Director of Public Prosecutions v Filippi
[2021] VCC 2078
•16 December 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-01732
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JASON FILIPPI |
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JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 03 December. 2021 | |
DATE OF SENTENCE: | 16 December 2021 | |
CASE MAY BE CITED AS: | DPP v Filippi | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 2078 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence - Pleas of guilty - Theft - Criminal damage - Burglary - Possess drug of dependence - prohibited person possess firearm - Prohibited person possess imitation firearm - Negligently deal with proceeds of crime - Significant delay - Relevant criminal history - Long history of drug and alcohol abuse - Accused suffers from Stimulant Use Disorder, Sedative, Hypnotic and Anxiolytic Use Disorder and ADHD
Cases Cited:Worboyes v R [2021] VSCA 169; R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269
Sentence: Convicted and sentenced to Total Effective Sentence of 4 years and 6 months’ imprisonment with a non-parole period of 3 years’ imprisonment - 475 days’ imprisonment declared as already having been served - s.6AAA Sentencing Act 1991 declaration made - Ancillary order Disposal, Forfeiture and Forfeiture (Firearms) orders
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr L. McAuliffe | Solicitor for the Office of Public Prosecutions |
| For the Offender | Ms S. Joosten | James Dowsley & Associates |
HER HONOUR:
1Jason Filippi, you have pleaded guilty to three charges of theft, three charges of criminal damage, four charges of burglary, one charge of prohibited person possessing firearm, two charges of possession of a drug of dependence, one charge of prohibited person possessing an imitation firearm and one charge of negligently dealing with proceeds of crime.
2The maximum penalty for theft, criminal damage, burglary, prohibited person possessing firearm and prohibited person possessing imitation firearm, is 10 years’ imprisonment. The maximum penalty for negligently dealing with proceeds of crime is five years’ imprisonment and for possessing a drug of dependence, five years’ imprisonment – unless if the court is satisfied that the offence was committed for a non-trafficking purpose then the maximum penalty is one year imprisonment.
3Further, you have pleaded guilty to the summary offence uplifted to this court of committing an indictable offence whilst on bail which is a rolled-up offence as I understand the situation. This offence has a maximum penalty of three months’ imprisonment.
4In sentencing you, I must take into account the maximum penalties, as these reflect the seriousness with which Parliament regards each of the offences.
5The factual basis on which I sentence you is as follows.
6The prosecution referred to six incidents which gave rise to the offences to which I have just referred. Incidents one to five included references to a white Holden SS Commodore which was found at your residence during your arrest. The car had been stolen from Dutton Wholesale between 5 and 8 June 2020 and you had placed false registration plates on the car, those false plates being AFX 185. At all relevant times, you were either driving or a passenger in the car.
Incident 1 – Essendon Holden -plus one month
7The basis of for the first incident is as follows. At about 7.15 pm on Saturday, 25 July 2020, CCTV footage from Essendon Holden, which is located at an address in Essendon Fields, depicts the white Holden SS Commodore arriving in the vicinity of the caryard. You are seen to get out of the car and approach a grey Holden SS Commodore, which is parked at the front of the caryard. You used a tool to smash a window of the car and attempted to open the boot from inside. However, you were unsuccessful. An unknown co-offender joined you and, together, you removed the right rear wheel from the grey Holden SS Commodore, rolling it toward ‘your’, that is the SS white Commodore, but rolling it toward your car and then placing it in the boot. This gives rise to Charge 1, theft. You are then seen to briefly return to the grey car, but as its alarm is activated, you return to ‘your’ car and drive away. The damage to the car window and tyre replacement cost approximately $717.55.
Incident 2 (Charges 2 ꟷ 4)
8I now come to Incident 2 which encompasses Charges 2, 3 and 4. At about 1.50 am on Monday, 27 July 2020, a red Nissan Pajero with a Queensland registration number was stolen from outside an address in Port Melbourne. At about 4.16 am, CCTV footage depicted the white SS Commodore with the false registration plates to which I have previously referred, driving in convoy with the stolen Pajero. At about 4.35 am, both cars are seen parking in Little Collins Street in, Melbourne. You and an unknown co-offender get out of the white car and into the Pajero. At about 4.38 pm, the Pajero is seen driving into the Westin Complex on Collins Street in Melbourne. The Pajero is then seen ramming and shattering the front windows of a store, the store's name is ‘Miss Louise’, and that store was within the Westin Complex. This conduct gives rise to Charge 2, criminal damage. You and one of your co-offenders are then seen to exit the Pajero from the passenger side and the driver of that car stays inside it. You and one of your co-offenders are seen running in and out of the Miss Louise store stealing numerous handbags, giving rise to Charge 3. Two wheelie bins are seen being unloaded from the Pajero and the stolen handbags are placed in one of the bins. You loaded one of the wheelie bins into the back of the Pajero. These facts give rise to Charge 4, theft.
