Director of Public Prosecutions v Foti, Matthew
[2012] VCC 1913
•16 November 2012
SEDG
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-01399
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MATTHEW FOTI |
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JUDGE: | HER HONOUR JUDGE CAMPTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 November 2012 | |
DATE OF SENTENCE: | 16 November 2012 | |
CASE MAY BE CITED AS: | DPP v Foti, Matthew | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1913 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms C. Sedgwick | Office of Public Prosecutions |
| For the Accused | Ms T. Hartnett (at plea) Mr M. Nicolosi (at sentence) | Galbally & O’Bryan |
HER HONOUR:
The Offence
1 Matthew Foti, you have pleaded guilty to one charge of aggravated burglary, one charge of criminal damage and one charge of causing serious injury intentionally. The maximum penalty for aggravated burglary is 25 years imprisonment, for criminal damage it is 10 years, and for intentionally cause serious injury it is 20 years.
Circumstances of offending
2 The circumstances of your offending are that the victim, Lucas Robinson, was a friend of Daniel Foti, your brother. They went to school together and were best friends. Lucas lives at Unit 1/1150 Nepean Highway in Aspendale, with his brother Joshua, and his parents live in the unit next door.
3 On 31 December 2011 your brother Daniel and Lucas Robinson met at Lucas's unit in Aspendale. They spent the day together mixing with friends and consuming alcohol well into the early hours of New Year's Day.
4 At about 2.30 am, Lucas Robinson and Daniel got into an argument about a woman and exchanged punches. At one stage your brother threw a pot plant into one of the front windows of the unit and glass fell onto Lucas Robinson's bed. Your brother then left and the Robinson family went back to bed.
5 At approximately 6 am, Joshua Robinson was woken by what sounded like people trying to get in the front door. He got up to see what was going on and saw a male standing in the hallway with a golf club in his hand. It was you, with something wrapped around your face by way of disguise. Joshua walked up to you and you said, "Where's Luke?" Joshua recognised your voice. He told you he did not know where his brother was. You asked him for Daniel's phone. Joshua told you he did not know where that was.
6 When Joshua turned round he saw six or seven other males coming out of his brother's bedroom. About four of these males were holding golf clubs in their hands. Joshua tackled one of these males and tried to wrestle the golf club from him. At this stage you threw a bong at Joshua, which he dodged. His parents were woken by the commotion and Joshua ushered them out of the way.
7 Lucas Robinson woke as he was being assaulted. He felt a hit to his left temple which caused him pain. He saw that he was under assault by five or six males. He was hit repeatedly to the body with a golf club. He believed he was hit between 15 to 20 times. The assault went on for three to four minutes although to him it felt like longer. He held his hands out defensively to block as many of the hits as he could.
8 Before leaving the premises the offenders smashed an LCD television in the lounge room and a plasma television that was in Lucas Robinson's bedroom. The total value of the two televisions was $3840.24c.
9 After the males left the premises, Lucas went next door to his parents unit and the police and an ambulance were called. One of the golf clubs was left at the premises. The golf club shaft was submitted for DNA testing and a DNA mixture was taken from the surface of the handle. You were not excluded as a contributor to that DNA.
Injuries suffered by the complainant
10 Lucas Robinson was conveyed by ambulance to the Monash Medical Centre. He was found to have a following injuries. A seven centimetre laceration to the mid scalp, a three centimetre laceration to the interior scalp, a two centimetre laceration to the left temple, a large bruise over the left temple, bruising to the left lateral chest wall, bruising to the right upper back, bruising to both thighs and numerous superficial cuts and abrasions to the head, torso and all four limbs. He had suturing and stapling of three lacerations, oral analgesics and a tetanus booster. A medical progress note dated 26 March 2012 stated that he had been sleeping poorly since the assault and had headaches. He was taking an antidepressant and he still got anxious and depressed.
Police interview
11 On the same day the police attended at your residence and arrested you. When you were interviewed you told the police that you consumed nine to 10 alcoholic drinks that evening and you were sort of intoxicated. You made no comments when the allegations were put to you. You were charged and remanded on 1 January 2012. You were granted bail on 12 January 2012, so you have had 12 days pre-sentence detention.
Victim Impact Statements
12 All the Robinson family members made victim impact statements and it is apparent from their statements that your actions had a drastic effect, not only on Lucas but also on his family.
