Director of Public Prosecutions v Cutugno

[2015] VCC 108

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-02050

DIRECTOR OF PUBLIC PROSECUTIONS

v

AGOSTINO CUTUGNO

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JUDGE:	HIS HONOUR JUDGE JORDAN
WHERE HELD:	Melbourne
DATE OF HEARING:	11 February 2015
DATE OF SENTENCE:	12 February 2015
CASE MAY BE CITED AS:	DPP v Cutugno
MEDIUM NEUTRAL CITATION:	[2015] VCC 108

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW
Catchwords:  Sentence – ARMED ROBBERY (1 charge) – plea of guilty
Legislation Cited: Sentencing Act 1991, s.6AAA, s.18
Cases Cited:

Sentence:Convicted and sentenced – 3 YEARS imprisonment, non parole period 2 YEARS

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Picone	Office of Public Prosecutions
For the Accused	Ms P. Smith	Revill & Papa Lawyers

HIS HONOUR:

1Mr Cutugno, you have pleaded guilty to one charge of armed robbery.  The maximum penalty for this offence is 25 years' imprisonment.  You pleaded guilty at the earliest stage and I take that into account.

2The circumstances of your offending are set out in the agreed statement of facts and the photo of the knife used in the robbery (Exhibit A).  In summary, the facts are that on 29 August 2014 you attended at a pharmacy in Willaton Road, St Albans to obtain prescription medication for your sister.  You returned almost two hours later disguised by a black garbage bag over your head and carrying a knife.  Your brandished the knife near the female shop assistant's face and demanded money.  The female pharmacist then became aware of your presence.  The two women were fearful and ran out of the shop and rang 000.  One of them was screaming "Help me, help me".  You ran off with the till.  A man from another shop armed himself with a piece of wood and pursued you.  He then confronted you.  You dropped the till, the knife and the garbage bag and ran down Willaton Road. 

3The police apprehended you soon after and you made full admissions.  You told the police you took the knife so "they'd be scared".  You also said you knew the two women were scared "because they started yelling".  While it could be said this offence is more towards the lower end of armed robbery, it is still serious in view of a number of factors that include the brandishing of a knife, the intention to scare the women in the shop and the use of a disguise.

4The victim impact statement of one of the women is Exhibit B.  She describes the trouble sleeping and problems she has had replaying the incident in her mind.  She is now more wary of customers.  Fortunately for you, the victim does not describe any major post-traumatic disorder.  Nevertheless, I accept the evidence of the impact on her.  That impact is not surprising following a frightening incident such as you perpetrated.

5In terms of your history, the criminal record file discloses appearances before criminal courts between 1977, when you were 17 years of age, and 2014.  It is admitted you were even on bail for summary offences when you committed this armed robbery.  Your criminal record speaks for itself in terms of thefts from shops and armed robberies and attempted armed robberies at shops.  You have also been dealt with by the court for a range of other matters.  Of particular relevance are armed robberies dealt with in this court on 16 October 2002 by His Honour Judge Michael Bourke and attempted armed robbery charges dealt with by Her Honour Judge Gaynor on 10 October 2011.  Their sentencing remarks are Exhibit C.  There is some consistency in the offending in that you attended shop premises, brandishing knives or garden scissors to frighten shop staff. 

6Turning to personal matters, you are now 55 years of age.  The material indicates you have had a very limited education.  You suffered from family violence issues as a child at the hands of your father.  You have not been employed for at least 20 years.  In particular, you also suffered a lot of grief following your mother's death in early 2013.  You were very dependent on her.  This was followed by the death of your brother from a heroin overdose in May 2013.  I accept both events have added turbulence to your already troubled emotional state and the stress has led you to self-harm incidents.

