Director of Public Prosecutions v Fiscalini, Jason Daniel
[2012] VCC 2009
•21 December 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-11-02208
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JASON DANIEL FISCALINI |
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JUDGE: | HER HONOUR JUDGE MILLANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 December 2012 | |
DATE OF SENTENCE: | 21 December 2012 | |
CASE MAY BE CITED AS: | DPP v Fiscalini, Jason Daniel | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 2009 | |
REASONS FOR SENTENCE
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Catchwords: Criminal law – Sentence – Plea – Armed robbery.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P. O’Halloran (Ms N. Todorov at sentence) | Office of Public Prosecutions |
| For the Accused | Ms F. Todd | Robert Stary Lawyers |
HER HONOUR:
Introduction
1 Mr Fiscalini, you can remain seated, and when I come to sentence you shortly, I will ask you to stand.
2 You have pleaded guilty to one charge of armed robbery on 19 April 2011, the maximum penalty for which is 25 years’ imprisonment. At the time, you and a male accomplice were carrying knives.
3 You were 27 years of age when you committed this offence and already had a significant history in the adult criminal justice system. This involved multiple appearances, between 24 April 2002 and 4 May 2010, in the Magistrates' Court and one prior appearance in the County Court. The offending encompassed, in the main, dishonesty, drug, violence and weapons offences, with numerous dispositions which allowed you an opportunity to rehabilitate within the community. These dispositions included a community based order imposed in October 2002, partially or wholly suspended sentences imposed, I think, in 2004 and a combined custody and treatment order imposed in 2009.
4
A number of custodial sentences were also served by you during the
eight- year period mentioned.
5 Relevantly, on 5 May 2005, you were sentenced by His Honour Judge Smallwood to a total effective sentence of 3 years' imprisonment with a minimum of 18 months on one charge each of armed robbery and common law assault.
6 I have read His Honour's sentencing remarks. It appears that on 5 October 2003, at your instigation and whilst armed with a knife, you and two other offenders robbed a 19-year-old stranger at a railway station. It was drug-related offending. Within months of this offence, you physically assaulted a Crown witness, a co-accused whom you believed had “lagged” you to the police.
7 In the years subsequent to serving the last mentioned sentence, you reoffended and served further periods in custody. Notably, one of the charges, for which in October 2009 a Magistrate imposed the combined custody and treatment order later breached by you, involved possession of a controlled weapon, namely a knife.
8 I was told that you were released from custody in October 2010, some, on my estimate, 6 to 7 months prior to the commission of the armed robbery offence in April 2011. During this time, you were assessed and receiving support under the credit bail support program.
The circumstances of the offending
9 The prosecution’s opening (as amended) was read into transcript and tendered as an agreed statement of fact.
10 I do not propose to repeat verbatim all of the matters outlined in the summary given by the prosecution.
11 On Tuesday, 19 April 2011 at approximately 11:48 pm, you and an unknown male accomplice entered a service station in Scoresby. You both sought to avoid detection by wearing balaclavas and gloves.
12 The victim, an employee, who had been updating price point details from the petrol bowsers, was called inside. When he came to the console area, you both produced knives and demanded money and cigarettes.
13 Numerous packets of cigarettes and tobacco were removed from behind the console area and the victim handed over approximately $800 cash from the cash register. You and the co-offender then took the victim’s backpack, which contained personal items and you ran out of the store.
14 The victim notified police.
15 I was told that the victim no longer lives in Australia. He has not submitted a formal victim impact statement, despite the opportunity to do so. However, as his statement made to police shortly after this offence reveals, the victim reported being very scared and in fear of his safety. Given the circumstances in which the armed robbery occurred, I think it reasonable to accept that this young man was affected, as claimed, at least for the period over which this offence occurred.
16 A number of evidentiary matters linked you to this offence.
17 For instance, your entry and exit from the store was captured on in-store CCTV cameras.
18 As it turns out, at about the same time as they were called to attend the service station, the police were also notified of a two vehicle collision at the intersection of Ferntree Gully and Stud Roads in Ferntree Gully.
19 You were arrested at the scene of the collision by an off-duty police member. He had earlier observed you exit one of the vehicles involved in the collision while carrying the victim’s backpack.
20 A police search of this vehicle also produced balaclavas, gloves and unopened cigarette and tobacco products. Moreover, the DNA from a hair later found in one of the balaclavas located in the vehicle matched your hair.
21 Following the collision, you were taken away by ambulance and admitted to the Dandenong Hospital for approximately 90 minutes. However, after you were discharged, you attempted to throw a black coloured “Everfast” top (matching the one identified on the CCTV footage) into a bin. This item of clothing was later retrieved by police.
