Director of Public Prosecutions v Costi; Director of Public Prosecutions v Falcoa
[2012] VCC 1237
•20 August 2012
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-10-02300
Indictment No. C1007499.1
Indictment No. A11438889.1
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CHRISTOPHER COSTI |
-and-
Case No. CR-10-02301
Indictment No. C1007499.1
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CARLOS FALCOA |
JUDGE: | HER HONOUR JUDGE MORRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 March 2012; 23 July 2012 | |
DATE OF SENTENCE: | 20 August 2012 | |
CASE MAY BE CITED AS: | DPP v Costi; DPP v Falcoa | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1237 | |
REASONS FOR SENTENCE
SUBJECT – CRIMINAL LAW
CATCHWORDS – Sentence – Causing injury recklessly – theft – attempted robbery – possessing a controlled weapon without excuse
LEGISLATION CITED – Sentencing Act 1991 – Crimes Act 1958, s18, s72, s321M, s75 – Criminal Procedure Act 2009, s145, s244(3)(b)
CASES CITED – R v Verdins & Ors (2007) 16 VR 269; R v Bangard [2005] VSCA 313; DPP v Josefski (2005) 13 VR 85
SENTENCE – Falcoa: total effective sentence 2 years and 1 month - non-parole period 15 months - s6AAA declaration total effective sentence 32 months, non-parole period 19 months. Costi: total effective sentence 29 months - non-parole period 18 months - s6AAA declaration total effective sentence 37 months, non-parole period 23 months.
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms F Holmes | Solicitor for Office of Public Prosecutions |
| For the Accused Costi | Ms M Mykytowycz | Allen & Macaulay |
| For the accused Falcoa | Ms A Wood (30 March 2012) Mr G Thomas (23 July 2012) Ms K Churchill (20 August 2012) | Greg Thomas Barrister & Solicitor |
HER HONOUR:
1 Christopher Costi and Carlos Falcoa, on Indictment number C1007499.1, you are each to be sentenced in respect of one charge of causing injury recklessly and one charge of theft contrary to s18 and 72 of the Crimes Act 1958.
2 You, Christopher Costi, are also to be sentenced in respect of a further charge contained in Indictment number A11438889.1 of attempted robbery contrary to s321M and 75 of the Crimes Act 1958.
3 In addition, you, Christopher Costi, are to be sentenced in respect of a related summary offence of possessing a controlled weapon without lawful excuse.
4 You each pleaded guilty to the relevant charges when arraigned before me on 30 March 2012.
5 The maximum applicable penalties are:
· Causing injury recklessly – five years’ imprisonment
· Theft – ten years’ imprisonment
· Attempted robbery – ten years’ imprisonment
· Possessing a controlled weapon without excuse – one year’s imprisonment.
Circumstances of Offending
Indictment CI007499.1 – Costi and Falcoa
6 On Wednesday, 26 May 2010, the complainant, Leslie Charles Sims, was walking down Nicholson Street, Footscray at about 8.00 pm. You, Costi, approached Sims and told him that you, Falcoa, wanted to talk to him. You, Falcoa, were carrying a clear glass bottle and approached Sims. You asked him about an incident that had occurred at your girlfriend’s home in Altona a few months before. You accused Sims of attempting to break into your girlfriend’s house. Sims told you it was a “big misunderstanding”. You, Falcoa, then gestured to Sims to follow you towards a small laneway. Sims started walking in the direction of the laneway and noticed that you, Falcoa, were being followed by you, Costi, and a third male, who has never been identified. Sims turned to face you, Costi and the third male, at which time you, Falcoa, hit Sims to the back of the head with the glass bottle. The bottle did not smash on impact. Sims however, fell forward as a result of the blow to his head. He took up a defensive position as both you, Costi and Falcoa, together with the third male, continued to punch and kick him to the head and body. During the course of the assault, Sims’ mobile telephone and a small amount of cash fell out of his pockets and onto the ground. You, Falcoa, asked Sims: “How much money have you got?” Sims replied that he had no money and you, Falcoa, asked the same question another three times. You, Costi, then held Sims while the other two men continued to assault him. After a short time, Sims managed to wriggle out of his ski jacket and shirt that you, Costi, were holding him by. This left him naked from the waist up. He was able to free himself. Sims looked for his mobile telephone and cash, but the items were gone. (Charge 2, Theft).
7 Sims then fled, but both of you, together with the third male, followed. You, Falcoa, asked Sims to return and fight. Sims, with the two of you and the third male, were captured on CCTV as the group crossed over the Footscray Railway Station overpass. Sims managed to run to the Footscray Police Station, where he reported the incident. He was still naked from the waist up.
8 Sims attended the Sunshine Hospital at around 10.00 pm that night, where he was examined by Dr Pearson Alejandro. As a result of the incident, Sims sustained the following injuries:
§ Bruising and swelling to the face and head
§ Contusions to the neck
§ Contusions/abrasions to the left upper back and right lower back
§ Superficial abrasions to both knees.
