Director of Public Prosecutions v Formica
[2024] VCC 461
•7 March 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 23-01710
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| FRANCESCO FORMICA |
---
JUDGE: | HIS HONOUR JUDGE CHETTLE |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 15 February 2024 |
DATE OF SENTENCE: | 7 March 2024 |
CASE MAY BE CITED AS: | DPP v Formica |
MEDIUM NEUTRAL CITATION: | [2024] VCC 461 |
REASONS FOR SENTENCE
Subject:CRIMINAL LAW SENTENCE
Catchwords: Sentencing – intentionally cause serious injury - plea of guilty
Legislation Cited: s 6AAA Sentencing Act 1991
Cases Cited:R v Verdins [2007] VSCA 102
Sentence: Imprisonment, total effective sentence 5 years, non-parole period 3 years.
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. White | Ms E. Phillips, Ms G. Ellis, Office of Public Prosecutions |
For the Accused | Ms K. Ballard | Ms G. Hogg, Emma Turnbull Lawyers |
HIS HONOUR:
1Francesco Formica, you have pleaded guilty to one charge of causing serious injury recklessly. The facts of your offending are set out in Exhibit A, the prosecution plea summary. I was informed by your counsel that I could treat that document as an agreed statement of fact; I incorporate it into these reasons for sentence and I sentence you on the basis of the facts set out therein. There is no need therefore to extensively recite the facts.
2Briefly, on 12 June 2023 you were living in Airport West with your mother and her partner, Aldo Ortisi, then 56 years of age. You were 34 years of age and have a history of drug use, alcohol abuse and schizophrenia that has caused confrontations between you and Mr Ortisi in the past.
3At the time of your offending you were undergoing a community corrections order imposed on 9 March last year for assault, criminal damage and intervention order contraventions that involved Mr Ortisi.
4At about 8 am on 12 June you got into an argument with Mr Ortisi about your ice use and alcohol consumption. He wanted you to leave his home, things escalated until you both began tussling, fell to the ground. You got up and repeatedly punched Mr Ortisi to the head and face. Your mother tried to stop you to no avail. Mr Ortisi was bleeding, and his face was swelling, you kicked him to the legs and left the premises.
5Police and paramedics were called. Mr Ortisi was taken to hospital with serious injuries. He suffered subdural and subarachnoid haemorrhages, and face and skull fractures.
6He was in the trauma unit at Royal Melbourne Hospital and then at Royal Talbot Hospital for about two months. He was discharged on 17 August 2023 with physical function reduced because of his balance and coordination issues. His cognition was impaired. He required physiotherapy, occupational therapy, speech pathology and neuropathological community care.
7You surrendered yourself to the police on 15 June 2023 and made some admissions when you were interviewed by police.
8You said that you were at home with Mr Ortisi on the day and that you had been drinking, and you said that you had an argument with Mr Ortisi about your drinking. You admitted that Mr Ortisi asked you to leave the unit, but you claimed that Mr Ortisi became aggressive and threatened you and kicked you on an occasion.
9You said that you started hitting Mr Ortisi, lost control, went into a blackout rage and you acknowledged that Mr Ortisi lost consciousness.
10You claimed that you were acting in self-defence although your plea acknowledges that this is untrue. You claimed to be under the influence of methylamphetamine which you had smoked the previous night, and that although you had been prescribed medications for your mental health, you had not been taking your prescribed medication.
11Your offending represents a serious criminal offence, the maximum penalty prescribed by Parliament is 15 years' imprisonment. In my opinion, your offending represents a mid-level example of that offence. You attacked a man of senior years in his own home, you have a history of violence towards
Mr Ortisi, and were the subject to a community corrections order at the time.12You struck your victim numerous times whilst he was unconscious, and on the ground defenceless. The injuries inflicted recklessly were substantial and protracted and had permanent consequences.
13Although your victim elected not to make a victim impact statement, the nature and extent and effect of your crime is evidenced clearly in the prosecution opening and in the statement of Dr Moller (Exhibit C).
14On the other hand, your offence was spontaneous, not planned, nor premeditated and weapons were not employed. Your counsel properly conceded that this court has no other option but to impose a term of imprisonment for your offending.
15You have admitted an extensive and relevant criminal history. That history evidences your chronic drug abuse and mental health issues.
16In October 2013 you were before the Melbourne Magistrates’ Court on charges of intentionally damaging property, threatening to destroy property and weapons charges. You were convicted and sentenced to a community corrections order with conditions that you undergo assessment and treatment for drug abuse and mental health assessment.
17On 9 December 2013 you were before the Sunshine Magistrates’ Court on attempted robbery and again received a community corrections order with similar conditions.
18On 18 August 2014 you breached that community corrections order and were sentenced to a further community corrections order with similar mental health and drug conditions.
19On 18 August again at Sunshine, you were sentenced to nine months' imprisonment, partially suspended three months to be served, for robbery, intentionally causing injury, and breach of family violence order.
