Director of Public Prosecutions v Fusca
[2024] VCC 745
•23 May 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-23-02074
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DOMINIC FUSCA |
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JUDGE: | HIS HONOUR JUDGE DOYLE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 May 2024 | |
DATE OF SENTENCE: | 23 May 2024 | |
CASE MAY BE CITED AS: | DPP v Fusca | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 745 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Plea of guilty - intentionally cause injury - theft - attempt to pervert the course of justice - persistent contravention of a family violence intervention order - family violence - motivated by jealousy - serious example of an intentionally cause injury - history of substance abuse - positive prospects of rehabilitation.
Legislation Cited: Sentencing Act 1991 (Vic).
Cases Cited:DPP v Reynolds [2022] VSCA 263; DPP v Oksuz [2015] VSCA 316; Carter v R [2020] VSCA 156.
Sentence: Total effective sentence of 3 years imprisonment and a non-parole period of 22 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr R. Casey | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr T. Smurthwaite | Victorian Legal Aid |
HIS HONOUR:
1Dominic Fusca, you have pleaded guilty to one charge of intentionally causing injury, one charge of theft, one charge of attempt to pervert the course of justice and a persistent contravention of a family violence intervention order. The maximum penalty for intentionally causing injury and for theft is 10 years' imprisonment; for attempting to pervert the course of justice it is 25 years' imprisonment. The maximum penalty for persistent contravention of a family violence intervention order is five years' imprisonment.
2The facts of this matter are comprehensively set out in the summary of prosecution opening which was read in open court and tendered as an exhibit on the plea.
3At the time of the offending in this case, Mr Fusca, you were 47 years old. You were born in February 1976. The victim was 35 years old at the time of the offending. You and the victim had been in an intimate relationship for about four months before the offending. You had been living together in a unit in Frankston owned by a witness in this case, Brett Malloy.
4Leading up to the offending, the complainant had noticed you exhibiting controlling behaviours including threatening violence, not allowing her to leave the house alone and monitoring her phone use. This was put as context to the offending by the prosecution.
5At approximately 7 pm on 30 June 2023 you were at home with the complainant and Mr Malloy. You and the complainant had been drinking heavily together throughout the evening and there were arguments taking place between the two of you.
6At around 12.50 am the next day you left the unit and took the complainant's phone with you. She was concerned and used Mr Malloy's phone to call a friend and ask for help. Soon after, you returned and checked the call log on Malloy's phone. You saw the outgoing call and believed it had been to an ex-partner of the complainant.
7You grabbed her by the face with both hands and began smacking her face from left to right. The complainant said that her face started bleeding and there was blood everywhere. She asked you to stop. This continued for 15 to 20 minutes. Mr Malloy recalls you slapping her face from side to side using both hands and said that it took place at least 20 times.
8During the assault, Malloy recalls you yelling at the complainant, 'I do everything for you, I cook and clean and you treat me like shit over this scumbag'.
9The complainant approached Malloy and asked him to call the police, but he was too scared of you to intervene.
10The complainant tried repeatedly to leave via the front door, but each time you grabbed her by the hair and dragged her back into the unit. On one of these occasions, she almost got out the front door, but you grabbed her and threw her onto a bed and then climbed on top of her and started yelling abuse at her. You inserted three fingers into her throat, blocking her airway. This caused her pain, and she could not breathe and felt as though she was choking. You then grabbed her by the hair and pulled her head back. You removed your fingers from her throat and hit her. You then put your fingers back down her throat before stopping and hitting her again. This happened approximately three times. The complainant was bleeding, in significant pain and in fear for her life. Malloy heard you say to her 'There's no one here to help you'.
11You then got off the complainant. She was able to stand up and walk a few steps, but she fell to the floor unconscious.
12You picked her up and took her to the bed. She woke up but pretended to be asleep. She was bleeding from the mouth and coughing up blood. She then passed out again.
13This assault, which commenced with you slapping the complainant to the face and concluded when she fell to the floor unconscious, is the basis of Charge 1, intentionally causing injury.
14The complainant woke up at 9 am on 1 July 2023 in pain. Her tongue and throat felt swollen. She looked in the mirror and saw blood around her nose; bruising on her face around her eyes, cheeks, nose and mouth; scratches around her neck; and lacerations to her nose and mouth.
15You then came into the unit carrying alcohol, which the complainant had requested for her pain. You said to her, 'You have to get out of here, this is Brett's fault, Brett's done this'.
