Director of Public Prosecutions v Fantini
[2017] VCC 639
•8 May 2017
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No.17-00008
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOSHUA FANTINI |
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JUDGE: | HIS HONOUR JUDGE LACAVA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 April 2017 | |
DATE OF SENTENCE: | 8 May 2017 | |
CASE MAY BE CITED AS: | DPP v Fantini | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 639 | |
REASONS FOR SENTENCE
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Catchwords: 3 charges armed robbery.
Sentence: 3 years' imprisonment/non-parole 2 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms J. Malobabic | |
| For the Accused | Ms C. Woodward |
HIS HONOUR:
1 Joshua Fantini, you have pleaded guilty to three charges of armed robbery. The maximum sentence for armed robbery is twenty five years' imprisonment. You have also pleaded guilty to one charge of theft for which the maximum penalty is ten years' imprisonment. Your offending is confined to a nine day period between 18 and 27 September 2016.
2 The circumstances of your offending are set out in a prosecution summary which was tendered in evidence and read to the court by the learned prosecutor Ms Malobabic. The summary was accepted by your counsel Ms Woodward as being accurate, and as forming a proper basis upon which I can proceed to sentence you. It is not necessary that I here again set out in detail, that which is contained in the summary except in a very brief way. These sentencing remarks however need to be read in conjunction with what is therein contained.
3 On three separate occasions over a seven day period covered by Charges 1 to 3 inclusive, you armed yourself with a knife and attended upon commercial premises in Frankston, known as “Erotic Nights”, and stole packets containing synthetic cannabis. Having been a previous customer of the business your identity was known to the operators. On each occasion the unarmed female attendant at the premises felt threatened and feared for her safety.
4 On the occasion of offending in charge 1 you apologised to the attendant and said, “I’m sorry, this stuff is worse than heroin." You then removed packets of synthetic cannabis with a total value of $1730. The victim told police that she was terrified and she just backed away and froze.
5 On the second occasion constituted by charge 2, the victim left the store leaving you alone to rob it. She told police that she was afraid she would be hurt and the incident left her fearful that you were going to use the knife and would come back to the store.
6 On the occasion constituted by Charge 3, you again robbed the store of synthetic cannabis and asked the victim on this occasion for $20. You said to the victim on this occasion “I’m sorry I have to keep doing this” before leaving the store. The victim told police that she was concerned she might be stabbed or cut if she tried to intervene and she described you as being “clearly desperate." You may have been desperate for the product that you stole but you clearly knew that what you were doing was wrong.
7 Although your offending was relatively unsophisticated and you took few steps to disguise yourself, other than wearing a hoodie, your offending in each of Charges 1 to 3 was a serious example of what is a serious offence because on each occasion you presented with a knife and placed your victim in fear. On each occasion you offended the victim being the store attendant was a soft target. But in my opinion, your offending does fall towards the lower end of the scale for the offence of armed robbery which is a very prevalent offence.
8 In charge 4 you again attended at the store wearing a hooded jumper and you entered the store and stole merchandise from it but on this occasion you were not armed with a knife and you did not make demands.
9 On each occasion of offending you were captured on CCTV.
10
You were arrested on 29 September 2016. Police went to your home address where they found evidence of the merchandise that you had taken. When you were arrested because of your mental state you were deemed unfit for interview and you were remanded in custody where you have remained since
29 September 2016.
11 The prosecution tendered a victim impact statement from the victim of your offending in charge 3. She sets out in that victim impact statement the psychological effect that your offending has had upon her and how it has affected her particularly in relation to her work. She has had to have psychological counselling as a consequence. That is understandable in the circumstances. In passing sentence upon you I have taken the content of the victim impact statement tendered into account as I must.
12 You have pleaded guilty to each of the charges and you indicated that you would do so at the earliest possible opportunity. For that you are entitled to a reduction in sentence and this will be reflected in the sentence that I shall shortly pass. By your pleas of guilty you have saved the time and cost of a trial and you have saved the victims from each of these offences from having to give evidence against you and from having to relive the unfortunate experience that you subjected each of them to. I treat your pleas of guilty as evidencing genuine remorse on your part for your conduct.
13 In addition, I admitted into evidence a letter which you prepared for my benefit dated 11 March 2017 in which you express regret and remorse for your conduct. I accept that letter is further evidence of genuine remorse on your part.
14 You were born on 18 October 1987 and at the time of offending you were approaching 29 years of age. When arraigned you admitted a limited prior criminal history for offending in New South Wales between March 2007 (aged 19) and August 2010 (aged 23). Your prior offending has little relevance here although I note that your first offence was of a shoplifting kind. You have never before received a sentence of a term of imprisonment.
