Director of Public Prosecutions v Gentile
[2022] VCC 478
•7 April 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-21-02702
| THE QUEEN |
| v |
| DANIEL GENTILE |
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JUDGE: | HIS HONOUR JUDGE LACAVA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 March 2022 | |
DATE OF SENTENCE: | 7 April 2022 | |
CASE MAY BE CITED AS: | DPP v Gentile | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 478 | |
REASONS FOR SENTENCE
Subject: Threat to inflict serious injury, false imprisonment, making a threat to kill, contravention of an interim intervention order, intentionally causing injury, contravention of a family violence intervention order. Sentenced on Charge 4 as a serious violent offender. Sentence: 4 years and 6 months imprisonment. NP 3 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms A. French | |
| For the Accused | Mr R. de Kretser |
HIS HONOUR:
1 Daniel Gentile, you have pleaded guilty to eight charges contained in indictment M10732418, together with two related and three unrelated summary charges.
2
Dealing with the indictable charges, these all relate to offending by you on
30 March 2021, save for Charge 8, which relates to persistent offending over a period of one month between 27 February 2021 and 27 March 2021.
3 Charge 1 is a charge of making a threat to inflict serious injury. The maximum penalty for this offence is imprisonment for five years.
4 Charge 2 is a charge of false imprisonment, a Common Law offence for which the maximum penalty is imprisonment for 10 years.
5 Charges 3 and 4 are each charges of making a threat to kill. The maximum penalty for each of these offences is imprisonment for 10 years. Also, because I will sentence you to a term of imprisonment on Charge 3, you fall to be sentenced on Charge 4 as a serious violent offender. In sentencing on Charge 4, in determining the length of any sentence I impose, I must regard protection of the public as the principal purpose for the sentence and I may impose a disproportionate sentence. The prosecution here is not seeking a disproportionate sentence in respect of Charge 4.
6 Further, the sentence imposed on Charge 4 must, unless I order otherwise, be served cumulatively upon any other sentences I impose. I will impose such cumulation and such concurrency as I deem appropriate.
7 Charge 5 is a charge of contravention of an interim intervention order by intending to cause harm or fear. The maximum penalty for this offence is imprisonment for five years.
8 Charge 6 is charge of intentionally causing injury. The maximum penalty for this offence is imprisonment for 10 years.
9 Charges 7 and 8 are each charges of persistent contravention of a family violence intervention order. The maximum penalty for each of these offences is imprisonment for five years.
10 Turning next to the related summary charges, Summary Charge 16 is a charge of committing an indictable offence whilst on bail. The maximum penalty for this offence is 30 penalty units or imprisonment for three months.
11 Related Summary Charge 17 is a charge of contravening a conduct condition of bail. The maximum penalty for this offence is also 30 penalty units or imprisonment for three months.
12 I turn to the unrelated summary charges, Summary Charges 1 and 2 are each a charge of contravening an interim family violence intervention order. The maximum penalty for each of these offences is imprisonment for two years.
13 Finally, unrelated Summary Charge 5 is charge of unlawful assault, for which the maximum penalty is 15 penalty units or imprisonment for three months.
14 As you can see from the maximum penalties prescribed by the parliament it regards offending of this kind seriously. In passing sentence, I must have regard to the maximum penalties as one factor in arriving at an appropriate sentence.
15 When you pleaded guilty you also admitted a limited prior criminal history from one previous court appearance. On 26 July 2020, you were convicted on charges of criminal damage and entering without lawful excuse and contravention of interim family violence intervention order.
16 You were placed on a Community Corrections Order for a period of 15 months to commence on 26 July 2020. This offending thus occurred whilst you were subject to that Community Corrections Order.
17 The circumstances of your offending are summarised in the summary of prosecution opening, dated 15 March 2022. That document was read to the court by the prosecutor, Ms French. Your counsel, Mr de Kretsa, accepted that the prosecution summary was accurate and forms a proper factual basis, upon which I can proceed to pass sentence upon you.
18 In those circumstances, it is not necessary that I here set out in detail all of the facts but do so, only in an abbreviated way. These sentencing remarks should, however, be read with what is set out in more detail in the summary.
19 At the time of this offending, you were 31 years of age. You are now approaching your 32nd birthday. The victim in this matter is your former partner, whom I shall refer to as Eliza[1]. She is 33 years old and you have known her since secondary school. You were in a relationship for eight years from 2012 to 2020. You have one child together, Angus[2], now aged three years.