16The complainant checked her bank account using her mobile phone and found there had been a transfer of $400 made to your account at 3 am. The complainant had no access to her phone and did not make that transaction. By your plea, you accept that you stole this money from the complainant.
17The complainant video called a friend of hers, Lisa Gilroy,[1] who saw her injuries. Ms Gilroy collected the complainant and took her to her address. She then drove her to the Carrum Downs police station to report the assault. The complainant was taken to Frankston Hospital at about 5 pm that day.
[1] A pseudonym.
18At 9 pm you called Triple 0 asking for police to attend Frankston Hospital. You told them the complainant was at the hospital and her ex-partner had arrived there in breach of an intervention order. Mr Malloy phoned the complainant to tell her you were on your way to the hospital. Police went to the hospital again and they were told by nursing staff that a male matching your description had run away from the hospital. Police found you hiding behind a tree nearby.
19You were arrested and interviewed by police. You told police the complainant had been intoxicated and that she bruises easily and falls all the time. You said you hit her four times maximum. You were shown the photographs of her injuries, and you admitted causing the injuries but said they were from pushing her. You told police Malloy would agree with you. You said you transferred $200 for rent because the complainant had spent all your money. You said she had transferred $400 to herself to buy a carton of cigarettes, but you said she could not recall doing that.
20An interim family violence intervention order was served on you, and you were remanded in custody.
21The complainant was discharged from hospital on 2 July 2023 but re-admitted herself two days later due to continued pain and swelling in her throat and tongue.
22On 6 July 2023 she was examined by Dr Joseph Vu from the Victorian Institute of Forensic Medicine at the Dandenong SOCIT. He noted the following injuries:
· bruising to both eyes with minimal swelling;
· bruising to the right side of the face;
· swelling on both sides of the jaw with associated tenderness;
· a laceration of the uvula;
· a subluxation of the left temporomandibular joint to be managed by ongoing physiotherapy.
23Unfortunately for her that was not the full extent of her injuries, because later that year in October/November the complainant went back to Frankston Hospital after experiencing pain in her mouth, often waking with blood in her mouth. An ear, nose and throat specialist confirmed she had floating bone beneath her teeth and gums. She was prescribed antibiotics. She attended five specialist appointments and eventually had to undergo surgery to remove the floating bone and create a skin graft. It is the prosecution case, and you acknowledge, that this injury was caused by your assault.
24At 3.40 pm on 14 July 2023, you rang Malloy and asked him to remove certain things from his statement. You said to him:
'There's shit on there that doesn't look nice; [and] I dunno, Brett, look what she made me do that night, I lost it that night. I couldn't take it anymore. I just couldn't. Like, what it is, it is. I fucked up; [and] if you go and say that she forced you to do it, if you just say it wasn't true, I'll get out straight away; [and further] do you reckon you can go and do that thing for me, Brett? Just tell them that night you were in a state of mind, that she pushed you to say all that shit, and that's it; [and] I'll look after you when I get out'.
25Malloy mentioned to you that the complainant had received a call from an unknown man, and you said, 'I did that, yep, just to see how she was and … it was nothing. I just gave him a note to read out'. I will come back to those calls, which are part of the persistent contravention.
26You called Malloy again later that same day asking him to retract his statement and to tell the police he did not want to get involved.
27On 15 July 2023 you again rang Malloy, who told you the police wanted to speak to him. You said to him, 'Tell them you're not talking to 'em and that's it, [and] just say you don't know you were sleeping'.
28On 15 July 2023 Malloy attended Frankston police station to report the calls he had received from you. He made a further statement about these calls. You then rang him again on 17 July 2023 urging him to retract his statement. He said he had tried. You told him to go again and that you would give him your lawyer's number so he could talk to your lawyer. You made further calls to Malloy on 19 July asking him if he had withdrawn statement and on 19 July 2023 Malloy told police he wished to withdraw his statement. Those calls to Molloy urging him to withdraw his statement and suggesting a basis on which he might do that constitute the charge of attempt to pervert the course of justice in this case.
29You also breached the interim family violence intervention order which had been made on 2 July 2023. On 10 July 2023 the complainant received a call from an unknown number. A male voice told her that he had a message for her from Dominic. This male told the complainant that the accused still loved her and missed her.
