Director of Public Prosecutions v Fulfaro

[2017] VCC 1116

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

AT MILDURA
CRIMINAL JURISDICTION

CR-16-01748

DIRECTOR OF PUBLIC PROSECUTIONS

v

RENATO FULFARO

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JUDGE:	HIS HONOUR JUDGE M. P. BOURKE
WHERE HELD:	Mildura
DATE OF HEARING:
DATE OF SENTENCE:	14 August 2017
CASE MAY BE CITED AS:	DPP v Fulfaro
MEDIUM NEUTRAL CITATION:	[2017] VCC 1116

REASONS FOR SENTENCE
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Subject:
Catchwords:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr. D. O'Doherty
For the Accused	Mr. B. Hilton-Wood.

1HIS HONOUR:  Renato Fulfaro, you are to be sentenced for one charge of reckless conduct endangering serious injury, two charges of theft, one charge of criminal damage, one charge of attempted armed robbery and one charge of assault. 

2The maximum sentences are five years' imprisonment for the reckless conduct charge and for assault; ten years imprisonment for theft and for criminal damage and 20 years imprisonment for attempted armed robbery.  You are also to be sentenced for the summary charge of driving with an illicit drug present in your blood. 

3You pleaded guilty before me on 1 August.  When formally interviewed by police on 2 April 2016, you exercised your right to silence.  When arrested on the day of offending, 1 April, you made admissions.  They fell short of confessing guilt for all of these charges.  However I find that you gave a version of events broadly consistent with your understanding of it.  It is accepted that you were at the time of offending, functioning under the psychotic effect of a form of synthetic cannabis.  The matter settled to a plea of guilty at committal on 6 October 2016, and as stated, you pleaded guilty in this court on 1 August. 

4You receive the benefit of your plea of guilty and that level of cooperation, both from an early stage. 

5At your plea hearing on 1 August, Mr O'Doherty for the Crown, tendered a written Crown opening, three booklets of photographs mainly depicting the scenes and aftermath of your offences, and the victim impact statements of Chee Mun Loo and Alan Bielaczek.  

6Mr Petrovic for you, tendered the two psychological reports by Dr Aaron Cunningham, both dated 30 January 2017; the toxicology report dated 20  December 2016 by Dr Dimitri Gerostamoulos of the Victorian Institute of Forensic Medicine; a part of the police statement by victim Jason Hill, dated 10 June 2016; the final bail progress report, dated 6 October 2016, by Stephanie Barnfield of Court Integrated Services Program;  and three letters by Sue Irbing of Northern Victorian Alcohol and Other Drugs Services.  Mr Petrovic provided me with a written outline of plea submissions by previous counsel,
Mr A.G. Burns.

7The circumstances of your offending are comprehensively set out in the tendered Crown opening which is Exhibit A.  My own summary may therefore be relatively short.  I include a number of matters put by Mr Petrovic on your behalf.

8You are a 44 year old man.  At the time of these offences, you were 43.  In 2004, you suffered serious injuries.  Paragraph six of the tendered outline of plea submissions states as follows.

9“In 2004, Mr Fulfaro suffered a workplace accident where 13 sheets of plaster fell over him.  He suffered severe breaks and fractures and had surgery to insert rods and pins.  He required the assistance of crutches to walk for three years.  He suffers chronic pain, has not worked since and is in receipt of Disability Support Pension”. 

10Over time, you used cannabis to manage pain.  I was told, and it is accepted,  that in the time shortly before the day of offending, upon recommendation, you purchased the then legal form of synthetic cannabis named "Kronic."  You were smoking that on 1 April 2016, causing what seems an at least partially psychotic state featuring paranoid delusions and both visual and auditory hallucination.  For example, you thought you saw a neighbour aiming a gun at you.  You were attacked by your dog, a Rottweiler, particularly being badly bitten on the left arm, but also to the ear, face and hand. 

