Director of Public Prosecutions v De Leo
[2020] VCC 745
•28 May 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-00766
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MARCO DE LEO |
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JUDGE: | HIS HONOUR JUDGE GEORGIOU | ||
WHERE HELD: | Melbourne | ||
DATE OF HEARING: | 23 April 2020 | ||
DATE OF SENTENCE: | 28 May 2020 | ||
CASE MAY BE CITED AS: | DPP v De Leo | ||
MEDIUM NEUTRAL CITATION: | [2020] VCC 745 | ||
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: assault – kidnapping - commit indictable offence of kidnapping whilst on bail – unlicensed driving – two incomplete jury trials - criminal record – drug addiction – pleas of guilty
Legislation Cited: s.5(2)(daa) Sentencing Act 1991
Cases Cited:DPP v Palise [2017] VCC 1379; DPP v Baker [2016] VCC 392; DPP v Flavel [2016]; Kalala v R [2017] VSCA 223; Mourkakos v R [2018] VSCA 26; Phillips v R; Liszczak v R [2017] VSCA 313; DPP v Castillo (a Pseudonym) [2020] VCC 289
DPP v Herring (a Pseudonym) [2019] VCC 2229
Sentence: total effective sentence of 31 months' and 14 days imprisonment with a non-parole period of 20 months.
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms G McMaster | Solicitor for the Director of Public Prosecutions |
| For the Accused | Mr J Desmond | Giorgianni & Liang Lawyers |
_________________________________________________________
COUNTY COURT OF VICTORIA
19136
HIS HONOUR:
Marco De Leo, you have pleaded guilty to the following charges:
Charge 1 – on 15 June 2016, you assaulted Jocelyn Franco[1];
Charge 2 – on 15 June 2016, you kidnapped Jocelyn Franco;
Charge 3 – on 16 June 2016, you kidnapped Jocelyn Franco;
Charge 4 – on 16 June 2016, you assaulted Jocelyn Franco.
[1] Jocelyn Franco is a pseudonym
You also consented to the following summary charges to which you pleaded guilty, being heard by me:
Charge 10 – on 15 June 2016, committing an indictable offence of kidnapping whilst on bail;
Charge 11 – on 16 June 2016, committing an indictable offence of kidnapping whilst on bail;
Charge 14 – on 15 June 2016, unlicensed driving;
Charge 15 – on 16 June 2016, unlicensed driving.
The maximum penalties for each of the offences are as follows:
Common law assault – five years’ imprisonment;
Kidnapping, contrary to common law – 25 years’ imprisonment;
Committing an indictable offence whilst on bail, 30 penalty units or three months imprisonment;
Unlicensed driving, 60 penalty units or six months imprisonment.
You have also admitted your criminal record to which I will return later in these sentencing reasons.
Circumstances offending
The circumstances of your offending are set out in the summary of prosecution opening on plea dated 2 April 2020, which was tendered and marked Exhibit C. Mr Desmond, who appeared on your behalf, did not take issue with the matters in the summary.
Each of the kidnapping and assault charges were committed on your former partner, Jocelyn Franco. You and Ms Franco had been in a de facto relationship for approximately 10 years. That relationship ended in April 2016.
At the time of your offending Ms Franco was 27 years of age and living in Doncaster with her new partner, Matthew Nowak. You were 33 years of age.
You and Ms Franco first met through use of a common internet site. She was then living in New South Wales. After some time communicating with each other, Ms Franco travelled to Melbourne and moved in with you, Matthew Nowak and Mr Nowak’s mother.
During your relationship there had been some episodes of violence concerning disputes over housework, money and Ms Franco’s working hours. You also accused Ms Franco of being unfaithful to you. The relationship ended after an incident on 18 April 2016 when you again argued and assaulted her. You are not to be punished for those matters. They explain the reason for the breakdown in your relationship and Ms Franco’s fear of you.
On 15 June 2016 Ms Franco was at her home in Doncaster with Daniel Nowak, the brother of her partner. You were in contact with Ms Franco by both telephone and Facebook, demanding that she call you.
In one of the communications you told Ms Franco that you were going to go to her house in Doncaster. Ms Franco became frightened of the prospect of your arrival and contacted police.
You arrived at her residence at approximately 2 pm. You were driving a car belonging to a friend of yours. Upon your arrival, Daniel Nowak went outside to speak with you whilst Ms Franco remained inside the house. You were told by Daniel Nowak that she did not wish to speak to you.
Despite that, you managed to make your way past Mr Nowak and entered the house. You spoke to Ms Franco about your relationship and then told her to get into the car. She said that she did not wish to. She tried to get past you, but you grabbed her, put your arm around her neck and grabbed her right arm and twisted it. That conduct forms the basis of Charge 1, the common law assault. Ms Franco asked you to let her go but you refused. After some further discussion with Daniel Nowak and Ms Franco you picked her up off her feet and carried her out to your car and placed her on the front passenger seat. This was clearly against her will. Ms Franco was scared and did not move from the seat. That conduct forms the basis of Charge 2, kidnapping.
You were observed to be drug-affected and highly agitated at the time.
You drove Ms Franco to a park in Canterbury where you stayed for a short time. You told Ms Franco that you wanted her to spend the day with you. She replied that she was not feeling well and wanted to be taken home. You said that you would take her to your friend’s house. She asked if she could first be taken home to change her clothes. You agreed.