30On 26 July 2023 the complainant received a text message from a mobile phone belonging to a person who had been incarcerated at Port Phillip Prison between 11 and 25 July 2023. The message used the nicknames that you and the complainant used for each other and also had the name 'Stella' in the top right corner, which was the name she had chosen if she were to have a daughter. She had told you about that. The note said the author loved the complainant and would be back next week.
31On 31 July 2023 the complainant received a text message from a phone number belonging to a girlfriend of a person incarcerated at Port Phillip Prison between 12 July and 16 August 2023. Again, the nicknames were used and the message said, 'I love you and I think I'll be back this week 01/08/2023', which was the date of your bail application.
32On 7 August 2023 the complainant received a phone call from the same number which had sent the previous text. The complainant spoke to a female who said she had an important call to merge and then, after a short pause, she heard your voice wishing her a happy birthday. She ended the call. She went to Frankston police station on 15 September 2023 and made a further statement. Those calls are the basis of the persistent contravention of a family violence intervention order offence.
33You pleaded guilty to the charges in this case on 28 November 2023 after a committal case conference, which had taken place a fortnight earlier. The charges were originally listed to be heard summarily, but once you were charged with attempting to pervert the course of justice the matter was transferred to the committal stream of the Magistrates' Court.
34I regard your guilty plea as an early plea. No witnesses were cross-examined in this case. The utilitarian value of your plea is significant. You have spared the court, the prosecution, and the police the use of the resources involved in a trial. Most importantly, you have spared the complainant the experience of having to relive these offences by giving evidence about them.
35I accept your plea indicates a willingness to facilitate the course of justice and I accept that your plea is consistent with you having some remorse for the offence, at least at the time you decided to plead guilty and the present time. You certainly did not have any remorse in the immediate aftermath of the assault and theft, given that after you had in this case viciously assaulted the complainant you tried to get Malloy to withdraw his statement and you continued to contact the complainant in breach of the intervention order.
36However, you are entitled to receive a significant sentencing discount for your guilty plea in this case.
37A victim impact statement was provided by the complainant. She describes the pain of the injuries you inflicted and the ongoing pain she suffered due to the floating bone. She describes herself as having become completely defeated by that pain. She says she would wake at night, spitting blood with extreme pain in the right side of her gum, which she describes as one of the most horrific pains she has experienced. She was petrified about having surgery. She says that this one-night incident had turned into months and months of pain, agony, depression, suicidal thoughts, and complete despair.
38Most unusually, she describes what happened as a shame and she wishes you all the best. She says she will cherish the moments that she had with you when you and she were inseparable. She says she believes if your environment had been different things may have turned out differently for the two of you. She believes that the timing was wrong for your relationship to succeed.
Sentencing principles
39Turning then to the sentencing principles that apply to the offences in this case, in the case of DPP v Reynolds[2] the Court of Appeal reviewed the sentencing authorities in relation to offences of family violence or intimate partner violence. The intentional injury offence and the persistent contravention offence fit directly into this category and the attempt to pervert the course of justice offence occurred in the context of family violence, although the actual attempt related to a witness and not the complainant.
[2] DPP v Reynolds [2022] VSCA 263.
40In Reynolds the court referred to the cases of Pasinis, Mercer, Kalala and Evans, all of which deal with sentencing principles for family violence.
41In Reynolds the court adopted the following passage from the decision of Kalala:
'The trial courts of this State are imposing sentences for family violence offences with increasing frequency. The court has repeatedly emphasised the need to condemn family violence, in line with community expectations'.[3]
[3] Ibid [75].
42The court then concluded:
'As these authorities make plain, general deterrence, public denunciation, just punishment and community protection must be the prominent sentencing factors when sentencing for family violence offending'.[4]
[4] Ibid [77].
43In my opinion this was a serious example of an intentional injury offence. The following aspects of your conduct underpin the seriousness of the assault. The offending took place over a relatively extended period, as described in the prosecution opening, and was comprised of multiple different acts of assault. You continued to assault the victim even after she was bleeding and even after she tried to leave. You blocked her airway, which caused her to fall unconscious, a potentially very serious situation. You also threatened her during the assault by saying 'There's no one here to help you'. Moreover, the injuries you caused, particularly the injury to her gum which required surgery, are in my opinion at the upper end of the spectrum of the injuries that fall within the definition of an 'injury’ rather than a 'serious injury' under the legislation. It cannot be overlooked that the victim suffered agonising pain for months, only relieved ultimately by surgery. The impact on the victim of this assault on the victim has been substantial, a factor which informs just punishment for your offending.
