Director of Public Prosecutions v Farrugia and Kounelis

[2014] VCC 730

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-00005
CR 14-00006

DIRECTOR OF PUBLIC PROSECUTIONS

v

JESSE FARRUGIA

BILL KOUNELIS

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	16 May 2014
CASE MAY BE CITED AS:	DPP v FARRUGIA AND KOUNELIS
MEDIUM NEUTRAL CITATION:	[2014] VCC 730

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C Teague
For Accused FARRUGIA	Ms B F Franjic
For Accused KOUNELIS	Mr G Thomas

HIS HONOUR:

1Jessie Farrugia you have pleaded guilty to one charge of reckless conduct endangering persons and one charge of causing serious injury intentionally.  Those crimes carry maximum penalties of five years and 20 years respectively.

2You, Bill Kounelis, have pleaded guilty to one charge of causing serious injury intentionally.  As I have indicated, that carries a maximum penalty of 20 years imprisonment.

3You are 23 and 41 years of age respectively.  Each of you pleaded guilty at the earliest reasonable opportunity, and I accept that each of you has expressed appropriate remorse.  You must also each get the utilitarian benefit of that plea of guilty.  In so far as your prior convictions are concerned, you do not have many Mr Farrugia, but one of them is for driving in a manner dangerous for which I am told involved a police chase and which is of concern as I outline the facts here.

4You, Mr Kounelis have a significant criminal history.  This is not really your style of offending.  It is mainly dishonesty and the like, but you have been to gaol on occasions previously, and you are no stranger to the system.

5Firstly, pursuant to s.464ZF of the Crimes Act, I make an order that you Mr Farrugia provide a saliva sample for DNA purposes and that order is made and handed down. I must tell you now that now that order has been made, if you refuse to provide authorities with such a saliva sample, they may use reasonable force to take it from you.

6The circumstances surrounding this matter have to be gleamed effectively from everybody's point of view.  I will be reading from the summary of the prosecution opening, but I will also be including those matters which have been put to me on behalf of each of you, in terms of how all this came about.

7On the morning of 18 July 2013, the victim in this matter was driving a white Ford Utility around the Caroline Springs area.  I point out at this stage that that vehicle was stolen and that that victim is currently on remand for armed robbery.

8In any event, at approximately ten to seven in the morning, he stopped outside your address Mr Farrugia and began stealing tools from your white Ford Utility.  In response you went outside and approached the victim, where the Crown opening says a confrontation occurred.  As I understand what happened, you confronted Mr Vickers, he became aggressive and abusive towards you, and a struggle ensued during which you suffered a cut to your forehead.  This was caused by an object that Mr Vickers was wielding.

9You fended him off and fled into the house.  Mr Vickers followed and threw a cordless drill at you.  It struck and damaged the front door of the house, he then took off with some of the tools.  Those matters that I have referred to are supported by the surrounding forensic evidence.  He also smashed the driver's side window of your car.

10After telling your fiancé to call 000, which she did, you Mr Farrugia got into your car and drove off to find Vickers and get the tools back.  You found him parked in a car around the corner.  You parked behind him, as you got out of your car, he reversed back and collided with your ute and he then took off.  You returned to your car and followed him, culminating in a collision on Caroline Springs Boulevard.

11As it was discussed with your counsel, this whole incident was brought about by the conduct initially of Mr Vickers, and I certainly have no trouble in finding that his conduct was extremely provocative and that what pursued afterwards is understandable, though unlawful and inexcusable.

12The driving that then occurred was described in the Crown summary as follows.  "It was 7 a.m., the traffic was of medium density.  In the course of your driving, a third vehicle containing a female was side swiped near the intersection of Rock Bank Middle Road.  A witness saw the vehicle of the victim here not having its headlights on.  She heard a collision behind her and saw in her rear view mirror two cars pushing and shoving behind her.  She tried to veer left out of their way.  She described both vehicles swerving across both lanes of traffic.  Other road users were also forced to take evasive action to avoid further collisions.  They swerved towards her vehicle, and ultimately an impact occurred.  She described the cars turning left into Rock Bank Middle Road and then hearing a loud crash.  Shortly after, she observed two males approaching, one of whom was carrying a shovel that was you, and she rang 000".

13That is the driving which gives rise to the charge of reckless endangerment.  As I have indicated earlier, you do have a prior conviction for a manner dangerous, which involved a police pursuit and you should very much have learnt your lesson by then.  It may all be very well to be trying to get your tools back and to be angry, but to put totally innocent people at risk in the way that you did cannot be condoned.

