Director of Public Prosecutions v Gatti

[2014] VCC 729

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-00084

DIRECTOR OF PUBLIC PROSECUTIONS

v

FRANSCESCO GATTI

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:	16 May 2014
DATE OF SENTENCE:	16 May 2014
CASE MAY BE CITED AS:	DPP v GATTI
MEDIUM NEUTRAL CITATION:	[2014] VCC 729

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

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Sedgwick
For the Offender	Mr R. Revill

HIS HONOUR: 

1You Can stay seated, Mr Gatti.  Francesco Gatti, you have pleaded guilty to three charges of armed robbery, two charges of burglary and one charge of theft.  Those crimes carry maximum penalties of 25 years, 10 years, and 10 years respectively.  You pleaded guilty at the earliest reasonable opportunity and are still only 24 years of age.  Your record of interview was indeed confessional, and certainly one of the charges could not have been laid without it.  I note that your plea of guilty in this matter is accompanied by remorse, and of course you must get the utilitarian benefit.  The overall situation here is that the Crown would have been relying on a similar fact argument, and they are often difficult to prove.  Accordingly your plea does facilitate the furtherance of justice.

2You are still a young offender, and I have indicated with no prior convictions and obviously nothing pending.  There are also two uplifted matters from the Magistrates' Court of being in possession of ammunition.  Those crimes carry monetary penalties only, and because of the nature of the sentence that I am going to impose upon you I do not see any point in clogging the system up with that, so in respect of each of those, I will just simply convict and discharge. 

3The circumstances of the offending are, as I have indicated, you are 24 years of age.  A Victoria Police task force was investigating some armed robberies and burglaries.  That investigation went on for a number of weeks and also involved surveillance.  You told police when you were arrested that between 1 July and 31 August 2013 you had attended at a residential address in a street in Sunshine, that you had entered through a rear open window of the premises and stolen a sawn-off shotgun.  Charge 1 proceed on that basis.  There is no identified victim.  It is clear though that the firearm referred to is the firearm used in the armed robberies which you committed.  That matter has never been taken any further, whether it is true or not as to how you got the shotgun, I have got no idea, but in any event I will sentence you for that burglary.

4Charge 2 is theft of petrol from 25 September 2013, of just simply driving off from a Coles Express with $60 worth of fuel without paying.  These matters are of significance because there was CCTV, certainly in relation to Charge 2, and the similar fact argument was going to be based upon them as a sequence of events.

5Charge 3 is one of armed robbery.  On 26 September 2013 at 2 o'clock in the morning, a young lady was working as a manager on the night shift at the McDonald's restaurant at the corner of Derrimut and Foleys Road in Derrimut; it was her usual night shift.  One of the crew was on a break and came around to the front at the service counter to buy some food and a coffee.  The other girl was serving her and that is when she noticed you.  There were four other customers eating in the store at the time.  You were wearing clothing that you had been wearing earlier in the evening prior, during the petrol drive-off.  You had your mouth and nose area covered with a blue bandana and you had a hoodie up. 

6You loitered behind one of the young ladies as she was finishing her transaction.  You then came around to the side of the counter and pulled out the sawn-off shotgun and pointed it at the young female manager.  You held it in your right hand.  You pulled out a plastic shopping bag from your trouser pocket with your other hand.  You said, "Give me the money."  She tried to enter the code to open the till, and was shaking so much she could not do it properly; she entered the wrong number.  You told her to hurry up. 

7In the meantime you waved the firearm in the direction of store customers, who I understand were all young, and told them to "Sit down and don't move."  The manager opened the till, you handed her the plastic bag, and by that time you had come around behind the counter and were in very close proximity to her. 

8The crew member I referred to earlier, Emma, was still standing on the other side of the counter.  Money was taken out of the till and put in the plastic.  You then told the young manager to take the money out of the other two registers as well, and she opened those to demonstrate that they were empty.  Emma hid her purse so that would not be stolen as well.  You then left the store in possession of the cash.  $80 was the total obtained in all this. 

9Emma and the young manager were both obviously and clearly very distressed and shaken by the incident.  Some of the witnesses observed that you seemed drunk, were unshaven, stumbled and your eyes were red.  People were suspicious of you even before you committed the armed robbery. 

