Director of Public Prosecutions v Kapitan

[2018] VCC 241

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR-17-01591
CR-18-00054

DIRECTOR OF PUBLIC PROSECUTIONS

v

PETER PASCUZZI
BURHAN KAPITAN

---

JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	20 February 2018
DATE OF SENTENCE:	28 February 2018
CASE MAY BE CITED AS:	DPP v Kapitan & Anor
MEDIUM NEUTRAL CITATION:	[2018] VCC 241

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	S. Bruhn	Office of Public Prosecutions
For Accused Burhan	N. Kaddeche	Emma Turnbull Lawyers
For Accused Pascuzzi	H. Cooper	Leanne Warren & Associates

HIS HONOUR:

1Burhan Kapitan and Peter Pascuzzi, you have each pleaded guilty to one charge of aggravated burglary, one charge of robbery and one charge of causing injury intentionally.  Those crimes carry maximum penalties of 25 years, 15 years and 10 years, respectively.

2You each pleaded guilty at a reasonably early opportunity and are aged 27 and 39, respectively.  Each of you could have contested these charges on the basis of identification but chose not to.  In my view that adds to the benefit for you of that plea of guilty.

3You have each displayed, to a degree at least, remorse and must of course get the utilitarian benefit of that plea.

4You, Mr Kapitan, have a very extensive criminal history with relevant priors.  You are now 27 years of age.

5You, Mr Pascuzzi, also have a significant criminal history, but you did not start offending until you were around 34.

6You, obviously, Mr Kapitan, are younger.  You have an intellectual disability and as indicated, you, Mr Pascuzzi, didn't start offending till your mid-30s. You also have Renzella time to be taken into account.

7You, Mr Kapitan, have now been in custody on this matter for 322 days.  You, Mr Pascuzzi, 240.  But as I have said, there is a period of Renzella time involved in all that.

8A summary of the offending is that you have a co-accused, who I will not have to deal with here because he has gone for trial.  The victim was a Mr Hassan Turtoud, his girlfriend at the time and a Mr Fayis Ismail.  The offending occurred in 21 Lennox Crescent in Bundoora, where he was apparently a second-hand dealer, who no longer deals from a shop.

9On 21 March 2017, at about 1 o'clock in the morning, he received a text message from an acquaintance, Alesia.  Alesia asked if he was home and she could come round.  He had known her for a couple of years, as she has purchased items from him.  He said she could come over.  She is an acquaintance of your co-accused, Mr Afram.

10About an hour later, at about 2 o'clock in the morning, he was watching TV with his girlfriend, heard a knock at the door and saw Afram and you, Mr Pascuzzi, at the door.  He went to answer it and then saw you, Mr Kapitan, in the background.  Asked what was wanted and Afram told him to, "Open the fucking door".

11The original Crown opening has mention of a firearm.  I do not sentence either of you to any way shape or form for that.  That may be a problem Mr Afram has but it certainly does not involve you two.

12In any event, he opened the door.  You, Mr Pascuzzi, went in with Afram and you, Mr Kapitan, about eight seconds later.  He was forced into the backroom where his girlfriend was sitting and you were standing nearby and Afram hit him and asked for money and keys to the car.  Turtoud fell to the ground, was kicked and punched whilst you two watched on.  You, Mr Pascuzzi, later kicked him and a gold necklace was ripped from his neck. That gives rise to robbery.

13He was yelling to Mr Fayis Ismail to call the police, which he ultimately did.  You, Mr Kapitan, went to the master bedroom, took a couple of shoulder bags containing cash and diamond rings, and you, Mr Pascuzzi, took a nail gun.  You then left the premises and ultimately were arrested.  And I have been through the benefit of the plea of guilty that you have made.

14The injuries to Mr Turtoud was a laceration and bruising to the back of his head, and pain and tenderness over his right temple region and right shoulder.  He afterwards had a meeting with Mr Afram - now, I do not think I need to go into that.