Upon returning to Ms Franco’s home, Ms Franco spoke with Daniel Nowak and it was agreed that it would be best for her to go with you, so that you would not become further aggravated. Ms Franco returned to your car and you drove her to your friend’s house in Springvale. During this time, Ms Franco was in contact with Matthew Nowak via telephone text messages. I have had regard to those messages at the request of Mr Desmond. The messages seek to re-assure Matthew Nowak. In one message she told him 'I’m only playing along to keep the situation calm'. In another she stated 'I am okay I will be coming back. l don’t want to aggregate (sic) the situation'. That message was sent at 8.58 pm.
On several occasions Ms Franco asked to be taken home but you refused. You drove to your friend’s house in Springvale. It is not clear to me how long you remained there but after leaving your friend’s address, you drove to the Greythorn shops in North Balwyn where you parked at the rear of the shops. Whilst there you smoked 'ice' and you asked Ms Franco to smoke with you. She told you that she did not wish to smoke 'ice' but as you were becoming frustrated with her, she became fearful for her safety and agreed to smoke 'ice' with you.
At approximately 11 pm that evening, you took her home. Ms Franco was with you some nine hours from approximately 2 pm to 11 pm on 15 June 2016. However, matters did not end there.
On 16 June 2016, between 12.40 am and 3.23 am, you called Ms Franco on ten occasions and sent her nine messages through the Facebook Messenger application. The messages included repeated requests for her to call you and contained threats that you would attend at her address.
At approximately 3.23 am, you left a voicemail on her phone stating:
'I’m calm, but if you don't call me, after 2.25, I'm already on my fucking way here, and then I will be shitty, and then I will fucking lose my shit, and then I will fucking grab the bat and fucking (inaudible) gonna fucking stop me. I just want you to call me please'.
At 3.30 am you were at Ms Franco’s home banging on the front door, which was opened by Matthew Nowak. You asked to speak to Ms Franco in private. Matthew Nowak asked you to leave. You were again observed to be drug-affected. You did not leave and repeatedly asked Ms Franco to get in the car with you. Ms Franco refused to get into the car. You then suggested that Daniel Nowak could also go in the car with you and Ms Franco. On that basis she agreed.
Ms Franco got into the front seat and Daniel Nowak into the rear. As you were driving you grabbed Ms Franco’s right hand and started twisting it. You were angry, ranting and raving. You argued with Ms Franco about your relationship with her. After approximately ten minutes, Daniel Nowak got out of the car to go to the toilet. Once he was out of the car you drove off quickly with Ms Franco still in the car. This conduct forms the basis of Charge 3, the second kidnapping.
You drove Ms Franco to your friend’s place in Springvale, arriving at approximately 5.30 am. You parked in the driveway and locked yourself and Ms Franco in the car. You forcibly took Ms Franco’s phone from her and went through its contents. You questioned her about the contents of her telephone. Whilst in the car, you hit her twice to the right side of her face using the back of your hand. That conduct is part of the basis for Charge 4, common law assault. After a while you fell asleep.
At 8.30 am whilst you were sleeping, Ms Franco unlocked the car and ran to some shops in Springvale. She ran into a Subway restaurant and asked a staff member for help. You had by this stage woken up and you followed her into the restaurant where you started yelling at her. The manager of the restaurant managed to separate you from Ms Franco.
You then chased Ms Franco around the shop while yelling at her. During the chase she fell over. You grabbed her and lifted her to her feet before dragging her from the restaurant, along the footpath and a pedestrian crossing. Your conduct was witnessed by morning commuters. This further conduct also constitutes part of Charge 4 on the indictment.
You conduct inside the Subway restaurant was recorded on CCTV. The recording was tendered during the plea hearing. I have viewed the recording and what can be seen is a very distressed Ms Franco trying to escape from you by sheltering behind a Subway employee before you chased and eventually caught her. There were three other persons visible in the restaurant at the time.
A number of phone calls were made to '000' by members of the public. Police arrived shortly thereafter and saw you standing over Ms Franco who was lying on her back. She appeared to be unconscious.
You were arrested by police, and after complaining of chest pains, you were taken to the Monash Hospital. You were released from hospital with no reported injury. Ms Franco was taken to Dandenong Hospital where she was treated for injuries including a fractured finger and bruising.
You were remanded in custody on 16 June 2016. On 30 March 2017, you were released on bail.
You were interviewed by police on 16 June 2016. When details of the allegations were put to you by police you chose not to reply.
Procedural history
The charges against you went to committal hearing. The committal was heard over four days on 17 February 2017, 21 February 2017, 30 March 2017 and 13 April 2017. On 13 April you were committed for trial and entered pleas of not guilty. Thereafter, and following a number of directions hearings and a sentence indication hearing, you were tried in this court. Your first trial commenced on 10 April 2018 and on 13 April, the jury was discharged. A second trial commenced on 17 April 2018 but the jury in that trial was discharged on 1 May 2018.
A third trial was listed to commence before me on 24 February 2020. The indictment then against you had additional charges of common assault, kidnapping, false imprisonment, and make threat to inflict serious injury. Those matters related to another alleged incident on 13 June 2016. You also faced a charge of aggravated burglary said to have occurred on
15 June 2016, and charges of making a threat to inflict serious injury, false imprisonment, and recklessly causing injury said to have occurred on 16 June 2016. I was then informed that there was some prospect of the case settling and so you were not arraigned. The trial was adjourned to the following day.