13 Since the incident Lucas has found it very hard to get back on his feet and recover. He takes antidepressants and has a generalised anxiety disorder which results in him hardly ever leaving the house. He feels unsafe and on edge with no motivation and does not want to see his friends. He felt betrayed and disgusted after the attack and quite aptly described it as cowardly and gutless.
14 Lucas's younger brother, Joshua, feels alienated from his friends and fears telling them where he lives. He is highly stressed and on edge, he suffers from depression and anxiety which makes his asthma worse.
15 Lucas's father described the impact of the attacks on himself and his family as being profound. He feels violated, threatened and unsafe, living in fear of future attacks. This is why he decided to move out of the area. The home they left had been in his wife's family for over 15 years and was to be for their retirement. They moved to a rental property and have lived a somewhat paranoid existence since then, concentrating on stabilising their sons.
16 The cost of the upheaval, subsequent medical expenses and counselling has been considerable. The psychological, social and emotional cost particularly to their sons has been enormous.
17 As Margaret Robinson read her victim impact statement to this court I will not repeat it here. It was apparent from her statement that the family had suffered enormous fear and stress and that the financial impact of the crime has disadvantaged them greatly.
Personal circumstances of the offender
18 Your counsel provided details of your personal circumstances to the court and further details were contained in a report from Dr Michelle Wauchope dated 17 September 2012.
19 You were born on 1 September 1992, so you are now 20. You have two brothers; Daniel who works as a personal trainer and Cameron who is still at school. Your parents are both working; your father at Toyota in car sales and your mother at Telstra Legal Aid. You told Dr Wauchope that your childhood was mainly positive, although your parents were pretty strict. You did not enjoy school and left at the end of Year 10. You then attended a pre-apprenticeship course in bricklaying and carpentry.
20 When you were 16 you had a relationship with a 23 year old married woman who encouraged you to take ice. She also encouraged you to participate in a number of crimes, for which you have had two prior court appearances. On 1 August 2008 you were placed on a Youth Supervision Order for nine months in relation to armed robbery, attempt to commit an indictable offence, theft from a shop, burglary and attempted armed robbery. Then on 14 June 2011, at the Dandenong Magistrates' Court you were placed on a Community Corrections Order for dishonestly receiving stolen goods and obtaining property by deception. As this order was for 12 months, by committing the crime I am sentencing you on, you have breached that order.
21 With respect to the current offences you instructed your counsel that you were intoxicated and you thought that you were going to defend your brother. You were angry on his behalf. You also expressed remorse and said that you would not have reacted as you did if you had not been drinking.
Reports
22 You took part in two IQ tests. Dr Wauchope conducted the Kaufman Brief Intelligence Test with you, and on this test your standard IQ score was 66 where 99 per cent of your peers would do better. In her opinion you were functioning on the level of a seven to nine year old child and this would impact your reasoning abilities, problem solving abilities and ability to understand and take responsibility for your offending behaviour.
23 Bernard Healey also carried out a test. This was the Wechsler Adult Intelligence Test. This test put your IQ at 73 where 96 per cent of your peers would do better. Whichever IQ score is accepted it is apparent that your IQ is below average and that this could impact on your reasoning abilities. In Dr Wauchope's opinion because of your intellectual difficulties you would be unable to contain powerful angry feelings and emotions and substance abuse would serve to heighten these difficulties. This is why she believed you acted without thinking and then suffered extreme remorse afterwards. In her opinion imprisonment was likely to create a greater burden on you than someone who did not have such an intellectual deficit. In addition, you had symptoms of anxiety and depression and these mental health issues were likely to create a greater burden on you compared with someone who did not have these issues.
24 On a more positive note, Dr Wauchope was of the opinion that the incident had been a very big wake-up call to you, that you had stopped consuming substances and sought help. You had followed all the Youth Justice directions and given that you had engaged appropriately she believed that your prospects for rehabilitation would be positive.
25 The Supervised Bail Progress Report dated 17 September 2012 is also positive. This report reveals that you continued to reside with your parents and siblings, you were supported by your family, you had positive relationships with them, you had engaged positively in full-time employment with your maternal uncle since June 2012, and you presented as motivated to continue this employment.
26 You had shown a level of insight into the issues which have led to the offending, in particular, alcohol consumption and lack of consequential thinking. You have completed a Substance Abuse Treatment Plan with Eastern Drug and Alcohol Services, and also have attended six sessions with a psychologist in relation to anger management issues.
27 Mr McCarthy, your Youth Justice Court Advice worker, gave evidence confirming your progress on supervised bail. He confirmed that you had complied with your bail conditions and that you had an ability to engage regrading your issues. While you had some difficulty in expressing your feelings you showed some insight regarding your offending. You also expressed a lot of regret and remorse.