[1] A pseudonym.
[2] A pseudonym.
20 You and Eliza were drug users, regularly smoking methylamphetamine. In 2018, you moved as a couple into premises in Dandenong South, being a converted warehouse owned by your father.
21 At about that time, your relationship with Eliza began to deteriorate and was manifested by verbal arguments, with you becoming physically abusive and controlling.
22 On 29 November 2018, an interim family violence interim family violence intervention order was made with Eliza and Angus named as the protected persons. That interim order was made final on 30 January 2019. It expired on 30 January 2020.
23 In February 2020, Eliza ended the relationship and moved out of the premises in Dandenong South and went to live with her mother. She continued to see you regularly.
24 In June 2020, Eliza reported further incidents of family violence, which resulted in the making of a second family violence intervention order being made against you, with Eliza and Angus named as the protected persons.
25
There are a number of conditions set out in paragraph 7 of the prosecution opening. You were permitted by the order to act in accordance with any arrangements in place with respect to Angus and to make contact with Eliza via text message to arrange to meet with Angus outside Dandenong
Police Station.
26 On 12 October 2020, Eliza came to the Dandenong South premises at your request for the purpose of trying to resolve issues between the two of you. Unrelated Summary Charge, contravention of an intervention order, being within five metres of a protected person.
27 An argument soon followed, during which you took the mobile phone of Eliza and demanded the passcode. You placed your hands on her and said to her, 'You're not going anywhere'. Unrelated Summary Charge 5, unlawful assault.
28 At this time, Angus was with your parents. You left and attended at your parents' house to see Angus, who was a protected person under the intervention order in place. Unrelated Summary Charge 2, contravention of an intervention order by being within five metres of a protected person.
29 Later that evening on 12 October 2020, you were arrested by police. You admitted breaching the intervention order but denied touching Eliza. The following day you were charged and bailed.
30 From about November 2020, Angus began to live with your parents. That was as a result of orders made in the Children's Court. You and Eliza could have supervised visits with him. This brings me to 30 March 2021 and the charges in the indictment and the related summary charges.
31 On 30 March 2021, you and Eliza had arranged to go bowling with Angus and your mother. Eliza was receiving text messages on her mobile phone. As a result, you became angry and demanded the passcode to Eliza’s mobile phone, which she refused. You told her she was not going anywhere until she gave you the passcode. You then verbally abused her and threatened to break her arms and legs. Charge 1, threat to inflict serious injury.
32 You then placed a chair in the doorway and stood in front of it, telling Eliza she was not going anywhere. Charge 2, false imprisonment.
33 Soon after you correctly guessed the passcode to Eliza’s mobile phone. As short time after that you contacted a male friend of Eliza’s by phone. You said to him, 'If you ever contact Eliza again I'm going to fucking kill you'. Charge 3, threat to kill.
34 Soon after, you left a threatening voice message for the same person. Whilst goading Eliza about having contact with another male friend you said to her, 'You're fucked cunt. Where's your hero now. You're going to die'. Part of Charge 4, threat to kill Eliza.
35 After that you repeatedly struck Eliza with fists to her head, face and arms, during which she suffered a laceration to her head and felt dazed. Part of Charge 5, contravention of an intervention order intending to cause harm or fear for safety.
36
Police were called and attended but could not locate Eliza, who you had instructed to hide. Both you and Eliza then went for a walk. After the both of you returned to the property you occupied you began to again look through Eliza’s phone. You became enraged when you discovered Eliza had forwarded photos of Angus to another person. You said to her, 'You're fucked cunt. You will never leave here alive and you will never see Angus again'.
Part of Charge 4, threat to kill Eliza.
37 You then stood over Eliza and again punched her multiple times to her face, chest, arms and head. Part of Charge 5, contravention of an intervention order intending to cause harm or fear for safety.
38 Although bleeding and feeling dizzy, Eliza tried to appease you. You again continued to look through Eliza’s phone. You found explicit photos and videos of Eliza and you exploded in what is described as red hot rage. You screamed at Eliza and told her that you hated her and that she was going to die. Part of Charge 4, threat to kill Eliza.
39 You then approached Eliza, who screamed at you and tried to push you away. You then kicked her to the eye/cheek area, causing Eliza to momentarily lose consciousness. When she regained consciousness, you were punching and grabbing her. You then walked away, laughing as you did so. Charge 6, intentionally cause injury.