10I have had the opportunity of watching that armed robbery on the CCTV footage.  I accept what your counsel says that in some of these armed robberies, when one watches them, there is shouting and extreme violence.  Yours is not; you appear to be relatively softly spoken.  However, it is clear from it, and it is clear from the body language of the two girls that they are terrified of you, and indeed a shotgun of the sort that I have now seen a photograph of is a terrifying weapon indeed.  You were found afterwards with ammunition which fitted that gun. You told police that it was not loaded.  In one sense it does not really matter because the girls would have thought it was.

11The next charge is 28 September 2013, two days after the McDonald's armed robbery, a Saroxa Levnakov was working in a bottle shop in Sunshine.  His mother owned the store. I do not know how old he was, but I assume he is not that old.  At approximately 20 to 8 in the evening he was sitting on a chair behind the front counter behind the register.  You entered the store with the sawn-off shotgun.  You pointed the gun at him and stated, "Empty the till quick."  You selected some alcohol from the shelf behind you.  You had with you a bag, and you placed the notes from the till into the bag, around about $400.  The alcohol that you took was valued around about $184.  Again, you had been disguised.  Mr Levnakov rang his mother to tell her what happened.  He was frightened by the incident.  That was also covered by CCTV.

12Charge 5 is another charge of burglary.  On 6 October 2013, in the early hours of the morning, a family business in Grant Street was entered by three intruders, one of whom was you.  There was no evidence of anything having been taken.  I simply sentence you on the basis that you were one of the three offenders, and are therefore guilty of entering with the intention to steal, but that simply no further.  It would appear also there that your confession to that would have been of great assistance to the Crown case. 

13Charge 6 is the third of the armed robberies.  On 7 October 2013 at 2 o'clock in the afternoon.  The victim started his shift at the Friendly Grocer Foodworks store in Furlong Road in Sunshine.  Working that day was a Maria, who was the store's owner.  At around 8 o'clock at night he was refilling bottles of drink into the fridge, which was located near the door. At around 20 past 8 he turned around and saw you enter.  You were yelling at Maria Hay to open the register and you were holding the sawn-off shotgun in your hand.  You were again disguised.  Maria went over to the register with you.  You were pointing the gun at her.  According to the opening at least, you yelled out, "Open the till, open the till."  She opened it, you took money out and put it in your pocket, and you also took five or six packets of cigarettes.  There was another customer at the front of the store who saw what happened and called the police.  Approximately $1,000 was taken.  The victim felt very scared and was trembling.  Again, CCTV footage was obtained of that armed robbery.

14You were arrested subsequently and interviewed by police.  Suffice to say that various items were found which would have given rise to a similar fact argument.  Of real concern is this gun that you claim that you stole during the burglary. In your possession were 12 gauge Winchester rounds which fitted it and at another address a further, as I understand it, round was found which fitted it.  Whether the gun was loaded during those armed robberies or not, I do not know, but you certainly had the capacity to load it and I would be very surprised if those cartridges were being held, just out of interest.  But in any event, you are not to be sentenced for that.

15The firearm was located approximately a month later at an address of a known associate of yours.  The person who was in possession of it is yet to be dealt with, and I do not take that into account.  As I have indicated, so far as the record of interview is concerned, it was confessional, and indeed, in relation to one, probably two of the charges, the Crown would have had great difficulty obtaining a conviction without that record of interview.

16The burglaries are probably ones which with no prior convictions would have been dealt with in the Magistrates' Court and you almost certainly would not have been locked up for them.  In the situation that we are dealing with pragmatism demands that there be a sentence, but I am going to make it in all the circumstances totally concurrent with the armed robbery sentences.

17Armed robbery in itself is a serious crime, and calls for the application of general and specific deterrence.  It also calls for denunciation and appropriate punishment.  I know that the three armed robberies occurred over a relatively short period of time, but there were a number of distinct victims, and there must be accumulation in relation to each.

18It is well known to those who work in these courts and who work in the Police Force and elsewhere the dreadful effects that offending like this has on people, in particular young people. 

19What I propose to do is I have now got before me a number of victim impact statements which are typical, and more particularly in my view to young people who have been the victim of this sort of thing. 