44The motive for this offending appears to have been jealousy based on your opinion the complainant had contacted a previous partner. There is no evidence before me that she did do that, but it does not matter because that would provide no excuse for your offending in this case.
45Whilst the theft was of a relatively low amount, the context of stealing the victim's money after you had committed a serious assault on her means that this is not an insignificant example of theft. Furthermore, you have a prior conviction for theft.
46The persistent contravention of the intervention order is also a significant offence, having regard to the context of the intervention order, namely that you had committed a serious assault on the victim very recently to the offending of the persistent contravention. These orders are designed to bring an end to situations of family violence, but you took not notice of the constraints that the system had placed on you.
47The offence of attempting to pervert the course of justice is obviously a serious offence with a maximum penalty of 25 years. In the case of DPP v Oksuz Kyrou JA said this of the offence of attempting to pervert the course of justice:[5]
'The offence is serious because the conduct that constitutes it strikes at the heart of the administration of justice. It does so because it involves an offender seeking to deter witnesses from giving evidence - or giving truthful evidence court proceedings. Where the offence is committed in the context of a criminal proceeding, the aim of the offending conduct is to undermine the Crown's ability to secure a conviction against an accused person and thus bring him or her to justice. The serious harm to public safety and the rule of law resulting from such offending conduct is obvious.’
[5] DPP v Oksuz [2015] VSCA 316 [99].
48Your attempt to pervert the course of justice offence involved several phone calls putting pressure on Mr Malloy to tell the police his statement was untrue and was the product of pressure put on him by the complainant in this matter. You also sought on more than one occasion to have him withdraw his statement. He did in fact attempt to withdraw his statement.
49Mr Smurthwaite made the point that your conduct was not accompanied by any threats of violence and nor was your conduct directed at the complainant herself but rather Mr Molloy. Had these other factors been in existence they would have been aggravating. I accept those submissions and I accept that the attempt to pervert the course of justice offence covers a very wide range of conduct. In the end, in my opinion, this is at the lower end of the spectrum. It nonetheless remains a serious offence.
50You have some prior convictions but none for offences of violence, let alone family violence. However, at the time of this offending you were on a community correction order which had been imposed on 1 June 2022 at the Frankston Magistrates' Court. I have been provided with the breach report for that order. Although you made some progress on the order, contravention proceedings were nonetheless issued for non-compliance and those proceedings are still waiting to be resolved. Additionally, you reoffended during the period of that order by committing an offence of handling stolen goods. Furthermore, this offending was a breach of the order.
51Whilst your prior convictions are not directly relevant to the offending in this case other than in respect of the theft, it is nonetheless significant that you were not able to comply with an order designed to be both punitive and rehabilitative and that during that period of supervision you committed these serious offences. In my opinion, those matters are relevant to specific deterrence and to the assessment of your prospects of rehabilitation.
Personal circumstances
52You were born in Australia, but you have spent much of your life and your early adulthood in Italy. When you were young your parents moved back to Italy and, as I understand it, you spent most of your time in Italy until returning to Australia when you were approximately 28 years old.
53You are one of four brothers. You had a twin brother. Your parents now live in Rome. Your younger brother died from cancer in January this year in Rome. You were not able to attend his funeral because you were in custody. It was submitted and I accept that this has considerably increased the burden of your period on remand.
54You have a reasonable employment record. You have worked as a baker and in more recent times in the construction industry. You have had jobs as a crane operator and a foreman based in Melbourne. Most of your work was through labour hire companies and you lost your employment in the pandemic.
55In the period leading up to the offences you were not employed.
56Before you started the relationship with the complainant in this case you had been in a long relationship with a woman named Rojena Johns. That relationship ended in 2020. You have a child with Ms Johns named Dante.
57When your relationship ended your housing became unstable and you had periods of homelessness. Against that backdrop you formed a relationship with the complainant, and you were living at the premises where the offences in this case took place. Mr Molloy was your landlord.
58Your son Dante suffers from autism spectrum disorder. Before you were remanded you were having regular contact with him. You have not seen him since you were remanded, but you have had contact with Ms Johns.
59You have a history of substance abuse. You have had problems with alcohol which have included binge drinking over the last decade and a half. You have also been an occasional user of cocaine and methylamphetamine over the decade before these offences. I am told and I accept that the use of alcohol and methamphetamine was a factor relevant to your behaviour in these offences.
