Director of Public Prosecutions v Costantini

[2019] VCC 758

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-02290
CR 18-02310

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRAYDEN COSTANTINI
LEO HOCKING

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JUDGE:	HIS HONOUR JUDGE O'CONNELL
WHERE HELD:	Melbourne
DATE OF HEARING:	26 April 2019
DATE OF SENTENCE:	23 May 2019
CASE MAY BE CITED AS:	DPP v Costantini & Ors
MEDIUM NEUTRAL CITATION:	[2019] VCC 758

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Intentionally damaging property; burglary; Early plea of guilty; Denunciation; Circumstances of offender’s materially different; One youthful offender with limited prior criminal history; One mature offender with extensive prior relevant criminal history and subsequent offending.  

Cases Cited:  DPP v Shoan [2007] VSCA 220
Sentence:  18 month Community Correction Order (Costantini)
  42 month Community Correction Order (Hocking)

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D Guesdon	Office of Public Prosecutions
For Accused Costantini	Ms M Walker	Melinda Walker Criminal Law
For Accused Hocking	Ms K Webster	Rainer Martini & Associates

HIS HONOUR: 

1Brayden Costantini, you have pleaded guilty to 39 charges of intentionally damaging property and one charge of burglary with intent to cause damage.

2You have also pleaded guilty to 39 related summary offences of trespass under the Transport (Compliance and Miscellaneous) Act 1983 (Vic).

3Each of those summary offences relate to the acts of trespass committed in order to commit the substantive charges of criminal damage.  In essence, the nature of your offending involved making graffiti on train carriages on numerous occasions, between 29 September 2017 and 1 July 2018. 

4Leo Hocking, you have pleaded guilty to 78 charges of intentionally damaging property and one charge of burglary with intent to damage. 

5You have also pleaded guilty to 78 related summary offences of trespass, which occurred in the course of committing the 78 acts of criminal damage.  Similarly, your offending involved making graffiti on train carriages on multiple occasions, although you did so over a lengthy period, being 15 July 2017 to 22 July 2018.

6Ms Guesdon, who appeared on behalf of the prosecution, tendered a Summary of Prosecution Opening in respect of each of you, which summarised your offending in detail.  In substance, that offending involved the following. 

7You both committed these offences at railway sidings all over metropolitan and suburban Melbourne.  The offending was characterised by the following features.  You each would target trains which were stabled in railway sidings.  You each would often cover your faces in an attempt to avoid detection on cameras.  You each would gain access to the carriage by either jumping fences, cutting through fences, or using PTV access keys to gain access through locked gates.

8Once inside, you would both spray paint the exterior of the trains.  You would carry out these offences, often in the company of each other or others, who were also making graffiti on trains, and you, or others, would take photographs and video recordings of your work.  Photographs were tendered on the plea, which show the nature of the damage caused.  The type of graffiti involved, spray painting tags, which varied in size of approximately two to six metres in width and approximately one to 1.2 metres in height.  You, Costantini, used the tags 'TINR', 'PRIME', 'RNIT' and 'PR'.  You, Hocking, used the tags, 'ROKS', 'GURLS', 'FOKS', 'FUNKS' and 'FUN'. 

9Your involvement in this offending came to light after an off-duty police officer located a bag containing cameras with recordings of you both committing some of these offences.  Further evidence was obtained after a Protected Services Officer located a backpack at Belgrave Railway Station in December 2017 which contained gloves, a facemask, spray cans and an action camera.  Again, the footage on the camera showed you both committing some of these offences.  Eventually, search warrants were executed at each of your residences and police seized hard drives, mobile phones and SD cards.

10After analysis of these devices, investigators extracted hundreds of images, video recordings, phone call records and messages relating to the commission and planning of these offences.  A large number of aerosol paint cans photographs, sketch books, clothing worn during the offences and PTV access keys, which can open all railway siding gates, were also seized.

