Director of Public Prosecutions v Fisicaro

[2016] VCC 408

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

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-15-02189

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOHN ANTHONY FISICARO

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JUDGE:	Her Honour Judge Gaynor
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	7 April 2016
CASE MAY BE CITED AS:	DPP v Fisicaro
MEDIUM NEUTRAL CITATION:	[2016] VCC 408

REASONS FOR SENTENCE
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Subject:  
Catchwords:            
Legislation Cited:     
Cases Cited:            
Sentence:                 

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APPEARANCES:	Counsel	Solicitors
For the Director	Ms A. Bhai
of Public Prosecutions
For the Accused	Mr P. McLure

HIS HONOUR:

1   John Anthony Fisicaro, you have pleaded guilty before me to one charge of false imprisonment and one charge of threat to kill.  The facts underlying your offending are as follows.

2   On Monday May 4 2015, the victim, Lufka Angelesci, was working as a bus driver with Dyson Bus Company driving a bus from East Reservoir to Northcote Plaza.  At about 12.50 pm he stopped his bus in High Street, Preston, and you got on.  Other passengers were already on the bus.  Ultimately you stood near the driver, then sat down, took off your sunglasses and began talking loudly, the bus driver thinking you were speaking on the phone, although you were not.

3   You told Mr Angelesci to stop the bus.  He asked you if you wanted to get off and you said, "No, keep going".  About five minutes after you got on the bus, it stopped at Dundas Street, Thornbury.  Three passengers got off but there were others waiting to get on.  You went to the driver saying, "I didn't sleep.  They left me off the roof.  They are following me".  You then told people waiting to get on the bus that they "didn't want to" and prevented them from getting on.  You then lit a cigarette and were told by the driver you were not allowed to smoke.

4   You then followed a passenger who had just got on the bus, spoke to him, and that person got off leaving you as the only passenger in the back section of the bus.  At this point there was another woman sitting towards the front and you had been on the bus for about 10 minutes.  You took a 30 centimetre knife from your jacket, holding it towards the floor.  You told the driver that it was a knife.  You then walked to the front of the bus and the driver, who had stopped the bus and opened the door, told you it was time for you to get off.  You did not get off, asking both the driver and the passenger if they had a cigarette.

5   The driver kept going, but did not stop at the next bus stop after you told him not to.  He continued driving towards Northcote Plaza, picking up a woman and child along the way.  Eventually the bus turned into the plaza and you got off after being told by the driver that it was safe.  You left your sunglasses and beanie behind and all up were in the bus for about 25 minutes.  Your actions on the bus underlie Charge 1 on the indictment, false imprisonment.

6   Charge 2 relates to your actions after you got off the bus when you ran into nearby All Nations Park.  You encountered a second victim, Kelly Marnburgh, who was walking on a path in the park, and at the time she had earphones on.  You said to her, "Take another step and I'll kill you".  She backed away and called police and you climbed up on some rocks on a hill.  Police then arrived and you spoke to them but then climbed a small tree, still with the knife, and a Critical Incident Response Team attended.  Eventually you were coaxed down after several hours.  Your actions in relation to Ms Marnburgh underlie Charge 2 on the indictment.

7   You were taken to the Austin Hospital for assessment, then released and taken to Heidelberg Police Station where you seemed to be sleepy and non‑responsive and found to be unfit for interview.  You were then taken by ambulance again to the Austin Hospital where you were diagnosed as suffering from "mental and disorder due to other or multiple drugs".

8   At interview you were cooperate with police, although your answers were rambling and you essentially said to police that you were "probably at peak of an anxious state", and you said that you were also suffering the effects of months of ice use.  You pleaded guilty at a very early opportunity and you have been in custody since your arrest on 4 May 2015.  I now turn to your personal circumstances.

9   You are now 48 years of age.  You were born and raised in an Italian family in Brunswick, and you told a forensic psychiatrist Dr Zimmerman, that you grew up in an unrestricted environment.  There was some difficulty in determining what your history was because you have some problems with memories.  You have said that you have got two half-sisters and a half-brother.  You have said that you were an illegitimate child.  It seems very, very difficult to determine precisely what your background was.  It seems to have been a dysfunctional upbringing involving some sexual abuse whilst you were younger.  You were apparently expelled from Brunswick Technical School after Year 8, but thereafter, even though you went to Moreland High, your education pretty much stopped because of the early onset of a very long-term heroin problem that went on for many, many years.

10You have mainly used heroin.  Eventually you got yourself off heroin after 20 years, but have then relapsed into ice use, and I am satisfied, and it would seem to be the case, that you were in a sort of drug-induced psychosis at the time you committed this offending.

11You have got a very long history of criminal offending which is pretty much to be expected, given your long-standing drug abuse history.  Your offending history goes back to 1990 and includes, as would be expected, numerous offences of dishonesty, drug offences, thefts, going equipped to steal, handling stolen goods, car offences, but primarily dishonesty which is what would be expected, as I have said, from someone who has a long term drug history. You last appeared before a Magistrates' Court in 2013 on dishonesty and driving offences.