40 You then proceeded to video Eliza and you continued to abuse her as you did so. You threatened to send a video of her in a distressed state to a male person, whom she was to beg for help. As you did so, you said, 'I'm bashing the fuck out of you cunt, you fucking weak cunt'. Eliza was visibly terrified by your actions and abuse, covering her head with her arms in an attempt to protect herself from your further assault. Part of Charge 5, contravention of an intervention order intending to cause harm or fear for safety.
41
You then told Eliza to take some Valium, which she did. The both of you then went to sleep. Eliza went to the police the next day on
31 March 2021. Her injuries were photographed. She sustained bruises and soreness to her chest, back, arms and legs, relevant to Charge 6 of intentionally causing injury.
42 Eliza was then taken by ambulance to Casey Hospital for imaging of her left eye/cheek area, which revealed what is described as a 'Blow-out fracture of the left inferior orbital floor, involving the intra infra orbital canal with herniation movement of the extra orbital fat onto the maxillary sinus space filled with air in the cheek area of the skull. There was thickening of the inferior rectus eye muscle, which was seen dipping into the upper part of the maxillary sinus but not appearing to be clearly entrapped. There was some evidence of blood within the maxillary sinus.'
43 As a result, Eliza underwent surgery on 22 April 2021 to repair the left orbit and relocate the eye to its correct position, involving the insertion of a plate and two screws. At post-surgery reviews conducted in May and June, Eliza continued to complain of double-vision and altered sensation below her eye.
44 The prosecution tendered a victim impact statement from Eliza and photographs of her facial injuries, the subject of Charge 6.
45 You obviously subjected her to a brutal facial bashing. The photographs speak for themselves. You inflicted physical and doubtless long-lasting psychological harm by what you did. I understood your counsel to accept this to be the case. In passing sentence, I take the contents of the victim impact statement fully into account.
46 Charges 7 and 8 are each charges of persistent contravention of the family violence intervention order. The particulars of the numerous contraventions are detailed in respective charges. You repeatedly used social media to make contact with Eliza, leaving abusive messages.
47 Your contact with Eliza between 29 March and 1 April was in breach of a condition of bail, which required you to comply with the conditions of an interim intervention order. Related Summary Charge 17, contravening a conduct condition of bail. Your offending on 30 March 2021 was committed whilst on bail. Related Summary Charge 16, commit an indictable offence whilst on bail.
48
You were arrested and charge on 10 April 2021. When interviewed you were generally cooperative but denied any wrongdoing towards Eliza on
30 March 2021.
49 You also denied sending messages to Eliza in the days after 30 March and suggested Eliza sent the messages to herself. You said to the police, 'Like yeah, I don't know, she's just a fucking cunt. You, like, have no idea the shit this girl's capable of, mate. You really have no idea'. At that point you displayed no remorse for you actions and no empathy for Eliza. You were victim blaming for what on any view is outrageous conduct from a man towards a woman.
50 This is clearly very serious offending of the domestic violence kind. No woman should have to tolerate this kind of offending from any man. The charge of intentionally causing injury occurred in the context of domestic violence, after the victim had been forced to obtain an interim family violence intervention order in an endeavour to seek protection from you. You repeatedly verbally abused and threatened physical harm to Eliza, notwithstanding there was an intervention order in place. You repeatedly made threats to kill her and you persistently breached the intervention order.
51 Clearly, the sentencing principles of deterrence, both general and specific, denunciation and protection of the public and just punishment have to be fully taken into account in sentencing you. I must also take into account all of the matters in mitigation advanced on your behalf and your prospects of rehabilitation.
52 You have pleaded guilty to the charges and indicated that you would do so without a committal. I treat you for sentencing purposes as having pleaded guilty to the charges at the earliest opportunity. By pleading guilty you have saved the time and cost of a trial and committal and you have saved Eliza from having to give evidence against you.
53 Your pleas of guilty to the charges are especially important in the present environment, where this court is faced with a considerable backlog in criminal trials because of the COVID-19 pandemic. By pleading guilty you have not contributed to that backlog and you are entitled to a significant reduction in sentence for having done so. By pleading guilty to each of the charges you have accepted responsibility for your offending and you have advanced the administration of justice.
54 For that you are entitled to and will receive a reduction in sentence and this will be reflected in the overall sentence that I will soon impose. Your pleas of guilty also signify remorse for this offending, which I have taken into account.
55 You applied for bail in both the Magistrates' Court and in the Supreme Court. Bail was refused on each occasion.
56
You have served 362 days pre-sentence detention. Your counsel,
Mr de Kretsa, filed with the court and outline of his submissions in writing. You were born in May 1989. You were aged 31-32 at the time of this offending. You are now approaching your 33rd birthday.