11As to the burglary charge which constitutes Charge 5 in respect of you, Costantini and Charge 22 in respect of you, Hocking. You both attended the premises of the company known as Bombardier Transportation at 35 Frankston Dandenong Road in Dandenong South.  You gained access to that property by cutting through a cyclone wire fence.  You then cut sheet metal away to gain access to one of the sheds.  Once you got inside, you both made graffiti on the exterior of a V-Line train carriage.

12As to you, Costantini, the total cost of the damage you caused to Metro Trains, was put by the prosecution at $9,636.77.  And the damage to Bombardier Transportation caused by you was $704. 

13As to you, Hocking, the total cost of the damage you caused to Metro Trains was $21,799.20 and to Bombardier Transportation, $1,408. 

14You were both arrested on 27 July 2018.  You, Costantini made extensive admissions including identifying your graffiti from photographs in the possession of investigators.  You, Hocking, made partial admissions and admitted you were the author of the tag 'GURLS'.  You said you take paint and gloves to the sites in your car and you identified your car from CCTV footage entering the car park of one of the railway sidings.

15Importantly the prosecution accepted that you both pleaded guilty to these charges at the earliest opportunity.  I should make it clear now that by entering your plea, at that time, you have substantially reduced the sentence that you would otherwise have received.

Personal circumstances – Brayden Costantini

16Turning then to the personal circumstances of you, Brayden Costantini.  You were born on 20 October 1998.  You were 18 - 19 years of age during the time of your offending.  You are now 20 years of age.  You have no prior convictions and I was told that since you were bailed in respect of these matters, you have not re-offended.  You are supported in court by your mother, your father, your step-mother and your sister.  Each of whom provided personal references which I have taken into account.

17From their different perspectives, they describe the difficulties you experienced during your adolescence and how you now appear to have changed and matured for the better.  You also wrote a letter which was tendered, which speaks of your determination to keep out of trouble in the future. 

18Your legal representative, Ms Walker, explained that you had been deeply affected by the separation of your parents when you were 12 years of age.  Until that time, you had been brought up in a loving environment.  You had attended a good school and had excelled at soccer.  After the separation, you had to change schools, move home, and according to your mother, became quite introverted and rebellious. 

19Your performance at school deteriorated and you ultimately left Diamond Valley College at the end of Year 11.

20It appears that you also engaged in the abuse of cannabis, prescription medication and MDMA.  Fortunately, your uncle, who is a director of his own concreting company, took you on as an employee.  Although at times, you struggled for reasons I will come to shortly, you have nonetheless continuously worked for him for four and a half years. In his reference to the court, your uncle describes you now as a different person.  Excelling at your work, such that you have proved yourself to be an asset to his company.

21At times when you were a little younger, your mental health was of such concern to your mother that she sought help for you by taking you to see a psychologist. You commenced counselling with that psychologist in April 2017, but ceased seeing her before your offending.  Ms Pacyga, a consultant psychologist in a brief report of 17 October 2018, confirmed that you attended with her for 11 consultations and received treatment for substance abuse, which she suggested was precipitated by the shock of your parents' separation and sustained by your choice of peer group.

22However, as I have indicated, the tenor of the references provided is that you have matured and become much more settled in recent times.  You do not appear now to be abusing drugs.  You have not re-offended, you have complied with your bail conditions and you remain in full time employment. 

23Ms Walker submitted that you were still only 20 years of age and that in sentencing you, I should emphasize your rehabilitation for which you have good prospects. She submitted that an appropriate disposition and those circumstances should mean that you be placed on a community corrections order. 

Personal Circumstances – Leo Hocking

24Turning to you, Mr Hocking.  You were born on 23 December 1982.  You are now 36 years of age.  You were 34 or 35 at the time of the commission of these offences.  You do have a relevant prior and subsequent criminal history to which I will refer shortly.  Your upbringing was very difficult.  Both of your parents abused alcohol and drugs

25Your father would regularly drink heavily and subject you and your mother to serious family violence.  Your parents separated when you were about 13.  Until that time, you had lived with your family in Sydney, however, after the separation, your mother relocated to Melbourne and, for some time thereafter, you went back and forth between those households. 

