Director of Public Prosecutions v Costanzo

[2023] VCC 517

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 22-00302

DIRECTOR OF PUBLIC PROSECUTIONS

v

DANIEL JOSEPH COSTANZO

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:	23 March 2023
DATE OF SENTENCE:	30 March 2023
CASE MAY BE CITED AS:	DPP v Costanzo
MEDIUM NEUTRAL CITATION:	[2023] VCC 517

REASONS FOR SENTENCE

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Subject: Aggravated burglary,  breach family violence order and commit an indictable offence whilst on bail. 

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. O'Toole	OPP
For the Accused	Mr J. Anderson	Emma Turnbull

HER HONOUR:

1Daniel Joseph Costanzo, after a sentence indication hearing you pleaded guilty to one count of aggravated burglary.  The maximum penalty for this offence is 10 years.  You also agreed to have dealt with by me and pleaded guilty to relevant summary offences of breaching a family violence order and committing an indictable offence whilst on bail.  The maximum penalty for these offences are two years and/or a fine of 240 penalty units and three months' imprisonment or a fine of 30 penalty units respectively.

2The circumstances of your offending are set out in the Summary of Prosecution Opening for Plea dated 23 March 2023, Exhibit A, and briefly are as follows.  On 4 March 2021 in the Melbourne Magistrates' Court granted a family violence intervention order to Ms Amelia Rowell[1], an ex-partner, against you.  There were various conditions on the order, including you do not have contact with her, you stay away from her house, you do not damage her property or commit violence against her.

[1] A pseudonym.

3At some time in the afternoon on 25 June 2021 you rang and spoke to her.  You went to her house at about half past 11 that night.  You knocked on the door and asked her for your phone and a smoke.  She was home alone and refused to open the door.  You left about 10 minutes later.

4Approximately 30 minutes later you re-attended and asked to go inside as it was raining and there were no trains running.  She refused again.  You became angry and screamed and yelled at her, alleging she was sleeping with another male.  You broke a window at her unit, causing lacerations to yourself.  You then went into the unit and sat on the bed.  You offered to pay for the repairs to the window, maintaining that it had been broken accidentally.

5Due to the noise a neighbour, Mr Mitchell, went to the unit and yelled at you to leave.  There had been a history of animosity between Mr Mitchell and Ms Rowell, such that there was a personal safety intervention order in place, preventing him attending her unit.  Ms Rowell had previously told you that
Mr Mitchell would terrorise her, threaten her, and that he was a peeping Tom.

6Mr Mitchell began stirring you and said that he was going to smash you.  You swore at him then turned to Mitchell and ran from Ms Rowell’s unit towards him.  He ran away from you, returning to his unit and attempted to lock the door before you could enter.  You kicked his door and forced your way inside his unit, intending to assault him and knowing he was inside the unit.  You were in the unit momentarily, then returned to Ms Rowell’s unit.

7At 12.05 am the police arrived and demanded you leave Ms Rowell’s unit.  You rushed towards police, who sprayed you with OC spray before being restrained, arrested and conveyed to hospital for treatment for your lacerations.  Police attended at Mr Mitchell's unit and obtained a swab of what appeared to be blood from inside the lounge.  Given your injuries from the broken glass you were bleeding.  A single source DNA profile was obtained then tested and linked to you.

8When you were discharged from hospital you were interviewed by police.  You admitted to contacting and attending Ms Rowell’s unit.  You maintained that you called Mr Mitchell a paedophile when he opened the door of his unit but denied entering the unit.  You said you abused Mr Mitchell then went back to Ms Rowell’s unit.

9At the time of the offending you were on bail, granted on 19 August 2021.

10I received a victim impact statement from Mr Mitchell, Exhibit B.  He indicated he was impacted physically and socially and that he was shaken up by the incident.

11As to your personal circumstances you are currently aged 36.  You grew up in Fawkner and have three brothers.  You stayed at school until you were about 15 years old, then worked at a car wash until you were 24.  You then worked as a car detailer until you were 27.  You have had issues with drugs for a long time, commencing when you were a teenager.  Those issues increased over the last period of 10 years or so and you have been unable to maintain employment in that time.

12You have also spent periods in custody in that time.  I was informed today that you had a period between January 2015 and April 2016 on remand.  That was really dead time in the sense that you were not convicted for any matters in relation to that time in custody.

13This offending occurred on the day you were released from custody, having received a time served sentence at court, on the same day you entered an undertaking to be of good behaviour for offences related to the family violence and assault.  You have prior convictions dating back to 2014, mainly for dishonesty, driving and drug offences.  You have received a variety of penalties including fines, community orders and short periods of imprisonment.  In respect of this matter you were remanded on 26 June 2021 and granted bail on 14 June 2022, 335 days or approximately 11 months in custody.  That is the longest time that you have served in terms of time on remand for matters that you ultimately were convicted of, though I note there was that period in between 2015 and 2016.