11That morning your friend, Chee Mun Loo, was moving into the premises next door to yours in Cowra Avenue, Irymple.  That premises was owned by you.  At about 11.50 am he was in the driveway.  He saw you to jump the fence between the properties.  You were in the destabilised mental state I have described, covered in blood from the dog attack and had a meat cleaver sticking out of your back pocket.  I accept that you were suffering the delusion that another neighbour was trying to shoot you. 

12Thus began a bizarre sequence of events and offences. 

13As Mr Loo tried to escape in his car, you sat upon him in the driver's position and were able to operate the accelerator.  In that extraordinary situation, the car moved into and over the Hills Hoist clothesline and then through and off the property.  You drove destructively through rows of grape vines before coming to a stop entangled in trellis wire.  Loo escaped. 

14You then drove through and behind neighbouring properties, at one point sideswiping an old caravan.  You damaged more grape vines.  The vehicle was by now also extensively damaged.  You drove on, hampered by a rear flat tyre. 

15Ultimately you came to the Fisher's IGA drive-through bottle shop in Fifteenth Street.  You were still irrational and went to Alan Bielaczek,  seated in his vehicle there.  You tried to get into the driver's side still, of course, covered in blood.  You were shouting at him. 

16You got the door open and demanded that he get out, threatening to shoot him.  You produced the meat cleaver.  You clearly wanted his car.  Alan Bielaczek kicked at you and managed to get the door closed.  He drove away. 

17You approached Jason Hill who was the drive-through attendant.  His police statement includes the following.

18I am pretty sure that he" - meaning you - "told me to call the cops because he was being chased or someone was after him.  He would have been a couple of metres as he was approaching me, when I realised that it wasn't a piece of cardboard in his hand, it was a meat cleaver.  I just put my hands straight up and said 'Calm down, calm down.'  He threw the knife sort of at me on the counter and snatched up the phone in the drive-through.  I told him that phone wouldn't work and I stepped straight back inside and called the cops …  As I called the cops from the phone inside the liquor department, Alan drove out of the drive-through.  I could see him through the clear plastic strips for the door, out into the drive-through.  I then saw the tall guy put the phone down and he reached across, I didn't know what he was doing, but he obviously grabbed his knife and then ran back to his car.  I say 'obviously' as when I left the drive-through, the knife was not in his hand and when I went back, it wasn't on the counter.  I didn't know at the time he had also grabbed a 30 carton of Toohey's Gold cans.  He drove up to the counter and then threw some coins out and drove off.  It wasn't until after when I saw the CCTV footage that I saw him do this."

19A short time later, you went to a stationary bus at a stop in Fifteenth Street.  You got out of the car and tried to get on.  You forced the bus door open and threw a one hundred dollar note at the driver, demanding to be driven into town.  Police arrived and arrested you.  A blood sample taken at 1.45 pm revealed the presence of cannabis.  It was not challenged that this was the synthetic cannabis, "Kronic." 

20I would find that, throughout, you were operating under the effect of that drug and the delusion that you were under threat. 

21The victim impact statements of Chee Mun Loo and Alan Bielaczek speak of them being in fear of their lives.  Ongoing effects include problems with sleep, loss of trust and a sense of security, and strong feelings of anxiety.  Your behaviour was irrational and bizarre.  This would have added to the fear they felt.  There has been significant victim impact and this must be taken into account in my sentence of you.

22As stated, you are now 44 years of age.  You were raised in Essendon and have two older brothers and a sister.  Your parents separated when you were 12.  Your father was strict and you left home at 14.  You completed Year 9 at school and after that worked consistently, including as a tyre fitter, wholesale and retail fruiterer, and for fruit growers.  The 2004 work accident has badly impacted upon you; however you are able to work sporadically in light labouring jobs.

23You inherited some money when your father died about two years ago.  You had cared for him in the years leading up to his passing.  You own your home in Irymple and live there,  now with your daughter and grandchildren.  You were married for 13 years and have a good relationship with your ex-wife.  There are two adult children. 