9 A CT scan of the brain was conducted but no abnormality was detected. (Charge 1, Recklessly Causing Injury).
Arrest and Interview
Christopher Costi
10 Police executed a Search Warrant at the premises of you, Costi, where they located:
§ a grey ‘Everlast’ windcheater with blue ‘Slazenger’ shorts
§ one pair of ‘Nike’ runners; and
§ a yellow waist bag.
11 These items matched the visual images of the clothing you wore that were captured by the CCTV previously referred to.
12 On 27 May 2010, you, Christopher Costi, were arrested and interviewed in relation to this matter. During the interview, you said that you were at home at the time the incident occurred.[1] However, when shown the CCTV footage, you admitted your presence at the incident but denied any involvement in it other than to break it up.[2] You signed a photograph identifying your co-accused in order to show that you were not involved in the incident.[3]
[1]Questions 166-175
[2]Answer 214
[3]Questions and Answers 269-279
13 You admitted handing a mobile telephone to one of your friends but said that it came from another friend. You admitted however, that you knew the mobile telephone belonged to Sims. You told police you were not the one who picked it up.[4]
[4]Questions and Answers 303 and 324
14 The only information you gave about the third male was that his name was “Matt” and he was last to have possession of Sims’ jacket, and that you did not know where it ended up.[5]
[5]Questions and Answers 406-408
Carlos Falcoa
15 On 28 May 2010, you, Carlos Falcoa, were arrested and interviewed in relation to these offences. During that interview, you told police that Sims had jumped the fence of your girlfriend’s house on an earlier date.[6] You said that after talking with Sims about this, Sims was the initial aggressor, throwing the first punch. You then threw a couple of punches and an altercation ensued.[7] You said the fight was broken up and no harm was done.[8] Otherwise, you denied hitting Sims with the bottle. You made “no comment” to the allegation of theft.
[6]Question and Answer 73
[7]Question and Answer 85
[8]Question and Answer 88
Indictment A11438889.1 – Attempted Robbery – Christopher Costi
16 On Thursday, 27 May 2010 at 1.15 pm, the day after the events to which I have just referred, Robert Ball caught a train from Sunshine to Footscray.
17 Is anything wrong?
18 MS PIPER: Apologies Your Honour, I was just discussing with Mr McMonies very briefly but I think the PSD calculation is incorrect. But I will keep working on it perhaps while Your Honour sentences.
19 HER HONOUR: Thank you very much.
20 MS PIPER: When we get to that point I will discuss it with Mr Churchill.
21 HER HONOUR: Thank you.
22 MS PIPER: Thank you, Your Honour.
23 HER HONOUR: On Thursday, 27 May 2010 at 1.15 pm, the day after the events to which I have just referred, Robert Ball caught a train from Sunshine to Footscray. He arrived at approximately 1.30 pm. After getting off the train, Ball walked from the station towards Irving Street. You, Christopher Costi, alighted from the train at the same time. Ball approached you and asked for directions, and the two of you walked for a while, talking as you went along. You asked Ball for a cigarette and Ball opened his waist bag to oblige. You looked inside the bag and mentioned that you could see a packet of chewing gum. You then put your hand into the bag and noticed Ball’s wallet. You took the wallet from the bag. Ball reacted by taking hold of your jumper. You then began repeatedly punching Ball to the head. He fought back and numerous blows were exchanged. You then grabbed Ball by the throat and pushed him against a fence. Ball was still holding you by the jumper. He refused to release you and you told him that if he let you go you would return the wallet. Ball let go of your jumper and took his wallet back and you then fled. Ball recovered all of his property. As a result of being punched, Ball suffered pain to his head and swelling to his lip. He did not require medical attention.
24 You were arrested a short distance from where this incident happened. You were taken to Footscray Police Station, where you were interviewed and admitted what had happened.
Summary Charge – Christopher Costi
25 Christopher Costi, when arrested by police on 27 May 2010, you were found in possession of a meat cleaver. You did not use it in the attempted robbery. With your consent, this matter was transferred to the County Court pursuant to s145 of the Criminal Procedure Act 2009.
Gravity of Offending
26 The charges to which you have each pleaded guilty are serious given the circumstances outlined. Dealing first with the events involving Sims (Indictment C1007499.1) it was a cowardly fight by three against one. It was a sustained attack and included kicks and blows whilst the victim was either down or restrained.
27 In assessing the overall gravity of the Recklessly cause injury charge, I must take into account matters such as:
· the degree of recklessness involved
· the fact that the assault was in company and the role you each played
· the fact that a weapon; namely, the bottle, was used
· the severity of the injury caused and its impact on the victim, noting however, that it is not alleged that serious injury was caused; and
· the degree of pre-meditation. In this regard, I note that it was a chance meeting. The attack was a loose arrangement and planned relatively quickly.
28 It must not be forgotten however, that the consequences of your conduct were not actually intended.
29 As to the theft charge, it is more serious because it occurred during and after the infliction of violence against the victim.
30 In cases such as these, principles of general deterrence, specific deterrence, just punishment, denunciation and protection of the community are important sentencing factors.
31 As to the matters involving you alone, Costi, (Indictment A11438889.1 and summary charge), that is, the attempted robbery and the summary charge, these, too, are serious matters.
