Director of Public Prosecutions v Da Silva
[2017] VCC 868
•6 June 2017
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No.17-00154
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HILBERTO DA SILVA |
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JUDGE: | HER HONOUR JUDGE QUIN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 May 2017 | |
DATE OF SENTENCE: | 6 June 2017 | |
CASE MAY BE CITED AS: | DPP v Da Silva | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 868 | |
REASONS FOR SENTENCE
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Catchwords: Kidnapping, assault, commit an indictable offence whilst on bail.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms J. Dunham | OPP |
| For the Accused | Ms N. Menegas | Patrick Dwyer |
HER HONOUR:
1 Hilberto Da Silva, you have pleaded guilty to one count of kidnapping and one count of assault. You have also pleaded guilty to the relevant summary offence of committing an indictable offence whilst on bail. The maximum penalty for kidnapping is 25 years imprisonment, for assault is five years imprisonment and for the summary offence is three months' imprisonment or 30 penalty units.
2 At the time of this offending you were in a relationship with your co-accused, Melita Rogalsky. The victim, Stacey Kimberley, had rented a loft above your co‑accused's garage between January and May 2016. That house was robbed twice during that period and your co-accused blamed Ms Kimberley for those thefts. After arguments and accusations Ms Kimberley moved out of the house on 26 May 2016 and had limited contact with the co-accused after that date.
3 In the late afternoon of Friday 5 August 2016 Ms Kimberley was at a friend's house in St Albans and you arrived. Later you sent a text message to the co‑accused informing her Ms Kimberley was at the house and that you would go and pick her up. The co-accused texted, "Fucking get her. Knock her out and bring her here." After a number of messages you agreed to get Ms Kimberley to go with you to meet the co-accused. You had overheard Ms Kimberley saying she needed to leave and you offered her a lift to Craigieburn which she initially declined. You continued to receive messages from your co-accused with her persisting in her request for you to bring Ms Kimberley with you. Ultimately, you persuaded Ms Kimberley to get in the car with you telling her it was not out of your way to take her home. The co‑accused had texted you 25 times and called you three times.
4 You and Ms Kimberley left at approximately 8.30 pm. You told Ms Kimberley you needed to go to your house at Keilor East to change cars. When you got to your house you contacted the co-accused and told her to come to your place as soon as possible. She replied she could not, that she had the children with her. You then returned to the car and told Ms Kimberley you could not find the other car's keys and drove off. Your co-accused continued texting you.
5 At approximately 9 pm Ms Kimberley realised that you were not going to Craigieburn as you had stopped the car in the lane at the back of the co‑accused's house in Caroline Springs. The co-accused came out of the house and yelled at Ms Kimberley and ripped open the passenger door. Ms Kimberley was pleading with you to drive off but you got out of the car, shut the driver's side door and stood next to it.
6 The co-accused started swinging punches in the direction of Ms Kimberley and connected with her once to the face. She leant back across the front seats and kicked out at the co-accused to defend herself. You opened the driver's side door, grabbed her from behind and held her wrists together whilst the co-accused climbed in the passenger door and tried to tie Ms Kimberley's wrists together with pink coloured twine. While Ms Kimberley was yelling and screaming for help you attempted to cover her mouth with your hand whilst the co-accused used duct tape to try and bind her wrists together.
7 Three neighbours heard the screaming. They walked up to the car in the lane and saw you both holding the car doors closed and then saw Ms Kimberley laying on the back seat screaming for help. You told them you were making a citizen's arrest. One of them called the police. You and the co-accused continued to hold the doors closed. The co-accused then opened the passenger door and grabbed two bags that were on the floor that belonged to Ms Kimberley and took them to the garage. Ms Kimberley took the opportunity to get out of the car and ran to the other side of the lane. She managed to call a friend who called the police.
8 Ultimately, Ms Kimberley told police what had happened. You and your co‑accused were arrested and taken to Melton Police Station.
9 The police executed a search warrant at your co-accused's home and your car. A number of items were seized including duct tape that had been knotted to form bindings, mixed cords and pink coloured twine and items that had been taken out of Ms Kimberley's bags. Also seized were your mobile phones that contained relevant text between you and your co‑accused.
10 You were interviewed at Melton Police Station on 6 April 2016 and told them that you were giving Ms Kimberley a lift home and you stopped at the co‑accused's house and that the women began arguing. You said you did not get involved and told a neighbour to call the police.
11 Once, however, you became aware that police had your phone you admitted your plan with the co‑accused as disclosed in the text messages. You admitted your level of involvement including your actions once at the house and the lane. You said you became involved as your ute had been stolen during earlier robberies when Ms Kimberley had lived at the house.
12 I received a victim impact statement from Stacey Kimberley and I take that material into account. Your offending has made her lose confidence, withdrawn, stressed and anxious. She sees herself as a different person. She has become more isolated and has trouble sleeping. She says, "No one has the right to make me feel as I have. I just want me back but that has been taken." The effect of your offending on her has been significant.
13 I received a report from Gina Cidoni, consultant psychologist, dated 22 May 2017, Exhibit 1 and take that material into account. Included in the report is an outline of your personal circumstances.
14 You are currently aged 45. You married your ex-wife when you were aged 21 years and you have three children, currently aged 23, 21 and 17. You were married for 23 years before you separated which, I was informed, was on amicable terms. You remained living in the garage at the matrimonial home until your ex-wife discovered that you were using ice with friends there. Your ex-wife remains supportive of you though was unable to attend court with you today.
15 You developed a relationship with your co-accused in the context of your ice use. Your two year relationship with her was tumultuous. I was informed that you have two outstanding matters relating to family violence orders concerning events during the course of that relationship. These occurred in January 2016 and January 2017, either side of this offending.