9At about 4.42 am, CCTV footage shows the Pajero returning to where the white SS Commodore was parked in Little Collins Street. You and one co-offender get out of the Pajero and back into the white SS Commodore. Both cars then drive off.
10At about 4.55 am, you are observed by a witness unloading items from a Pajero into the white car. The witness flagged down a passing police vehicle and police found the stolen Pajero, which had a stolen handbag in it, and they also found a wheelie bin which was marked as being from an address in Middle Park.
11The owner of Miss Louise indicated that the 43 stolen and unrecovered handbags were valued in total at approximately $118,385 and that the damage to the premises was repaired at a cost of about $38,324.
Incident 3 – Broadford News and Tattslotto Agency (Charges 5 ꟷ 6)
12I come now to incident 3 which encompasses Charges 5 to 6. At about 1.18 am on Friday 31 July 2020, you and an unknown co-offender attended the Broadford News and Tattslotto Agency in High Street, Broadford. Again, CCTV footage shows the white SS Commodore in the immediate vicinity.
13You and an unknown co-offender break into the store by using a tool like a crowbar to force open the glass front doors. You then entered the store and began opening cabinets which were empty. You forced entry into a rear staffroom using an unknown tool. This gives rise to Charge 6, burglary.
14You took two boxes of Brother printer cartridges valued at $213 – this was not the subject of the charge and so is to be viewed as background or context information only. The owner of the store estimated that damage to the premises was about $250. The damage caused by you, to which I have previously referred, gives rise to Charge 5, criminal damage.
Incident 4 – Whittlesea IGA supermarket (Charge 7)
15I come now to Incidence 4 which encompasses Charge 7. At about 2.53 am on Sunday 2 August 2020, you and an unknown co-offender drove the white SS Commodore to the back entrance of the Whittlesea IGA supermarket in Church Street, Whittlesea.
16CCTV footage depicted you and your co-offender using a tool like a crowbar or jemmy bar to force your way into a stairwell area. From there, you and your co-offender forced your way into another door, which is locked by an electronic keypad. Your co-offender is seen propping open this door while you move on and prise open the automatic glass sensor doors to enter the supermarket. This conduct gives rise to Charge 7, burglary. You then attempted to force open the cigarette cabinet at the store. However, this activated an antitheft fog device within the store, causing you and your co-offender to flee.
17Damage in the store, which you and your co-offender caused, was estimated to be about to the value of $1,541.50.
Incident 5 – Glenroy Liquorland (Charges 8 ꟷ 10)
18I come now to Incident 5 which encompasses Charges 8 through to 10. At about 1.25 am on Wednesday 12 August 2020, you and an unknown co-offender went to the Glenroy Liquorland in Glenroy Road, Glenroy. You and a co-offender drove the white SS Commodore to the scene and another co-offender is seen to arrive shortly afterwards in a blue Nissan utility truck.
19You and your co-offender from the white car are seen using an angle grinder to enter through the front door of the store, giving rise to Charges 8 and 9, criminal damage and burglary respectively. You then run behind the front counter and remove trays of cigarettes, which you hand to your co-offender, and the trays of cigarettes are then loaded into the two cars. This conduct gives rise to Charge 10, theft. The offending was witnessed by passers-by who called 000 and made immediate report to police.
20The damage to the store cost approximately $1,620.94 to repair and the value of the stolen cigarettes was estimated to be about $12,558.55.
Incident 6 – firearm (Charge 11)
21I come now to Incident 6, Charge 11. On Thursday, 20 August 2020, Victoria Police surveillance operatives observed communications being made between you and a Lachlan Carlyon. Mr Carlyon arranged for a taxi to go to your house in Mickleham to collect a package and to return it to his address in Sunshine.
22At about 9.05 pm, the taxi pulled into your address and you are observed leaving your front door and placing the package into the boot of the taxi, which then left.
23Police intercepted the taxi and a search of the boot revealed a shopping bag containing a sawn-off bolt action .22 rifle, with a magazine holding two .22 calibre bullets. At the time you were in possession of the firearm you were a prohibited person, this conduct gives rise to Charge 11.