32 Dealing first with the attempted robbery, the objective facts demonstrate that the theft of the wallet was complete before Ball regained possession of it. Ball was injured. The charge of attempted robbery was laid against you as a result of negotiations between your legal representatives and the prosecution, and you are to be sentenced only in respect of the charge to which you have pleaded guilty.
Impact of Offending on the Victims
33 I have already referred to the circumstances of offending. No victim impact statements were tendered.
Plea in Mitigation on behalf of Falcoa
34 The plea hearing commenced on 30 March 2012 and continued on 23 July 2012, although there was a mention in between. On the first occasion, you were represented by Ms Wood. On the subsequent occasion, Mr Thomas appeared on your behalf.
Personal History
35 Your personal history and background are well documented in Exhibit CF1, report from Dr Loretta Evans, neuropsychologist, dated 28 August 2011 and Exhibit CF2, report of Dr Aaron Cunningham, forensic psychologist, dated 17 February 2012.
36 You are aged forty and come from a good home. You have two brothers, neither of whom have criminal histories. Your father was a strict disciplinarian. Your parents worked full-time. You left home at the age of seventeen and went to live in Ministry of Housing accommodation in Kensington with friends. You then went to live with your girlfriend, with whom you maintained a long-term relationship. You have two sons from this relationship. Unfortunately, your partner died when she overdosed while you were in custody about four years ago. You were taken from jail to identify her body. Your sons have remained in the care of the Department of Human Services at Berry Street since their mother’s death.
37 As to your education, you attended Kensington Primary School, where you were the victim of bullying. You then attended Essendon Technical School but were expelled in Year 8 for fighting. You later attended Lalor Technical School and left during Year 11. You gained a carpentry apprenticeship which you successfully completed. Thereafter, you worked for two years for BT Windows before the company became insolvent.
38 You continued with a solid work history until you broke your wrist. You suffered other medical problems as a result of your involvement in a car accident. You were hospitalised as a result of the injuries you sustained in that accident. You sustained other injuries whilst engaged in physical fights. You suffer from Hepatitis C and were the victim of a stabbing and robbery in August 2011.
39 As to your drug and alcohol history, you began using cannabis at age seventeen. You were smoking up to four grams per day. You then began using amphetamines once per fortnight at parties. By age twenty-six, you were smoking heroin. You progressed to intravenous use at age twenty-eight. By then you were using one half of a gram of heroin per day. You have used alcohol but, as I understand it, are not abusing it.
40 You have participated in detoxification programs for your drug abuse and have stated that you have been abstinent for approximately a year.
Verdins’ Factors
41 A report prepared by Dr Chris O’Halloran, psychologist and neuropsychologist, dated 2 July 2012 was tendered as Exhibit CF3. As a result of the tests administered and the consultation with Dr O’Halloran, Dr O’Halloran considered that you demonstrated generally intact cognitive ability, spanning the low-average to average ranges across tasks of attention, visuospatial praxis, language, new learning and memory and executive functioning. Mild to moderate difficulties were, however, observed across tasks of processing speed, problem solving and divided attention in the context of sufficient effort and mild self-endorsed symptoms of anxiety. Compared to an earlier assessment in 2011, your new learning skills have demonstrated a substantial improvement. Your reasoning skills have also demonstrated a mild improvement. Dr O’Halloran considered that these improvements are likely due to the impact of substance abstinence during your current period of incarceration. Overall, you present with largely intact cognitive skills of a low-average to average standard, with the exception of mild to moderate difficulties on measures of processing speed, divided attention and visual problem solving. Your difficulties were assessed as rather non-specific and are likely due to a mildly elevated level of anxiety with possible contribution from past head trauma sustained during assaults.
42 Dr O’Halloran considered however, that your cognitive difficulties are generally quite mild, are not representative of significant brain injury or cognitive disturbance.[9]
[9]See page 4, Exhibit CF3
43 In the period of offending, it is likely that you were experiencing mild to moderate cognitive difficulty, specifically processing information rapidly, dividing your attention efficiently and solving more complex problems. These impairments are likely to have been sustained during your adult years and are likely associated with acute use of substances, declines in your mood state and possibly the effects of past head trauma and loss of consciousness.[10] It is likely that these cognitive difficulties would have impacted on your ability to think and react in a flexible and rapid manner and to problem solve the situation. Your reasoning and judgment was assessed as “not overtly impaired” and as such, is less likely to have been impaired at the time of offending.[11] These cognitive difficulties impaired your ability to problem solve and think in a flexible and rapid manner to a mild or moderate degree, thus possibly impacting on your behaviour.[12] Your condition did not however make you disinhibited, nor did it impair your ability to appreciate the wrongfulness of your conduct. It did not obscure your intent to commit the offences.[13]
[10]See page 5, Exhibit CF3
[11]See page 5, Exhibit CF3
[12]See page 5, Exhibit CF3
[13]See page 5, Exhibit CF3
44 As to the nexus between your condition and the commission of the offence, Dr O’Halloran found that your cognitive difficulties are likely to have reduced your capacity to problem solve and think in a flexible manner under time pressure at the time of the offence, to a mild-moderate degree.[14]
[14]See page 5, Exhibit CF3
45 Dr O’Halloran further noted however that your current condition would not make a term of imprisonment more onerous for you. Nor would it have a significant adverse effect on your health.[15]
[15]See page 6, Exhibit CF3
46 As to how your deficits would affect your prospects for rehabilitation, Dr O’Halloran considered that your new learning and sound reasoning skills are intact, along with many other preserved cognitive abilities. He considered that you have the cognitive capacity to engage in and benefit from rehabilitation programs. Compensating for your cognitive difficulties would be expected to improve your capacity to benefit from rehabilitation.[16]
