Director of Public Prosecutions v Cucinotta

[2019] VCC 902

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01405

DIRECTOR OF PUBLIC PROSECUTIONS

v

MICHAEL CUCINOTTA

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JUDGE:	HIS HONOUR JUDGE MURPHY
WHERE HELD:	Melbourne
DATE OF HEARING:	21 February 2019
DATE OF SENTENCE:	2 May 2019
CASE MAY BE CITED AS:	DPP v Cucinotta
MEDIUM NEUTRAL CITATION:	[2019] VCC 902

REASONS FOR SENTENCE
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Subject: CRIMINAL LAW - SENTENCE

Catchwords: Early Plea – Attempted armed robbery – Possession of a drug of dependence – Possession of a Controlled Weapon - Serious Offending –Numerous minor prior convictions  – History of drug and alcohol abuse – Compromised cognition – Impulse control issues – Some evidence of remorse –Parsimony – Rehabilitation and reintegration into society – Combination sentence

Legislation Cited: Sentencing Act 1991; Crimes Act 1958; Drugs, Poisons and Controlled Substances Act 1981.

Cases Cited: Williams v The Queen [2018] VSCA 171

Sentence: Total effective sentence 15 months’ imprisonment and a 12 month Community Corrections Order.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms Croxford	Office of Public Prosecutions
For the Accused	Ms Walker	Melinda Walker Criminal Law Solicitor

HIS HONOUR:

1Michael Cucinotta, you have pleaded to one count of attempted armed robbery, maximum penalty is 20 years' imprisonment[1], one count of possession of a drug of dependence, namely cannabis[2], the maximum penalty five penalty units, and an uplifted summary charge of possessing a controlled weapon, maximum penalty 120 penalty units or 12 months' imprisonment.

[1] Contrary to s75A and s.321 M of the Crimes Act 1958.

[2] Contrary to s73(1) of the Drugs, Poisons and Controlled Substances Act 1981.

2The circumstances of the offending were set out in the prosecution opening which was read in open Court on the plea which I incorporate by reference.  In essence you were living in a boarding house up in Fitzroy and you left that premises one morning on 10 April last year and were walking along Brunswick Street, Fitzroy.

3You were carrying a knife and a gentleman who worked in a nearby agency was walking along the street.  You dropped the knife and at that point you noticed the complainant walking towards you just looking at you. You then immediately picked up the knife and pointed it at him and demanded money, 'Give me your money, I want your money', a number of times.

4You were approaching the complainant, holding the knife, he was backing away.  In doing so he bumped into a table on the footpath, he grabbed the table and used that to create a barrier between you and him.  That deterred you from your offending and you then put the knife in your back pocket or in the back of your pants, turned around and told him, 'I'll fucking kill you', and walked up Brunswick Street.

5He returned to work and the police were called.  So these events constitute the charge of attempted armed robbery.  The police were called and when they arrested you, you were found in possession of a weapon at that stage, a knife, and also a small quantity of cannabis. That gives rise to the possession charge and the summary charge.

6You were arrested, as I say, on 10 April last year and you have been in custody ever since.  You were the subject of a record of interview where effectively you made some admissions but denied committing the attempted armed robbery. You did admit that you had what you called a ‘tomato knife,’ you also admitted threatening the victim as you were angry with him, but said you did not mean it. You admitted possession of the cannabis.

The seriousness of the offending.

7The learned Crown prosecutor conceded this was a lower level offence of attempted armed robbery.  It was clearly unpremeditated on your part, although you were walking in a public street carrying or having on your person a knife, but it obviously arose out of some sort of difference or impulse by you when the complainant looked at you and you then just sort of took it on yourself to attempt to demand money from him unsuccessfully.

8Your offending can be attributed to your lack of impulse control caused by damage to your brain as a result of poly-substance abuse over many years.  So it was a lower level offence.

Prior Criminal History

9Turning to your prior convictions, they are numerous.  As the learned Crown prosecutor said they come to 36 pages on the criminal history which is a fair effort and they go back for 20 years, including in Queensland commencing in 1997, when at that point given that you were born in 1980, you would have been 17.

10Your prior convictions cover a wide range of offending but it seems to be low level offending what in the criminal world is sometimes described as ‘street level’ offending, but also includes numerous charges of theft, using drugs of dependence, possessing drugs of dependence, resisting police, and assaulting police.  There are a number of offences for possessing a dangerous article, going equipped to steal, robbery, burglary, and recklessly causing injury in 2006.

11There are some driving offences, committing offences whilst on bail, begging alms, effectively too numerous to mention all your prior convictions.  Significantly you have been sentenced for possessing methylamphetamine.  You have been sentenced to a number of Community Corrections Orders which you have breached and they have then generally been converted into terms of imprisonment that often were for the time that you have served before you were dealt with.