Search warrant (Charges 12 ꟷ 15)
24I come now Charges 12 through to 15, which are the results really of search warrant. At about 7.30 am on Friday 28 August 2020, police officers executed a search warrant at your home in Mickleham. You were found sleeping inside and were arrested.
25During the search, police found various amounts of methylamphetamine weighing a total of 5.6 grams. This gives rise to Charge 12. The substance was located in at least three separate, clear resealable bags.
26A total amount of 29.3 grams of 1,4-Butanediol was also found – this was in a small hand-sanitiser bottle and in a clear plastic bottle. This gives rise to Charge 13.
27Also, an imitation handgun was found hidden under a pillow on your bed. This gives rise to Charge 14.
28Police also found a number of stolen items, being:
(a) the white SS Commodore, which is valued at about $30,000;
(b) a blue Mercedes Benz, valued at about $68,000. This car had been rented from a car rental company in October 2019 and had not been returned. The car was also fitted with false registration plates and there was a bag in it containing various tools, bolt cutters and a black balaclava;
(c) Surveying equipment valued at about $100,000, which belonged to the 'Chief Group', an earthmoving and surveying company, this equipment had been stolen from a locked container at a railway station sometime during January 2020.
This gives rise to Charge 15 - relating to proceeds of crime
29In dealing with the white Commodore, the Mercedes Benz and the surveying equipment, which were proceeds of crime, you were negligent as to whether these items were proceeds of crime. The proceeds crime charges, as I understand, is Charge 15.
30You were arrested and taken to Melbourne West Police Station and placed in custody. You were interviewed, but declined to make any comment.
31The basis for the summary offence, which is a rolled-up charge, is that, at the time you committed all of the offences to which I just referred, you were on bail in respect of other alleged offending.
32Mr Filippi, your offending is serious and deserving of punishment which is just in all the circumstances. Your conduct must be firmly denounced and strong weight must be given to general deterrence in a bid to deter others from behaving as you have.
33There is nothing placed before me which serves to modify your moral culpability, which I find is high. You embarked on a spree of offending over the course of several weeks, wreaking a degree of havoc in our community. The most serious of your offending, in my view, is the ramming of the Miss Louise store, which involved a degree of sophistication and preplanning. Your behaviour and that of your co-offenders on this occasion was utterly outrageous, ploughing a car into the window of a store in order to gain access. As was conceded by your counsel, anyone witnessing such an event would have been horrified. Having said this, I am well aware that this offending, as did a number of your offences, occurred at times where it would be expected that few people would be about. It is evident that other offences which you committed during this period were also attended with planning and a degree of sophistication. These aspects serve to aggravate that offending.
34I am also very concerned at the cavalier way in which you tried to have the firearm delivered – bearing in mind that it was not you who arranged the tax but you were prepared to handover a loaded firearm to an unsuspecting taxi driver which I find is breathtakingly dangerous behaviour.
35Your criminal history is a most concerning one, comprising offences for violence, including intentionally causing serious injury and armed robbery, as well as reckless conduct endangering serious injury and unlawful assault. You also have prior convictions for dishonesty matters and drug possession.
Maximum penalty for drug possession on this occasion
36In view of the matters put to me by your counsel as to the circumstances in which the drugs at your property were found and the lack of indicia related to trafficking, I am satisfied, to the requisite level, that your possession was not related to any trafficking purpose, and therefore I will apply the lesser maximum penalty in relation to the relevant charge.
37I was told by your counsel that your offending was motivated by financial need and drug issues. You were unemployed at the time and struggling to find work due to the COVID-19 pandemic. By mid-2020, your drug use had escalated, you were falling behind in rent and struggling with other financial commitments, including supporting your partner.
38I make a fairly significant discount for the sentence you would otherwise receive, in circumstances where you pleaded guilty at the committal hearing after some cross-examination of two police witnesses had occurred in relation to a fairly confined issue. In pleading guilty at the stage that you did, you saved other witnesses the time and trouble of giving evidence at a committal hearing and at trial, and all witnesses were saved the time and trouble of being cross-examined at trial and giving evidence there. And you saved the community the time and expense of a complete committal hearing and a trial. I make a further allowance in your favour due to your preparedness to plead guilty to the offences before me in the context of the COVID-19 pandemic, which has helped to reduce the significant backlog of cases that the court faces. I am most mindful of the need to reflect 'a pronounced amelioration of sentence' due to your facilitation of justice in this way (Worboyes v R [2021] VSCA 169 at paragraph 39).