[16]See page 6, Exhibit CF 3
47 The report of Dr Evans[17] is essentially consistent with the more up-to-date report provided by Dr O’Halloran.
[17]Exhibit CF1
48 Dr Cunningham[18] considered that you met the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) criteria for Substance Use Disorder. You presented with a psychological and physiological dependence on opiates. He noted that psychometric testing indicated a moderate risk needs range of re-offending. He, too, considered that you would benefit from rehabilitative programs, including admission into a community inpatient drug and alcohol program.
[18]Exhibit CF2
Negotiations and Guilty Plea
49 You were arrested in May 2010. You were charged on 28 May 2010. By the time of committal, which was contested on 7 December 2010, you had served 194 days’ pre-sentence detention. You were bailed on 7 December 2010. After committal, there were ongoing negotiations. These culminated in a written offer dated 24 November 2011 to plead to the charges that are now before me. The matter finally resolved on 16 December 2011.
50 You pleaded guilty, as I said earlier, when arraigned before me on 30 March 2012. When interviewed by police, you made limited admissions. At committal you stated that you were not guilty. Although this statement must be matched to the charges you then faced.
51 In assessing the weight to be given to your guilty plea, I take into account all of the above matters. In addition, I take into account:
· You are entitled to a statutory discount because of your plea
· You have avoided the cost of a trial and spared witnesses the inconvenience of giving evidence at trial
· There is social utility involved in your plea.
Criminal History
52 You have an extensive criminal history set out in your criminal record pursuant to s244(3)(b) of the Criminal Procedure Act dated 6 December 2011. That history shows many dishonesty and drug matters.
53 Without referring to all of your prior court appearances, the most relevant are these - I should add from the criminal record it would appear that at the time of these offences you were undergoing a suspended sentence and a community-based order.
54 I was also told of your alleged subsequent offending. On 17 February this year, you were remanded in custody on other matters. I was told that you intend to plead not guilty to those matters and as you are entitled to the presumption of innocence in respect of them, I do not take them into account.
55 Returning to the relevant prior court appearances, on 17 December 2008 at the County Court at Melbourne, you were convicted of common law assault. Your counsel explained that this happened whilst you were at the Flemington high-rise flats obtaining drugs. An altercation ensued but otherwise, you have no further recollection of the details.
56 On 18 May 2007, at Melbourne Magistrates’ Court, you were convicted and fined $1,000 for carrying a dangerous article. Your counsel said it was a pocket knife found in your possession during a random police check.
57 On 19 July 2004, at Heidelberg Magistrates’ Court, you were convicted of recklessly causing serious injury. You were sentenced to two months’ imprisonment, which was wholly-suspended for eighteen months. Your counsel explained that on that occasion there was an altercation at a train station during which a person fell off the platform and broke his leg. Otherwise you have no real memory of the incident.
58 On 4 April 1991, you were convicted of one charge of assault in company and theft. You were fined. Your counsel explained that on that occasion there was a fight that occurred at a disco. There was no explanation of the theft charge.
59 At your counsel’s request, at the conclusion of the proceedings on 30 March 2012, I revoked your bail in respect of these matters. As a consequence, as at today, your pre-sentence detention is?
60 MS PIPER: Three hundred and thirty seven, the original date Your Honour. I have not been able to pass my friend a note I was preparing. The error we made earlier was - in Your Honour's sentencing reasons Your Honour has just indicated he was arrested on 17 February in relation to other matters. His bail was revoked on these matters on 30 March. That brings it to 337, the original 194 plus the 30 March to date. That is in fact 337.
61 HER HONOUR: Thank you. Mr McMonies, do you agree? I am sorry, Ms Churchill?
62 MS CHURCHILL: I'm not sure to be perfectly honest, Your Honour. I don't have any of the paperwork that I'd need to have a look at.
63 HER HONOUR: You do the maths and then at the end you can correct me when I make the pre-sentence declaration if I am wrong. All right? And as I have said, even if there is a mistake at the end, feel free to come back and correct the mistake in due course.
64 MS CHURCHILL: Thank you, Your Honour.
65 HER HONOUR: I will now to the plea in mitigation on behalf of Costi.
Plea in Mitigation on behalf of Costi
66 Ms Mykytowycz made a comprehensive plea in mitigation on your behalf. Helpfully, she tendered a detailed written outline of her submissions.[19]
[19]See Exhibit CC1
67 Your counsel noted that your offending is set against a backdrop of drug use, particularly a significant heroin habit.