15 Your counsel Ms Woodward filed a helpful written outline of submissions that she made on your behalf. Your father was in court to support you. Your mother who lives in New South Wales is a registered nurse and she remains supportive of you and offers accommodation to you upon your release. You have an older sister and a half brother and two stepbrothers with whom you have no contact. Your parents separated when you were approximately two years of age and your formative years were spent in your mother’s care.
16 You struggled to form personal relationships as a child and you were described by your counsel as having had a lonely and isolated childhood. Your schooling was distressing for you and you were bullied on a regular basis due to weight issues which you had. You have had a relationship with a woman and you have a child of that relationship who was born on 23 February 2017. You have separated from the mother of that child but you are working towards re-establishing the relationship. The relationship fell apart because of your substance abuse.
17 You attended Minchinbury Primary School from preparatory to Grade 6 and then you commenced your secondary education at Rooty Hill High School for Years 7 to 9 before transferring to another High School for Year 10. You commenced Year 11 at a TAFE but ceased your studies there to take up an apprenticeship in spray painting. You completed three of the four years of that apprenticeship before relocating to the Central Coast of New South Wales to live with your father. You were unable to find employment which would enable you to complete the fourth year of your apprenticeship.
18 You commenced working as a labourer in the kitchen manufacturing industry, however, you sustained a back injury in the course of that employment following which you were in receipt of WorkCover payments but you subsequently reinjured your back outside of a work context which meant that you were not compensated.
19 In 2014 you came to Victoria in an endeavour to make a fresh start and you settled in the Frankston area. You enrolled in, and completed, a diploma in “Youth Work” but you were unable to find work in this field.
20 You have travelled a sad and well-known path to drug addiction. You began experimenting with drugs in your early teens and you have used synthetic cannabis on a regular basis for many years. You experimented with heroin for approximately six months at age of 18 years. You have used amphetamine from your late teens until about 21. Your substance abuse escalated following your first back injury, and subsequent loss of employment, and again when your relationship failed in early 2016. You have sought assistance with substance abuse issues although you have not had formal treatment or counselling. Initial assessment links your substance abuse to your mental health issues. You have been a long sufferer of a Borderline Personality Disorder.
21 I was told and accept that you have a congenital heart condition known as “bicuspid aortic valve” which is properly treated. As noted you have injury to your lumbar spine in the form of an L3 – L5 disc prolapse, and a T5 – T6 disc protrusion, and you suffer from substance use dependency.
22 You were first admitted to a psychiatric facility at aged 18 years and you have had four admissions to Frankston Hospital since November 2015, the most recent being in July 2016 for self-harming. You have been diagnosed as suffering Borderline Personality Disorder, Depression and an Adjustment Disorder.
23 As I said earlier, you have been in custody now since your arrest and you have remained drug-free in that time. I was told and accept that this has enabled you to gain insight into the fact that having regard to your mental health issues you cannot continue to engage in illicit drug use. You do have family support.
24
I admitted into evidence a very lengthy psychological report prepared by
Elle Gianvanni who saw you for that purpose on 30 December of 2016 at Margoneet Prison where you have been on remand. Ms Gianvanni summarises her findings and opinions as follows:
"Based upon the writer's assessment and review of information available at the time this report was completed, it is the writer's opinion that:
a) Mr Fantini presented with emotional and psychological disturbances as well as behavioural patterns that are consistent with a diagnosis of Cannabis Use Disorder (3004.30), and Borderline Personality Disorder (BPS) (301.83), according to the DSM-5 – Mr Fantini also presented with emotional and psychological disturbances as well as behavioural patterns that are likely to meet diagnostic criteria for one or more of the following diagnoses: cannabis induced psychotic disorder, schizo affective disorder bipolar type, and/or bipolar disorder with mood congruent or mood incongruent psychotic features- the writer was however unable to determine, with a degree of certainty the aetiology, and the nature of Mr Fantini’s psycho symptomatology, and therefore identify the most appropriate psychiatric condition(s);
b) based on the presence of both meaningful risk factors as well as relevant strengths, that Mr Fantini is assessed to be at a LOW risk of violent, and non-violent offending, contingent on continuous compliance with his psychotropic medication regime, attendance to specialised psychological treatment to address his psychiatric conditions, and abstinence from the list substances:
c) Mr Fantini, at the time of his index offending, was untreated for his debilitating psychiatric conditions, given that he was non-compliant to his then psychotropic medication regime and was not attempting [and has never attempted to date] specialised psychotherapy;
d) Mr Fantini appeared to be sincerely apologetic for his index offending and took full responsibility without engaging in any blaming and/or minimisation of his actions.”