39You have written a letter to me which indicates that you are remorseful for your 'past poor choices' and your regret at being on remand at a time when your grandmother died and you were unable to attend her funeral. I have no doubt that you regret being in the situation that you are in and that you have every wish to turn your life around in the future. However, in view of your criminal history and the offending on this occasion, while I accept you are sorry that you have placed yourself in this situation, I do find it difficult to accept you have much in the way of heartfelt remorse in relation to your offending and those it impacted upon. You do appreciate that your drug use is largely to blame for your offending on this occasion, as you have appreciated in the past. To this extent, you have some insight, however the challenge for you will be to actually follow through with your plans to rehabilitate when you are released from custody in the context of a longstanding substance abuse problem.
40I take into account your background.
41You are thirty-two years old and you come from a loving family. You are close with members of your family and have spoken to them regularly whilst in custody on this occasion. However, you have not been permitted to have in-person visits. I have read the character reference provided by your mother, who acknowledges your failings, but also indicates that you are kind and can be hardworking, and that you are loyal and well loved by your family and friends.
42You do not report any trauma or abuse in your childhood.
43I was told that you when you were thirteen years old you were diagnosed with Attention Deficit Hyperactivity Disorder and, at that stage, exhibited behavioural problems, regularly getting into trouble at school.
44You attended secondary school to the end of Year 8. In your later teenage years you worked with a floorboarding company, and from 2012 to 2014 you worked in logistics at the wharves, before being remanded and sentenced in this court by his Honour Judge Wischusen on 27 August 2014. You were sentenced in relation to one charge of intentionally cause serious injury and two charges of armed robbery. I have perused His Honour’s sentencing remarks in relation to that offending. I note that R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269) was not relied on in relation to any mental health issue at that time. I was told by your counsel that in relation to that sentence you served five years of the five and a half year head sentence. In June 2009, you were released from custody and began working again at the wharves. In early 2020, you left work because you were not receiving sufficient hours, but you struggled to find another position due to COVID-19, which reduced your job opportunities.
45You have had a long-term partner in your twenties, and you became engaged in 2013, however the relationship ended during your engagement. Before your remand for the offending before me, you were living with your partner, Larissa Moffitt, who you met through friends in late-2019. She had moved from New South Wales to live with you, however the relationship ended due to your arrest and remand in August 2020.
46I was told that you commenced illicit drug use, methamphetamine and cannabis, when you were only fourteen years old. You were introduced to drugs through friends. You began drinking alcohol at the age of sixteen.
47When you were eighteen, you completed a week-long detoxification course through the Youth Support and Advocacy Service, however unfortunately your drug use recommenced when you were in your twenties.
48You were released from jail in June 2019 and remained on parole until September 2019. While on parole, you were compliant with supervision, remained drug free and you were prescribed Suboxone. However, in early 2020, you stopped taking the Suboxone and returned to ice use socially before using the drug more regularly. You also began using GHB.
49You have spent a lengthy period in custody – it was 462 days as at the time of the plea hearing and you have now spent 475 days. The first eighteen days of your remand were spent in quarantine at Port Phillip Prison, before you were moved to Barwon Prison. While in custody, you have worked as a barber and enjoy this work. You are interested in gaining qualifications in this area and pursuing this in the future. Your interest in this regard was confirmed in your mother’s letter, who also said you might well obtain a truck licence in the future.
50I was told that you have had very limited access to programs whilst in custody due to COVID-19 restrictions. You have not been able to have in-person visits and you spent periods in lockdown within your cell. Also, while in prison, your maternal grandmother died and you were unable to attend the funeral which has added to the grief you are experiencing in relation to her death.
51In all of the circumstances, I accept that your time in custody has been, and will be, more onerous than it would otherwise be.
52There has been a significant delay in relation to this matter, which has meant that you have had the anxiety of matters hanging over your head for a significant period. I make an allowance in your favour in this respect also.
