Director of Public Prosecutions v Deluca
[2016] VCC 151
•18 February 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-15-00323
Indictment No. E13254968.2
Case No. CR-15-00323
Indictment No. E13254968.2A
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| FABIO DELUCA |
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JUDGE: | HIS HONOUR JUDGE HOWARD | |
WHERE HELD: | Melbourne | |
DATE OF TRIAL HEARING: | 18 and 19 January 2016 | |
DATE OF PLEA HEARING: | 18 February 2016 | |
DATE OF SENTENCE: | 18 February 2016 | |
CASE MAY BE CITED AS: | DPP v Deluca | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 151 | |
REASONS FOR SENTENCE
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Catchwords: CRIMINAL LAW – Pleas of guilty to threatening to inflict serious injury, burglary and arson (of a house) arising from a dispute which offender had with vendor and agents of property for auction – offender harbouring a grudge – relevant prior convictions – TES 3 years’ imprisonment with minimum of 2 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr D Porceddu (trial) Mr B Nibbs (plea and sentence) | Office of Public Prosecutions |
| For the Offender | Mr G Barns | James Dowsley and Associates |
HIS HONOUR:
1 Fabio Deluca[1], on the first indictment you have pleaded guilty to threatening to inflict serious injury, for which the maximum penalty is five years’ imprisonment (charge 1).[2] On a second indictment, you have pleaded guilty to burglary, for which the maximum is ten years’ imprisonment (charge 1); and to arson, where the maximum is 15 years’ imprisonment (charge 2).[3]
[1]Also known as Fabrizio Ferrari.
[2]Indictment E13254968.2A, s21(a) Crimes Act 1958.
[3]Indictment E13254968.2, respectively, s76(1) and ss197(1) and (6) of the Crimes Act.
2 I must sentence you now on behalf of the community.
Circumstances of offending
3 The circumstances of your offending are set out in an agreed plea summary, which was read out in court. A summary will suffice.
4 In April 2013, three Chinese persons purchased a property at 338 George Street, Doncaster for $1.4 million. They were Ricky Feng, his wife, Vivien Que, and their friend, Yauhe Wu. You lived nearby with your wife in the same street at number 181 George Street. In September 2013, the property settled, the owners took possession and applied for a permit to build three townhouses. In the meantime, the property was rented. In July 2014, the tenants vacated, by which time the permit had been granted for the three townhouses. The owners decided to sell, they retained agents and an auction was scheduled for Saturday, 20 September 2014.
5 On 10 September, you and your wife attended at the agents and enquired about the property. You became agitated and aggressive when you were told you could not inspect it with the agents at that time, because it was late and there was no electricity in the house, however one agent told you the gates leading onto the property were open and you were free to inspect yourself if you wanted to do that. Following that, you gave your number to the agent and it was established you were known as having disrupted a previous auction. At all relevant times you were holding yourself out as a real estate buyer’s advocate.
6 On the following Sunday, 14 September, you went to the property and left your business card with the wife of one of the owners who was there cleaning up in preparation for the auction. Later that morning, the owner, Vivien Que, called you and a short time later you and your wife went to the property and had a meeting with the owners, Ricky and Vivien. You told them you were a builder and gave them your business card; you talked down the agents and their motives, and the value of the property; and made an offer to purchase for $1.4 million. Given the time since the owners had purchased, a positive market and the granting of the permit, it was not at all surprising that the owners rejected your offer. The prosecutor indicated without demur that the agents expectation was that the property would sell at auction within the range of $1.5m-$1.6m. Indeed, Ricky was upset with the way that you had criticised the property and threw your business card onto the ground in disgust. Later that day you made the same offer and again on the next day, and on each occasion, your offers were refused. You did later admit to your wife in a taped prison conversation that at some stage you had inspected the property, but it is not clear when this happened.