14After the vehicles ran off the road, Mr Vickers took off effectively.  He went to a nearby Milburn Circuit.  At that point, you Mr Kounelis were driving past, observed the scene and stopped.  On stopping, you had a conversation with Mr Farrugia and I am not too sure what was said there.  However, you Mr Farrugia armed yourself with a shovel and the pair of you pursued the victim.

15It would seem that once he was located, he was just simply assaulted.  He was belted with the shovel, and was attempting still to flee.  He managed to escape further along the street before the pair of you caught up with him again outside 15 Milburn Court.  At this location, a further assault took place with you Mr Farrugia striking the victim a number of times with a shovel around the head and body, and you Mr Kounelis striking the victim without a weapon, to the head and body. 

16A number of independent witnesses saw this and described a vicious assault, with Vickers screaming loudly and not retaliating in any way.  Other witnesses reported being woken by the sound of the assault.  You then dragged Vickers back to where the police were, and he again had the shovel dug into both his head and body area.  The police at the scene then took it from there.

17It is understandable, and as I indicated during the course of the plea, the TOG police have training in this, that once there has been a pursuit like that it often ends in violence where the person who has been doing the pursuing can attack the other person.  You had your reasons for being very angry, I have no doubt with this man, but once you took a shovel and once Mr Kounelis joined in and you belted him with that shovel repeatedly when he was offering no resistance and clearly did not pose a threat is an assault, which I think the community would demand requires an active custodial gaol sentence.

18It is not a vigil anti attack in the way that is sometimes described, because you were indeed after your tools, but from the moment the cars had stopped and your tools were in that vehicle, you had your tools back and what occurred after that was gratuitous.  It is put to me that you were endeavouring to stop the thief, as he was, from getting away, and I accept that that may have been a part of your motives, and it may even have been such that if you did believe, and I am not saying whether you did or you did not, that he may have been armed, then the shovel might have been necessary, but from that point on, it is inexcusable.

19Mr Vickers was taken to the Royal Melbourne Hospital.  He said he had been hit in the head with a shovel and he clearly had.  He spent five days in hospital, and underwent major facial surgery for injuries including a fractured right eye socket and a broken nose, as well as multiple lacerations and grazes over his arms, legs and back.  He was clearly struck in the head with that shovel and it caused fractures I understand from the Crown that plates have been inserted and remain there. 

20Because of the new test relating to serious injury, it is agreed between counsel I should regard these injuries at the lower end of what is now a more rigorous scale, if I can put it that way. 

21At the scene, the police spoke to you Mr Farrugia.  You admitted that you had been the driver of the vehicle, and you said that you had found the other male breaking into your ute, and that then there had been a pursuit.  You Mr Kounelis made a statement to the police at the time. 

22It is a difficult sentencing process because I can understand how this got totally out of control, but on the other hand, as I said, it did get out of control and you Mr Kounelis will have to admit it was none of your business.  Why you became involved, you may have been trying to assist somebody, I have got no idea.  But you had absolutely no right to be in this at all.

23It has to be regarded as serious, and of course the application of general and specific deterrence, as well as denunciation and appropriate punishment, but I make it clear again, I do think that it all occurred in circumstances of provocation.  I suppose it could be said that someone doing what Mr Vickers was doing is taking his chances, but be that as it may, he did suffer serious injuries and I have to operate on that basis.

24In my view, a custodial sentence, an active custodial sentence is the only sentencing option that is open, and I look to you first Mr Farrugia.  You are still young, and I accept that.  You have been on remand since 20 February this year.  That involved the use of Ice and the use of a weapon, and you trying to get the police to shoot you, and apparently threatening to kill police.

25You have prior findings of guilt from February 2012 for driving in a manner dangerous and failed to stop vehicle on police request which I have indicated was a police pursuit.  You also in that situation had been using Ice.  In the matter that is outstanding, I understand you had been using Ice, and there is one other incident that was described to me where you had in fact been using Ice.

26I say this, that it is becoming clear to anyone involved in the practise of the criminal law that the drug Ice is probably the most threatening drug that this state and community has ever faced.  This sort of conduct is not uncommon with it, and if you cannot stop using Ice in the long term Mr Farrugia, the odds are very high that you will kill somebody, or somebody will kill you and that is just the reality of this drug, it makes people psychotic.  You indeed have had a previous experience of drug induced psychosis.  You have had drug problems now for an extended period of time. 