22 Analysis of blood samples taken from you on 20 April 2011 detected multiple substances. Indeed, you rely on the toxicology report to support your claim that you have little or no memory of the offence, as it was committed while under the influence of mainly amphetamines and benzodiazepines.
23 You were interviewed by police. It was not a full and frank interview. Among other things:
· you were selective in your responses. For instance, you told police that you were in an accident in your partner’s vehicle. You recalled that you were not driving the vehicle yet claimed that you were not able to recall the accident;
· you answered ‘no comment’ regarding the presence of other persons in the vehicle;
· you claimed to have taken a ‘heap of pills’ and to have drunk alcohol that day; and
· you denied committing armed robberies and denied the particularised allegations.
24 Having been remanded in custody for this offence on 20 April 2011, you have remained in custody. However, on 24 May 2011, a Magistrate sentenced you for unrelated offending to 2 months' imprisonment with allowance made for 9 days' presentence detention. I will address the issue of presentence detention on the armed robbery offence when I impose your sentence shortly.
25 I was told that there was a contested committal hearing, at which time the victim was cross-examined. Nevertheless, allowing for the circumstances prior to finalising this charge, the prosecution has accepted that the plea of guilty in this case should be treated as having been entered at an early stage. The plea of guilty has facilitated the course of justice and it entitles you to a significant sentencing discount. The discount received today also reflects the utilitarian value of the plea in sparing witnesses the inconvenience of a contested trial and the community the cost of same.
26 Leaving to one side the 2 month sentence served in May 2011 for unrelated offending, I have also accepted that the delay in the final disposition of this matter since your arrest in April last year, calls for a further sentencing discount to reflect the lengthy period spent on remand without access to the full range of programs offered to other prisoners for self improvement.
27 Your plea is an indicator of a level of remorse. However, despite your reported desire to have further treatment to help address any underlying causes of your long-standing addiction to drugs and other mental health issues, you did not satisfy me that your remorse extended beyond regret for the predicament in which you now find yourself.
Gravity
28 As I have already mentioned, despite accepting the accuracy of the prosecution summary, you claim to recall little about the matters alleged against you. In effect, you have not provided any explanation for the armed robbery, other than to rely on the evidence that you were likely drug affected at the time and, more recently, to point to the expert evidence of a mild to moderate degree of acquired brain injury, about which I will say more shortly.
29 Given the circumstances under which this offence was committed, I have reservations about the extent to which your memory of this incident was compromised by any earlier drug use. For instance, there is evidence of some level of planning, as, at the time, you and the other male were armed, disguised and wearing gloves. You chose a soft target, namely a service station manned late at night by a lone attendant, you focussed on specific property such as cigarettes and tobacco products, and, irrespective of whether you were driving the vehicle involved in the collision that later occurred, I infer that you used your partner’s vehicle to assist in your escape. You also tried to conceal your part in this crime when you later attempted to discard the top worn by you at the time.
30 Accordingly, allowing for the reported circumstances, the fact that, if used, the knives had the potential to cause significant physical harm and the likely impact on the victim, I have assessed the objective gravity of the armed robbery offence as falling at the mid-point of lower end of the scale for this type of offending.
Personal Circumstances
31 Your personal circumstances were summarised in your counsel’s oral and written submissions, in reports dated 11 February and 18 March 2011 from clinical neuropsychologist, Ms Clausen, to whom you were referred under the Credit/Bail support program to determine whether you were suffering from an acquired brain injury and in a report from consultant clinical psychologist, Dr Grech, who, in November 2012, assessed you at the Port Phillip Prison at the request of your lawyers.
32 A certificate evidencing completion of a relapse prevention course delivered by Moreland Hall over a 12-hour period between 19 April 2012 and 20 April 2012 was also tendered.
33 Based on the material before me, your counsel’s submission that your childhood had been characterised by abandonment and uncertainty and your adolescence by chaos and exposure to danger and harmful influences, probably best describes your difficult early history, which began when, at 3 months of age, you were placed in State care by biological parents, who were chronic drug users.
34 Very soon after your surrender to the State an aunt and uncle took you into their home and raised you with their children, in a good and supportive environment. Unfortunately, even this was not enough to manage behaviour, which included regular truancy, ostensibly in search of your biological parents, and led to further periods in the care of the Department of Human Services.