On the second day of your trial and before a jury was empanelled, the case against you resolved. You then entered pleas of guilty to the charges upon which you now fall to be sentenced.
Impact Statement
Ms Franco provided a Victim Impact Statement which was read in court by the learned prosecutor.
Your offending is not without serious consequences. Ms Franco stated that the three and a half years of being in and out of court has been one of the most difficult and distressing situations she has ever faced. She stated that even to this day she is constantly looking over her shoulder worried that she might bump into you. She has now been in counselling for approximately two years, attending anywhere from one to three times per week. She continues to have difficulty sleeping, experiences nightmares and remains traumatised by your conduct. In addition to the emotional impact, she also continues to suffer pain as a result of the fracture of her finger, which happened during the second assault.
Criminal record
You have an extensive history of criminal offending.
Your criminal history dates back to January 1998 at the Dandenong Children’s Court. Your first appearance in an adult court was at the Dandenong Magistrates’ Court in April 2001 on charges of burglary, theft and criminal damage. On 2 October 2001 you were placed on an 18 month community based order for a large number of dishonesty offences as well as offences of unlawful assault and recklessly causing injury. You breached that order and after a number of failures to appear, on 2 September 2002, at the Dandenong Magistrates’ Court, you were sentenced to two months’ imprisonment, which was wholly suspended for a period of 12 months. On 12 November 2002 you were dealt with for a number of offences at Dandenong Magistrates’ Court, including failure to answer bail, breaching an intervention order and driving in a manner dangerous.
You thereafter did not appear in court until 10 September 2009 when you appeared at the Dandenong Magistrates Court charged with a number of driving offences, including driving whilst disqualified and driving whilst your authorisation was suspended. You were sentenced to an aggregate term of imprisonment of 42 days which was wholly suspended. I note from the endorsement on the record that those offences were committed in 2004.
In May 2014 you were sentenced to five months’ gaol which was wholly suspended for the offences of stalking and contravening a family violence intervention order. On the same occasion you were convicted and fined for threatening to inflict serious injury and using a carriage service to menace.
Your next appearance was at the Ringwood Magistrates’ Court on 31 October 2017 for offences of failing to give information as to the driver of a motor car, driving whilst disqualified, driving whilst your authorisation was suspended, failing to stop before a stop line and failing to answer bail. You were placed on a community corrections order for a period of 12 months with conditions that you perform 150 hours of unpaid community work, undergo treatment and rehabilitation for drug abuse or dependency, and undergo a mental health assessment and treatment. Your licence was cancelled and you were disqualified from driving effective from 31 October 2017.
Finally, at the Ringwood Magistrates’ Court on 17 December to 2019 you were convicted for the offences of making a threat to kill, unlawful assault, criminal damage and committing an indictable offence whilst on bail. You were convicted and fined an aggregate sum of $1,000. I do note that the offences on which I am to sentence you occurred before your appearances at Ringwood Magistrates' Court on 31 October 2017 and 17 December 2019.
Your history of offending is relevant to assessing your prospects of rehabilitation; the question of the need to deter you from reoffending; and the degree of leniency that might be extended to you on this occasion.
Background and personal circumstances
You are 37 years of age. You were born in Turin, Italy and at the age of five, you migrated with your family to Australia in 1988.
Tendered at the plea hearing is a report from Warren Simmons, psychologist, dated 6 April 2020. It conveniently sets out your personal history and was relied on for that purpose by Mr Desmond.
Upon arrival in Australia you initially settled in Murrumbeena. You told Mr Simmons that you had lived in approximately twenty-five different places throughout your childhood.
Your father is now aged 66 and when in Italy, had been a member of both the army and the police force. He has also worked as a motor mechanic for a car dealership. Your mother remained at home looking after you and your three younger siblings until you were 11 years. Your mother then commenced work in a café. You told Mr Simmons that your mother suffered a nervous breakdown and has had problems with depression.
Your parents separated in 1996 when you were aged 12 or 13 years. You initially lived with your father but after a short period of time, you went to live with your mother. You remained living with your mother and younger siblings until the age of 13 or 14, when you were made a ward of the state. You remained a ward of the state until the age of 17.
You described your childhood as difficult. You witnessed violence that your father directed towards your mother. Your mother often physically disciplined you. You report that as a family, you seldom experienced social activities with other members of your extended family. You were not encouraged to socialise with other children and you did not have a good relationship with your siblings.
As a state ward you had ten to fifteen placements with different families. You told Mr Simmons that your time in care was 'atrocious', suffering both physical and psychological abuse.
At the age of 17 you returned to live with your mother and siblings, but not long thereafter, you were evicted from home. For the next four to five years you were homeless and either living on the streets or staying with friends where possible. At one point, whilst working in a pizza shop, you lived in your car. At the age of 25 you moved to Queensland where you obtained work as a door-to-door salesman.
Your schooling also suffered by reason of your difficult circumstances. You reported having attended approximately ten different primary schools and your early education was made more difficult because you did not speak English. You had an integration aide to assist you in your early years.