16 After school you completed a motor mechanic apprenticeship. As an adult you have worked various jobs including as a truck driver and in the building industry as a crane operator. You had your own motor mechanic's business in Keilor East from 2012 until 2016. You closed that down but continued to do similar work from your ex-wife's home until you were incarcerated in February this year. I accept you have been gainfully employed your adult life, though your drug use has affected your success and progress in your areas of work.
17 You have had some issues with your health as outlined in the medical report of Dr C J Morales dated 25 May 2017 and attached material, Exhibit 2. I take those matters into account.
18 You have previously had issues with alcohol though more recently with the use of methylamphetamine or ice, gradually increasing your intake of this substance over the last seven years or so.
19 Your offending on this occasion was explained by your use of ice and occurred in the context of your relationship with the co-accused. Your substance abuse does not mitigate your offending but does provide some explanation for it.
20 You have a relevant prior matter. On 13 February 2009 you were, without conviction, ordered to pay money to the court fund for recklessly cause injury. As previously noted you have two outstanding matters relating to family violence orders against your co-accused and I was informed that they will be dealt with by a plea in the Magistrates' Court after this matter has been finalised.
21 I note that you successfully completed the CISP program while on bail, see report dated 30 January 2017. On that program you sought assistance with housing, have completed drug and alcohol counselling and linked in or engaged with a forensic psychologist. However, one of your subsequent matters occurred after the completion of this program and you have been in custody since 2 February 2017.
22 You pleaded guilty at the date this matter was listed for a contested committal, though not at the earliest opportunity. I take your plea into account. There is utilitarian value in the plea as none of the witnesses, especially Ms Kimberley, were required to give evidence and you have saved the community the costs associated with running a trial.
23 Your plea is also indicative of your acceptance of responsibility for your actions and shows a willingness to facilitate the course of justice. I was informed that your co‑accused was contesting the charges in a trial scheduled for later this year.
24 There are features that augur well for your rehabilitation. You have the support of your ex-wife and children. I understand your youngest son wants to do a motor mechanic apprenticeship with you and you have reasonably good work prospects.
25 You are of mature years and have a limited prior history. This is your first time in custody and you have been forced into detoxification from your ice use. You have participated in relevant programs whilst in custody. I accept that as long as you refrain from substance abuse that your rehabilitation prospects are good.
26 There were some aggravating features of the offending. You instigated the event by informing your co‑accused of your chance encounter with Ms Kimberley. You tricked Ms Kimberley into getting into your car, pretending you would take her home. Part of the conduct occurred in company. The effect on Ms Kimberley has been significant.
27 The maximum penalty for kidnapping is 25 years. You conduct was at the lower end of the seriousness for this offence. You committed this offending whilst on bail.
28 As to the appropriate disposition, the prosecution submitted that given the significant impact on the victim and other relevant sentencing principles the only option available to me was a term of imprisonment, though it was conceded that a combined term of imprisonment and community correction order was within sentencing range.
29 Given the recent amendments to the Sentencing Act which came into effect in March this year, inherent in that submission was the recognition that the prosecution viewed a sentence of 12 months or less with a community correction order at its completion within range of sentencing options available.
30 Your counsel submitted that all sentencing purposes could be served by recognition of time served and the imposition of a community correction order. Alternatively, it was submitted that any additional time served should be effectively 12 months or less combined with a CCO. I had you assessed as to your suitability for such an order and received a favourable report.
31 This episode lasted for a little over half an hour, however, the experience would have been terrifying for Ms Kimberley. Although your conduct has been explained by your ingestion of ice it was your idea to get Ms Kimberley and you continued to assist once you had taken her to Caroline Springs.
32 The principles of general deterrence, just punishment and community denunciation are important sentencing considerations. Specific deterrence has less relevance given your limited prior history and good rehabilitation prospects. All these matters need to be balanced with the matters in mitigation including your plea of guilty and personal circumstances.
33 Could you stand up please, Mr Da Silva. In respect of kidnapping, Charge 1, you are convicted and sentenced to a term of imprisonment of 12 months and at the completion of that period of imprisonment a community correction order for a period of two years. Under the community correction order you will be required to do 75 hours community work. There will be a treatment and rehabilitation condition in respect of drug and alcohol and also in respect of programs to reduce offending. You will be under the supervision of the Corrections Office in relation to the order.
34 In respect of Charge 2, it is an aggregate sentence, so that is the same penalty in respect of the kidnapping though it is an aggregate sentence.
35 In relation to the summary offence, committing an indictable whilst on bail, you are convicted and fined $300.
36 Fifteen days pre-sentence detention is declared and pursuant to s.6AAA of the Sentencing Act if you had not pleaded guilty to this matter I would have sentenced you to a term of imprisonment of four years with a minimum of two. I will just have my associate prepare the community correction order which will commence at the end of the 12 month period of custody, Mr Da Silva. You need to know when the community correction order comes into effect, if you commit another offence you will come before me and I will have to re‑sentence you in relation to this matter.
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MS DUNHAM: Your Honour, where must he report to?
HER HONOUR: I think it's Sunshine.
MS DUNHAM: Thank you.
HER HONOUR: You can sit down, Mr Da Silva, while this is happening.
ASSOCIATE: There's some fault on it and it's not allowing me to print.
HER HONOUR: Do you want me to stand down? Do you want to work it out?
ASSOCIATE: Not, it's okay.
HER HONOUR: Yes, thanks. Do you want to go down, Mr Da Silva, to sign that please. To explain the order? The CCO?
MS MENEGAS: I'm sorry, Your Honour.
HER HONOUR: Do you want to go and explain the order to Mr Da Silva.
MS MENEGAS: Yes, sorry Your Honour.
HER HONOUR: Thank you. I'll just stand down.
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