7 You concede that you were angry at this turn of events and felt that you had been disrespected by the agent and owners. Indeed, you were so disgruntled that on 16 and 17 September you made a threatening sign on your home computer which you concede was directed at the owners, Ricky and Vivien. The sign purported to have been made by a terrorist organisation or person and stated -
“Allahu Akbar – Allah God WILL always be worshipped - You MUST and WILL be punished for what you have done to us. Only the beginning -more to come here or homeland - your next move will determine our next attack - ALERT LEAVE AUSTRALIA NOW TO NEVER COME BACK THINK OF THIS WISELY DIE HERE OR BACK IN HOMELAND - YOUR TIME HAS PASSED
We have gathered to get you under order, so fear us, Allah is all we need, we will come back - NOTE AND YOU REMEMBER, We strike above the neck, and strike at all extremities.”
8 An earlier version of this sign warned as well, “YOU WILL BE BURNED AS THE HOME”, but this statement did not find its way into the final version, nevertheless, it was an important and telling piece of evidence against you on the burglary and arson charges.
9 On Thursday, 18 September, there was a final Open for Inspection at the property. You did not attend then, but at some time between the conclusion of that inspection and about lunchtime on the following day, Friday 19 September 2014, you attached the threatening sign to the front fence of the property next to the “For Sale” sign (charge 1). You used distinctive orange string to do that. The sign was seen there by a postman around lunchtime on the Friday.
10 Later that evening, at an unknown time, but probably around 9.48pm, you broke into the premises (charge 1, second indictment) and set fire to them by lighting some combustible material soaked with petrol (charge 2, second indictment). It was about this time that a pizza delivery man saw the smoke and flames. You claimed at the plea hearing today that you had gone back to the premises to do some damage and had just coincidentally found the petrol in the premises, which you then used. I do not accept this submission. It was unsupported by any evidence and it is very clear from the first version of the sign, which referred to burning the house down, that you went to the property intending to do that very thing.
11 The fire took about 30 minutes to bring under control and caused significant damage to the interior and exterior of the house, including almost complete collapse of the roof and ceiling. The property was uninsured, the policy having been cancelled by the agents on the owners’ instructions in October 2013. The prosecution was not able to say what the value of the damage to the house was, but the victim owner said it was $150,000. This estimation was not supported by independent evidence but it was not contested by you and certainly seems consistent with the photos of the extensive damage which were provided to me.
12 A fire brigade officer saw the threatening sign attached to the front fence at the time they were present to fight the fire.
Police and court process
13 You were arrested on 30 September 2014, 11 days after the fire. The police searched your house and found orange string, some of which matched that used to attach the sign to the fence. Your computer was seized and examination revealed your creation of the sign and your deletion of all versions of it from your system.
14 Other than making a general denial of the offending, you made a no comment record of interview. You were charged, bail was refused and you have been in custody from that date to the present. You unsuccessfully applied for bail in November 2014.
15 You conducted a contested committal on 26 February 2015. You filed a defence response in July 2015 in which you admitted the threat charge but denied the other two charges. The trial was listed for hearing in September that year and initially not reached in the reserve list, but then adjourned at your request so further inquiries could be made.
16 On 4 June 2015, you were sentenced in the Magistrates’ Court to nine months’ imprisonment for offences committed in 2011 and 2012 of assault, criminal damage, theft and recklessly causing injury. Pre-sentence detention of 247 days was declared on that sentence, which was completed on 30 June 2015. You appealed against this sentence but the appeal was abandoned today and struck out. You were on bail for these offences at the time of this offending, which is conceded to be an aggravating factor.
17 Following the completion of that sentence, you remained in custody on these matters and there is now 233 days’ pre-sentence detention up to, but not including, today. On 18 January last, you were arraigned on separate indictments and pleaded guilty to the charge of threatening to inflict serious injury and not guilty to the charges of burglary and arson. I gave a pre-trial ruling which was favourable to you, but it was accepted the prosecution could lead the evidence of the making of the sign and its earlier version in its case on the contested charges. The next day you changed your pleas to guilty on the remaining two charges. Hence, there has been what should be treated as an early plea of guilty on the first indictment and late pleas on the second.
Victim impact
18 I have received victim impact statements from the owners Ricky Feng and his wife Vivian Que, both declared on 25 January 2016. Not surprisingly, they were shocked to learn of the arson and were fearful of the threats contained in the sign, especially the effect they may have on their family. They could not possibly understand the apparent terrorist nature of the sign (or possibly “religious vengeance”, as one said) and seriously contemplated leaving their home and departing Australia. Their parents in China were also worried for their safety.