You attended Rowville Secondary College for Years 7 and 8. You told Mr Simmons that you were teased 'mercilessly' and had no friends. You then attended Berengarra special school for Year 9, but you had difficulty fitting in. You were later enrolled at Brandon Park Technical School for some four months. You subsequently attended Ferntree Gully Technical School and then Mornington Secondary College, before completing Year 10 at Wheelers Hill Secondary College. Your schooling experience was not a happy one and you were frequently suspended. You were eventually asked to leave Wheelers Hill Secondary College after you were involved in a fight.
Since leaving school you have had a number of jobs but as you told Mr Simmons, you were more often unemployed than employed. Your longest period of employment appears to have been in the panel beating industry where, after several years with the one employer, you bought the panel business from him. You operated that business for approximately three and a half years until you lost a major contract. You have not worked, according to what you told Mr Simmons, since 2013.
You have a lengthy history of drug abuse. You were first introduced to cannabis on your first day in foster care but did not smoke again until the age of 16. You reported to Mr Simmons that at its peak you were smoking approximately five grams of cannabis per day. Your cannabis use continued for between 10 to 15 years. You eventually stopped smoking when you commenced to experience chest pain.
From about the age of 16 and for a period of approximately 10 years, you were using MDMA, amphetamines and cocaine on a regular basis.
You reported to Mr Simmons that you were also a user of methylamphetamine, which first started in your early twenties. On your return to Melbourne from Queensland, you lived with a friend who was a trafficker of methylamphetamine. At its peak, you would often smoke two and a half grams per day, for up to five days in a row. This continued, you said, up to the time you were incarcerated. I take this to be a reference to the time you were remanded on the matters before me. You told Mr Simmons that whilst in custody you undertook alcohol and other drug programs and that you had only limited involvement with drug and alcohol treatment programs in the past.
You reported no significant medical history to Mr Simmons and when you saw him, you were not on any medication. However, in September 2019, when you were again residing with your mother, you were admitted to Upton House, a psychiatric unit at the Box Hill Hospital, where you were an inpatient for ten days. During that time you were prescribed Olanzapine and Avanza. You are no longer taking either medication.
I note from the materials provided to me that the event which preceded your admission to Upton House, was an incident involving your mother and your brother, David, which occurred on 27 September 2019. During that incident, you are alleged to have thrown a bowl at a wall following your mother asking you if you were okay. You became verbally abusive and yelled and swore at her. As she tried to call the police, you struck her several times to her face and grabbed her around the throat squeezing tightly with one hand. Your brother intervened and attempted to pull you away from your mother. You then assaulted him. Police were called and you were arrested and conveyed to the Knox police station. Whilst at the Knox police station you were assessed by the mental health clinician who placed you on an involuntary psychiatric order.
I am told that the above incident is reflected in the convictions imposed at the Ringwood Magistrates’ Court on 17 December 2019.
The discharge summary from Upton House was tendered by your counsel. That report states that you had become enraged after the thermostat was increased by one degree and that you choked and hit your mother and threatened to kill your brother. A collateral history taken from your family suggested that you had been paranoid and talking to yourself. You were diagnosed with having suffered a psychotic episode which, by the time of your discharge on 5 October 2019, had resolved.
In Mr Simmons’ opinion, based on what you told him, your admission to Upton House, is consistent with a drug-induced psychosis.
You told Mr Simmons that in the month before the offending before me, your use of methamphetamine had increased and you were hearing voices consistently, which were saying unpleasant things about you. You stated that it was in that context that you acted as you did, admitting that you were calling the victim constantly wanting to address your relationship. Mr Desmond submitted that in the lead up to these offences you had, in his words, 'a raging drug habit'.
You expressed remorse to Mr Simmons for your actions, acknowledging that your conduct may have had a significant impact on the victim, Ms Franco. You admitted that your behaviour was wrong and that you would like to apologise for it.
Mr Simmons stated that you presented with some symptoms of depression but it was difficult for him to know whether these were reactive in nature or have been present for a long time. He considered that you would benefit from a referral for drug and alcohol counselling and for psychiatric opinion. He also considered you require psychological assistance with cognitive behavioural strategies and general life skills.
Mr Simmons considered that you have ‘some prospects for rehabilitation’, given what he says is the lack of significant antisocial personality traits, a limited range of prior offending and the fact that you have managed your own business successfully for some time. I do note, however, that as to your history of offending, Mr Simmons stated, 'it was noted that these have been for driving-related offences and have been sporadic in nature'. Your history of offending clearly goes beyond driving-related matters. His conclusion that you have 'some prospects for rehabilitation', even on his incorrect view of your prior history, is not a strong endorsement.
Mr Desmond tendered two reports from the Court Integrated Services Program ('CISP'). They are dated 31 May 2017 and 21 June 2017. At the time of your initial assessment on 28 March 2017, the author of the reports stated that you presented with issues with illicit substances, anger management and mental health. However, although you completed a drug and alcohol assessment with the Australian Community Support Organisation on 12 May 2017, you did not attend any of the three appointments that were scheduled for you. As a result, you were not offered any further appointments. Additionally, you reported that you enrolled in and paid for a men’s anger management treatment group with the psychology clinic at Swinburne University. Unfortunately, you did not attend the initial appointment as you were on remand and so missed your place. You re-booked your enrolment for 15 May 2017 but you did not attend. The CISP manager referred you for an appointment with the Swinburne Psychology Clinic for individual anger management counselling. A phone interview was conducted on 7 June 2017 which you completed. An appointment was scheduled for 19 June 2017 which you did not attend. You did not return the clinic’s calls and you did not undertake any anger management treatment. On 4 July 2017 you were removed from the CISP treatment plan.
