Director of Public Prosecutions v Delalis

[2013] VCC 1608

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

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-12-02286

DIRECTOR OF PUBLIC PROSECUTIONS

v

PETER DELALIS

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JUDGE:	HIS HONOUR JUDGE PARSONS
WHERE HELD:	Melbourne
DATE OF HEARING:	4 October 2013
DATE OF SENTENCE:	22 October 2013
CASE MAY BE CITED AS:	DPP v Delalis
MEDIUM NEUTRAL CITATION:	[2013] VCC 1608

REASONS FOR SENTENCE
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Subject:  
Catchwords:            
Legislation Cited:     
Cases Cited:            
Sentence:                 

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms C. Duckett	OPP
For the Accused	Ms P. Murphy	Victoria Legal Aid

HIS HONOUR:

1       You, Peter Delalis, have pleaded guilty before me to one count of armed robbery.  This crime arises out of circumstances which are fully outlined in Exhibit A which is the summary of prosecution opening as amended by the prosecution in paragraph 12 on 4 October.

2       In broad compass, the way in which the matter comes before me is that on 12 May 2012 the victim, a taxi driver, commenced his shift.  You were in the company of Stacey Morton, who at the time was 21 years of age, and you at the time of the offending was 28 years of age.

3       At approximately midnight, I think, the victim was in his cab outside the Vineyard Bar in Acland Street, St Kilda.  You and Morton approached him asked that he take you to a destination. 

4       The opening describes how both you and Morton gave him various instructions until you ended up in a narrow laneway that runs between Meredith Street and the canal behind 48 Broadway in Elwood.  The laneway was so narrow that the doors of the taxi would not open.

5       The victim then asked for payment of the fare and Morton told you to pay whilst she was getting her hand bag and the small dog she was carrying.

6       The taxi driver then felt Morton’s arm about his neck and he started to panic.  He started to drive the car but you said, “Stop the car”.  The driver then saw a knife in your hand, near your lap, and you continued to tell the driver to, “Stop the car”.

7       Morton then lent across from the back seat and tried to stop the taxi by pulling the hand brake and moving the gears.  During all this apparently Morton’s hand was cut as a result of the knife and the victim’s sunglasses were broken.

8       Shortly thereafter the taxi pulled up and amid some confusion both you and Morton then walked briskly away with Morton taking the victim’s mobile phone and some change from the console on his taxi.

9       The taxi driver then chased you and attempted to retrieve his phone and the coins.  Other persons became involved and pinned the victim against the wall and took his phone from him and the phone has never  been recovered.

10      An off-duty police officer was then present and kept both you and Morton present whilst uniform police were sought and they, of course, then attended and you were both arrested.

11      Morton was transported to hospital and treated for an injury to her hand.  In due course, Morton’s hand bag was searched and a twin for the knife which had been used on the occasion was found in her bag and the knife that had been used that evening was also found. 

12      A police recorded interview was conducted and Morton gave extensive answers which are set out in paragraph 1.

13      You were then interviewed and material from your record of interview is set out at p.5 in paragraph 2.

14      There is no Victim Impact Statement yet provided in the matter but it is clear from the account in Exhibit A that the victim has suffered considerably as a result of your actions on this evening. 

15      Of course, as was pointed out by your counsel, there are a number of mitigating factors.  You have pleaded guilty and you are entitled to have that fact taken into account in your favour and I do so.

16      The community has by your plea been spared the time and cost of a trial.  Witnesses have been spared the ordeal of giving evidence upon your trial and I can tell you the sentence I intend to impose is far less than would have been imposed had you been found guilty after a trial. 

17      Further, I take into account in your favour the circumstances of your plea, and whilst of course it could not be described as anything other than fairly late in the day, you were quickly apprehended and some admissions were made, but in the circumstances, I accept that your plea indicates remorse for your actions.

18      I have been told a considerable amount as regards to your personal history and your circumstances and indeed I have before me, to that end, a report from Dr Aaron Cunningham and Associates dated 3 December 2012, a final progress report prepared by the persons responsibility for the CISP program which is dated 29 May 2013 and also a psychometric report which was prepared in 1995.

19      With respect to your plea of guilty I note in Exhibit 4, which is the outline of defence submissions on the plea, it was put there were discussions with the prosecution about your personal circumstances and that your matter was resolved between the initial and final directions hearings. 

20      Further, it was submitted on your behalf, that it was Ms Morton who was apparently in possession of the knife, or at least its twin, and that she engaged in the struggle with the taxi driver and took the phone and the coin purse.

21      I accept the submissions that your answers and your involvement should be viewed in the context of intellectual disability and vulnerability to negative peer influences as set out.