26You have three siblings, one of whom you remain in contact with.  He lives in Horsham and is prepared to employ you in his tiny business if that becomes practical.  Your education was fragmented, in that you attended a number of different schools in the wake of the instability associated with the break-up of your family.  You were expelled a number of times and ultimately left half-way through year 10. 

27Your employment history, however, is much more solid.  For about four or five years until early 2012, you worked with your father in sub-contracting positions, building and painting, film and television sets.  Unfortunately, he fell ill and ultimately died of cancer in 2013.  You were also the victim of a serious assault at about that time.

28In 2012 and 2013, you worked as a full time machine operator and supervisor at Speedpanel in Bayswater and for nearly three years, until December 2017, you were employed full time as a warehouse worker and supervisor at Tilly Soaps.  Until you were remanded in custody, on other offending on 5 December 2018, you were employed variously as a warehouse worker, a forklift driver and a machine operator.

29Having grown up in an environment in which drug abuse was normalised, it is no surprise you acquired a drug problem.  That was particularly so in respect of cannabis, but also involved heroin, amphetamine, cocaine and more recently, prescription drug abuse.  Your counsel, Ms Webster, made the point that despite your drug problem, you were still able to function and maintain employment. It appears that you have never engaged in any drug rehabilitation programs.

30You have a reasonably limited prior criminal history, most of which perhaps reflects your drug problem.  However, there were two matters of particular relevance.  The first relates to an appearance at Ringwood Magistrates' Court on 21 December 2006, where you were found guilty of two graffiti offences and convicted and fined $1,500.  The second related to a further appearance at Ringwood Magistrates' Court on 21 May 2012, where you were convicted of criminal damage, again, involving graffiti and fined $2,500.

31In addition to those matters, when you were arrested and charged in July 2018, you were bailed to appear at the Committal Mention proceedings in the Magistrates' Court on 8 November 2018.  On 10 November 2018 and 23 November 2018, you committed two further offences of criminal damage involving defacing train carriages with spray paint just as you had in respect of these matters.

32You also filmed that offending as was done in some instances here.  You were remanded in custody on those matters on 5 December 2018.  On 7 March 2019, you were sentenced at the Bendigo Magistrates' Court, in relation to those matters and the ancillary bail offences, to a total effective sentence of 92 days imprisonment. You had already served that sentence by way of pre-sentence detention so you were released immediately.  You have been at large awaiting sentence on these matters since 7 March 2019.

33Whilst you were in custody, you were assessed by Mr Warren Simmons, psychologist.  He described you as a person who impressed as having average intelligence and as being insightful and articulate.  In his view, you exhibited symptoms consistent with diagnosis of post-traumatic stress disorder, which appeared to have its roots in your childhood experiences, where you were subjected to quite extensive violence.

34He links your offending behaviour to your attempts to manage your symptoms and emotional state. By using substances, and under their disinhibiting effect, it is said you engaged in making graffiti.  Ms Webster submitted that since your release, you have lived with your mother and that in that environment, you have shown that you can manage your drug issues.  You are involved in a stable relationship with Ms Melissa Keating, who was present in court and provided a supportive reference. 

35It was argued that, to the extent that a prison term was required, to personally deter you from further offending, you have already effectively served such a term.  Ms Webster called it a wake-up call.  Further imprisonment, she argued, should only be imposed as a last resort and, given your response to the prison sentence, the best way now to balance the competing sentencing purposes was to place you on a Community Corrections Order with both punitive and rehabilitative components.

Prosecution Submissions

36Turning to the prosecution submissions, Ms Guesdon pointed to the fact that whilst the damage caused to these trains was not permanent, it nonetheless effected the wider community because trains had to be taken out of service in order to restore them and that process was both inconvenient and costly to the public.

37She referred to the persistent nature of your offending, where multiple offences were committed on a regular basis and, to the fact that what was done was planned, purposeful, and recorded on camera.  When one took into account the scale of this offending overall, it was, as the prosecutor submitted, clearly serious.

38With respect to you, Costantini, the prosecution acknowledged your early plea, your youthfulness and your lack of prior convictions.  No issue was taken with the submission that you should be placed on a Community Corrections Order and that you should perform community work.