Mr Desmond also tendered drug urine results for the following dates: 7 April 2017, 12 April 2017, 18 April 2017, 20 May 2017, 24 May 2017 and 30 May 2017. Each of those urine screens did not reveal the presence of illicit drugs.
Also tendered was an enrolment certificate from Barwon Centre for Corrections Education. That shows that for the period 13 September 2016 to 14 February 2017, you enrolled in and completed a Certificate II in Horticulture, Certificate III in Micro Business Operations, Certificate II in Skills for Work and Vocational Pathways, Certificate I in Information, Digital Media and Technology, and a Certificate I in Construction. The report was tendered and marked Exhibit 7.
Finally, Mr Desmond relied on a reference from your father dated 21 April 2020 and a reference from Simon Galbally dated 20 April 2020. I have had regard to both references.
Your father stated that it is only in the past five to six years that he has been fully re-acquainted with you. He confirmed that he divorced your mother when you were aged 17. He also confirmed that when you were about 14 years of age, your mother gave you up to state care, a matter of which he was then unaware. Your father stated that since the commission of these offences you have often expressed to him your deep feelings of guilt and shame about what you did and the impact your conduct has had on Ms Franco. He further stated that you have never sought to excuse or blame others for what you did. Your father described you as a sensitive man who is kind and generous.
Mr Simon Galbally has known you for approximately three and a half years. Mr Galbally knows you through your father. You discussed your offending behaviour with him. He stated that you appear to be greatly ashamed of your behaviour and the harm you have caused to your victim.
Mr Galbally’s experience is that you are a kind and generous character. You have helped him by mowing his lawns without being asked to do so. He also speaks of the help you have provided to your father.
I also heard from Mr Rick Lyons who was called to give character evidence on your behalf at the plea hearing. Mr Lyons has known you for approximately eight years and described you as his closest friend. You have lived with him since your release on bail on 23 October 2019. He said you are a 'big hearted' person who provides assistance around the house, as well as contributing to food and rent. With regard to your offending, you told Mr Lyon that it was the worst mistake you have ever made and that you wished it had never happened. Mr Lyons has not seen you using drugs since you have been living with him and stated that he would not tolerate drugs in his home.
Sentencing Submissions
Mr Desmond submitted that you acknowledge the seriousness of your wrongdoing and that you are genuinely remorseful.
Reliance was placed on your pleas of guilty and the utilitarian value that attaches to those pleas. It was submitted that your pleas have spared the victim further cross-examination. It was also submitted that your pleas are reflective of your genuine remorse and show that you have taken responsibility for your criminal offending. Further, that you have demonstrated insight into your offending.
It was submitted that you had been on bail in excess of three years and with the exception of the events in September 2019, you did not offend. For 18 months of those three years, you were in employment with a smash repairer. Mr Desmond submitted that your time on remand was put to good use. In short, he submitted that your prospects for rehabilitation were good to excellent, and that in the time between your offending and the plea hearing you have shown real steps in the maturation process.
With regard to the objective gravity of your offending, it was submitted that it fell at the lower end of the spectrum. Mr Desmond submitted that your conduct was neither planned nor sophisticated and that you were 'significantly ice affected' when you made what was termed 'immature and horrific judgments'. He pointed to the absence of a number of aggravating factors which are set out in his written outline of submissions. I will not repeat them here. It was also submitted that the duration of each kidnapping offence was relatively short, measured in hours and not days.
Mr Desmond submitted that the context to your offending was your long relationship with Ms Franco and your wanting to address issues in the relationship.
Mr Desmond pointed to the text messages Ms Franco sent
Mr Nowak during what he termed the kidnapping, as demonstrating offending at a low level, although he accepted that Ms Franco was doing her best in difficult circumstances.
With regard to your prior criminal history, Mr Desmond submitted that whilst you have some relevant prior history, it bears no resemblance to the offending before me, which should be viewed as an aberrant and isolated behaviour.
In his written outline, Mr Desmond submitted that you should be sentenced to a combined gaol term with a community correction order. In oral submissions, it was submitted that I should impose a community correction order. Reliance was placed on three decisions of this court - DPP v Palise [2017] VCC 1379; DPP v Baker [2016] VCC 392; and DPP v Flavel [2016] VCC 988, the latter two cases resulting in community correction order dispositions for the charge of kidnapping, the former resulting in a combined gaol sentence and a community correction order.
Ms McMaster, who appeared on behalf of the Director of Public Prosecutions, submitted that the only appropriate penalty is one of gaol, with a non-parole period. Kidnapping, she submitted, is an extremely serious example of an offence against the person, as reflected by the maximum penalty of 25 years.
Ms McMaster submitted that the objective gravity of your offending places it in the mid-range of seriousness. She further submitted that the 'back-story' of domestic violence within your relationship escalated the gravity of your offending and culpability. Reliance was placed on the decision of Kalala v R, [2017] VSCA 223 in support of that submission.