57 You are of Italian heritage and you were raised in Melbourne's South-East. You have an older sister. Your father is a brick-layer and your mother works in retail. You were raised in a good and loving household. You attended Catholic primary and secondary schools, leaving in Year 10.
58 At the age of 15 you began smoking cannabis. This was said to be in an effort to manage anxiety. Age 16 you commenced using ecstasy, which you used together with speed and ketamine and some methylamphetamine.
59 From age 23 you used methylamphetamine every weekend. From age 24 you have used methylamphetamine daily, using up to 2 grams. You had also used GHB for the four years prior to being remanded. I was told and accept you have not used drugs in prison. In custody you have been prescribed Avanza for depression but you ceased this due to side-effects.
60 Between 2005 and 2009 you were engaged as an apprentice carpenter. You were a qualified carpenter and bricklayer. You have a very good work history and operated your own business until the COVID pandemic and consequent lockdowns intervened.
61 From 2012 to 2020 you lived in a de facto relationship with Eliza, whom you met at primary school. The relationship deteriorated, owing to the drug use of both yourself and Eliza. I was told you now accept that this relationship is finished but you do share a child together and that will doubtless bring each of you into contact in the future years.
62 Your son Angus is cared for by your parents. You have not seen him whilst on remand but you have had some video calls with him. When arraigned you admitted a prior conviction in the Magistrates' Court on 26 July 2020. I was told and accept that offending involved you and Eliza breaking into the home of Eliza’s mother and removing Angus. You were convicted and a community corrections order was made for a period of 15 months with therapeutic conditions.
63 Mr de Kretsa submitted and I accept that this offending occurred during a tumultuous period when you were addicted to methylamphetamine and unable to handle the stressors associated with the breakdown of your relationship with Eliza.
64
The first 30 years of your life were unblemished. Mr de Kretsa submitted that since being remanded you have remained abstinent from drugs and you have developed insight into your offending and the triggers for your drug use.
Mr de Kretsa acknowledged that your offending constitutes a serious example of family violence. It is in part explained by your drug-induced state. That is part explanation but not an excuse.
65 The offending is aggravated by the facts that at least on 31 March 2021, you were on bail and there was an intervention order in place and in addition, you were the subject of a community corrections order.
66
I received into evidence as Exhibit 2, a psychological assessment, dated
21 March from Carla Lechner. Mr de Kretsa did not rely on Verdin's principles in sentencing. You do, however, have a history of suffering anxiety and you are a long-term drug addict, who struggled to cope with loss of employment consequent upon the pandemic.
67 Ms Lechner's report provides some evidence that you now have some insight into your offending and the reasons why you turned to drug use. You also expressed appropriate remorse to her for your actions. I accept you are now remorseful. Mr Lechner thought you to be a moderate risk of re-offending.
68 I also received into evidence as Exhibit 3, a letter from Corrections, confirming that whilst on remand you participated in the Atlas program. It again confirms you have developed valuable insights into your offending and that you have begun to set goals for successful re-integration back into the community upon release. It confirms you desire to remain drug free.
69 I also received in evidence proof of two negative urine screens, Exhibit 4 and an email from Maree Anderson at Margoneet Prison, Exhibit 5, confirming the positive changes you have made whilst in custody.
70 Exhibit 8 was composed of a number of certificates of courses you have completed whilst in custody.
71
I also received a number of very favourable references of you from
Joseph Freeny, Sean Alexander, Paul Sarasino and Enzo Chachioti. They each speak highly of you are a friend and fellow worker. Each of your parents also provided a reference, which are both very moving and show you still have their full support, which will be available to you when you are released. They will especially assist you in re-establishing your relationship with your son.
72
I accept you have a limited criminal history and that since being remanded you appear to be taking proper steps to rehabilitate yourself. I accept you have never before been sentenced to a term of imprisonment and that custody has been a salutary experience. This is especially so because of all the time you have been in custody there have been restrictions on prison visits and programs to be undertaken and even exercise because of
COVID-19. I accept that your time in custody has been more burdensome because of that.
73 You have been a long-term drug addict and you are now drug free but in a custodial setting. I have concluded that although you were showing positive signs of rehabilitation and you have used your time in prison well, your prospects for rehabilitation must nevertheless remain guarded. That is because whether or not you can remain drug-free outside of prison is yet to be tested and will require ongoing counselling.