39With respect to you Hocking, it was submitted that the situation was quite different.  You were 35 years of age and old enough to know better when you committed these offences.  According to the prosecutor, you have relevant prior convictions.  You have subsequently offended, you have shown little remorse and have limited prospects of rehabilitation. 

40In those circumstances, it was submitted that you should serve a term of actual imprisonment in respect of these charges.

Analysis

41Turning to my consideration of these submissions, it is important that you both clearly understand that your offending, particularly having regard to its scale and its frequency, is very serious, and it is not simply to be dismissed as nuisance offending.

42Considerations relevant to the sentencing of graffiti offenders were canvassed in the decision of DPP v Shoan [2007] VSCA 220, to which Ms Guesdon referred, and I have taken that decision into account. I note, in passing, that the effective custodial sentence imposed in that case was a suspended sentence of three months, after 43 days was actually served, involving $53,000 in damage caused over a five-year period.

43Turning back, however, to these matters, defacing these train carriages in the way that you did has got nothing to do with artistic merit.  On the contrary, you persistently rendered important public assets ugly and for a time unusable.  Quite simply people are entitled to enjoy public transport and to take pride in their community without having to put up with this sort of vandalism.

44It follows that the sentences that I must now impose on each of you should denounce what you have done.  It should seek to deter you from engaging in this offending again and it should also seek to deter others from doing the same. 

45The first point to be made in sentencing you is that you will both be required to pay for the damage you have caused. I will order that you, Costantini, pay the sum of $9,636.77 to Metro Trains and $704 to Bombardier Transportation.  I will order that you, Hocking, pay to Metro Trains $21,799.20 and 14 - that is to Metro Trains - and $1,408 to Bombardier Transportation. 

46Turning then to sentence and dealing firstly with you, Mr Costantini.  Despite the seriousness of your offending, I am satisfied having regard to your age, your lack of prior convictions, your early plea, your developing maturity, your employment and the high level of family support that you enjoy, that it is appropriate to accede to your counsel's submission that you be placed on a Community Correction Order.  You have been assessed a being suitable for such an order and the report that I have received from the Office of Corrections is favourable.

47Provided you consent, you will therefore be placed on a Community Corrections Order for a period of 18 months, such order will be with conviction and it will be subject to the following conditions:

I.That you perform 200 hours of community work;

II.That you be subject to the supervision of community corrections;

III.That you undertake treatment and in respect of drug abuse and drug dependency;

IV.That you undertake treatment in respect of mental health;

V.That you must not contact or associate with the co-offender, Leo Hocking, for a period of 18 months; and

VI.Finally, you will be required to undergo judicial monitoring and must attend at this court on 27 November 2019 at 9.30 am to review your progress on that order.

48Now, in order for you to be placed on that order, Mr Costantini, you must consent to doing so and you must understand that if you commit an offence whilst you are subject to that order, or if you do not comply with the obligations and requirements of the order, or if you do not report to or receive visits from the Office of Corrections, or if you do not attend the two clear working days at the start of this order at the Office of Corrections, or if you do not let them know of your change of address or change of employment, or if you do not obey all lawful instructions, then you will be liable to be breached in respect of the order and you will be brought back before me and you would be liable to be re-sentenced on the original charges.

49First of all, Mr Costantini, do you understand what I have just said?

50OFFENDER COSTANTINI:  Yes, Your Honour.

51HIS HONOUR:  And do you understand that you will be re-sentenced in respect of these matters if you were to breach this order?

52OFFENDER COSTANTINI:  Yes, Your Honour.

53HIS HONOUR:  In those circumstances are you prepared to undertake - consent to undertake to do the order?

54OFFENDER COSTANTINI:  Yes, Your Honour.

55HIS HONOUR:  Yes, all right.  Take a seat for a moment, please.

56Turning now to the sentence to be imposed on you, Mr Hocking, I should indicate that, but for the fact that you have already served a term of imprisonment since the commission of these offences, I would not have had much difficulty in concluding that you should be imprisoned, so as at least in simple terms to teach you a lesson.