27The matters personal surrounding you can be dealt with relatively briefly.  You are the youngest of two children, and come from a strong and hardworking family.  That became clear by the family support in this courtroom.  You had a positive upbringing in the western suburbs and undertook secondary education, and completed your VCE.  At 15, you started part-time work at Bunnings, and continued that for some years. 

28In February 2008, after completing your VCE, you commenced a plumbing apprenticeship and were apprentice to a Mr Craddock.  You undertook your studies at Victoria University Trades College and worked for City Plumbing and Gas Fitting until you were remanded on 20 February of this year.

29On a couple of occasions, during that apprenticeship you took time off because of your drug use.  You have a history of mental health and drug issues.  You were first prescribed Benzodiazepines at about the age of 15 or so to treat anxiety, stress and sleep disturbance.  You began abusing that medication.  In your late teens, a friend introduced you to Methamphetamine and that Methamphetamine use has had a deleterious effect on your mental health.  As I have indicated, you have previously been diagnosed with drug induced psychosis and a differential diagnosis of paranoid schizophrenia, although I interpolate that Verdins plays no part here, as well as poly substance dependence, depression and you also have a gambling addiction.

30You have experienced episodes of psychosis and suicidal ideation and you have undergone impatient treatment at Origin Youth Health in 2012 and at the Melbourne Clinic in 2013.  Tendered on your behalf were reports relating to your previous history in so far as mental health is concerned and I have obviously read them and take them into account.  I also take into account the testimonial material which was provided to me on your behalf.

31You had not used drugs for approximately two and a half months before this offending occurred, but about two months beforehand had commenced to use it.  I am told from the Bar table that you had used Ice the previous night.  What effect that had on all this conduct if any I do not know.  You at that stage were living with your parents in their house at Caroline Springs, along with your fiancé and your elderly grandmother.

32On the positive side, you are engaged and have the support of a partner.  She is 20 years of age and works.  You, obviously apart from the period of time that I have referred to have also worked.  You have received weekly visits in custody from your fiancé and you also receive frequent visits from the rest of your family.

33I will not go into the detail of the rehabilitation aspects of the detoxing that you have gone through, but I wish to make it clear that I have taken very much into account the evidence of your father and of Mr Craddock for whom you have worked for an extended period of time.

34You are now only a couple of units of school as I understand it, off being a qualified plumber.  Mr Craddock gave evidence on your behalf, and I found him to be an impressive witness who knows his way around in the world I would have thought.  He told me that you had been an extremely good worker as an apprentice and other people that he had you working with had complimented upon your work and the standard of it.  Other plumbers wanted to work with you.  He said that you were the best apprentice that he had ever had, and he over the years had employed about 30 different people.

35When he realised that you were having mental health issues, and obviously in retrospect, were using drugs, he got you to endeavour to rehabilitate.  He told me, and I have no reason not to accept this that upon your ultimate release, he would like you back working with him again, and he has told me that he has never given evidence for an employee before and again I accept that entirely.

36Your father gave evidence on your behalf, and described some of the history.  He confirmed, and I do accept this that there is deep remorse from you for this offending, and that is something that you have discussed with him on a number of occasions.  Obviously on the protective side of all this, you have accommodation to go to, you have a stable relationship and you have the potential of work.  What you have to do is simply not use drugs and to control your conduct.  I have indicated, I if you are going to use Ice, the consequences can be dramatic to say the least.

37It would seem to me Mr Farrugia that in terms of specific deterrence, the greatest specific deterrent you can ever have if you think of using drugs, or think of offending in this way again is to simply remember your father standing in that witness box trying to protect you from yourself.  All right, it is a dreadful thing to do to your father, and you should always bear that very much in mind, the closeness of your family has saved you from more than what you are going to get, all right so that is the situation.

38The prospects of your rehabilitation are in your own hands.  If you can rehabilitate so far as the drugs are concerned, the risk of you re-offending in that way should be significantly reduced.  It is a bit difficult to know in this circumstance how much drugs had to play with this offending.  If this is straight out anger management problems, you are going to have to really do something about it.

39I take into account all the other submissions that were made on your behalf, including your youth and the like, and the fact that there is a relative paucity of prior convictions, though what are there (indistinct) of significance.  You have now done something like 80 days on remand for the other matter, and you can get no benefit for that, I take that into account in a general way.  It is the first time you have been in prison, and I am hoping at least that has had a salutary effect upon you.  However, the fact remains that you drove like that, you have driven like that before it would seem, and the assault that took place on this man between in company, with a shovel was gratuitous and serious.

