Director of Public Prosecutions v Iaquinto

[2013] VCC 1839

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

AT MELBOURNE

CRIMINAL DIVISION

CR 12-01426

DIRECTOR OF PUBLIC PROSECUTIONS

v

FRANCESCO IAQUINTO

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JUDGE:	HIS HONOUR JUDGE MONTGOMERY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	25 November 2013
CASE MAY BE CITED AS:	DPP v Iaquinto
MEDIUM NEUTRAL CITATION:	[2013] VCC 1839

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

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr A. McHenry
For the Accused	Mr B. Johnson

HIS HONOUR:

1Francesco Iaquinto, you have pleaded guilty to one charge of theft and one charge of armed robbery. 

2You have admitted your previous criminal history which, as I have discussed during the course of the pleas, is lengthy, repetitive, basically dishonesty, with some serious dishonesty, street offences, robbery, theft, robbery, attempted armed robbery, some drug offences, et cetera.  From it I conclude you have received every possible sentencing disposition a court can give someone, ICOs, CCOs, suspended sentences, gaol sentences.

3The criminal history starts in 1989 and, on the document before me, finishes in November 2011 and your offending here breached a community correction order.

4I have signed a compensation order.

5You have served 342 days pre-sentence detention.

6I have read and taken into account the contents of the victim impact statement of Amber Lester.

7The prosecutor has tendered an opening which sets out the facts of the case.  I will not refer to the facts, but I attach that opening to the file.  Any reader of these reasons can refer to the file to place the sentence in its factual context.  That opening was not disputed by your counsel.

8The prosecutor submitted an appropriate sentencing range, taking into account all the factors including the report tendered by your counsel, would be a head sentence of six to four and a half years with a non-parole period of three and a half to two and a half years.

9Your counsel, on your behalf, acknowledged that this was serious offending and that you would receive a gaol sentence, but urged me to consider a lengthy period of time during which you would be on parole.

10You entered an early plea of guilty to the armed robbery and one, in the context of a trial, to the theft.  You get an early plea of guilty discount for the armed robbery and a lesser discount for the theft as an indication of your responsibility for your offending and also in relation to the armed robbery. You have saved the community the time and cost of a trial and inconvenience to witnesses.

11You have now been in custody for some 518 days, 342 days of it concerned with this offending, so you have been in gaol for nearly two years.

12You are now aged 41.  At the time of the offending you were aged 39.

13The report of the neuro psychologist, Rachael O'Mara, is lengthy and comprehensive and Mr Johnston submits that it is the first time that you have been diagnosed with a mild intellectual disability. 

14That report sets out your family history, the fact that you have not had a lot of jobs.  You started a roof tiling apprenticeship but did not finish it and have been fired or quit from a number of unskilled labouring type jobs.  You were living with your parents prior to your arrest here.

15You have a longstanding history of drug and alcohol abuse, beginning on alcohol between the ages of 12 to 14, cannabis at 12, moving onto amphetamines, heroin, methamphetamine.

16You are currently, whilst in custody, on an anti-psychotic drug called Seroquel and also an anti-depressant drug called Avanza.  The neuro psychologist conducted comprehensive testing in relation to your intellectual capacities.  It is set out in the report and I specifically refer to the conclusions set out on p.13. 

17Your pre-orbital level of general intellectual functioning was estimated to fall within the borderline range to the lower limits of low-average range.  It concluded that you are performing at a low level across most cognitive domains, including speed of information processing, mental arithmetic ability, et cetera, as set out at p.14 of the report.  At p.15, the conclusion is that your cognitive profile is consistent with ABI on a background of a low cognitive function, functioning at a level consistent with a mild intellectual disability with the possible minor impact or reduced (indistinct) on cognition.

18Mr Johnston submitted that I could look at a Verdins point in relation to paragraph 3, at p.16 of the report and I have referred to that in discussion during the course of the plea. It is my view that the medical report does not substantiate the first five, sections of Verdins.  He then goes to the other section of Verdins, the impact of your intellectual disability upon you whilst in custody.  I accept that that will have some impact on you, as the difficulties are set out in paragraph 4 of Dr O'Mara's report, at p.17.

19You have undertaken a number of courses whilst in custody, raising some prospects that you might actually begin to understand that you cannot continue with this.

20Mr Johnston submits that when you are released on parole, now that a diagnosis of a mild intellectual disability has been made for the first time, that will link you in with the relevant services which DHS will provide if you are referred to them by the parole authorities.  I can only urge them to do so and that you take advantage of it.

21I have taken into account all the submission made and matters referred to by both parties, including any not mentioned in these reasons. 

22I have taken into account s.5(1) of the Sentencing Act. I conclude under s.9(1) of the Sentencing Act because it is a series of offences of the same or similar character in that they are dishonest and a short time apart and impose an aggregate sentence under that section of the Sentencing Act.

23I have to look at what is called general deterrence, that is to try and send a message to stop other people doing this.  I do that. 

24I have to look at what is called specific deterrence, that is trying to get you to stop doing it.

25Given your prior history, that is also an important sentencing consideration.

26I have to express what is called the court's denunciation of your behaviour, that is what I think of it all.  You have probably gathered that, it is appalling behaviour.  You have got to just remember the people at the end of the gun.  They do not know it is a toy gun, it is just a frightening experience as set out in the victim impact statement.  So, remember, it is not just about you, it is about other people, it is the people you affect.  They do not just walk away from it.

27I also have to consider your prospects of rehabilitation.  I really do not know what to say about that.  As I said, you have had every possible sentencing disposition that you could have. 

28The neuro psychological report seems to take an explanation of your behaviour one step further in that you have a mild intellectual disability, and I take that into account.

29I can only suggest to you that you keep up not using drugs whilst in custody.  As I have said, I wish drugs were not available to people in custody, but clearly they are, and that does not help someone like you.  Because if you stay off the drugs there is the chance you might not re-offend. 

30I can only urge you when you are released on parole that you are linked into the services that your counsel has spoken about and that you take advantage of them, otherwise the next sentence will be even longer, but more importantly someone else will be affected by what you do.

31Taking into account all of those matters and doing the best I can to try and work out what to do with you and balance all the different sentencing considerations, I impose an aggregate sentence of five years.

32I sentence you to a non-parole period of three years.

33I declare that the 342 days that you have already served be reckoned to be a term of imprisonment served under the sentence I have just imposed.

34I declare that but for your plea of guilty under s.6AAA of the Sentencing Act, and if a jury had convicted you, I would have imposed a sentence of, I do not know, at the very least eight with six and probably more.

35Are there any other matters I need to look at.

36MR JOHNSTON:  No Your Honour.

37HIS HONOUR:  Mr Johnston, no.

38MR McHENRY:  No Your Honour.

39HIS HONOUR:  Would you take the prisoner out please.

40MR McHENRY:  If Your Honour pleases.

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