35 You only completed your schooling to year seven because, as you told Ms Clausen, school “bored” you. However, I suspect that your limited education is in part attributable to your history of significant drug abuse, commencing with daily heroin abuse over some two years from the age of about 13 and your abuse of other drugs such as marijuana, amphetamines and ecstasy until the age of 18.
36 During adolescence, at age 16, you formed a relationship and, until this ended, you lived with a young woman in her father’s home. Your 12-year-old son is a product of this relationship. I was told that he lives with his mother and, until recently, had continued to visit you in custody. Other than your belief that your son has been in trouble, you were unable to explain why these visits had ceased.
37 Whilst you have never established yourself in regular employment, I note that you have obtained some skills, having at age 16 reportedly commenced a plasterers’ apprenticeship under your partner's father, which ended when the company went broke.
38 It appears that your mother's suicide when you were 18 years of age, for which her partner reportedly sought to blame you, was a pivotal and tragic event in your young life. This event apparently triggered renewed abuse of heroin, which, in February 2011, you told Ms Clausen had been a daily habit until 8 September 2010.
39 As far as I can tell, you have spent some five years on the methadone program and by the date of the plea hearing, the daily dosage of this synthetic opiate had increased to 100 mg.
40 You reported a history of various mental health issues, which included suicide attempts, drug-induced psychosis, depression, anxiety attacks and panic attacks. These conditions were apparently diagnosed and managed in the past by a general practitioner who, reportedly prescribed a range of anti-psychotic, mood-stabilising and anti-depressant medications.
41 Relevantly, Ms Clausen's expert assistance was sought in February 2011, in the months prior to the commission of the armed robbery offence, as part of a further CREDIT/Bail Support Program commenced following your release from custody in October 2010. This program, she reported, had involved assessment by psychologist, Dr Cunningham, and drug and alcohol support from Anglicare.
42 Notably, when assessed by Ms Clausen, to whom you at first presented as being significantly sedated, you informed her that you were taking 10 mg of diazepam daily and not using the Xanax medication evidently also prescribed by your general practitioner.
43 As her first report shows, Ms Clausen was not able to form an opinion regarding the presence and severity of any acquired brain injury, due to what she felt was significant sedation.
44 Following review and further testing on 18 March 2011, on a background of potentially average pre-morbid intellectual functioning, Ms Clausen found a pattern of impairment characterised by “slowing” and “deficits in higher level attention, rate of learning and ability to spontaneously recall/retrieve information”. She also identified executive dysfunction “characterised by some (albeit milder) impulsivity and impaired planning and organisational skills” and “evident difficulty inhibiting responses”.
45 Ms Clausen concluded that it was “highly likely” that you suffered from “a mild to moderate degree of acquired brain injury occurring as a result of drug abuse during an important phase of brain maturation”.She thought that a residential program would be of significant benefit because this would provide a structured daily routine.
46 Ms Clausen also recommended psychiatric review of medications, presumably as a means of treating the features of anxiety and lowered mood she believed contributed to your substance abuse. However, I was told that currently you are taking 60 mg daily of the anti-depressant, Doxapin.
47 I note that in March 2011, you told Ms Clausen you were proposing to attend an information session for residential drug and alcohol treatment at Odyssey House the following week. Obviously, if you did attend as contemplated, nothing further came of this because the armed robbery offence was committed within weeks of Ms Clausen’s final assessment.
48 Accordingly, whilst to date you may not have undergone residential treatment for your chronic addiction to illicit substances, in the past you have nonetheless had a number of opportunities to help address any underlying causes of your offending, as for example under the earlier community-based order, under the combined custody and treatment order and, more recently, under the CREDIT/Bail support program.
49 Dr Grech does not mention Ms Clausen's second report containing the results of her final testing and her diagnosis, although he appears to have taken particular note of, among other materials, the neuropsychologist’s inconclusive findings in her report dated 11 February 2011.
50 Based on the materials to which he had regard and the clinical picture which he said had emerged during his recent examination, Dr Grech assessed you as being a troubled, institutionalised man with a damaged, reactive and choleric personality. In short, he diagnosed “a prominent adult attention-deficit disorder spectrum condition in the context of anxiety-spectrum, major mood and personality dysfunction”. Dr Grech recommended sustained support, intervention and rehabilitation for long-standing substance dependencies and additional interventions directed to any neurological issues.
51 The prosecution has accepted, correctly in my view, that the mental health issues described are mitigatory of your sentence, as any custodial sentence will likely weigh more heavily on you than on a person in normal health.