7The main emphasis of the material tendered on the plea is about your mental disabilities.  Three reports dealt with this (Exhibit 1).  What they show is that you unfortunately have a low IQ.  You have also suffered schizophrenia for many years, depression, alcohol-dependence, benzodiazepine-dependence and a personality disorder.  These have accompanied your low IQ.  It is clear some of your impaired mental functioning is organic and some the result of less permanent disorders.  What matters is that I accept the evidence shows in this case the extensive nature, extent and effect of mental impairment experienced by you at the time of the offence.

8The thrust of the plea featured the question of the appropriate account to be taken of your impaired mental functioning in imposing sentence.  The prosecution appropriately recognised your permanent impairment and that the majority of the six guidelines in R v. Verdins are relevant to sentencing.  I accept that sensible view of the evidence and have taken into account your very significant mental disabilities in reaching a decision on sentence. 

9The earliest report is from Dr Sheryl Monteath, clinical neuropsychologist, on 20 May 2014.  This report addresses cognitive functioning and decision-making.  A number of test results indicated an IQ of 55, being in the Extremely Low Range.  A measurable cognitive disability with very widespread difficulties including a lack of insight into your support needs and incapacity to make informed decisions is recorded.  She felt a high degree of external structure, supervision and monitoring was needed to support your functioning and to assist problem-solving.  Your counsel submitted that a Community Corrections Order with a Justice Plan as the most appropriate sentencing approach.  That submission, in my opinion, was not supported by the thrust of the report that I have just referred to when the implications and requirements of a CCO are considered.

10On 14 August 2014, a psychiatrist, Mr Mahesh Jayaram, from the North Western Mental Health Group reported that the main diagnosis was schizophrenia and anti-social personality disorder.  Relapses into alcohol and substance abuse were likely to increase the risk of harm to yourself and re-offending.  Meaningful engagement with Disability Services treatment for substance abuse, compliance with medications and on-going psychologist work the doctor said "...may provide some benefit".  This sort of meaningful engagement, in my opinion, is unlikely to occur in a CCO context in view of your problems that include a lack of insight into your support needs, problems with decision-making, organisation and your general cognition.

11Dr Lester Walton, consultant psychiatrist, has noted your chronic intellectual difficulties but he said it was not a disability that would give rise to a defence of mental impairment.  He considered that your major psychotic illness and dull intelligence "...make you immune to the specific deterrent component of any particular sentence".  To a degree, I find that opinion accurate.  Of course, general deterrence must also be taken into account in an armed robbery such as this on a suburban retail shop. 

12Your sister-in-law, Mrs Heather Cutugno, gave evidence on your behalf.  She spoke, amongst other things, of the difficulties you have had with daily life both before and after the death of your mother and brother in 2013.  I accept her evidence about those problems and the addition of that grief to your already troubled life. 

13Dealing generally with matters of mitigation, I accept you gained nothing monetarily from your crime.  Also, it was of an unsophisticated nature, almost certain to lead to your arrest.  I take account of your early plea of guilty.  You have spared the witnesses, particularly the two women from the shop, from the ordeal of giving evidence.  You have also saved the community time and expense. 

14I have taken into account all the submissions of your counsel, including that regarding a CCO accompanied by a Justice Plan and about parole.  The Crown submitted an immediate custodial sentence was required and pointed to your previous character and history of offending.  The Crown submitted this involved over 40 court appearances with multiple terms of imprisonment.  At age 55 years, I am not confident about your prospects of rehabilitation. 

15In the end it must be said the community cannot and will not tolerate people being so seriously compromised in their right to feel safe at their place of work in a suburban retail shop.  An immediate term of imprisonment manifests the community's denunciation of your crime.  I have considered all the circumstances of the offence and of the offender in arriving at the appropriate sentence.

16In these circumstances, I sentence you to three years' imprisonment.  I direct that two years be served before you are eligible for parole. 

17I declare 167 days pre-sentence detention pursuant to s.18 of the Sentencing Act. 

18I will make the forfeiture order sought by the Crown which is consented to.

19Pursuant to s.6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty, I would have imposed a sentence of four years' imprisonment with a three year non-parole period.

20Thank you, you can take Mr Cutugno.

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