22      Most significant from your personal history is the fact that you have an IQ of 59 and a history of drug use.  Nevertheless you managed to live without attracting attention to the criminal law until you began your relationship with Ms Morton towards the end of the year 2011.

23      You grew up in Coburg with your parents and a younger sister.  In 1995 you were assessed as intellectually deficient whilst you were in primary school.   Despite that you attended St John’s Orthodox College until Year 9 and then Coburg Senior High School for Year 10.

24      Following school you went to work with your father as an apprentice panel beater and completed that apprenticeship.  You worked for your father for approximately ten years and then as a spray painter and half that as a mechanical repairer for two years. 

25      You lost that job as a result of your relationship with Ms Morton and you were unemployed from May 2012 until finding work through an aspect of the CISP program in early 2013.

26      You were 27 years of age before you moved away from the support of your family to maintain a residence and a relationship with Ms Morton in 2011.

27      In the context of that relationship you began using heroin and committing criminal offences in April 2012.  You had never been dealt with by a court before you were bailed on 14 May 2012 for this armed robbery.

28      As it was noted in submissions made on your behalf your relationship with Ms Morton brought you undone with respect to your drug habit and also in company with, or apparently at the best of Ms Morton, you committed further offences, notably burglaries, thefts and the like and your were apparently in and out of custody during 2012. 

29      Dr Cunningham made an assessment of you whilst you were in custody in November 2012 and in his report of 3 December 2012 he expressed the following opinions and I quote.  “You meet the criteria for Substance Use Disorder.  You fall within the intellectually impaired range of intelligence and indeed you fall within the intellectually disabled rang  with an IQ of 59.  You are assessed as being a moderate risk of re-offending and your risk factors present as your low intellectual functioning, your association with Ms Morton and Substance Use Disorders in the context of your intellectual functioning.  You present as vulnerable and susceptible to negative influence from friends and romantic partners and it appears that your offence behaviour occurred in the context of your drug abuse and your relationship with Morton”.

30      In conclusion it was Dr Cunningham’s opinion and I quote, “In the context of his intellectual test results Mr Delalis presents as increasingly vulnerable to manipulation and negative influence in a prison environment.  Mr Delalis presents as scared is his current environment and has experienced suicidal ideation.  If not released into the community Mr Delalis may benefit from engagement with Mental Health Services in prison.  In my opinion Mr Delalis would benefit from assessment by Disability Services to determine eligibility for disability support.  He would further benefit from drug and alcohol rehabilitation sourced through Directline, abstaining from illicit substances, ceasing his relationship with Morton and engaging with rehabilitative support would positively predict rehabilitation”.

31      It was Dr Cunningham’s view that you have impaired mental functioning which reduces your moral culpability with respect to your offending and moderates the need for general deterrence and indeed that gaol would weigh more heavily on you than the normal offender.  Of course all those matters mean that the principles outlined in the case of Verdins are engage in your case and I accept the submission and act on that basis.

32      With respect to your rehabilitation I note that in January 2013 you were bailed in the Magistrates’ Court and having entered pleas in respect of various matters and you were bailed to participate in the CISP program.  I have, as I say, the benefit of the report prepared by the people responsible for the administration of that program.  

33      Mr Aaron Livingstone, who prepared the report on your behalf, had Dr Cunningham’s assessment of you available to him.  You were reported as no longer using illicit substances and had undergone a comprehensive drug assessment and you were engaging well in various counselling that had been made available to you.

34      With respect to your housing you are said to have engaged well with support and you have attended all appointment with your case worker. 

35      With respect to your mental health and medication you are being monitored by a doctor at the Prahran Central Clinic and you are, you say, compliant with your medication and there are no adverse side effects.

36      Further,  you understood interviews in order to seek employment and you received highly positive feedback such that you are now engaged in part-time work and apparently you are enjoying that very much. 

37      You also reported to the author of the report that you will begin a Certificate 1V in First Line Management and you are excited to be participating in the educational program as part of your employment.  

38      This was regarded by the author of the report as a very significant matter particularly you re-creating your life that you had prior to your beginning taking drugs and being involved with a crime. 

39      It was the author’s view that – and I quote, “The writer notes that Mr Delalis is highly capable of leading a crime-free life with support and making better decisions around who he associates with.  Mr Delalis is still presenting as highly motivated to remain illicit substance free and the writer notes continued improvement in his presentation both physically and mentally.  The writer has thoroughly enjoyed working with Mr Delalis to witness a major transformation and wishes him the very best in the future”.

40      I have been informed of the course that in 2012 you were sentenced to a Community Corrections Order for burglary, theft and deception charges and that was then breached when you were remanded in September 2012 for further similar offending. 

41      June, 2013, after your successful completion of the CISP program, you were sentenced in the Magistrate’s Court to time previously served for the breach of the CCO. 