40In so far as you are concerned Mr Kounelis, as I indicated at the start, you are 41 and this was none of your business.  Your background is one of having been brought up around Kensington.  You did an apprenticeship in Brunswick for a period of four years.  Since then, your employment has been somewhat sporadic.  You used cannabis when you were 18 or 19.  You have been addicted to Heroin since you were 22 and you have been in and out of gaol on a number of occasions.

41Before your latest remand into custody, you were using a very significant amount of Heroin.  Of real significance in your situation is that upon testing by a psychologist, your overall IQ comes in at about 65.  The normal way of describing that is mildly intellectually disabled, but that word mild is a very misunderstood one. In your situation probably 99 out of 100 people would do better than you in any sort of testing at all.  I accept that at that level of intellectual deficit, you would be challenged in areas of reasoning, insight, judgment and problem solving skills.

42You believe that you knew, not so much as a friend, but knew of Mr Farrugia and you took the view that you were assisting him.  I take into account that you actually did not have a weapon, but you did strike the man by kicking him - sorry by striking him a number of times with your hands, and that you were assisting Mr Farrugia.  Obviously when you were assaulting him, you were fully aware that Mr Farrugia had the shovel and were fully aware of the severity of the attack that was being pursued against this man.

43I think that because of that very low IQ, I moderate the penalty in so far as moral culpability is concerned and I suppose is a very moderate lessening of general and specific deterrence.  However, the fact of the matter is that you have been in gaol before.  You have been around the traps and you know you cannot do this sort of thing and that there was plenty of opportunity to pull out of it if you wanted to.

44What is again of real significance in your particular situation, and I just simply point out in passing that I have taken into account the psychological report from Ms Cidoni which has been tendered on your behalf and outlines your history which I do not think there is any need to go into at this particular stage, but what happened was that on 7 January 2014, you were sentenced in the Magistrates' Court.  You were sentenced to a period of 60 days.  At that stage, you had done 161 days on remand.  That means that the 60 days that I have taken into account in a general sort of a way, on a loss of concurrency basis, but there is 101 days which is dead time in a Renzella sense. 

45That means that I am unable to declare that time as having been served under this sentence.  Had you - and this was obviously not thought of at the time, but had you when you first went into custody prior to 7 January 2014, forfeited your bail, I would now be able to declare an extra 101 days.  Accordingly, this is a situation where I think justice demands that I reduce your sentence by that amount or very close to it, as an indication that you have already done that much, it can when effecting sentences in that way, make them look lower than they might otherwise have been, but with your sentence always look at it as being realistically three months longer than what you have actually been given, and indeed you have served that, I think anyone would understand it.

46The prospects of your rehabilitation are up to you, and there is not much I can do about that.  The risk of you re-offending obviously is going to depend on when you get out, whether you use Heroin again, but that is a matter for you, not me Mr Kounelis.

47So I take all that material into account.  You would appear to have Mr Kounelis stable accommodation upon your ultimate release, but realistically that is a matter for the Parole Board, as it will be really with you Mr Farrugia.

48Accordingly, you Mr Farrugia, on the first charge of reckless endanger, you are sentenced to imprisonment for a period of six months.  On the second charge of intentional serious, 15 months.  I direct that three months of the sentence imposed on Charge 1 be served cumulatively upon the sentence imposed on Charge 2, which gives an effective head sentence of 18 months.  However, because of your youth, and the very powerful evidence that was given on your behalf, it is my view that a minimum term, that is lower than what otherwise have been the case should be imposed, and accordingly I direct that you serve a minimum of nine months before becoming eligible for parole.

49Obviously the matters that are to be heard in the Magistrates' Court argument can be put there, that they should be served concurrently with this sentence and there may be a saving so your solicitor is here to hear that.  I direct that three days pre-sentence detention be reckoned as having been served under that sentence.

50For you Mr Kounelis, on Charge 3 of intentionally causing serious injury, because of what I had indicated before, 13 months.  You are directed to serve a minimum term of seven months before becoming eligible for parole, and I direct that 129 days be reckoned as having been served under that sentence.

51In so far as s.6AAA is concerned, so you understand the benefits that you got by pleading guilty and not trying to fight this out, you Mr Farrugia would have been sentenced in total to 25 months, with a minimum term of 13 months, and you Mr Kounelis to 18 months, with a minimum term of 10 months.  So that is the benefit that you got from pleading guilty which is significant.  Are there any other orders I have to make?

52MS TEAGUE:  No Your Honour.

53MS FRANJIC:  No Your Honour.

54HIS HONOUR:  Are you all right?  All right, thank you.

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