Director of Public Prosecutions v Dinnachio

[2016] VCC 1204

IN THE COUNTY COURT OF VICTORIA

Revised
Not Restricted

 Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00403

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOSEPH DINNACHIO

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	17 August 2016
DATE OF SENTENCE:	17 August 2016
CASE MAY BE CITED AS:	DPP v Dinnachio
MEDIUM NEUTRAL CITATION:	[2016] VCC 1204

REASONS FOR SENTENCE
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Subject: Criminal law – sentence
Catchwords: Pleaded guilty to 3 charges of armed robbery – 2 charges committed on same day, third charge 3 months later – soft targets – use of knife, syringe -  early plea of guilty -at time of offending suffering from schizo-effective disorder and on a community treatment plan – involuntary patient at times – Ice user -  abstinent from drugs whilst on remand - rehabilitation reliant on being drug-free - remorse and empathy with victims -  both general and specific deterrence important.
Sentence:  15 months imprisonment on each charge concurrent.  2 year CCO, supervision, hours of community work with mental and drug assessment treatment and programs to reduce reoffending, judicial monitoring.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Cannon	OPP
For the Accused	Ms D. Trumble	James Dowsley & Associates

HER HONOUR: 

1Joseph Albert Dinnachio, you have pleaded guilty to three charges of armed robbery.  The first two charges occurred on the same day, 26 June 2015, and the third three months later on 21 September.

2Just after midnight on 26 June you entered a Coles Express Store in Nunawading.  You picked up a couple of men's magazines and took them to the counter.  There you produced a knife and asked the attendant for all the money from the register.  $100 was handed over to you and you left the store.

3Ten minutes later you went to a 7Eleven store in Donvale where you did the same thing, placing magazines on the counter and producing a knife, then demanding all the money from the till.  You grabbed a selection of notes amounting to $300, which the attendant had taken from the till and you left, saying sorry to the attendant as you did so.

4On 21 September 2015 at 8.45 pm you entered a 7Eleven store in Heathmont.  You went straight to the counter, produced a syringe and said to the attendant, "I got a needle.  You give me money".  He took about $140 in notes from the till, which you took and left.

5You were arrested on 2 October 2015 and made a no comment record of interview.  You pleaded guilty on 6 July 2016 prior to the final directions hearing.  A committal had taken place at which only the informant was cross-examined.

6The prosecution case had been reliant upon coincidence reasoning as between the armed robberies and an analysis of CCTV footage, as none of the victims had identified you from a police photoboard.  Accordingly, your plea of guilty is significant and means you are entitled to an appropriate discount on your sentence.

7You are a 38 year old man who at the time of the offences was suffering from a mental illness, schizo-effective disorder, and was subject to a community treatment order.  You were admitted to hospital as an involuntary patient four times between February 2015 and your incarceration in October that year, generally only for a fortnight each time.  Your condition had been first diagnosed in your teenage years and you have struggled ever since with problems connected with it.

8The psychologist, Ms Carla Lechner, saw you in May this year for an assessment and report and she set out your treatment history, noting that the medication prescribed for you had adverse side effects such as amotivation, low energy and low self esteem, leading you to take illicit drugs to combat the side effects.  This generally triggered a relapse to psychosis, with the cycle then starting again.

9At the time of the offences you were also injecting half a gram of ice each day and you reported that because of that you became grandiose, believing that you could "get away with it".

10Ms Lechner stated that you told her you regretted your actions and had empathy with the victims.  Even though you were academically strong at school and won a scholarship when you were younger, you did not finish secondary school, having dropped out of Year 11 because of drug use and a decline in your mental health.  At age 18 you were involved in a car accident and suffered depression followed by the first psychotic episode two weeks later, which saw you hospitalised for two months.  You have been receiving a disability pension since 1998 but you have tried to supplement it with odd-jobs.  You obtained a TAFE qualification as a pharmacy technician but could not find any work in that field.

11After the initial process of drug withdrawal you found the experience of prison a "blessing in disguise" and you feel better without using drugs.  You plan to remain abstinent but Ms Lechner considers that you will need immense support to do this and that attendance at a residential rehabilitation facility would assist with your transition back into the community.

12It has emerged that the other benefit from imprisonment has been the stabilisation of your medication.  You have remained in a psychiatric unit where your medication has been closely monitored, resulting in an improvement to the extent that the dosage has been lowered and therefore the side-effects lessened.  This places you in good stead for your eventual release.

13Ms Lechner describes your drug addiction as being in early remission in a controlled environment.  She detected some cognitive deterioration likely to have been contributed to by both your mental health condition and chronic drug use and that you are impulsive and have a low tolerance for frustration, especially when drug affected.

14You have no prior history of committing armed robberies and your criminal record is limited to sporadic offending since 2002 when you were 24.  In 2007 you were placed on a community-based order for criminal damage and stalking, which you completed, and in 2009 you were placed on an Intensive Corrections Order for four charges of driving while your licence was suspended.  You also completed that order.  This has been your first time in custody.