68 As to the events involving Sims on 26 May 2010 (Indictment C1007499.1), not only had you taken heroin, but you had also consumed beer and had taken Xanax tablets. You told consulting forensic psychologist, Robert Cock, that on this occasion you were “out of it”.[20]
[20]See Exhibit CC5, report of Robert Cock dated 29 March 2012, pages 1 and 2
69 As to the events involving Ball on 27 May 2010 (Indictment A11438889.1), you told Mr Cock that you were suffering from “very bad drug withdrawal in relation to heroin”.[21]
[21]See Exhibit CC5, page 2
Explanation for Offending
70 When interviewed by police, you initially denied being present at the time of the events involving Sims. When confronted with CCTV footage, you admitted being there but denied any wrongdoing. You falsely claimed that you attempted to break up the fight. You have since admitted your complicity but claim to have played an ancillary or lesser role. It was Falcoa who had the grievance with Sims, not you. Even so, you readily participated in the assault and pushed Sims and kicked him when he was down.
71 As to the events of 27 May 2010 involving Ball, you admitted to police what you had done.
Personal History
72 Your personal history and background are well documented in Exhibit CC5, report of Mr Cock.[22]
[22]See also paragraph 3.1 to 3.11, Exhibit CC1, Outline of Submissions for Plea
73 You are aged twenty-eight. You come from a good home. Your father is a self-employed electrician, running a company which employs ten to fifteen contractors and staff. Your mother also works in that business. You have two siblings. You had a happy childhood growing up in a supportive household.
74 As to your education, you attended Kings Park Primary School and then Taylor’s Lake High School. You left after Year 9. You found schooling challenging.
75 You then commenced an apprenticeship as an electrician with your father but were unable to complete it as you found the schooling aspect of it too difficult. You continued to work for your father on and off thereafter. You also engaged in various unskilled work but ceased full-time work in about 2007 or 2008. You have been on Centrelink support since then.
76 Unfortunately, you began using illicit drugs at aged approximately fifteen or sixteen after being introduced to marijuana, ecstasy and speed by school friends. You first used heroin in 2009 at age twenty-five. It would appear that you have struggled with your drug dependency ever since. There have been times where you have tried to give it up and have participated in various programs. Unfortunately, there have been many relapses.
Mental Health Issues and Verdins’ Factors
77 You were diagnosed with anxiety and depression approximately two or three years ago. It may well be that you were taking antidepressants as far back as 2006. Your drug taking has led to various problems and at age twenty-three you were admitted to Orygen Youth Health with drug-induced psychosis. To add to your problems, there is a family history of epilepsy and you were diagnosed as suffering epilepsy when you were about fifteen years of age following a seizure. You take medication to control that condition.
Criminal History
78 You have an extensive criminal history which is set out in your criminal record dated 6 December 2011 pursuant to s244(3)(b) of the Criminal Procedure Act. Leaving aside driving-related convictions, the number of your prior convictions for dishonesty matters, including robbery and attempted robbery, is disturbing.
79 On 16 May 2003, you were dealt with in the Magistrates’ Court at Sunshine for breaching an intervention order and assaulting police. The intervention order had been obtained by your parents because of your behaviour whilst on drugs. Without conviction, you were released on an undertaking to be of good behaviour with a special condition that you undertake a course to address your anger management issues.
80 On 18 February 2005, at the Melbourne Magistrates’ Court, you were convicted of one charge of robbery and one of attempted robbery. You were sentenced to an aggregate term of four months’ imprisonment, which was wholly-suspended for twelve months. You were drug affected at the time of these events and were unable to explain the circumstances of offending. Unfortunately, you breached the terms of your suspended sentence and the suspended term was restored.
81 On 21 February 2006, at the Broadmeadows Magistrates’ Court, you were convicted of one charge of robbery and one of theft. You were sentenced to an aggregate term of nine months’ imprisonment. On that occasion, you went to the Watergarden Hotel and presented at the counter of the pokies’ section. You demanded money.
82 After your release from prison, you stayed out of trouble for about three years.
83 On 12 January 2010, at the Melbourne Magistrates’ Court, you were convicted of attempted robbery, two charges of attempt to obtain property by deception and a charge of theft. With conviction you were released on a twelve-month’s community-based order. In addition to the core conditions, program conditions directed towards your rehabilitation were imposed. You were required to submit for testing for alcohol and drug use as directed by the regional manager and you were to undergo assessment and treatment for alcohol or drug addiction, or submit to medical, psychological or psychiatric assessment and treatment. It was further ordered that you undergo assessment for programs to reduce re-offending and that you participate in such programs as directed. You were to remain under the supervision of a Community Corrections Officer.
84 The attempted robbery occurred when you confronted a person on the street and demanded to see his wallet. The victim ran away.
85 As to the two charges of attempting to obtain property by deception and theft, these related to attempted frauds on your father’s business. At the time you were taking drugs.
86 At the time of committing the offences the subject of today’s proceedings, you were undergoing the community-based order imposed on 12 January 2010.
Post-Offence Conduct
87 You were remanded on the current matters on 27 May 2010. On 9 June 2010, you were sentenced to an aggregate term of imprisonment of twelve months for robbery and unlawful assault. You do not recall the circumstances of this offending. As a consequence of those convictions, you were re-sentenced on the matters for which you received the community-based order on 12 January 2010. You were re-sentenced to three months’ imprisonment in respect of those matters, to be served concurrently with the twelve-month term imposed that day.