20On 7 December 2015 the Melbourne Magistrates’ Court convicted you in relation to breaching your suspended sentence order, but the magistrate noted that he made no order on the breach because you had been diagnosed with schizophrenia and that the community treatment order that you were on constituted exceptional circumstances and you had been out of trouble for about a year.
21On 17 January 2018 you were convicted of wilful damage and unlawful assault, and you were released on an adjourned bond with conditions that you comply with the family intervention order and to complete treatment recommendations of mental health professionals.
22Before the Melbourne County Court on 6 December 2019 you were convicted of attempted armed robbery and sentenced to a term of imprisonment already served of 29 days, plus a community corrections order with again, treatment for mental health treatment and assessment and judicial monitoring.
23On 21 April 2020 you were again before the Broadmeadows Magistrates’ Court on charges of making threat to kill and threatening to destroy property and unlawful assault and sentenced to an aggregate term of two months' imprisonment.
24On 19 January 2021 at Werribee you were sentenced to six months' imprisonment for attempting to commit an indictable offence, the nature of which I do not know.
25On 26 March 2021 you breached your community corrections order and were sentenced to five months' imprisonment concurrent with the sentence you were undergoing.
26You breached the family violence intervention order again and were sentenced on 21 May 2021 to a fine of $750.
27Finally, on 9 March 2023 you were before the Broadmeadows Magistrate's Court on charges of breaching family violence intervention order, unlawful assault and criminal damage and released on a community corrections order for 12 months. That involved the condition that you undergo anger management.
28The facts surrounding this offending are set out in Exhibit B, the plea summary provided in this case. It was that community corrections order that you were undergoing at the time you committed the offence for which I am to sentence you.
Personal Circumstances and history
29You are now 34 years of age, being born in March 1989. Your history is set out in Exhibit 2, the psychological report of Dr Paul Grech and Exhibit 1, your counsel's submissions. You were born in Melbourne. Your parents separated years ago, and you grew up with your mother in Airport West and East Keilor.
30You were educated to Year 9 level and left school and worked in a poultry factory, later in carpentry and construction.
31Thereafter, your life effectively fell apart because of your developed methylamphetamine and alcohol abuse. You have a history of schizophrenia diagnosis triggered by your drug abuse. You failed to take the prescribed medication for your schizophrenia, and you continued your drug and alcohol abuse, up until the offending for which I am to sentence you.
32Dr Grech describes you an anxious and depressed and opines that you are a high risk of drug and alcohol abuse unless properly treated. Although
Dr Grech sought to raise what he called Verdins[1] issues, your counsel properly conceded that Verdins principles were not pressed or advanced, as it is clear that your mental health issues are linked to your drug abuse. You well knew that drugs led to rage and anger, and you deliberately refrained from taking your medication.[1]R v Verdins [2007] VSCA 102
33There are however some factors that I take into account in mitigation of your offending. Your plea of guilty was entered at an early stage and demonstrates your acceptance of responsibility for your actions. You have spared the witnesses and particularly Mr Ortisi and your mother the need to give evidence at a trial, you have spared the community the time and cost of such a trial.
34Your plea of guilty has even greater value because it was entered at a time that the judicial system was still struggling to deal with the effects of the COVID‑19 pandemic. You are entitled to a reduction in sentence to reflect your plea of guilty. I will return to the effect of that reduction subsequently.
35Since being on remand you have been medication compliant, eating and sleeping well, and therefore more mentally balanced. I accept that you cooperated with the police although I do not accept that you were totally frank in your description of events to the police, nor in the version you gave
Dr Grech.36Your prospects of rehabilitation are at best opaque, and they are entirely dependent on your dealing with your drug habit and remaining medication compliant. You will need support whilst on parole and it would appear that you will be given ongoing support from Forensicare when you are released from custody.
37Clearly, principles of general deterrence, specific deterrence, denunciation of your conduct and just punishment are the principle sentencing factors in your case. Conduct such as yours cannot be tolerated.
38On the one charge of causing serious injury recklessly you are convicted and sentenced to be imprisonment for five years. I order that you serve three years of that sentence before being eligible for parole.
39Pursuant to s6AAA of the Sentencing Act 1991[2] I indicate that but for your plea of guilty, I would have imposed a term of imprisonment of seven years with a non-parole period of five years.
[2] s6AAA Sentencing Act 1991
40Can someone tell me what the PSD is as of now?
41MR WHITE: Your Honour, it is 266 days today.
42HIS HONOUR: Was that including today?
43MR WHITE: It is, Your Honour.
44HIS HONOUR: Do you agree with that Ms Ballard?
45MS BALLARD: Yes, Your Honour. That's correct.
46HIS HONOUR: All right. I declare that 265 days not including today of the sentence I have just imposed has already been served by way of
pre-sentence detention. Are there any other orders required, Mr White?47MR WHITE: No further orders sought, Your Honour.
48HIS HONOUR: Yes, I will leave the Bench.
49MS BALLARD: Thank you.
50MR WHITE: As Your Honour pleases.
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