24Your criminal record shows a number of court appearances between 1991, when you were 19, and 2004.  That is now almost 13 years ago.  The prior offending is mainly related to cannabis including cultivation and trafficking, although that was in 1994.  There are no offences of violence.

25This was serious offending,  emphasised for example by the high maximum sentence for attempted armed robbery.  The objectively viewed circumstances and gravity in that sense, of offending make relevant  sentencing purposes and considerations of general and specific deterrence, moral culpability and the need to condemn and proportionately punish.  There was significant victim impact and you have prior convictions, albeit now of a considerable age. 

26In the usual case, a sentence of imprisonment would be inevitable.  However, I have found this to be a case in which the principles stated in R v Verdins and like cases play an important role. 

27

In his brief addendum report, psychologist Dr Cunningham diagnoses

drug-induced psychosis at time of offending.  This is not challenged.  It is also consistent with a number of aspects of your behaviour;  for example, that Chee Mon Loo was your friend; your behaviour and what you were heard to say at the liquor shop; what you did at the bus stop.  I find it probable that your state of mind was caused by the synthetic drug, then legal, and that in using it you had no sense of what that would cause to you.  The evidence leads to the probable conclusion that you were very badly affected and a long-way moved from your normal state and capacity to assess your situation.  That changed state of mind had clear causal connection to your offending.  I would find that your delusional fear was the main driver of what you did.

28Your mental state falls short of providing a mental impairment defence; but it and the Verdins principles have a considerable relevance to your sentence.   The sentencing considerations I have earlier identified, for example, deterrence, moral culpability and condemnation are not removed; but must be substantially moderated. 

29I also take into account other moderating factors such as your plea and prospects for rehabilitation.  As to that, you have stability, family support and since the offending have addressed your cannabis dependence.  In that regard, the tendered report of drug and alcohol counsellor, Sue Irving, speaks highly of what you have achieved.  Your prior convictions are old. 

30Attempting to weigh the competing factors, I have come to the view that to impose imprisonment would not be a just sentence.  This is an unusual case.  I have decided that a Community Corrections Order meets the relevant sentencing purposes including the still-existent need for punishment.  That order,  in terms of duration and conditions, must reflect the seriousness of the offending. 

31I have also borne in mind what is stated in s.5 (4) of the Sentencing Act.  I quote it.

32A court must not impose a sentence that involves the confinement of the offender unless it considers that the purpose or purposes for which the sentence imposed cannot be achieved by a sentence that does not involve the confinement of the offender."

33On Friday 11 August, you were assessed for such an order.  Now filed in the report of Gabrielle McLeod of Community Corrections Victoria.   Whilst the report found you suitable, there were aspects of it which gave me concern as to your level of commitment to such an order and the need to engage properly and respectfully with those who will manage you on a Community Corrections Order.  This led me to adjourn sentence to today when I heard from Mr Hilton-Wood on your behalf. 

34Having considered, again, the range of matters relevant to your offending, I  propose placing you on such an order.  I refer to the discussion with counsel on Friday and this morning.  I sentence you as follows:

35I stop to ask this:  The maximum sentence for failing the blood test in terms of drugs is what, and does that come within the province of what, of a Community Corrections Order?  I should have asked your earlier.  I haven't noted it in my reasons. 

36MR O'DOHERTY:  I thought I had provided the penalties for it.

37HIS HONOUR:  You may have.  Would it be in the - - -

38MR O'DOHERTY:  I don't think it's in the opening.

39HIS HONOUR:  Yes.  I have a recollection now that you did.  It was my oversight in not recording it in my reasons.  This was heard on 1 August wasn't it?

40MR O'DOHERTY:  Yes.  There's a minimum cancellation and disqualification period.

41HIS HONOUR:  Yes, we will have to deal with that as well.  My understanding is that there must be a maximum penalty of at least $500 before he is liable to, or becomes liable to a Community Corrections Order.  Yes, it is a $1200 fine so he comes within the - - -

42MR O'DOHERTY:  Yes.