53In supplementary submissions, your counsel referred to the psychological report provided by forensic psychologist, Ms Laura Fleming, dated 18 June 2021. Ms Fleming diagnosed you with Stimulant Use Disorder, Sedative, Hypnotic and Anxiolytic Use Disorder and ADHD – the ADHD had previously been diagnosed. Ms Fleming was of the view that your diagnoses meant that prison was likely to weigh more heavily upon you than someone without these conditions, especially, 'Given the lack of treatment and programs available to address these needs'. (supplementary submissions, p2). Your counsel therefore submitted that limb five of Verdins applied in a limited way. The prosecution submitted that I ought reject this, making a number of points in their sentencing submissions, to which I have had regard. At the end of the day, in circumstances where it is not clear from Ms Fleming’s report as to how your ADHD might impact on you whilst in prison and also in circumstances where this was not a matter which previously troubled you, apparently, having regard to Judge Wischusen’s sentencing remarks and further, in the absence of any evidence that there is no treatment for such a condition or programs in that regards, if the symptoms are indeed troubling you, I am unable to accept your counsel’s submission in relation to the fifth limb of Verdins. The fact of it is that it appears you are doing well in custody, earning the privilege of being a barber, and there is no cogent evidence before me, in all the relevant circumstances, indicating that your ADHD is making gaol harder for you. Therefore, as I say, I refuse to make an allowance in your favour sought by your counsel in this regard.
54In sentencing you, I have had regard to the fact that the offending before me did not involve confronting others in contrast to a number of your offences in the past. There was a degree of planning and sophistication in respect of the offences for which I sentence you, this is also in contrast with past offending from all I can gather.
55You already appreciate that there is a connection between your drug taking and committing offences Mr Filippi. The prosecution did not urge to treat this aspect as an aggravating factor so I will not do that. However, you are on express notice from me that if you do continue to take drugs in the future and commit offences, then your decision to take drugs may well be treated as an aggravating feature by a judge sentencing you for further offending. Do you understand this?
OFFENDER: Yes, I do.
56HER HONOUR: I understand that upon your release you are able to live with your parents. You understand that you must break the cycle of drug use and committing offences, and you have resolved to do so upon your release. I do hope that you are able to succeed in this and pursue a career as a barber or in truck driving or whatever career it is that you want to pursue, as long as it is a law abiding nature. I am afraid I can only assess your prospects of rehabilitation as being fairly bleak and I must give significant weight to specific deterrence and general deterrence, as well as protection of the community. Strong weight must attach to general deterrence in a bid to deter others from offending in the way that you have.
57Your counsel accepted that the only appropriate sentence in your case involved a head sentence and non-parole period, and the prosecution submitted that this was appropriate. In sentencing you, I have considered current sentencing practice insofar as I can, but bearing in mind that this is one consideration and not a controlling factor.
58I express the strong wish that you are released on parole in a timely manner, all other things being equal, as clearly you have benefited from the supervision that parole provided in the past.
59You are convicted of each of the offences:
60First of all, I make the Disposal and Forfeiture Orders sought by the prosecution and which are not opposed by you. I also make the Forfeiture Order in relation to the firearm.
61You are sentenced to the following periods of imprisonment:
62Charge 1: twelve months.
63Charge 2: three years which will be the base sentence (criminal damage – shop window).
64Charge 3: three years.
65Charge 4: two years.
66Charge 5: ten months.
67Charge 6: eighteen months.
68Charge 7: two years.
69Charge 8: two years.
70Charge 9: twelve months.
71Charge 10: 10 months
72Charge 11: eighteen months.
73Charge 12: two months.
74Charge 13: three months.
75Charge 14: five months.
76Charge 15: fifteen months.
77Summary offence, Charge 22, noting that this is a rolled-up charge: two months.
78I direct that one month from the sentence on Charge 1,
79two months from the sentence on Charge 6,
80three months from the sentence on Charge 7,
81four months from Charge 8 and 11,
82three months from the sentence on Charge 15: and
83one month from the sentence on the summary charge.
Be served cumulatively with each other and with the base sentence producing a total effective sentence of four years six months’ imprisonment and I direct that you serve three years’ imprisonment before becoming eligible for parole.
84I declare that you have already served 475 days by way of pre-sentence which will be deducted from your sentence.
85If not for your pleas of guilty, I would have sentenced you to a total effective sentence of six and a half years’ imprisonment, with a non-parole period of four and a half years’ imprisonment.
86Is there anything arising counsel?
87MR McAULIFFE: No, Your Honour.
88MS JOOSTEN: No, Your Honour.
89HER HONOUR: All right, thank you. Did you wish to have a word with your client, Ms Joosten, before we end the transmission?
90MS JOOSTEN: No, Your Honour, I've got a conference with him this afternoon so I'll speak with him then.
91HER HONOUR: All right. Yes, thank you. Very well, we will now adjourn.
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