19 Additionally, they lost the opportunity of selling the property in what seemed like a favourable market, which they say does not prevail today. They were hopeful of a good profit on their original investment, and the agents estimate appears to support that expectation. In the end however, the house was demolished and, on the agent’s advice, they propose to rebuild the property. This situation has caused and will continue to cause financial stress as they have been required to borrow from the bank and to carry significant holding costs. In the meantime they were forced to rent. Overall, the couple was compelled to radically alter their financial plans with associated uncertainty and investment risk. An estimate of all financial costs of your offending was put at about $271,000. As I have noted, these victims were not insured. The couple propose making a claim for compensation against you, although none was made at the plea hearing. The prosecution indicated that the family has now returned to China because of the financial impact they experienced.
20 Ms Que correctly described your crimes as an “undeserved catastrophe” for the owners who were “badly traumatised” by them, particularly as she was pregnant at the time. She even worried at length, yet quite unjustifiably, as to whether she was to blame in some way for what happened. This self-blame kept her awake at night and took quite some time to get over. Mr Feng said that their marital relationship suffered.
21 Obviously, there has been significant and enduring victim impact. You should feel a great deal of shame and remorse for what you have done to the victims in this case.
Background and personal circumstances
22 I will turn now to your background and personal circumstances. These have been well set out in the material supplied, including in your counsel’s helpful written submission.
23 You are now 42 and were 41 at the time of offending. You were born in Melbourne and are the youngest of three children. You come from a loving and caring home environment where your father was a bricklayer and mother engaged in home duties. None of your family have been in any trouble with the law. You completed year 12 but did not excel academically. Initially you worked with your father as a labourer. Then you did a four month acting course and worked as an actor and model and part-time waiter for a number of years. In your early thirties, you completed at TAFE a twelve month engineering course and two month real estate agent’s course. For many years you and your wife have run your own business as a buyer’s advocate, but this has not been at all successful. You have received a disability support pension for the past four years.
24 You married your long term partner about three years ago and now have a child aged one. You have the full support of your wife and share a property with your parents.
25 You have suffered from long standing drug resistant nocturnal frontal lobe epilepsy, which was first diagnosed in 1977 when you were 4, possibly even earlier. You have suffered seizures and been treated for that condition for many years. The documentation indicates that over recent years your condition has not been adequately controlled with medication, particularly since you underwent head surgery for the condition in 2012, which had its complications and continuing twice weekly seizures. This led to your further admission to hospital in mid-2014 for further investigations.
26 Aside from your frontal lobe dysfunction which causes you poor working memory and impairment and reduced verbal fluency, your other cognitive functioning is reported as being unremarkable. Intellectual testing in November 2014 indicated you were generally at the lower end of the low average range, although you were at the average range for visual and spatial based problem solving and able to adequately plan and organise information. Of interest, there was no evidence of you being impulsive on measures of response inhibition. This was all consistent with regular testing conducted since 1992, so there has been no decline in your cognitive functioning in recent years.
27 You have apparently suffered from depression for some years and when assessed by a neuropsychologist in November 2014, reported distress symptoms consistent with extremely severe depression and anxiety, which may have been impacting adversely on your underlying cognitive difficulties.
28 In November 2014, you reported nightly sleep seizures whilst in custody and associated headache. Then you reported to the psychologist frequent seizures in the day since May 2015. You are presently on medication for your epilepsy condition but this has not prevented the seizures. You are not on any anti-depressant medication at the moment.
29 Initially, you were working in metal industries at the prison. But you have had difficulties arising from your demands for a lower bunk bed to minimise the risk of falling when having a seizure, and because of conflict with other prisoners who have teased you about the seizures you have had. The end result is that you have now been in protective custody for the past three months, and it is unclear how long this will last. At least now you have a lower bunk to use. Throughout, you have had regular contact and visits from your wife and family, who have supported you in court. Presently you are only allowed non-contact visits, since you are in protection.
