoxicated and therefore disinhibited, and impulsively broke into the retirement village to obtain cash or property that he might sell. It seems likely that whatever he was motivated to use a stolen car to do justified his need to steal the car, and that he then decided to set fire to the stolen car, most likely to destroy evidence.”
30As to future risk Professor Daffern opined:
“unless his propensity for and dependence upon methamphetamine can be arrested, it is likely that he will remain a high risk of relapse to drug use and associated acquisitive offending. Since there is no evidence of prior fascination with fire or fire setting and because the index fire safety appears to have been unusual and associated with intoxication and symptoms of psychotic illness, in my opinion the risk for future fire setting is relatively low.”
31Prof Daffern concluded with ongoing treatment recommendations both whilst you remain in custody and when back in the community.
32Both of your parents attended earlier hearings. Both suffered from serious health issues. During the course of your long remand your father passed away and you did not see him before his passing. This is a fact that weighs heavily upon you I accept.
33Exhibit 11AC was a report from Maria Hutchinson, addiction counsellor, and provided to the court in support of the application to be bailed to The Cottage, Shepparton, to undertake a 16-week residential program. To Ms Hutchinson you spoke of your motivation for change, and that with the passing away of your father you wanted to make different decisions, so that you can be a support for your mother. You told of your abstinence from drugs whilst in the prison environment, and recognised your need for more supervision when released into the community and to keep you from returning to the cycle of drug use and offending.
34You demonstrated a willingness to embrace a structured program of education and recovery support, and a desire to learn how to live a sober and clean life. Ms Hutchinson recommended your placement at the Cottage, to which I acceded.
35Exhibit 16AC was a report from Mr Aaron Gilhooly operations manager at The Cottage detailing in positive terms your progress over the 16-week programme. You regularly provided clear urine screens, thus building on your abstinence that you had maintained whilst in prison. He noted your ability to receive feedback – and to change your thinking and behaviour accordingly – and spoke in glowing terms of this achievement.
“Andrew is a valuable member of the community and has gained the respect of the other residents as well as staff for his willingness to change his life around and challenge his old beliefs and behaviours. Whilst we have had some issues with Andrew along the way (a reference to online gambling and misuse of your Lyrica prescription) I am pleased that he has finished the program and is able to return to his family a new and improved Andrew. Provided with the opportunity to turn around the trajectory of his life and create a new experience for himself and his family, Andrew has surrendered to the program of offer. Taking accountability for his actions and behaviours that has led him to his current situation, addressing his guilt and shame around the risks he has taken with his life and ultimately making efforts to heal and address his past trauma has been challenging but rewarding for Andrew…... He has been a genuine encouragement and advocate to and for others.”
36For completeness I was also provided with details of your current NDIS support package (Exhibit 18AC) and heard evidence from Aditya Sodhi who had responsibility for its implementation and provided me with a picture of what such support would consist (see Exhibit 19AC).
37Now Ms Lianzakis on behalf of the Director submitted that the only appropriate disposition was a head sentence with a non-parole period. No other disposition would sufficiently address all relevant sentencing purposes.
38Mr Blake on your behalf, conceded that this was serous offending warranting an immediate term of imprisonment. In mitigation of sentence he sought to rely upon:
· The fact that an offence of arson was for you, out of character, your prior offending consisting in the main of burglaries of factories and other commercial premises, typically stealing computers and other items that were easy to sell.
· Your plea of guilty.
· The particular utilitarian value of a plea during the time of the Covid pandemic and its administrative aftermath.
· The circumstances of your long remand much of which was under the restrictions imposed in consequence of the Covid pandemic.
· Evidence of genuine remorse and some demonstrated insight into your offending. In consequence there were grounds for some optimism as to your prospects for rehabilitation if you could refrain from further substance use.
· The well-established principles of proportionality and totality.
Mr Blake’s initial sentencing submission was that in light of the matters raised in mitigation a shorter non-parole period than normal would be appropriate. However, following your successful stay at the Cottage he submitted that your interests – and the community’s protection – would be best served by your being permitted to continue to remain in the community, receiving treatment and counselling. In support of this submission he relied upon:
· the NDIS package which you have now been awarded and the additional layer of community support that this would provide.
· Your assessed suitability for a CCO.
· the improved relationship with your mother with whom you had been living after your time at the Cottage.
39He thus urged a combination sentence comprising a term of imprisonment not exceeding the time already spent in custody and a suitable crafted CCO, submitting that such a disposition was capable of sufficiently addressing all relevant sentencing principles in your case.
40Ms Liantzakis on behalf of the Director repeated that such a disposition would not address all relevant sentencing purposes.
41Arson is always a serious offence. The offence of arson is one which carries significant dangers and risks, damaging property as well as placing the lives of individuals, in harm’s way. By its very nature it can engender alarm in the community. The damage resulting from the fire you set in the garage of the Symms home (Charge 6) starkly illustrates the point. Whilst you may not have intended the outcome, I have regard to the risk your actions presented. As your counsel conceded the impact of your offending upon your victims would have been significant, both emotionally and financially.
42The aggravated burglaries (Charges 1 and 5) were non-confrontational, and unsophisticated in execution, but occurred at night which makes it more likely that people will be at home in the residential premises that you enter. I accept your plea was entered on the basis of you being reckless in this regard. I further accept that you only entered the common parts of the retirement village (Charge 1) and the garage of the Symms home (Charge 5). Nonetheless the offence of aggravated burglary represents a violation of the private space of your victims as well as demonstrating a complete disregard for the property rights of others.