43HIS HONOUR:  So on all the charges, including the summary charge, you are convicted and I impose a Community Corrections Order of three years duration.  The usual terms apply.  In addition, there are these conditions.

44That you perform 300 hours of unpaid community work over that period;

45That there be a condition requiring treatment and that treatment for drug use, abuse or dependence as directed;

46That you undertake programs specifically aimed at reducing the offending for which you are being sentenced, and that you be under supervision. 

47Had you not pleaded guilty, I would have imposed a sentence of three years' imprisonment with a minimum term of two years. 

48Take a seat please. 

49There is a compensation order, and that is to compensate Mr Loo for the damage you caused to his car, in the sum of $1000 and I will sign that.

50Are there other matters, is there an order for the taking of a saliva sample?

51MR O'DOHERTY:  There's one taken so we don't need any other orders, Your Honour.

52HIS HONOUR:  All right now come out of the dock please, and go and take a seat behind or near Mr Hilton-Wood. 

53MR O'DOHERTY:  Your Honour has to deal with his licence.

54HIS HONOUR:  Yes.  What is the - I'm sorry I have overlooked something - just take a seat in the dock again.  What is the maximum?

55MR O'DOHERTY:  Three months' Your Honour.  There is a minimum of at least three months. 

56HIS HONOUR:  Is there anything you want to say about that?

57MR HILTON-WOOD:  No, Your Honour. 

58HIS HONOUR:  I am thinking of imposing a period of six months.  Is there anything in particular that you want to say on behalf of your client.  I will give you an opportunity to speak to him if you wish?

59MR HILTON-WOOD:  No, Your Honour. 

60HIS HONOUR:  All right, that is what I will do.  That runs from today?  He was not disqualified at the time by way of police action.

61MR O'DOHERTY:  Yes. 

62HIS HONOUR:  You can come out of the dock and take a seat.  All right now stand up, I want to explain the detail of this order to you.

63It is a three year order starting from today.  The usual terms are these.  That you do not commit another offence for which you could be imprisoned during that period of time.

64That you comply with a regulation that means - and I will stand to be corrected on this, but this is my understanding of it, Regulation 17 means - that he may not attend affected by alcohol or drugs or in possession of illicit drugs.

65You must report to, and receive visits from Community Corrections.  You must report to the relevant Community Corrections office which is in Madden Avenue, Mildura, within two days of today.

66OFFENDER:  Yes.

67HIS HONOUR:  You must let a Community Corrections officer know within two clear working days of a change of address or job.  You must not leave Victoria without first getting permission to do so.  Now, up this far north, that is managed in a way that does not prevent legitimate travel, but you need to let them know. 

68OFFENDER:  Yes.

69HIS HONOUR:  You must obey all lawful instructions and directions of Community Corrections.  The additional conditions are these, that you perform 300 hours of unpaid work over that period of three years.

70That you be under supervision of a Community Corrections Officer for that three years; that you undergo assessment and treatment for drug abuse or dependency as directed, and that you must participate in programs particularly aimed or that address factors related to this offending as you are directed.

71Do you understand that?

72OFFENDER:  Yes, I do.

73HIS HONOUR:  Do you agree to it?

74OFFENDER:  Yes, I do.

75HIS HONOUR:  Can I emphasise again, this includes that you behave in a respectful way to the people who are managing you.

76OFFENDER:  Yes.

77HIS HONOUR:  If you do not do that, you will be in breach of the order as well.

78OFFENDER:  Yes.

79HIS HONOUR:  Yes, all right.  I will get you to sign that and I will sign it.  We will produce a copy and Mr Hilton-Wood will pass it on to you.  All right, thank, you for your assistance in this case, Mr Hilton-Wood.

80MR HILTON-WOOD:  Thank you Your Honour.

81HIS HONOUR:  All right, you can go now. 

82OFFENDER:  Thank you for that, Your Honour.

83HIS HONOUR:  Yes. 

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