30 Regrettably, you have a long and disturbing criminal history. Over seven years from 1993, when you were nineteen, until 2010, when you were thirty-seven, you have been convicted or found guilty of a total of 69 offences arising from 22 court appearances in Victoria, and one in New South Wales. Leaving aside motor traffic matters, there are many for dishonesty. In all, up to the time of offending you had been jailed 16 times and had breached a suspended sentence and an Intensive Correction Order.
31 Of significance to the present matters, you have been convicted of damaging property in 1998, 1999 and 2010 for which you were gaoled twice; and in 1999 in this court, you were convicted of arson and sentenced to 14 months’ imprisonment with a minimum 7 months. That offending was explained as arising from a dispute you had with someone you knew, when you got petrol and burned down his house to teach him a lesson. This has a chilling echo with the present circumstances. Concerning violence, you have been convicted of assault on four occasions between 1997 and 2010, and of intentionally or recklessly causing injury in 1997 and 2005. You were sentenced to imprisonment on each of these violence offences except for one. Finally, in 1998 you were convicted and fined for using a postal service to menace or harass.
32 As I have noted, you were sentenced to nine months’ imprisonment in June last year for the offences committed in 2011 and 2012, which I have described.
33 I have received a psychological report of Jeffrey Cummins dated 15 February 2016. He saw you on 11 February last and said you presented as moderately agitated and moderately depressed, which was consistent, I consider, with your present predicament. You have no problems with alcohol or drugs. However, Mr Cummins noted your significant anger management problem and lack of impulse control, which have both featured prominently in your past offending. Yet again, they feature prominently in the present circumstances. The expert stated that impulsive and aggressive behaviour are often associated with temporal lobe epilepsy. You epilepsy is properly described as a neurocognitive disorder and you were also diagnosed with an Intermittent Explosive Disorder. There is, he says, an inevitable nexus between the two conditions. Mr Cummins also queries whether you have a personality disorder as well, especially given your significant history of anti-social behaviour.
34 The psychologist’s opinion is that at the time of offending your epilepsy condition inevitably implies that, at times, your perception, judgment and ability to engage in rational problem solving was impaired. Nevertheless, whilst generally relevant, no Verdins claim is made other than the agreed point that your condition will make your imprisonment more burdensome than for someone without your concerns. But it is not suggested that your condition would become worse or that it cannot be properly medically managed whilst you are in custody.
Mitigating circumstances
35 There are a number of mitigating circumstances relied upon which I accept. You come from a good and supportive family. In spite of your epilepsy, you finished year 12 and went onto productive employment and further tertiary studies. You established a loving long term relationship with your wife and family. You have a young child to care for and worry about.
36 Next, your epilepsy condition is a serious and difficult one for you which requires on-going management. Imprisonment will be more burdensome for you because of it. Verdins proposition 5 is properly engaged in your favour.
37 I also accept that to date, imprisonment has been difficult for you, as I have explained, including being in lock-down for 4 months because of the recent prison riot. It is pleasing that you have had and will continue to have strong family support whilst in prison.
38 You entered pleas of guilty on all charges, an early plea on the threat charge, but a late one on the burglary and arson charges. Your pleas have saved significant time, cost and inconvenience to the community and have been of utilitarian benefit, particularly as the victims avoided the trauma of having to give evidence in the matter (they were not called at the committal). Accordingly, your pleas have served the ends of justice and for that reason alone, merit a significant discount in penalty. Whilst I accept that you are regretful for your conduct and genuinely embarrassed and apologetic for it, I am unable to conclude that your pleas are associated with remorse for your offending. Indeed, as Mr Cummins states, “…. he is of the opinion he has a problem with his brain which causes him to behave impulsively and to have difficulty controlling his temper.” This may be true, but you have known of these problems for a very long time and of their direct association with past offending, yet you have never sought to undertake anger management treatment, even though you desperately need to do so. And, I think in this regard it is significant that even today, you are maintaining that you just happened to find petrol at the house when you clearly intended to burn down the house before you went there and the overwhelming inference is that you took petrol there to achieve that purpose. I consider your pleas were ultimately and essentially responsive to the overwhelmingly strong case you faced.
39 Given your criminal past and personal and medical problems, I am very guarded as to your prospects of rehabilitation. Much in that regard will depend on you receiving appropriate treatment for anger management and general personality counselling, both in prison and upon your release.