43The offending is completely without motive. Prof Daffern could only speculate as to why you set fire to the Hilux. None of your ventured explanations are persuasive. Prof Daffern could find no animosity towards older people nor any resentment towards luxury cars. You told Prof Daffern that you had no recollection of breaking into the retirement village (Charge 1) and had no connection with it. You could not recall stealing the Hilux, (Charge 2) nor setting fire to it (Charge 3). Indeed, you were perplexed. You could not explain why you took the vehicle – having your own car with you on the night in question – and could advance no reason as to why you would set it on fire unless it was to destroy evidence.
44You were familiar with the Garnet Road area but did not know your victims, the Symms, nor the particular property. As Prof Daffern states: “it is unclear why he targeted this house (or indeed whether this particular house was chosen to break into and set a fire or whether he had attempted to break into other houses and entered this particular house because it was possible to do so)”. You reported that you were not prepared to break into properties that night as you didn’t have your usual tools with you. Of this offending (Charges 5 and 6) you said:
‘I don’t know how to explain it. I’ve got no idea. It’s not me; I don’t do this. It’s out of my character.’
45The property in Perkins Road (Charge 4) you identified as your brother’s old house which you would visit all the time when your brother lived there. Again, you reported no animosity towards your brother at this time. As to the setting of the fire at Mulgrave reserve (Charge 7), you had no recollection. You were familiar with the area, it having been a place of congregation in your youth. You suggested that in setting this final fire you were probably getting rid of the jerry can.
46This offending taken as a whole represents in my view a significant escalation in your criminal behaviour. The offending at the Garnet Road property (Charges 5 and 6) is clearly the most serious.
47The only conclusion as to your offending on this night is that it occurred in the context of your being severely substance affected. Beyond that must lie mere conjecture. The very absence of motive is in my view a concerning factor. That such offending should take place a week or less after you had returned to the community speaks volumes. Your moral culpability for the offending is in my view high.
General principles
48Mr Coppolino in sentencing you I must have regard to a range of different factors. I must give effect to the principal of general deterrence that is, to deter others from behaving as you did, and to specific deterrence, that is to deter you from ever repeating such offending. I must consider the need to protect the community. I must express the community’s denunciation of your conduct. I must take into account the effect of your crimes upon the community. I must have regard to current sentencing practices and the statutory maximum penalties for the offences to which you have pleaded guilty. I must ensure as far as possible that you are rehabilitated and reintegrated into society. In short, I must try to balance your personal circumstances with the circumstances of your offending. I must also pass no greater sentence than is necessary in all the circumstances of the case as I find them to be.
49Clearly sentencing purposes of general and specific deterrence just punishment denunciation and protection of the community are all highly relevant sentencing purposes in your case. The need for specific deterrence and community protection loom large indeed. See also s 6D and 6E of the Sentencing Act 1991 (Vic).
50I have had regard to all matters urged upon me by your counsel. For the avoidance of doubt, I have had regard to:
· Your plea of guilty.
· The particular utilitarian value of a plea during the Covid pandemic and its administrative aftermath.
· The circumstances of your long remand much of which was under the restrictions imposed in consequence of the Covid pandemic. Further restrictions of liberty, interruptions of family visits, greater lockdowns, lack of agency, lack of opportunities to programs and concerns both for one’s own house and that of loved ones have all been part of life in custody during the pandemic.
· The partial insight you demonstrate into your offending. In consequence there are grounds for some optimism as to your prospects for rehabilitation if you could refrain from further substance use.
· The successful completion of The Cottage residential programme.
· The NDIS support that you have in the community.
· The apparent resetting of your relationship with you mother.
· The prospect of employment.
· Your prospects of rehabilitation – for which they may be grounds for optimism should you be able to build upon your progress and maintain abstinence from drugs.
51However, in my view the objective gravity of the offending and relevant sentencing purposes do not permit of the disposition sought by your counsel Mr Blake. I will however set a shorter than normal non-parole period so that should you be granted parole, you will have the benefit of that additional support in a sustained transition back into the community.
52On Charge 1, you are sentenced to a term of imprisonment of 13 months.
53On Charge 2, you are sentenced to a term of imprisonment of 5 months.
54On Charge 3, you are sentenced to a term of imprisonment of 6 months.
55On Charge 4, you are sentenced to a term of imprisonment of 6 months.
56On Charge 5, you are sentenced to a term of imprisonment of 12 months.
57On Charge 6, you are sentenced to a term of imprisonment of 22 months.
58On Charge 7 you are sentenced to a term of imprisonment of 5 months.
59I order 3 months of sentence on Charge 1, 1 month of sentence on Charge 2, 2 months of sentence on Charge 3, 2 months of sentence on Charge 4, 4 months of sentence on Charge 5 and 2 months of sentence on Charge 7 run cumulative to each other and cumulative to the sentence on Charge 6. So that means a total effective sentence of 36 months, and I set a non-parole period of 22 months.
60On Charges 4, 6 and 7 you are sentenced as a serious arson offender, and I direct that this be entered into the records of the court.
61I declare that you have served 535 days of the sentence that I have passed upon you and direct that this be entered into the records of the court.
62Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), had you not pleaded guilty you would have been sentenced to a TSE of 4 years and 8 months with a non-parole period of 3 years and 4 months.
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