88 Upon your release from custody on 4 June 2011, you were drug-free and taking Methadone. With the assistance of a family friend, Mr Gouvas, you attended Moreland Hall, exploring the possibility of residential rehabilitation. You were assessed and referred to DasWest. Ultimately, you were referred to the specialist Pharmacotherapy Program at Western Health for support in managing your Methadone and for drug counselling.[23]
[23]See report of Mr Scott Withy dated 17 February 2012, Exhibit CC4
89 In his report dated 17 February 2012 tendered as Exhibit CC4, Mr Withy recommends that you engage in a long-term rehabilitation program and that you have ongoing contact with a therapist. He also considers a review with a consultant psychiatrist would be to your benefit.[24] Mr Withy’s report notes that you did engage in some counselling but, unfortunately, on numerous occasions you did not attend. Even so, it is to your credit that when you engaged with services you were able to reduce your Methadone dosage and commence Suboxone. You were discharged from the program on 21 February 2012 as you had failed to maintain your engagement with the service.
[24]See Exhibit CC4, page 2
90 It is also to your credit that you have attempted work and in August or September of last year you began working as a cleaner in a fitness centre. You moved back into the family home with your parents. Late last year however, you had a further relapse. You had re-engaged with old peers in the Footscray area and started using drugs again. You have been smoking Ice but deny further heroin use. As a result of this relapse, you gave up work.
Other Materials Tendered at your Plea Hearing
91 I have already referred to Exhibits CC4 and CC5. In addition, the following Exhibits were tendered:
· Exhibit CC2 – Sentence Remand Report - Comprehensive Prison History
· Exhibit CC3 – Letter from Trifon Gouvas concerning the steps you took upon your release in an attempt to rehabilitate yourself
92 At your counsel’s request I ordered a pre-sentence report and this was tendered as Exhibit CC6.[25] That report shows that there are no mental health issues such as might justify a reduction in your moral culpability for this offending. Although it does show that at the time of offending you were a poly-substance abuser and had possible heroin dependence.
[25]Forensicare Report prepared by Dr Grant Lester dated 19 June 2012.
93 On 26 May 2010, you had used heroin and possibly other substances. On 27 May 2010, you were undergoing withdrawal from heroin and may have had symptoms such as agitation and restlessness, which may have increased your impulsivity. You demonstrated little victim empathy.
Negotiations and Guilty Plea
94 You did not contest the charges involving Ball. You contested the committal in the matters where Sims was the complainant. You were initially charged with armed robbery and intentionally causing serious injury. The matter was listed for trial on 6 February 2012; however, the matter resolved on 16 December 2011. You pleaded guilty when arraigned before me on 30 March 2012, as I said before.
95 In assessing the weight to be given to your guilty plea, I take into account all of the above matters. In addition, I take into account:
· You are entitled to a statutory discount because of your plea
· You have avoided the cost of a trial and spared witnesses the inconvenience of giving evidence at trial
· There is social utility involved in your plea.
Jail More Onerous for You
96 I have referred to Exhibit CC2, the Sentence Remand Report – Comprehensive Prison History. That document shows the periods you have spent in the protective custody. Your transfer to the protection unit was as a result of intimidation by other prisoners when they discovered you had informed on your co-accused. It is possible that any term of imprisonment will be more onerous for you because you may face further intimidation.[26]
[26]See R v Bangard [2005] VSCA 313 at paragraph 14
97 I also note that because of various other problems concerning your mental wellbeing as identified in Mr Cock’s report, including depression, agoraphobia and anxiety upon your release from custody in June 2011, it is likely that jail will be more onerous for you[27]. Compare however Dr Lester's view that your mental health would not be adversely affected.
[27]Compare Dr Lester’s view that your mental health would not be adversely affected.
Prospects of Rehabilitation
98 Notwithstanding your poor record, your counsel submits that there are prospects for your rehabilitation. First there is the three-year gap in offending to which I have already referred, then there are your efforts at rehabilitation upon your release from jail in June last year. You would benefit from rehabilitation programs and from supervision in the community. Unfortunately, after having invested effort in your rehabilitation, you suffered a further relapse. Even so, your prospects for rehabilitation can not be written off.
Prosecution Submissions
99 Ms Holmes, on behalf of the Prosecution, made the following submissions:
Falcoa
100 Your moral culpability is to be reduced only to a limited degree by reason of the conditions you suffer.
Costi
101 Dr Lester, the author of the Forensicare Report, CC6, did not believe that a term of imprisonment would adversely affect your mental health. I note that I had accepted Mr Cock's report in this regard. Ms Holmes submits that you have successfully coped with imprisonment in the past and jail will not weigh more heavily upon you.
Sentences to be Imposed
102 Your counsel have each sensibly and properly conceded that terms of imprisonment must be imposed.
103 On your behalf, Mr Falcoa, your counsel submits that any such term of imprisonment should not require you to serve much, if any, additional time in custody.