57As the prosecutor points out, unlike your co-offender, you are now a 36 year old repeat offender, who has committed almost double the number of offences. Your circumstances are therefore materially different to those of Mr Costantini. Your counsel suggests that you have now learned your lesson. I am not so sure about that, but I am mindful of the legislative command under s 5(3) of the Sentencing Act 1991 (Vic) but this court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed and the further requirement in s 5(4), that directs a court not to impose a sentence that involves the confinement of the offender unless it considers the purpose or purposes for which the sentence is imposed cannot be achieved by a sentence that does not involve the confinement of the offender.

58It follows from that, Mr Hocking, that you should not be imprisoned again if it is at all possible to impose a different sentence.  After carefully considering this matter, I have determined that it is possible to impose a different sentence to imprisonment.  But it will be a sentence that is designed to be onerous, that will substantially interfere with your liberty and it will involve you being supervised, not just by the Office of Corrections, but by this court as well. 

59You must understand that you should only consent to do this Community Corrections Order if you are prepared to comply with each of its conditions. Those conditions will be as follows:

I.You will be convicted and you will be placed on this order for a period of three years and six months.  That is 42 months;

II.It will require you to give back to the community by performing 440 hours of community work and although I cannot direct it, it would be fitting if that community work involved restoring public assets defaced by graffiti;

III.You will be required to undergo supervision from the Office of Corrections;

IV.You will be required to undertake treatment for drug abuse and treatment in the form of programs directed to reduce the prospect of reoffending;

V.There will be a non-association condition in that you must not contact or associate with Brayden Costantini for a period of 42 months; and

VI.You will be subject to judicial monitoring and accordingly, you will be required to attend back at this court for review on 2 December 2019 at 9.30 am.

60I intend, also, that you are to be subject to a curfew between the hours of 9 pm and 6 am for a period of six months.  However, I am told that the Office of Corrections will need to make some further assessments before that condition can be implemented.  But you should understand in determining whether you consent to this order that it is my intention that you will be subject to that curfew for a period of six months.

61Now, as I indicated to Mr Costantini, if you do not comply with those conditions Mr Hocking, you are liable to be charged with contravening the order and you would be brought back before me for re-sentencing on all of the original charges and if that were to happen, you would be liable to serve a significant term of imprisonment.  Now, would you stand up, please, Mr Hocking.

62You understand what has just been said?

63OFFENDER HOCKING:  Yes, I do, Your Honour.

64HIS HONOUR:  And if you undertake to perform this order, then you are undertaking to comply with all of those conditions including the conditions that I referred to earlier with Mr Costantini, with respect to complying with the directions of the Office of Corrections.

65Now, you have heard all of that, have you?

66OFFENDER HOCKING:  Yes.

67HIS HONOUR:  And the question for you is whether you are prepared to comply with that order?

68OFFENDER HOCKING:  Yes, I am, Your Honour.

69HIS HONOUR: Yes, very well. Take a seat, please. I will make declarations pursuant to s.6AAA of the Sentencing Act as follows.  With respect to Costantini, but for his plea of guilty, I would have sentenced him to a total effective sentence of 12 months' imprisonment.  With respect to Mr Hocking, but for his plea of guilty, I would have sentenced him to a total effective sentence of two years with a non-parole period of 15 months. 

70Counsel, the orders that I have made with respect to the Community Corrections Order, will be handed to you and you can provide them to your clients for the purposes of signing.  

71MS WEBSTER:  That order's been signed by Mr Hocking, Your Honour.

72HIS HONOUR:  Thanks, Ms Webster.  

73MS WALKER:  Mr Costantini has also signed, Your Honour.

74HIS HONOUR:  Thank you, Ms Walker.  I have signed the forfeiture and disposal orders, Ms Dunbar.  Counsel, there is an extant 464ZF application in respect of both offenders.  Is there anything to say with respect to that?

75MS WEBSTER:  Mr Hocking does not oppose that order, Your Honour.

76HIS HONOUR:  Thanks, Ms Webster.

77MS WALKER:  That is also my client, too.

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