14I accept the time you have spent in custody was more burdensome given the conditions were more restricted as a consequence of COVID.  Prisoner movements were limited and other supports were not available.  Since being on bail in June last year you have complied with strict conditions and have not been subject of breach proceedings.  I received a letter from Kathleen Anex, case manager, Launch Housing, dated 23 March 2023.  I also was informed that she was present in court and was on the previous occasion as well.

15You have suffered long term homelessness.  You are currently supported by Launch Housing in their homelessness to a home program.  You have been able to maintain housing since your release.  That organisation provides you case management and you have been referred for drug and alcohol counselling.  You have no outstanding matters and have complied with your bail for approximately nine months.

16I understand that you have with the assistance of Launch, been able to secure long term accommodation in South Melbourne, and that move will be finalised soon.  I also understand that you attended at drug and alcohol counselling on 20 March, though given your abstinence of substance use it is uncertain as to the necessity for you to continue with drug and alcohol counselling, though I understand that your case manager will be alert to that issue if it becomes relevant in the time that she maintains working with you.

17I accept that your plea was at the first reasonable opportunity and the parties sought resolution from an early stage.  The summary ultimately accorded with your account in the record of interview.  Your plea is indicative of an acceptance of responsibility and a degree of remorse.  The utilitarian value of your plea is enhanced given the delays encountered in the criminal justice system in this State as a consequence of COVID.  Your plea he's reduced that backlog.

18Your rehabilitation prospects are fair, though dependent on you continuing to remain utilising the services and working with Launch Housing.  Other factors that auger well for your rehabilitation include your plea of guilty and your compliance with bail conditions over an extended period.

19You attended Ms Rowell’s unit in breach of a family violence order, though at her invitation on your release from gaol.  You left when she requested, though returned when you found yourself with nowhere else to go.  It was cold, dark and wet.  There were no trains and you had no money.  When you broke the window of the unit Mr Mitchell became involved.  This was so despite the history of animosity between the neighbours.  That history was the reason why you pursued Mr Mitchell when he attended Ms Rowell’s unit.

20It was accepted your offending occurred in the context of initial threats made to you by Mr Mitchell.  However, your response in chasing him back to his unit and you entering it albeit momentarily, intending to cause fear in him, places you in the predicament that you currently find yourself.  By the time you were at his unit he no longer posed any threat to you so your actions in kicking his door and entering the unit amount to the offence.  When you entered the unit you did not have any weapon and you were alone.  It was accepted that no physical assault took place.  I accept this is at the lower end of the scale in terms of this offending.  However, Mr Mitchell was not able to feel safe in his own home and not threatened by you once he left Ms Rowell’s place.

21General deterrence is an important sentencing consideration and given your history, so is also specific deterrence.

22I do accept this is a real step up in the level of criminality in which you have previously engaged, as reflected by your prior matters and the nature of those.  This must be balanced against matters personal to you and the categorisation of this kind of offending.

23Your counsel submitted I should impose a term of imprisonment of a length no longer than the time you have already served.  The prosecution submitted that a combination sentence was within range and that you required CCO when in the community to address various issues, particularly your alcohol use.  Such an order was appropriate, it was also submitted, given your prior matters and that the offending occurred so soon after you were released from custody.

24I had you assessed by Corrections as to your suitability for a CCO.  You were assessed as unsuitable given your inability to comply or complete previous orders, the last CCO imposed in 2019, but also given your attitude towards this offending.  I am, however, encouraged by your interaction thus far with Launch.  Ms Anex notes:  'In order to make a success of your new public housing tenancy it's crucial that Daniel continues to engage with Launch and other supports in the community', and later she says, 'We strongly believe having somewhere safe to call home will prove to be an invaluable resource to support Daniel to successfully remain engaged with services and to continue to address his offending'.

25In all the circumstances what I propose to do is to, in respect of Charge 1, to impose a term of imprisonment of 335 days.  In relation to the two summary offences a term of imprisonment of one month each, and I make no further order.

26Mr Costanzo, I encourage you to continue to work with the Launch Housing people.  I understand it can be very difficult in terms of overcoming some of the issues that you have got but you appear to have a good working relationship at the moment.

27OFFENDER:  Yes, Your Honour.

28HER HONOUR:  And Ms Anex, I want to thank you for coming to court and providing the support that you do and hopefully funding issues will resolve.  Anything else?

29MR O'TOOLE: I think Your Honour just needs to give a s6AAA declaration.

30HER HONOUR: Yes. So under s6AAA of the Sentencing Act if you had not pleaded guilty to this matter I would have imposed a sentence of three years with a minimum of 20 months.

31MR O'TOOLE:  As Your Honour pleases.

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