52 However, as indicated during the plea hearing, you have not satisfied me of any relevant link between the commission of the armed robbery offence or the extent to which, if any, the likely symptoms of a mild to moderate acquired brain injury, including any symptoms of impulsivity and poor planning skills on which your counsel particularly relied, impacted on this offending, such that your culpability and, it follows the punishment that is just in all the circumstances, should be reduced.
53 However, you have a long-standing addiction to drugs, likely attributable to causes for which you were not responsible.[1] You also present with a criminal history involving drug-related offending.
[1]See R v McKee [2003] VSCA 16, R v Lacey [2006] VSCA 4 and DPP v Lednar [2010] VSCA 46
54 Whilst you have offered no explanation for this offence and, despite my reservations about the extent to which your recall of this offence was compromised, I have treated the further armed robbery offence as a likely indirect consequence of this long-standing addiction to drugs. In other words, in this instance, your addiction has some mitigatory impact on the sentence imposed.
55 There is also evidence of institutionalisation characterised by your evident difficulty in the past in coping with reintegration into the community. Indeed, as your counsel acknowledged, reformation has been and will likely continue to be difficult, despite your professed desire to rehabilitate and your expressed willingness to participate, as you did earlier this year, in programs such as the relapse prevention course.
56 Allowing for all of these matters and the fact that a lengthy gaol term for armed robbery in 2005 did not deter reoffending, I view your long-term prospects of rehabilitation as guarded and the current risk of further offending as high.
57 This does not mean that reformation has been entirely subjugated to other sentencing considerations, as you are still a comparatively young man, and it goes without saying that the community will benefit from your successful reintegration in the future. One means of assisting in this goal is to allow the Adult Parole Board a longer opportunity during a period of parole to supervise the sorts of interventions canvassed in the reports of Ms Clausen and Dr Grech.
Sentencing Principles
58 The prosecution submitted that the appropriate sentencing range fell between 3 and 4 years’ imprisonment with a minimum of between 2 and 2½ years. The Judicial College’s case summaries for sentences of less than 5 years imposed between 2007 and 2012 do, as further submitted, lend credence to this range.
59 I have also considered the Sentencing Snapshot for the offence of armed robbery published in June 2012 for the years between 2006 and 2011. During this period, 943 offenders were sentenced for armed robbery. The median length of imprisonment was for 3 years, the most common length of imprisonment imposed was 2 years and the average length of imprisonment imposed was for 3 years and 2 months. Where eligible to have a non-parole period, the Snapshot indicates that the median length of the non-parole period fixed was 2 years and the most common non-parole period imposed was one year.
60 Whilst the other cases and the statistics mentioned are informative your case has been formulated, as it must be, with regard to the limited evidence of your circumstances and to the circumstances of the offending as known.
61 On your behalf it was conceded that the offending warranted an immediate custodial sentence, although I was urged to avoid imposing a crushing sentence.
62 The sentence must nevertheless act to denounce and deter prevalent offending, namely armed robbery committed for drug-related or any other reason late at night against a vulnerable and soft target. The message you and your cohorts must receive is that the community is sick of this kind of offending. The sentence must also act to protect the community from someone who, despite opportunities in the past to pursue rehabilitation, has returned to a criminal lifestyle.
Sentence
63 Please stand, Mr Fiscalini.
64 On one charge of armed robbery, you are convicted and sentenced to 3 years and 3 months’ imprisonment.
65 The total effective sentence is 3 years and 3 months’ imprisonment, with a non-parole period of 22 months’ imprisonment. The sentence starts today.
66 Pursuant to s18(4) of the Sentencing Act I will declare a period of presentence detention once counsel have indicated what they have agreed on. Before and after.
67 MS TODOROV: We have agreed on 570 days, not including today, Your Honour
68 HER HONOUR: And that of course takes into account the two months' sentence.
69 MS TODOROV: That's right.
70 HER HONOUR: The presentence detention declared is a period of 570 days not including today to be reckoned as time already served under the sentence, and I direct that the fact of this declaration and its details be recorded in the records of the Court, and confirm also that the period so declared allows for the period served on remand on either side of the sentence imposed and served by you from May 2011.
71 Pursuant to s6AAA of the Sentencing Act I indicate that but for your plea of guilty a sentence of 4 years and 4 months’ imprisonment with a non-parole period of 3 years’ imprisonment would have been imposed.
72 A disposal order was sought at the plea hearing. The application was not opposed, and I have signed that order. That order will be available to collect when I rise.
73 Are there any other matters I need to clarify, address or otherwise correct?
74 MS TODOROV: Nothing further, Your Honour.
75 HER HONOUR: Thank you. Please remove Mr Fiscalini.
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