12In any event, you have been in gaol now for about 10 months.  You appear to have made a fairly reasonable sort of recovery in gaol.  It is a long period for you to have been off drugs, and your plan is to go and live with your daughter in Queensland.

13It was submitted that I should deal with you by way of a sentence of imprisonment to be immediately served, but with respect, given the circumstances surrounding your offending, it does not seem to me to be appropriate.  You are a long-term drug addict.  You have fallen on and off the wagon innumerable times in your past.  I think it is important for the community that I deal with you by way of a disposition that will ensure there is some stability in your life and will build on the gains that you have made in gaol.

14I had you assessed for a community corrections order.  Unsurprisingly, because of the number of times you have breached orders in the past, you were not considered suitable, but in my view this is a different scenario.  I have had confirmation from your daughter with whom you have been in contact over the last year that you have a home with her in Queensland.  You are very much devoted to her and it seems to me that living with her and living in that environment with your grandchildren will be the sort of inspiration you need to keep up the good work you have done so far.

15So I intend to place you on a community corrections order for a period of 18 months.  I can only do that with your permission.  Can you stand up please?

16The terms of the order are these:

(a)  You are to report to a Community Corrections Office within two working days of receiving the order so that would be by Monday of next week.

(b)  Whilst on the order you must report to and receive visits from the Community Corrections Office.

(c)  You must inform the Community Corrections Office of any change of address or employment within 48 hours of that change.

(d)  You must not leave Victoria without the permission of the Community Corrections Office, so you cannot just go heading straight up to Queensland.  You have got to check with them.

(e)  You must obey all lawful directions of the Community Corrections Office.

(f)    I am going to add a special condition that you are to attend for treatment for drug addiction.

(g)  Whilst on the order you must not commit any offence punishable by imprisonment, whether inside or outside of Victoria, so if you commit any offences in Queensland you can be brought back down here and breached.

17Do you consent to being place on the order?

18OFFENDER:  Yes, Your Honour.

19HER HONOUR:  Thank you.  I will just get it printed up.

20MS BHAI:  Sorry, Your Honour, I was just going to enquire in regard to the conditions.  Was Your Honour not considering any condition in regards to medical treatment that was in regards to mental health?

21HER HONOUR:  The whole thing is about drugs.

22MS BHAI:  I appreciate that there is a connection, Your Honour.

23HER HONOUR:  That is true, some of the services that CCOs use are hopeless and they boot them out after four goes.  All right. I will add a treatment for assessment and treatment for mental health difficulties as well.

24OFFENDER:  That would be a big help.

25HER HONOUR:  Pardon?

26OFFENDER:  That would be a big help.

27HER HONOUR:  A competent drug service should be dealing with that.  I mean, that is part of the service.  If you go to somewhere like Turning Point that is what they do.  Unfortunately it seems to me some of the services contracted by the Office of Corrections, they will say they see them for four visits and that is it, so I think it probably is wise to add that because to say I am unimpressed with the way those conditions are carried out is an understatement.  Have a seat, sir.

28MS BHAI:  And the other condition that Your Honour was considering when the report was ordered was a condition of supervision under s.48E.

29HER HONOUR:  I wasn't considering that.  That is a recommendation.

30MS BHAI:  Sorry, Your Honour, I was just reading from the report.

31HER HONOUR:  From the report, so it's a recommendation.  No, I'm not going to do supervision, there's not much point.  Thank you.  Yes, and there is a disposal order apparently.

32MS BHAI:  Yes, Your Honour.

33MR McLURE:  Yes, Your Honour.

34MS BHAI:  It came to Your Honour's tipstaff, the draft orders.

35MR McLURE:  That is by consent, Your Honour.

36HER HONOUR:  Yes.  Thank you.  What is the date today, the 7th?

37MS BHAI:  The 7th.

38MR McLURE:  The 7th.

39HER HONOUR:  Yes, thank you.  Sorry, that was a very rambly old sentence.

40MR McLURE:  It is all right, Your Honour.

41HER HONOUR:  Just get you to sign this, Mr Fisicaro, thank you.  Have you got somewhere to go?

42MR McLURE:  That is going to be the next question, I think, Your Honour.

43HER HONOUR:  You will need to sort that out.

44MR McLURE:  Yes, Your Honour.

45HER HONOUR:  Thank you.

46MS BHAI:  Sorry, Your Honour, I just wanted to clarify, was Your Honour's sentence imprisonment and CCO with the PSD declared or just the - - -

47HER HONOUR:  No, it is just a straight CCO.

48MR McLURE:  As Your Honour pleases.

49HER HONOUR:  The psychiatric basis of it is such that I just don't regard gaol as an appropriate response in the situation.  All right, thank you.

50MR McLURE:  As Your Honour pleases.

51HER HONOUR:  You can stand down.

(Short adjournment.)

52HER HONOUR:  I have just had another think about it.  Probably in the circumstances, yes, it wouldn't hurt.  I will make it an aggregate of three months' imprisonment.

53      I will make it an aggregate of three months' imprisonment and then the release, but I declare that the time has already been served.  I declare that 339 days have already been served by way of pre-sentence detention.

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