25 I generally accept the findings of Ms Gianvanni. I accept that you have been a long time sufferer of a Borderline Personality Disorder, and I accept that for a long time you have suffered from Cannabis Use Disorder. However, I do not accept that because of your mental health your moral culpability for this offending is diminished. At the time of your offending you were drug affected. It is impossible to say to what extent (if any) your judgment at the time of your offending was affected either by your Borderline Personality Disorder or, as distinct from, your Cannabis Use Disorder. In my view, at the time of the offending you were drug affected. In any event, the courts do not recognise evidence of the presence of a Borderline Personality Disorder as a factor leading to reduced moral culpability by an offender and a consequent reduction in the application of the principle of general deterrence in sentencing. However, in arriving at my overall sentence I have taken your state of mental health into account.
26 Ms Woodward submitted that because of your mental state, being your diagnosed Borderline Personality Disorder, and because of your diagnosed Cannabis Use Disorder, I should impose a Community Corrections Order. I do not accept that submission. Having regard to the number of offences of armed robbery here, and the level of offending, the making of a Community Corrections Order in my opinion is inappropriate because the purposes for which the sentence is here imposed could not be achieved by the making of a Community Corrections Order.
27 Sentencing for offending of this kind must be guided by the proper application of the principle of general deterrence. Armed robbery is a prevalent offence and those who commit it must be deterred by the sentences imposed by the Courts. The sentence must also adequately reflect denunciation of this kind of offending.
28 Importantly, the sentence imposed must be just and have proper regard to the offender’s prospects for rehabilitation.
29 In your case I regard your prospects for rehabilitation as reasonably good. You have only a limited prior history. You have pleaded guilty at the earliest opportunity. You have accepted full responsibility for your conduct. You have evinced appropriate remorse and empathy for your victims and you have now insight into the fact that having regard to your mental illness you cannot continue to imbibe illicit drugs. You have remained drug free whilst on remand and you have sought professional help for your diagnosed problems. You have used your time in prison thus far well completing courses available to you and you have the full support of your parents. You have expressed the desire to rekindle your relationship with the mother of your child and to play a part in that child’s upbringing. All of these factors have led me to the view that your prospects for rehabilitation as reasonably good. Time will tell but that is up to you. I have taken all of these factors into account, together with the circumstances of the offending, in arriving at the sentence I will impose on the individual charges, and in arriving at appropriate cumulation applying the principle of totality in sentencing to arrive at my total effective sentence. I have made the sentence imposed on Charge 3 the base sentence because Charge 3 represents the third occasion you committed the offence of armed robbery.
30 On Charge 1 you are convicted and sentenced to a term of imprisonment of two years.
31 On Charge 2 you are convicted and sentenced to a term of imprisonment of two years.
32 On Charge 3 you are convicted and sentenced to a term of imprisonment of two years and a half years.
33 On Charge 4 you are convicted and sentenced to a term of imprisonment of one month.
34 I direct that three months of each of the sentences imposed on Charges 1 and 2 cumulate upon the sentence imposed on Charge 3 making a total effective sentence of three years' imprisonment. I direct that you serve a minimum term of two years' imprisonment before being eligible for release on parole.
35 I declare that there has been 221 days pre-sentence detention under the sentences passed this day and direct that 221 days be reckoned as having been already served, and be entered into the records of the court and be deducted administratively.
36 For the purposes of s 6AAA of the Sentencing Act 1991 I declare that had it not been for your pleas of guilty to the charges I would have imposed an overall sentence of 5 years' imprisonment and I would have fixed a non-parole period of 3 years.
37 The prosecution seeks a Disposal Order. The making of this order was not opposed and I have signed it.
38 The prosecution also seeks the making of a forensic sample order. The making of that order was also not opposed and for the reasons stated in the order I have signed it which means that whilst in custody a member of the police force may approach you for the purpose of taking a sample from your body in the form of a mouth swab.
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HIS HONOUR: Do you understand that?
PRISONER: I do.
HIS HONOUR: Yes, is there any questions arising out of that, Ms Carins or
Ms Woodward?
MS CARINS: No Your Honour.
MS WOODWARD: No Your Honour.
HIS HONOUR: Very well thank you, could you take Mr Fantini downstairs.
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