74 As in prison, so too outside prison, whether or not you remain drug-free depends upon you and that remains to be seen. I wish you well and I do hope you achieve complete rehabilitation and remain drug-free and offence free.
75 Mr de Kretsa submitted that I should impose a combination sentence of a term of imprisonment and a community corrections order with appropriate conditions. In making such an order I am conscious of the fact that I can impose up to 12 months in prison in addition to time served.
76 However, in my judgment such a disposition would not achieve all the purposes of sentencing in this case, which are deterrence, both general and specific, denunciation, just punishment and protection of the public, whilst also having regard to your prospects of rehabilitation.
77 This offending is very serious. It was violent and to some extent prolonged. It was psychologically abusive to the victim. For a short period, it was unrelenting upon the victim, Eliza. The offending occurred whilst you were on bail and whilst already serving a community corrections order. A combination sentence in my judgment would not be just punishment and nor would it properly reflect proper application of general deterrence, especially in a case of very serious domestic violence.
78 On Charge 1, threat to inflict serious injury, you are convicted and sentenced to a term of imprisonment of one year.
79 On Charge 2, false imprisonment, you are convicted and sentenced to a term of imprisonment of one month.
80 On Charge 3, make threat to kill Kelly Duncan[3], you are convicted and sentenced to a term of imprisonment of six months.
[3] A pseudonym
81 On Charge 4, make threat to kill Eliza Roberts, you are convicted and sentenced to a term of imprisonment of 18 months.
82 On Charge 5, contravention of a family violence intervention order intending to cause harm or fear, you are convicted and sentenced to a term of imprisonment of 18 months.
83 On Charge 6, intentionally causing injury, you are convicted and sentenced to a term of imprisonment of three years.
84 On Charge 7, persistent contravention of a family violence intervention order between 27 February and 27 March 2021, you are convicted and sentenced to a term of imprisonment of one year.
85 On Charge 8, persistent contravention of a family violence intervention order between 29 March 2021 and 6 April 2021, you are convicted and sentenced to a term of imprisonment of one year.
86 On each of the related summary charges 16 and 17 you are convicted and sentenced to a term of imprisonment of one month.
87 On each of the unrelated Summary Charges, 1, 2 and 5, you are convicted and sentenced to a term of imprisonment of one month.
88 I direct that six months of the sentence imposed on Charges 4, 5 and 7 cumulate upon the sentence imposed on Charge 6, making a total effective sentence of four and a half years imprisonment.
89 I direct that you serve a minimum term of three years before being eligible for release on parole. For the purposes of the s6AAA of the Sentencing Act 1991, had you not pleaded guilty to the charges I would have imposed a total effective sentence of seven years imprisonment and I would have fixed a minimum term of five years before which you would have been eligible for release on parole.
90 I declare, there has been 362 days pre-sentence detention already served of the sentences passed this day and I direct that 362 days be reckoned as having been served, be entered into the records of the court and be deducted administratively.
91 I declare, I have sentenced you on Charge 4 as a serious violent offender and direct the fact that my having done so be entered into the records of the court.
92 I have been asked to make forfeiture orders, which were not opposed and I will sign them. Are there any questions arising out of that?
93 MS FRENCH: Your Honour, with respect to pre-sentence detention, my learned friend and I calculated 363 days, not including today.
94 HIS HONOUR: Not including - - -
95 MR DE KRETSA: That's correct, Your Honour.
96 MS FRENCH: Not including today, I believe Your Honour said 362 days.
97 HIS HONOUR: I did. Did you count the other - did you count the day of the plea?
98 MS FRENCH: Your Honour, I entered it into the system I usually use and I wonder whether Your Honour has included that one day on the Singh matters?
99 MR DE KRETSA: There was an extra day, Your Honour.
100 HIS HONOUR: I am quite prepared to make it 363 days and I will sign that order.
101 MS FRENCH: Thank you.
102 MR DE KRETSA: Thank you.
103 MS FRENCH: And Your Honour, the only other matter is, Kelly Duncan is a female. I thought I heard Your Honour say male friend.
104 HIS HONOUR: I'm sorry. I did. I did. I'll correct that. Thank you.
105 MS FRENCH: Thank you, Your Honour.
106 HIS HONOUR: Do you have any matters, Mr de Kretsa?
107 MR DE KRETSA: No, Your Honour.
108 HIS HONOUR: Very well. Thank you both. Adjourn the court please, Wayne.
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