With regard to your guilty pleas, Ms McMaster accepted that there was some utilitarian benefit, but referred to the fact that there have been two incomplete jury trials and a committal hearing. The victim, she submitted, was cross-examined over seven days in total. The references to your remorse,
Ms McMaster submitted, if true, must be of very recent origin.
In written submissions, Ms McMaster stated that your predisposition to ignore and breach orders should be taken into consideration when assessing your prospects for rehabilitation and whether or not a community correction order is available. Ms McMaster noted that you have had opportunity to address your anger issues and substance abuse through appropriate services, but you have not taken advantage of those opportunities. It was further submitted that you are in breach of the community correction order imposed on 31 October 2017. Exhibit E details the alleged breaches of the community correction order, which include failing to attend for supervision as directed, failing to attend assessment and treatment for drug abuse and dependency as directed, and not completing any of the 150 hours of unpaid community work you were required to perform. It was noted that you contravened two previous Correction orders. The matters set out in exhibit E were not disputed by you.
With regard to the text messages sent by the victim to
Matthew Nowak, Ms McMaster submitted that these were the efforts of Ms Franco endeavouring to make sure that everyone kept a level head and no one harmed.
Ms McMaster submitted that denunciation and general deterrence should have paramount importance, again relying on the fact that the offences occurred in a domestic violence setting.
Sentencing Considerations
The basic purposes for which a court may impose a sentence are just punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. In sentencing you, I must also have regard to the factors set out in s.5(2) of the Sentencing Act 1991.
I am required to consider the nature and gravity of your offending. As you will appreciate the offence of kidnapping is a very serious offence, carrying a maximum term of imprisonment of 25 years.
I accept that the reason you engaged in the two offences of kidnapping was because of your desire to address your relationship with Ms Franco, however, that does not in any way justify your offending. You acted in complete disregard of Ms Franco’s rights and wishes not to be with you. She had a right to feel safe in her own home and a right not to communicate with you. She was clearly terrified of you, even calling police before your arrival on 15 June 2016.
The second incident of kidnapping occurred within hours of you returning Ms Franco to her home, after the first kidnapping. It was preceded by numerous calls and text messages to her, made in the small hours of the morning on 16 June, again demanding that she call you. At 3.23 am, you sent her the threatening voicemail.
Ms Franco made it clear on both occasions that she did not want to go with you. Despite that, you took her away against her will.
On each occasion, you were under the influence of methylamphetamine. Ms Franco and Mr Nowak observed that you were drug-affected and highly agitated at the time you committed the offences. This no doubt would have added to Ms Franco’s state of fear.
I also have regard to the period of time that Ms Franco was 'taken away' on each occasion. Although your liability for the offence of kidnapping in each case attached, when Ms Franco was taken and carried away against her will, the taking away continued for some time afterwards in both instances.[2]
[2] See Ali & Ors v R [2014] VSCA 117
On 15 June, Ms Franco was with you from approximately 2 pm to 11 pm. She was taken home during that period so that she could change her clothes before being taken to your friend’s home in Springvale. Once she changed her clothes, Ms Franco only got back in the car with you so as not to further aggravate you. I will, however, sentence on the basis that the first kidnapping ceased at the time you returned Ms Franco home to change her clothes.
In relation to the second kidnapping, the time that Ms Franco was 'taken away' was from shortly after 3.30 am until she could escape from you at approximately 8.30 am.
You also assaulted Ms Franco on two occasions. The assaults are charged separately and do not form part of the circumstances for which you are to be sentenced in relation to the kidnappings. Although you are not charged with causing injury, Ms Franco was nevertheless injured during the course of your second assault upon her. She suffered a fractured finger and bruising. I am entitled to take this into account in sentencing you by virtue of s.5(2)(daa) of the Sentencing Act 1991. The recording taken from the CCTV camera in the Subway outlet shows Ms Franco’s distress and fear as you chased her around the restaurant, before eventually taking hold of her.
In my opinion, your offending conduct can only be regarded as serious. I do not accept it falls at the lower end of the spectrum. However, I am not able to find that your offending was planned or pre-meditated. Rather, I consider that the offending occurred in the heat of the moment and was the result of you being in a highly emotional state, caused by your use of methamphetamine and your refusal to accept that Ms Franco did not wish to discuss the relationship. According to the prosecution summary, the first assault and kidnapping occurred only after you had a discussion with Ms Franco about your relationship. The second kidnapping occurred only after Mr Daniel Nowak got out of the car and you seized the opportunity to drive off without him.
I accept the submission by Ms McMaster that the kidnappings and assaults on Ms Franco occurred in the context of domestic violence, and that this is a relevant sentencing consideration. At paragraph 63 of Kalala, Maxwell P and Redlich JA stated that '[s]entencing law has long recognised the prevalence of violence by men against women in (or after) domestic relationships, and the importance of general deterrence in such circumstances'.
I am not prepared to accept the prosecution submission that '[t]he back story of domestic violence within the relationship escalated the gravity of the offending and culpability of the offender'. In my opinion, the relevance of earlier domestic violence is contextual and explains why it is that the victim was frightened of you and acceded to your demands.