104 Mr Costi, your counsel noted that there must be some cumulation between the sentences imposed on the individual indictments but that you should have a longer than usual period on parole, to allow for greater supervision and rehabilitation in the community.
Principles of Parity
105 I must pay regard to principles of parity. As to the matters involving Sims, it was your grievance, Falcoa, and I accept you were the ringleader. However, as I said before, you Costi, readily participated. You Falcoa, also have an extensive history for violent offending.
106 Both of you were undergoing Community Based Orders at the time, and you Falcoa were also undergoing a suspended sentence.
107 In reality, the differences in your personal circumstances and criminal histories balance out, and I consider it appropriate to impose similar penalties.
108 In sentencing each of you, in addition to all of the matters to which I have referred, the sentences to be imposed must also serve as a personal deterrence to each of you. You have each had many chances in the past and your conduct can no longer be tolerated.
109 Taking into account all of the matters to which I have referred, the sentences to be imposed are as follows:
Falcoa
110 I do not write off your prospects for rehabilitation but I have no alternative but to impose terms of imprisonment. On Charge 1, Causing Injury Recklessly, you are convicted and sentenced to two (2) years’ imprisonment.
111 On Charge 2, Theft, you are convicted and sentenced to six (6) months’ imprisonment.
112 On the question of cumulation, because the theft was discrete and was completed after your victim had been assaulted, I direct that one (1) month of the sentence imposed on Charge 2 be served cumulatively upon the sentence imposed on Charge 1, the base sentence. That results in a total effective sentence of two (2) years and one (1) months’ imprisonment.
Minimum Non-Parole Period
113 In determining the non-parole period in your case, I am required to take in account the purpose of fixing a non-parole period which is “to provide for mitigation of punishment in favour of [your] rehabilitation through conditional freedom”.[28] The fixing of a non-parole period requires discrete consideration of the factors bearing upon the question of when you should be eligible for release. The relevant factors I am required to take into account are:
“(a) that a non-parole period has a penal element;
(b)that, where either general or specific deterrence is important, that objective should not be undermined by an unduly short non-parole period; and
(c)that the prisoner’s prospects of rehabilitation are almost always a significant consideration.”[29]
[28]See DPP v Josefski (2005) 13 VR 85 paragraph 43
[29]Josefski, paragraph 43
114 Taking all these matters into account, including your prospects of rehabilitation - - -
115 MS PIPER: Your Honour, I apologise to interrupt at this point. In light of the recent Court of Appeal decision in Wheldon, I would just urge Your Honour perhaps hear the pre-sentence detention figures at the totality principles that perhaps apply in terms of the discrepancy between the figure given earlier and now the lesser figure and perhaps consider that in light of the parole period sentence that is going to be imposed because I believe that that may (indistinct) an issue in relation to some other decisions recently.
116 HER HONOUR: I have referred to all of this in discussions with counsel on 30 March, I appreciate that you were not there.
117 MS PIPER: Yes I wasn't, Your Honour.
118 HER HONOUR: In fact it was I who raised the question of common law pre-sentence detention. I brought to counsel's attention the recent decision of Wheldon and I asked counsel to consider it and discuss it with me and I have not failed to take into account the fact that there was also a period of common law pre-sentence detention. I thank you very much for raising it because you seem to be very much on the ball but do you say in view of the sentence I have just imposed that takes too little account of the common law pre-sentence detention?
119 MS PIPER: I don't, Your Honour. I only raised it in light of the earlier discussions today and that if Your Honour has had that discussion with counsel, I don't seek to - - -
120 HER HONOUR: Yes I certainly did.
121 MS PIPER: Thank you, Your Honour.
122 HER HONOUR: I certainly did and was very mindful of it. In fact I said if there was common law pre-sentence detention then the prisoners were entitled to the benefit of it if that turned out to be the case as a matter of fact.
123 MS PIPER: And in fact - - -
124 HER HONOUR: And that is why I put a lot of pressure on the prosecutor to go away and read the case and make some proper submissions to me.
125 MS PIPER: Yes, Your Honour and in fact the date Your Honour was given on that date by Mr Thomas on behalf of Mr Falcoa was correct so the figures that Your Honour has been working with one assumes from that date are correct. It is those pre-sentence figures that still apply.
126 HER HONOUR: So we are back to the - - -
127 MS PIPER: Your Honour, I believe the - - -
128 HER HONOUR: - - - 337.
129 MS PIPER: Three three seven, it was 309 on the 30 March that was the date that was discussed that I had notes of and it is the period between now and then, so it is the 337 and I believe my friend agrees with that.
130 MS CHURCHILL: I have done the calculation Your Honour, from the material that I'm grateful my learned friend provided and I agree with the 337 estimate.
131 HER HONOUR: Thank you very much. I reiterate that I certainly have not forgotten about the common law pre-sentence detention, it was I who raised it on 30 March, I provided counsel with the recent authority of Wheldon and I was asked to be addressed on it. It was clear that some of the pre-sentence detention could not be taken into account and that pre-sentence detention was not doubly warranted because bail had been granted. Even so, I have taken into account globally the fact that Mr Falcoa has been in custody on unrelated matters.