20If I can read the writing, Emma said, "I just play it all over and over in my head.  Overall this incident has screwed up my mind emotionally and physically.  I only leave the house if I have school or work.  I barely sleep.  This has really deeply affected me, the way I'm at school, work or in general. I'm not that really weak, scared 17-year-old girl.  This by far is the worst thing that has happened to me.  I just wish it didn't happen to me because it stops me from being who I was."

21That is what happens when you point shotguns at kids, and they have to live with it for years sometimes.  Sometimes people never get back to work.  All right?  And that is what you are going to be sentenced for.  Not the dishonesty aspect of it.  That is one thing.  It is the trauma it causes to the people on the other end of the shotgun. 

22There can be intellectual debate about what is the worst sort of weapon to use in an armed robbery.  The simple fact of the matter is that a sawn-off shotgun being pointed at children must have been terrifying for all of them.  A custodial sentence of very significance portions is inevitable. 

23I then look to matters personal to you in terms of what that sentence should be in duration.

24Yours is a very odd background to say the least.  You were born in Australia in 1990.  Your mother was from Tonga and your father was apparently Italian.  You were only here for a couple of weeks and then the family shifted about.  You were in Tonga until 1994.  You went to the Cook Islands with your father until you were about seven, that is around 1997, and in 1997 onwards until you were about 10, you lived in New Zealand.  In 2001 you came back to Australia with your mother and stayed here until you were 18.  You apparently were playing up at that stage, and accordingly, you were sent, if that be the correct term, to an older brother, some 13 years older in fact, who was living in Surrey in England.  You obtained work there in steel fabrication.  Last year as I understand it in around about May your mother had asked you to return, or you came back for a two-week holiday, and your step-father was in ill health.  You at that point in time were asked if you would be here to look after them.  You were on a tourist visa, which you outstayed, as I am told.  You got a job and worked for a number of months.  You are certainly not unintelligent and you completed schooling at the Ardeer campus. 

25Unfortunately in high school you started using ice.  Upon your return here you initially got work picking and packing for a number of months.  You were spending your money on ice, alcohol, gambling and the pokies.

26You obviously ran out of money, and to get money you did what you did.  It is a dreadful penalty to pay for such a small amount of reward.

27Your mother gave evidence on oath on your behalf, and is clearly distressed by what you have done and the predicament in which you have now placed yourself, and also placed your family.  I accept that you will be deported, and I make no allowance for that other than the fact that you will undergo a significant gaol sentence with the belief, probably knowledge, that you will be deported at the end of it.  You will also undergo that sentence knowing that your mother and elderly step-father are surviving without any assistance whatsoever from you.  They will probably have to look after you as well.

28We endeavoured to find out what the situation was in terms of your citizenship and are still no wiser than when we started, but as I have indicated I am not taking the deportation into account in any other way than the very limited one which I have already stated.

29The prospects of your rehabilitation should be good.  You are still only young, and on the face of it at least have no prior convictions.  If you rehabilitate, the risk of you reoffending should be slight.   Because of your background and because you have provided very little information, it is hard to know what those prospects are, or how and why this all came about.  There is nothing about you which displays any psychological circumstances or any psychiatric illness.  Principles such as Verdins appear to have no part.  On the face of it you are a person who was, certainly on eye witness accounts, either drunk or drugged, and you committed very, very serious offences to, you told the police, get food and the like.  I suspect that is probably not right.

30But taking all those matters into account, and in particular your youth, I am still obliged to impose a significant sentence of imprisonment.

31I am mindful of the principles of totality, but there are three separate armed robberies and there must be, in my view, accumulation to reflect the damage done to each of the individual victims.

32Accordingly, Charge 1, three months; Charge 2, seven days; Charge 3, four years; Charge 4, four years; Charge 5, six months; Charge 6, four years. 

33I direct that one year of the sentence imposed on charge 4 and one year of the sentence imposed on Charge 6 be served cumulatively upon each other and on the sentence imposed upon Charge 3.  That gives an effective head sentence of six years imprisonment, and I direct that you serve three and a half years before becoming eligible for parole. I direct that 207 days be reckoned as having been served under this sentence, and I say that but for your plea of guilty, so that you understand the benefit that you got from that plea, you would have been sentenced to be imprisoned for nine years with a minimum term of six and a half. 

34Are there any other orders I have to make?

35MS SEDGWICK:  No, Your Honour.  As Your Honour pleases.

36HIS HONOUR:  Thank you.  All right.  Good luck, young lady.

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