When you committed these offences, you were on bail. Summary Charge 10 relates to your having committed the indictable offence of kidnapping on 15 June 2016 whilst you were on bail. Summary Charge 11 relates to your having committed the indictable offence of kidnapping on 16 June 2016 whilst you were on bail. Summary Charges 14 and 15 relate to your driving of the car on 15 June 2016 and 16 June 2016 without being the holder of a driver’s licence.
You have pleaded guilty to the matters before me which entitles you to a measure of leniency by reason of the utilitarian benefits to the court, witnesses and the community. You entered your pleas at a very late stage, but they have meant that Ms Franco was not required to give evidence before me, nor were the other witnesses in this case. They were thus spared the stress of having to yet again give their evidence. I note also that your pleas were entered after a number of other charges against you were withdrawn and this might explain why they were entered at a late stage.
I also accept that your pleas are indicative of some remorse. There is also evidence of remorse in what you told Mr Simmons, Mr Lyons, your father and Mr Galbally. It is difficult to gauge the full extent of your remorse given it is largely based on what you have told others but I am prepared to accept that you show some level of remorse, as well as some signs of insight into your offending and its effect on your victim.
I accept that you are, to use Mr Desmond’s words, the ‘product of a dysfunctional upbringing’. I accept also that this has impacted on your life, including your resort to drugs of addiction. These matters are part of your background circumstances and perhaps help to explain your difficulties in relationships and with the law.
During your plea hearing I raised with counsel whether the fact of your dysfunctional upbringing and your introduction to drugs in foster care at a young age was a relevant factor in mitigating your moral culpability. Mr Desmond said it was, relying on Mr Simmons’ opinion that your childhood would have left you vulnerable to substance use. Ms McMaster submitted that there was not sufficient evidence to establish the connection between your dysfunctional background, your use of drugs and the offending.
I have already referred to your history of drug use.
Mr Simmons stated, without much by way of elaboration, that your childhood would have left you vulnerable to substance use. There is no suggestion in his report of any underlying mental health condition that led to your use and continued use of drugs. Rather, you told Mr Simmons that you only used cannabis because you did not want to be an ‘outsider’. Your use of MDMA, amphetamines and cocaine, you said, was in the context of you attending nightclubs and your use of methylamphetamine commenced after your return to Melbourne from Queensland, when you lived with a trafficker of that drug and you thus had easy access to it.
On analysis, I agree with Ms McMaster that there is a lack of evidence establishing a causal connection between your dysfunctional childhood, your use of methylamphetamine and your offending conduct. As you told Mr Simmons, the reason for your offending behaviour was your desire to address your relationship with Ms Franco. It may be that as a result of drug use, you were disinhibited, but that does not mitigate your conduct.
Mr Desmond referred to Mourkakos v R [2018] VSCA 26. At paragraph 118 of the joint judgment, the Court of Appeal stated:
'The mere fact that an offender was addicted to drugs at the time of the commission of an offence is not ordinarily a mitigating factor. However, there may be circumstances in which an offender’s drug addiction will be relevant to sentencing considerations, such as the prospects of rehabilitation, specific deterrence and protection of the community'.
As I have already stated, your use of drugs at the time of these offences does not mitigate your offending. Consistent with Mourkakos, your drug addiction is relevant to my assessment of your prospects for rehabilitation, specific deterrence and community protection.
As to your prospects for rehabilitation, I am not able to find that they are ‘good to excellent’. Mr Simmons stated that you have ‘some’ prospects for rehabilitation given the lack of significant antisocial personality traits, a limited range of prior offending and the fact that you have managed your own business successfully for some time. As I earlier stated, I disagree with his opinion that you have only a 'limited range of prior offending'.
Of concern is your failure to undertake any meaningful assessment and treatment that would assist you in relation to your mental health issues and your drug use. This failure is amply demonstrated in the CISP reports and your failure to comply with the therapeutic aspects of the community correction order imposed in 2017. Further, in late September 2019, you committed offences against your mother and brother, resulting in you being placed in Upton House as an involuntary patient. You described to Mr Simmons symptoms consistent with a drug induced psychosis. He considered you would benefit from a referral for drug and alcohol counselling, referral to a psychiatrist and referral to a psychologist. Until such referrals and treatment take place, I can only conclude that your prospects for rehabilitation are 'guarded'.
In my opinion, the principal sentencing considerations are general deterrence, denunciation, and specific deterrence. Others in the community who are minded to commit similar offences, particularly against their former partners, must understand that if they do so, they will face serious penalties. Your conduct against your former partner, who no longer wished to be with you, and who had entered into a relationship with another man, was outrageous and must be strongly condemned. Further, given your history of offending, and your failure to take advantage of opportunities for treatment in the past, the sentence to be imposed must be such as to deter you from further offending and motivate you to address your drug and mental health issues.
Mr Desmond relied on Phillips v R; Liszczak v R [2017] VSCA 313 and submitted that there should be significant concurrence of sentences. In particular, Mr Desmond submitted that the sentencing discretion must have regard to considerations of totality, the need to reflect any overlapping criminality across the offences, and the need to avoid crushing sentences. I accept that in the circumstances, considerations of totality apply and that I should not impose a crushing sentence. However, I do not consider that there is any overlapping criminality. Whilst in each case the victim is the same person, each of the offences charged are discrete as to their timing and as to their elements. The principle of totality does, however, require that I look at your criminality as a whole and ensure that the sentence imposed is just and appropriate.