15Your prospects for rehabilitation would seem to depend almost entirely on your ability to remain drug free and being compliant with medication.  The other essential prerequisite will be stable accommodation, but the possibility of achieving that will be greater if you remain compliant with your medication.  You have the support of your mother and your aunt and you appear to have responded well to the opportunities made available to you in prison, including one- to-one counselling and various courses.  It may be that with improvement in your motivation and self-esteem, made possible by the diminishing side-effects of the medication with lower dosages, you will be able to again build up a small business, as you had begun to do in the recent past, or take on some form of employment.

16Clearly armed robbery is a very serious offence and the maximum penalty is
25 years' imprisonment.  General deterrence is an important part of the sentencing process to deter others from such offending, which is why a prison term is warranted.  This is particularly the case where a person working alone is targeted, as on these occasions, and where a knife or a syringe is produced.  Unfortunately it is a common occurrence and strong deterrent messages are needed.  There are no victim impact statements so the effect on the shop attendants is not known, but it is not difficult to appreciate the fear they would have felt.

17Specific deterrence and just punishment are also important components but taking into account the mitigating factors which apply in your case, some leniency is justified.

18You have been assessed as suitable for a Community Correction Order, which you could undertake as soon as you are released.

19You have spent 320 days in custody, not including today, which is about ten months, and in sentencing you for the three armed robberies I take into account that two were committed on the same day and the third three months later, all at a time when you were similarly struggling with ongoing admissions to hospital for treatment of your condition.  They were short admissions, as I said before, which did not assist you in breaking the cycle of adverse side-effects, followed by non-compliance for that reason, followed by further psychotic episodes.  In the circumstances I will be making no order for cumulation of the individual sentences.

20Would you stand now, please, Mr Dinnachio?

21I sentence you to terms of imprisonment of 15 months for each charge, all to be served concurrently. 

22When you are released you will begin the Community Correction Order which will begin that day and will last for two years.  You will be under supervision and you must perform 80 hours of unpaid community work over six months.  You must be tested for drug use and have any treatment that is considered necessary.  Your mental health will be monitored and you must take part in any suitable programs to reduce the risk of re-offending. 

23You will also be subject to judicial monitoring, meaning that you will have to come back to court from time to time and tell me how you are progressing and I will hear what programs have been arranged for you.  There will be no prosecutor here and it will not be necessary for you to have your lawyer here.  The only other person who will be attending will be the Corrections officer to answer any questions I may have about your progress. 

24You must go to the Corrections office at Heidelberg, which is at 83 Burgundy Street, by 4 o'clock within two working days of your release.

25I declare that the 320 days in custody are to be reckoned as already served and I shall cause that to be noted on the court record.

26The prosecution seeks an order for a forensic sample of saliva to be obtained.  I have not heard whether you consent to that or whether it is not opposed.  Do you have those instructions, Ms Trumble?

27MS TRUMBLE:  Consented to, Your Honour.

28HER HONOUR:  It is consented to, very well.  And I make that order and must advise that the police have the power to use reasonable force to obtain that sample, but I trust that will not be necessary.

29If you had pleaded not guilty to these charges, I would have sentenced you to 20 months for each charge, with a two year community correction order.

30That order will be ready in a moment for you to sign, so just take a seat for the moment, please, Mr Dinnachio.

31Tuesday 14 March for the first judicial monitoring, Mr Dinnachio.  Tuesday 14 March at 9.30.

32OFFENDER:  That's next - next year, Your Honour?

33HER HONOUR:  Next year. 

34OFFENDER:  So maybe you can write that down for me.

35HER HONOUR:  Yes, I am sure your lawyer is writing it down now and she will tell you.  That means once you are released you then sign up for the Community Correction Order, and a couple of months later there will have been a little bit of time for you to have been on the Community Correction Order and for you to get used to the idea of all the obligations you have got to do. Your case worker  will provide a progress report to me, and I will talk to you on that day in court.  It will just be like this, but you will be standing there at the Bar table, and there will be no one else here.  All right?

36OFFENDER:  Thanks, Miss.

37HER HONOUR:  Just one moment while that order is printed out, and then your counsel can talk to you while you are signing it.

38MS CANNON:  Your Honour, this is such a small - - -

39HER HONOUR:  All right, yes, go ahead please, Ms Cannon.

40MS CANNON:  Apparently my instructor picked up, Your Honour might have said in your reasons, just if they need correcting, that he pleaded guilty on 6 July, as opposed to I think the date - it might have resolved on that date.

41HER HONOUR:  I might have said that.  So he indicated that there would be that plea on that date; is that right?

42MS CANNON:  So it was resolved to a plea of guilty of 6 July and he was arraigned and pleaded on 28 July.

43HER HONOUR:  All right, thank you.

44MS CANNON:  So if there's any - it's only a minor matter.

45HER HONOUR:  A small matter, but I will fix it, yes.  I think that is everything?

46MS CANNON:  Yes, Your Honour.

47MS TRUMBLE:  Thank you.

48HER HONOUR:  Thank you.

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