42      In relation to the burglary and theft matters then remaining before the court a Magistrate ordered a report from Disability Services as to your suitability to be placed upon a Justice Plan.  That matter was adjourned to 24 September 2013 for sentence in anticipation that you would be assessed as suitable. 

43      I was informed, in fact, that you are not found to be suitable on the basis that, notwithstanding the significance of your intellectual disability and the other matters, you were actually doing well in the community as indicated in the CISP report.  As such you were found unsuitable for a Justice Plan, that is, due to your demonstrated capability to function successfully within the community without the assistance of Disability Services, Disability Services deemed you unsuitable to participate in a Justice Plan.  As a consequence the magistrate sentenced you to 15 months imprisonment which was then wholly suspended for 15 months.

44      I am, on balance, satisfied the chances of your rehabilitation are reasonably good in view of the matters which were very helpfully outlined by Ms Murphy in her outline of defence submissions on plea, which is Exhibit 4, and which reflected the matters which are set out in the various reports which I have marked as exhibits and from which I have read.

45      Of course, as well as those matters personal to you which I have referred, including the question of rehabilitation, I must also take into account matters such as deterrence and especially general deterrence, which is always of considerable importance in a case such as this involving as it does the use of a knife on a target victim such as the taxi driver.  Specific deterrence is not of great significance although, of course as I say, I moderate the applicability of these principles in light of the applicability of the principles set out in the case of Verdins with respect to you given your situation as outlined by Dr Cunningham. 

46      I must also consider the question of the protection of members of the community from you and bear in mind the likelihood of your re-offending which I find to be diminished in view of the various reports made available to me to the effect that you have ceased illicit drug use, that hopefully you will now stay away from any relationship with Ms Morton, that you are now employed and have housing and that you are taking up your role within the community as you did before you met Ms Morton. 

47      Application has been made by the prosecution for the retention of a intimate forensic sample previously taken from you.  You have not opposed that application and so I will make that order.  Have you got that order?

48      MS DUCKETT:  The order is here, Your Honour, I can hand up three copies now to the Tipstaff.  Thank you.

49      HIS HONOUR:  All right, thank you.  Whilst this is a very serious offence, in all the circumstances, I was urged to seek a report as to your suitability for a Community Corrections Order and on 4 October I sought that indication from the various authorities as to whether or not you were suitable and I was provided with a report and I have marked that as Exhibit D and you have signed the consent as to the making of that order. 

50      If you would stand, thank you, Mr Delalis.

51      In view of the Crown sentencing indication, which I think is very helpful and appropriate in the circumstances, and the submission of Ms Murphy, it seems to me appropriate to order an Community Corrections Order in your case and I will do so. 

52      Ms Murphy, just with respect to the work conditions; is there anything that you can tell me as to what would be useful or appropriate in his case given his current situation?

53      MS MURPHY:  In terms of the sort of work, Your Honour or hours?

54      HIS HONOUR:  Just in terms of the hours, yes.\

55      MS MURPHY:  Hours.

56      HIS HONOUR:  I don’t want to do anything that is going to interfere with any current work that he is doing or prevent him from undertaking any other work that he has got or that kind of thing.

57      MS MURPHY:  I can tell Your Honour that he is working at the moment, as I understand it, regularly four days a week but it is a part-time casual job where he works, essentially, on demand and any unpaid community work would be beneficial for him to do on the weekends.

58      HIS HONOUR:  All right, thank you.  I will make the order for 18 months with conviction and there will be 150 hours work and there will also be the various conditions that are set out in the report, Exhibit D.  There will be, in addition to the unpaid community work condition, the treatment and rehabilitation commission including assessment and treatment including for drugs, assessment and treatment including for alcohol, mental health assessment and treatment, offending behaviour programs, a supervision condition and also there is a judicial monitoring condition, but I do not think that is appropriate in the circumstances.  I think that is unnecessary in the circumstances. 

59      Any difficulties with any of that?

60      MS MURPHY:  No, thank you, Your Honour.

61      HIS HONOUR:  Mr Delalis – thank you, officer, he can step forward.  Thank you.  I have signed the Retention Order and Angela will prepare the other order. 

62      (Order signed.)

63      I have signed that order, thank you very much and Mr Delalis, of course, you will understand the necessity of making sure - - -

64      PRISONER:  Yes.

65      HIS HONOUR:  - - - you do not end up with Ms Morton again or anybody like that.

66      PRISONER:  Yes.

67      HIS HONOUR:  Because you are obviously well capable of staying out of trouble.  It is all a question about the company we keep. 

68      PRISONER:  That is true. 

69      HIS HONOUR:  All right, then, I am sure you have learned that lesson.  Excellent, all right, we will adjourn.

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