I have also had regard to the sentencing cases referred to by Mr Desmond, as well as a number of other sentencing decisions both in this court and in the Court of Appeal. The three relied on by Mr Desmond are distinguishable in a number of respects. In Palise, for example, the kidnapping event lasted some forty-five minutes. Mr Palise made some admissions in his interview with police and, according to the Sentencing Judge, showed insight and demonstrated remorse. He was aged 26 years and, significantly, was assessed to be in the borderline range of general intellectual functioning. In Baker, the offender was aged 20, entered an early plea of guilty and had been undergoing a residential drug treatment program at the time of sentence. In Flavel,
Ms Flavel was aged 20 years at the time of the offending and Mr Arnup, aged 22 years. The learned Sentencing Judge considered rehabilitation to be the primary sentencing consideration for Ms Flavel and an important one for Mr Arnup, who did not have a relevant criminal record.
More recently, in DPP v Castillo (a Pseudonym), [2020] VCC 289, the defendant who was 20 years of age at the time of his offending, and 21 at the time of sentence, and who pleaded guilty at the earliest reasonable opportunity, was sentenced to 20 months imprisonment for kidnapping his former partner. In DPP v Herring (a Pseudonym), [2019] VCC 2229, the 21 year old offender, who was 20 at the time he kidnapped his partner, was sentenced to 445 days imprisonment, which was time served, on the charge of kidnapping and a community corrections order on a charge of criminal damage.
I have also had regard to the Judicial College of Victoria’s Sentencing Manual and the Victorian Sentencing Advisory Council’s Sentencing Statistics, insofar as they are available, to inform myself as to current sentencing practise regarding the offences charged. Current sentencing practise is but one of a number of sentencing considerations to which I must have regard. As might be expected, it is very difficult to ascertain anything more than a general sentencing yardstick given the wide range of conduct constituting the offences of kidnap and assault, as well as the myriad personal circumstances of individual offenders.
I take into account the fact of the Covid-19 pandemic and the impact it has on those undergoing sentences of imprisonment generally, including the 14 day isolation period upon entry into the prison system, the reduction in the opportunities for work and education, restrictions on contact with friends and family and the stress of being in an environment where you may be susceptible to contracting the virus if there is an outbreak.
I have had regard to Mr Desmond’s submission that I sentence you to a community corrections order or a combined sentence of gaol and a community corrections order. Mr Desmond relied on the Court of Appeal’s decision in Boulton v The Queen,[3] in support of his submission. However, having regard to your failure to take advantage of the opportunities provided to you in the past to undertake rehabilitative treatment, and having regard to the seriousness of your offending, particularly there being two separate offences of kidnapping, I consider that the only appropriate disposition is one of imprisonment with a non-parole period.
[3]Boulton v The Queen[2014] VSCA 342; (2014) 46 VR 308
Sentence
Mr De-Leo would you now please stand.
On Charge 1, you are convicted and sentenced to three months’ imprisonment.
On Charge 2, you are convicted and sentenced to sixteen months imprisonment.
On Charge 3, you are convicted and sentenced to 20 months imprisonment.
On Charge 4, you are convicted and sentenced to six months’ imprisonment.
On summary Charge 10, you are convicted and sentenced to one month imprisonment.
On summary Charge 11, you are convicted and sentenced to one month imprisonment.
On summary Charge 14, you are convicted and sentenced to two months’ imprisonment.
On summary Charge 15, you are convicted and sentenced to two months’ imprisonment.
The sentence imposed on Charge 3 is the base sentence. I direct that one month of the sentence imposed on Charge 1; six months of the sentence imposed on Charge 2; two months of the sentence imposed on Charge 4; seven days of the sentence imposed on Charge 10; seven days of the sentence imposed on Charge 11; one month of the sentence imposed on Charge 14 and one month of the sentence imposed on Charge 15, be served cumulatively on the base sentence and on each other. This makes a total effective sentence of 31 months' and 14 days imprisonment.
I direct that you serve 20 months before you are eligible to be released on parole.
Pursuant to s.18 of the Sentencing Act, the period of 287 days not including today is reckoned as a period of imprisonment already served under the sentence.
But for your pleas of guilty, the sentence I would have imposed is one of 38 months with a non-parole period of 28 months.
Disposal Order
With regard to the disposal order seeking the clothing worn during the commission of the offending, and subject to anything Mr Desmond might have to say, I am not prepared to make that order.
MR DESMOND: Thank you, Your Honour.
Forfeiture Order
HIS HONOUR: With regard to the forfeiture order concerning the mobile phone seized from Mr De-Leo, given its use on both 15 and 16 June of 2016, I will make the order.
MR DESMOND: Your Honour pleases.
HIS HONOUR: Are there any other matters to which I need to attend Ms McMaster?
MS McMASTER: No thank you, Your Honour.
HIS HONOUR: Mr Desmond?
MR DESMOND: No sir.
HIS HONOUR: All right. Mr De-Leo, I will give you the opportunity to speak to Mr Desmond before you are taken downstairs, should he wish to do so.
MR DESMOND: Yes, Your Honour.
HIS HONOUR: Otherwise I will adjourn - sorry officers, I would like him to stay here until Mr Desmond's had an opportunity to speak to him. Thank you I will adjourn the court.
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