12So going to your most recent appearance on 17 February 2017, when you had contravened a Community Corrections Order that was imposed on 12 May 2016 on counts of burglary, theft, attempting to commit an indictable offence, being on a private property without excuse and committing an indictable offence on bail, at that point you were sentenced to four months' imprisonment for the original offences.

13So it appears on that same day you were also sentenced to four months' imprisonment for criminal damage, theft from a motor vehicle, committing an indictable offence whilst on bail, theft from a shop and retention of stolen goods.  Then also wilfully obscene exposure and some public transport related offences.

14So you had an effective State sentence on that day of six months' imprisonment.  It appears in late 2017 you were released from prison and then this offending occurred about four months later.  Before that you had been the subject of a number of sentences.  In August 2016 you were sentenced to nine months' imprisonment which was for an appeal to this Court from the Magistrates' Court.

15I will not go through all the prior sentences but you have been sentenced to a number of terms of imprisonment not more than nine months over the years which shows, as the learned Crown prosecutor submitted, that your prospects of rehabilitation based on your prior convictions are - she described them as 'terrible'.  On reflection that is a reasonable assessment of your prospects of rehabilitation which makes sentencing you a very difficult exercise.

Personal Circumstances

16I turn now to your personal circumstances.  They are set out in the two reports that are before the Court, a psychiatric report from Forensicare dated 26 April 2019[3] and the pre-sentence report from the Community Corrections office.[4]

[3] Exhibit C on the plea.

[4] Exhibit D on the plea.

17In the Forensicare report, which was prompted by a report of Dr Borg, a forensic neuropsychologist, that she thought you might have a psychiatric injury. The examiner found in that report that you did not have a psychotic illness or a serious mood disorder, but that you were a person who requires referral to a drug and alcohol service.  He also found that there was only limited evidence to suggest that your actions were causally linked to any underlying abnormal mental state such that would have affected your ability to understand the wrongfulness of your actions.

18So essentially, you do not get any support in reducing your moral culpability for this offending in the report of Dr Panjarangi.  As I indicated before you are now aged 38.  You come from a very difficult upbringing.  Your parents have separated and you do not have very much contact with either your father or your mother.

19You, as I say, joined the criminal justice system from that age of about 17 and as can be seen from your prior convictions you were obviously using drugs over a long period, in and out of gaol.  In a submission from your counsel,
Ms Walker, she has said she has acted for you on numerous occasions, you have got numerous prior convictions for shop stealing which she indicated, and I accept what she says, were for just stealing food.

20So you have got this impulse control problem, you were living in the supported accommodation or transient accommodation organised by the Red Cross in Fitzroy when this offending occurred, a rooming house.  So you have little family support.  You are proposing to live with your parents when you are released from prison.

21You have not been in the workforce for many years.  You are on a disability support pension and it appears you have little education or qualifications.  So you really are in a marginal position within society where you are effectively committing crime, being either sentenced to a term of imprisonment or sentenced to a community corrections order, breaching that order and then being sentenced to imprisonment for the breach of the order, being released from prison and then reoffending.

Matters in mitigation.

22Matters in mitigation put by your counsel on the plea were that you pleaded guilty early and I accept that and you are entitled to a significant discount for that.  There is some remorse indicated by Ms Borg in her report, although there was little insight given your compromised mental functioning with impulse control problems.

23Your counsel put, and this was why the plea was adjourned part heard, that your position where you have essentially been recycled through the criminal justice system requires, that it in the interests of the community you be the subject of some form of coercive supervision that will allow your drug and alcohol problems to be addressed.

24You have been using cannabis and ice shortly before this offending, so that somehow or other you can be reclaimed from this cycle you have been in for a number of years.  She submitted that a sentence of imprisonment followed by a community corrections order would be in the interests of the community, while conceding that this is a serious offending.

25It was on that basis of the submissions of Ms Walker that I had you assessed by Forensicare on the basis that Dr Borg indicated that there might be a psychosis but the Forensicare report does not support that, but it does indicate that you do require referral to a drug and alcohol service.

26So the central issue on the sentence in the sentencing submissions is whether or not I should accede to the submissions of Ms Walker that you should be given a combination sentence or as submitted by the learned Crown prosecutor that the offending here is too serious to be the subject of a combination sentence and that you should be sentenced to a term of imprisonment with a non-parole period.

27I have thought about the relevant competing issues.  It is always in the community's interest that offenders be rehabilitated and reintegrated into society.  In addition to that there is the issue of parsimony.  It is in the interests of the community that the least coercive disposition be imposed if at all possible.

28The difficulty in your case is that you have in a sense been given lenient dispositions or given community based dispositions and you have failed them in the past.  The question is really whether anything is going to change in this case.