60In the time you have been in prison you have done all that you can to further your rehabilitation. You have undertaken courses relating to methamphetamine use, alcohol and you have participated in AA meetings. I have taken into account the certificates provided and the letter from GEO summarising the courses you have done. You have also been working in the prison, powder coating. You do not have a lengthy criminal history and, although the fact that you offended whilst on a community correction order is discouraging, I accept Mr Smurthwaite's submission that the complainant's comments in the victim impact statement tend to indicate that there is a positive side to you that she observed during the relationship. You do have a reasonable history in terms of employment, and you have had a proper parenting relationship with your son.
61This is your first sentence of imprisonment and I accept the burden of this period will be substantial. In all the circumstances I take a positive view of your prospects of rehabilitation. That said, this was a very serious offence and if you continue to abuse drugs and alcohol you are obviously a risk to reoffend, particularly in an intimate partner setting.
62As to the burden of your imprisonment, Mr Smurthwaite emphasised your brother's death, the enforced separation from your son, the fact that your family are all in Italy and you have had no family visits, some health problems you have experienced and some depression and anxiety you have also suffered in the prison. I am satisfied that this, your first sentence of imprisonment, will weigh heavily on you.
Comparable cases
63I have had regard to the comparative cases referred to on the plea which are set out in the prosecution written submissions, which in particular pointed to the decision of Carter [6] as involving a similar set of facts to this case. Of course, no two cases are the same and Carter is not the same as this case. These cases are indicative of current sentencing practices for this type of offending which are a guide but not a controlling factor in deciding the appropriate sentences.
[6] Carter v R [2020] VSCA 156.
Submissions
64Mr Smurthwaite on your behalf submitted that either a straight sentence covered by the time you have been in custody or release on a community correction order immediately would be an appropriate sentence in this case.
65The prosecutor Mr Casey submitted that, given the gravity of the offending general deterrence, specific deterrence just punishment, denunciation and community protection are important sentencing considerations, and a proper application of these principles requires a head sentence and non-parole period. I am of the view, as I indicated on the plea, that the prosecutor's submission is correct. The seriousness of this offending is such that only a head sentence and a non-parole period properly recognises general deterrence, just punishment and denunciation for this offending.
Totality
66The totality principle requires that the total effective sentences imposed must be just and proportionate to the total criminality of your offending. To achieve a proportionate sentence in your case significant concurrency between the charges is required.
67Some cumulation though is necessary to reflect the separate criminality involved in the different charges. In my view, each charge here does involve separate criminality.
68The non-parole period mitigates punishment in favour of rehabilitation. It must though reflect the objective gravity of the offending. It is the minimum period of imprisonment that justice requires to be served. This is your first sentence of imprisonment and I have found the burden of your imprisonment will be significant. You do not have a lengthy criminal history and I have taken a relatively positive view of your prospects of rehabilitation, so I have decided to allow for a significant period of supervision when fixing the non-parole period. Whether you are released at the expiration of the non-parole period is of course a matter for the Adult Parole Board.
69For the charges in this case, I make the following orders.
70For the intentionally causing injury offence you are convicted and sentenced to two years and two months' imprisonment.
71For the offence of theft, you are convicted and sentenced to four months' imprisonment.
72For the offence of attempting to pervert the course of justice you are convicted and sentenced to 18 months' imprisonment.
73For the offence of persistent contravention of an intervention order you are convicted and sentenced to six months' imprisonment.
74I order that one month of the sentence for the theft offence, charge 2, eight months of the sentence for the attempt to pervert and one month of the sentence for persistent contravention of an intervention order are to be served cumulatively on the base sentence and on each other, which makes a total effective sentence of three years.
75I fix a minimum non-parole period in this matter of 22 months.
76Three hundred and twenty-six days is to be deducted as time served from the sentence that I have imposed pursuant to s18 of the Sentencing Act.
77Pursuant to s6AAA of the Sentencing Act I indicate that, just bear with me, but for your plea of guilty I would have imposed a sentence of four years and six months with a minimum of three years and two months.
78Those are the orders that I will make. Nothing else is required.
79MR CASEY: Nothing further.
80HIS HONOUR: Did you want the link left open for a moment?
81MR SMURTHWAITE: Yes, Your Honour.
82HIS HONOUR: Yes, all right. I can do that. Yes, all right. Nothing else, Mr Casey?
83MR CASEY: If the court pleases, no further - - -
84HIS HONOUR: All right, thank you. I'll now adjourn. All right.
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