132 COUNSEL: As Your Honour please.
133 HER HONOUR: Thank you.
134 So on Charge 1, Causing Injury Recklessly, you are convicted and sentenced to two (2) years’ imprisonment.
135 On Charge 2, Theft, you are convicted and sentenced to six (6) months’ imprisonment.
136 Returning to the question of the minimum non-parole period, I have referred to the matters taken into account.
137 Taking all of these matters into account including prospects of rehabilitation, I direct that you serve a minimum period of 15 months (15) imprisonment before becoming eligible for parole.
138 Turning to the pre-sentence declaration, under s.18(4) of the Sentencing Act 1991, I declare that the period of 337 days is to be reckoned as a period of imprisonment already served under this sentence and I direct that the fact of this declaration and its details be noted in the records of the court.
139 You may be seated Mr Falcoa.
Costi
140 I have no alternative but to impose terms of imprisonment. On Indictment A11438889.1, although your crime was spontaneous, you attempted to take advantage of a man who was being kind and generous to you. You are convicted and sentenced to two (2) years’ imprisonment. This will be the base sentence for all sentences to be imposed today.
141 On Indictment C1007499.1, on Charge 1, Causing Injury Recklessly, you are convicted and sentenced to two (2) years’ imprisonment.
142 On Charge 2, Theft, you are convicted and sentenced to six (6) months’ imprisonment.
143 On the summary Charge of Possess controlled weapon without excuse, you are convicted and sentenced to one (1) month’s imprisonment.
144 On the question of cumulation, these are discrete charges and it is appropriate that there be some cumulation. I therefore direct that four (4) months of the sentence imposed on Charge 1 and one (1) month of the sentence imposed on Charge 2 in Indictment C1007499.1 be served cumulatively upon Charge 1 on Indictment A11438889.1 and with each other. This makes a total effective sentence of twenty-nine (29) months’ imprisonment.
145 I make no order as to cumulation on the summary charge which will be served concurrently.
146 This makes a total effective sentence of twenty-nine (29) months’ imprisonment in respect of all charges for which you are before the Court and sentenced today. I will fix a single non-parole period applicable to both Indictments and the summary charge, that is in respect of all offences for which you are presently before the Court.
Minimum Non-Parole Period
147 Your counsel has urged that I fix a shorter than usual non-parole period. Although the courts have said from time to time in this regard that there is no two-thirds rule of thumb, a non-parole period may be assessed as unusual by comparison with other cases or having regard to the facts of the particular case.
148 I have already referred to the matters I must take into account when sentencing Falcoa.
149 I direct that you serve a minimum period of 18 months’ imprisonment before becoming eligible for parole.
150 Under s18(4) of the Sentencing Act, I declare that the period of 41 days is to be reckoned as a period of imprisonment already served under this sentence and I direct that the fact of this declaration and its details be noted in the records of the Court.
Section 6AAA Statement
151 Pursuant to s6AAA and taking into account the matters I have previously referred to as relevant to the weight to be given to your guilty pleas, I state that but for your guilty pleas the sentences I would have imposed are as follows:
Falcoa:
152 On Charge 1, Causing Injury Recklessly, you would have been convicted and sentenced to 30 months’ imprisonment.
153 On Charge 2, Theft, you would have been convicted and sentenced to 7 and one half months’ imprisonment.
154 After cumulation, the total effective sentence would have been 32 months’ imprisonment.
155 I would have directed that you serve a minimum non-parole period of 19 months’ imprisonment.
156 I direct pursuant to s.6AAA(4) that the sentences that would have been imposed but for the plea of guilty be noted in the court's records.
Costi:
157 On Indictment A11438889.1, I would have sentenced you to 30 months’ imprisonment.
158 On Indictment C1007499.1, on Charge 1, Causing Injury Recklessly, you would have been convicted and sentenced to 30 months’ imprisonment.
159 On Charge 2, Theft, you would have been convicted and sentenced to seven and one half months’ imprisonment.
160 On the summary Charge of Possess controlled weapon without excuse, you would have been sentenced to one and one half month’s imprisonment.
161 Allowing for cumulation, I would have imposed a total effective sentence of 37 months’ imprisonment.
162 I would have directed that you serve a minimum non-parole period of 23 months’ imprisonment.
163 I direct, pursuant to s6AAA(4) that the sentences that would have been imposed but for the plea of guilty be noted in the Court’s records.
Ancillary Orders
164 A disposal order was sought against you, Christopher Costi in relation to the meat cleaver. That is by consent is it not, Ms Churchill?
165 MR McMONIE: (Indistinct) - - -
166 HER HONOUR: I am sorry Mr McMonie. That was by consent was it not?
167 MR McMONIE: Yes, Your Honour.
168 HER HONOUR: Very well, I will not read the disposal order into the transcript. Rather I will simply make the order in the terms of the draft that was submitted for my signature, the disposal order is made.
169 Are there any other matters that need to be dealt with?
170 COUNSEL: No, Your Honour.
171 HER HONOUR: Any corrections to the figures?
172 COUNSEL: No, Your Honour.
173 HER HONOUR: Thank you, you may remove the prisoners.
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