Other sentencing considerations
40 There are, of course, other important sentencing considerations. The first of these if that I must have regard to the maximum sentences applicable.
41 The burglary and arson offences are particularly serious, motivated as they were by your grievance against the vendors and their agents. You clearly over-reacted to the justified rejection by the owners of your offer to purchase the property and acted in a most outrageous manner. The threatening sign was clearly designed to strike terror, fear and confusion into the owners, which is what happened, particularly pretending it was a message from a terrorist organisation or person.
42 You claim to have been disrespected by the agents and owners but none of that could ever excuse your disgraceful behaviour. Whilst impulsivity and impaired perception, judgment and rational thought may well an associated feature of your epilepsy condition, as explained by Mr Cummins, you did not act here in a spontaneous response to a perceived grievance. You were obviously angry but did not act impulsively. Instead, after your dealings with the agents and owners, you took a number of steps and a number of days to plan and execute your revenge. This is a significant feature of your offending. It was deliberate and planned and lethal. In simple terms, you failed to control your anger, it seems to me this is an additional factor to the problem of your epilepsy, a point ultimately accepted by your counsel.
43 Whilst I must have regard to the mitigating circumstances in your favour, the principles of general deterrence, just punishment, protection of the community and denunciation all loom large in your case. So, too, does the need to pass a sentence which will specifically deter you from offending in the future. You have significant prior convictions for violence and property damage, particularly one for arson for which you received a lengthy term of imprisonment, albeit that it was a long time ago. Obviously your past history has not been deterred from acting in this way. And your offending is aggravated because you were on bail at the time. There has been profound and enduring victim impact.
44 I must also have regard to current sentencing practices, which I have done, particularly reviewing the latest Sentencing Snapshot for arson (no.165 June 2015), but it is clear that sentencing for these types of offences cover a myriad of factual scenarios and at the end of the day each case must turn on its own facts and circumstances. No comparative cases were provided by either side.
45 You concede that immediate imprisonment must be imposed and it was significant that whilst emphasising the combined effect of the mitigating circumstances, your counsel did not submit that that sentence should be less than two years imprisonment following which you might be released on a community correction order. I would not have accepted such a submission as the objective gravity of your offending is too serious for such an approach.
46 The prosecution submitted, correctly in my view, that a significant term of imprisonment was warranted. This is so, notwithstanding that I must consider prison as a sentence of last resort and have regard to the principles of totality and proportionality and avoid the passing of a crushing sentence upon you. Yours is a serious example of the offence of arson and you are to be sentenced on that charge as a serious arson offender. This brings into play the provisions of sections 6D and 6E of the Sentencing Act, but appropriately, the Crown does not seek a disproportionate sentence or complete concurrency.
47 Finally, on behalf of the community I strongly denounce your offending.
Sentence
48 Mr Deluca, please stand up. You are convicted on all charges.
49 On the first indictment on charge 1, the threat, you are sentenced to 12 months' imprisonment. On the second indictment, on charge 1, burglary, you are sentenced to 12 months' imprisonment, and on charge 2, arson, to 2½ years' imprisonment.
50 The sentence on charge 2 on the second indictment is the base sentence. I order that 6 months of the sentence imposed on charge 1 on the first indictment be served cumulatively upon the base sentence. I intend that the sentence on charge 1 on the second indictment be served concurrently on the base sentence.
51 You have been sentenced as a serious arson offender on charge 2 and that will be noted in the records of the Court.
52 The total effective sentence is 3 years' imprisonment. I order that you serve a period of 2 years' imprisonment before which you shall not be eligible for release upon parole.
53 I declare that the period of 233 days’ pre-sentence detention be treated as having already been served by you on that sentence and direct that that declaration be entered in the records of the Court.
54 But for your pleas of guilty, I would have sentenced you to 4½ years' imprisonment with a minimum of 3 years' imprisonment.
55 Please sit down for the moment Mr Deluca. I shall make the disposal order which is agreed. I hand that signed order to the prosecution.
56 I ask counsel whether there are any matters arising?
57 COUNSEL: No, your Honour.
58 Mr Deluca, you need to go with the prison officers now. Thank you, please remove the offender.
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