28 I note also that you told Mr Wauchope that Youth Justice had helped you a lot and you maintained that you were wiser now. Your uncle had also drummed into your head that you could not afford to stuff up anymore as you were now in a good job.
References
29 Your counsel tendered three references on your behalf. There was a reference from Helen Vasvasides, the mother of your girlfriend with whom you have been in a relationship for a year. Your girlfriend's mother described you as a man who is dedicated to his family and work and who is loving and respectful. There was a reference from David Salek and from Paul Montabello, your uncle. Your uncle confirmed that he had employed you in his fencing business since March 2012. In his reference and when giving evidence to this court he said that you were extremely remorseful for your actions. You were terrified and frightened of going to gaol. Your work ethic was good and you showed a lot of enthusiasm and you had performed beyond his expectations in your role.
Prosecution sentencing submissions
30 With respect to sentencing submissions the prosecutor submitted that your crime was a home invasion with the use of weapons. It was a serious offence and you were on a Community Based Order at the time. Your crimes have had a significant impact on the victims and incarceration was the only appropriate penalty. It was accepted that a Youth Justice Order was appropriate and submitted that the sentence should be three years.
Defence sentencing submissions
31 Your counsel conceded that given the nature of your offending such an order was an appropriate disposition, but submitted that the sentence should be in the range of two to three years.
32 He relied on the following mitigating circumstances. Your plea of guilty and remorse, your youth and good chances of rehabilitation and your intellectual disability or deficit, which together with your depression and anxiety would make your time in custody more onerous than for those who did not suffer from such disabilities. In addition your counsel submitted that as all the offences were committed at the same time a degree of concurrency was called for.
Sentencing remarks
33 Unfortunately, vigilante conduct of the nature of your offence is reasonably prevalent and general and specific deterrence as well as the enunciation of your conduct must be emphasised. Your attack on the complainant was cowardly and vicious and caused a great deal of trauma to the victim and his family.
34 However, in sentencing you I have also taken into account the mitigating circumstances mentioned by your counsel. I have given you a discount for your plea of guilty as it saves the complainant the stress of giving evidence and the State the expense of a trial. I have also taken into account your youth, your remorse and your good prospects of rehabilitation.
35 While neither counsel mentioned the case of Verdins, I consider that given your low IQ score and the opinion of Dr Wauchope, that it would certainly impact on your reasoning abilities and your ability to understand and take responsibility for your offending behaviour. I consider that it is appropriate for general deterrence to be moderated to some extent, and I have done that.
36 In addition, I have accepted that due to your depression, anxiety and low intellectual functioning capacity your time in gaol would be more onerous than it would be for others without these deficits.
37 You have been found suitable for a Youth Justice sentence disposition and I am going to sentence you as follows. Would you please stand up.
38 On Charge 1 of aggravated burglary, you are sentenced to two years and six months in a Youth Justice Centre.
39 On Charge 2, intentionally cause damage, you are sentenced to six months.
40 On Charge 3, intentionally cause serious injury, you are sentenced to 18 months.
41 I will order some degree of cumulation between Count 1, or Charge 1, and Charge 3, taking into account that the aggravated burglary and intentionally cause serious injury are separate offences. You entered the victim's house with a golf stick when you knew people were present. You then took part in the attack on Mr Robinson, which caused his injury. This is a discrete offence so there should be some cumulation. I cumulate six months of the sentence of intentionally cause injury on the sentence of two years and six months on Count 1. This results in a sentence of three years in a Youth Justice Centre.
42 You can sit down now.
43 Having regard to the seriousness of your offending I make an order for retention of a forensic sample. I make the disposal order in the terms sought. I make a compensation order in the terms sought.
44 Pursuant to 6AAA of the Sentencing Act I indicate that but for your plea of guilty the sentence imposed would have been a term of imprisonment in an adult gaol for five years and six months to serve three years and six months.
45 Pursuant to the Sentencing Act I make a declaration that you have already served 12 days of the sentence I have just imposed, and this will be noted in the records of the court.
46 Is there anything arising from the sentence?
47 MS HARTNETT: No, Your Honour, thank you.
48 MS SEDGWICK: No, Your Honour. As Your Honour pleases.
49 HER HONOUR: All right. Before the prisoner is taken down I will allow him to spend a brief time in the courtroom with the members of his family.
50 MS HARTNETT: Thank you, Your Honour.
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