29On the other hand as I indicated to Ms Walker this is the first time you have been before a higher court on an indictable offence.  You have had multiple matters before the Magistrates' Court and as I have indicated you have ended up with sentences of nine months or less approximately.

30So this is the first sentence in this Court which does indicate that you have joined the big time in that sense but, as the prosecutor conceded, it is at a lower level of offending.

31Having weighed the competing considerations I have formed the view that it would be in the community interest that I do impose a combination sentence and so I propose to sentence you to a term of imprisonment of 15 months followed by a 12 months' Community Corrections Order on the charge of attempted armed robbery.

32On the charge of possession of a prohibited weapon it is a sentence of seven days' imprisonment to be concurrent, and on the charge of possession of cannabis it is a $300 fine.  I am going to impose conditions on the community corrections order that you be under supervision of the Office of Corrections and that you undergo assessment and treatment, including testing for drug abuse or dependency as directed and that you participate in programs or courses that address factors relating to the offending as directed by the regional manager.

33You have got to attend at the Werribee Community Corrections office within two business days of your release from prison, and also judicial monitoring. I am going to ask you to appear in front of me on 19 September this year so that I can assess how you are going.

34I am going to stand down for a moment and ask counsel to have a look at the Community Corrections Order and explain it to Mr Cucinotta and then I will resume in a moment. I am going to declare the PSD of 387 days.

35HIS HONOUR:  Are there any other orders sought?

36MS CROXFORD:  I made application for a disposal order on a previous occasion.

37HIS HONOUR:  Yes, a disposal order.

38HIS HONOUR: The 15 months sentence followed by a 12 months' community corrections order that is available under that case[5] you referred me to?

[5]Williams v the Queen [2018] VSCA 171

39MS CROXFORD: It is, Your Honour, and the way I have worked it out is this, the overall days minus the PSD has to - the total sum of that equation has to be less than 12 months and that is the case.

40HIS HONOUR:  I will hand this down and ask you to peruse it and then ask Ms Walker to explain it to Mr Cucinotta and then I will come back in a few minutes.

41HIS HONOUR: Pursuant to section 6AAA of the Sentencing Act had you not pleaded guilty I would have imposed a TES of two years with a non-parole period of 15 months.

42HIS HONOUR:  I will stand down and then come back in a moment.

43(Short adjournment.)

44HIS HONOUR:  Mr Cucinotta, in a sense I have decided to give you one last opportunity.  It is the first time you have been in this court, a higher court.  We are looking at the wider community interest.  I have got to resolve the interests of the community in deterrence, your personal deterrence, general deterrence, denunciation.

45People are entitled to walk along the street without someone pulling a knife on them when they look cross-eyed at you or you look cross-eyed at them and that is all factored into my sentence because it is a 15 month period of imprisonment.

46At the same time it is in the community interests that you be rehabilitated and have a chance to sort of live a law abiding life which you need to do but you need the assistance of intensive sort of support to address your drug problems and to address the lack of involvement in the community.

47So that is what the Community Corrections person will try and do and maybe refer you back to the Red Cross, get you public housing and if necessary a disability worker or something like that if you are eligible for it so that you are not just recycling your way through the criminal justice system, whether it be the Magistrates' Court or this court.  Do you understand?

48OFFENDER:  Yes.

49HIS HONOUR:  I am putting you on Judicial Supervision which means that I want you to come back here at 9.30 on 19 September and I am going to get a report from the Office of Corrections out of Werribee, and see how you are going.  Do you understand?

50OFFENDER:  Yes.

51HIS HONOUR:  Part of that also is if you commit an offence in the 12 months after you are released from gaol that breaches the order, so they will bring you back straight in front of me and I will cancel the order and you will be back in gaol.  Do you understand that?

52OFFENDER:  Yes.

53HIS HONOUR:  You have been told that by Magistrates time after time.  You have been before a Magistrate effectively every six months for the last 20 years.  That is minimum, so hopefully this might be the last lecture you get from a Judicial Officer.

54I will give you another lecture on the 19th or I will give you a commendation on 19 September if you are going well.

55OFFENDER:  No worries.

56HIS HONOUR:  I do not want you to let me down and I do not want you to let Ms Walker down.  She has stuck with you for year after year and convinced me to give you this one chance in this court.

57OFFENDER:  I respect that.

58HIS HONOUR:  I will sign this order and you will get a copy of it.  So when you are released from prison. I will declare 387 days PSD. You have got two days to go down to Werribee.  Do you understand?

59OFFENDER: Yes.

60HIS HONOUR:  I will sign the disposal order in chambers when it is sent to me.

61MS CROXFORD:  Thank you, Your Honour.  As the court pleases.

62HIS HONOUR:  I want to thank both counsel for their assistance in the matter and I will adjourn.