15You may well have been identifiable off the CCTV footage, which he had outside his house but I think I have gone through these matters.

16Aggravated burglary is obviously a serious crime, done, in terms of this matter, in a person's own home. There were at least three of you involved and you are not exactly small men.

17There is a victim impact statement from him, which describes what a frightening experience it was for him and I take that into account.

18I was shown a number of relevant cases and the results in those, it is always a difficult process.  But gaol obviously is the only sensible alternative in this situation and it is conceded by all that a combination sentence would not be sensibly within the range.

19I then look to matters personal to each of you.  You, Mr Kapitan, 27 years of age.  You come from a stable family.  You were registered as intellectually disabled in 2006.  You worked but were incarcerated in 2012.  Whilst you have been incarcerated you have been held for a large period of time in the Fishburn part of the gaol, which usually involves people with intellectual disabilities.

20You commenced substance abuse, when you were very young.  Cannabis at 13, ice at around about 16.  I have read the eligibility report of you and to those intellectual disabilities concerned, and I have also read the report of Mr McKinnon, the psychologist.

21It is in this situation, I think, not necessary for me to go into great detail.  You obviously had a very difficult childhood and there is a DHS report that said that you basically could not sit still with other children and were in strife, being expelled from schools and generally doing it hard.  As I have indicated, you do have an extensive criminal history which goes back a number of years and you are still on 27.

22I take into account that your parents are not well and you will still have more gaol to do.  You have put on a significant amount of weight since you have been in gaol.  You have indicated that you wish to work and I think that in all those circumstances I should take the view that you have reasonable prospects of rehabilitation.

23Mr McKinnon went through your history in some detail and he points out that you were in special school in Year 10, that you had pins inserted when you were around about 11 years of age and from that time on, already suffering from poor self-esteem and personal confidence, you were assaulted in a manner which I do not need to go into here and that obviously would not have helped you in your upbringing.

24He did say,

"Mr Kapitan appears to be vulnerable in relapsing into substance abuse (when he's eventually released from prison.)  Here he also presents as being genuinely keen to engage in formal treatment in the wider community and such treatment is likely to significantly reduce his risk of relapse.  Mr Kapitan conceded that he had been given opportunities to engage in treatment and supervision in the community and has squandered such opportunities.  In my opinion, whilst Mr Kapitan's criminal history does not indicate he has developed some criminal tendencies as a consequence of his immersion in peer groups where substance abuse and criminality are common, he does not appear to possess an entirely antisocial or criminal disposition.  He appeared genuinely concerned, in regard to his victims, and the problems that he's caused his own family".

25So of you, Mr Kapitan, it is an extensive history.  The prospects of your rehabilitation are really up to you and the parole board, I think.  The risk of you reoffending will depend upon non-use of drugs and receiving proper supervision and treatment.

26I take into account, as I have said, as and the other matters that were put on your behalf.

27You, Mr Pascuzzi, are older by some years and I have indicated your offending did not start till much later in life.

28I have a report from Dr Aaron Cunningham, which I have read, insofar as you are concerned.  The fact that you did not offend until you were 34 gives me confidence in your capacity to rehabilitate.  If you rehabilitate there is no reason why you should offend.

29The summary that is put in the report of Dr Cunningham is basically that you left your family home from the age of around 24, the marriage ended three or four years ago.  You have two children and they are very important to you, one child has (mild autism.)  The relationship with the mother remains friendly, which is good, even though you are separated.  Your father passed away approximately five years ago, which is the period of time when your offending really began.

30I accept his view that you continue to have unresolved grief and loss issues and that's resulted in drug use.  You have always had, up until recent times, a good work record and it is really only in this last few years that your drug habits have caused you to be unable to maintain the employment that you had previously.

31You had used cannabis from 15 and your drug abuse escalated from there.  You have done a detox program at one stage and you abstained from substance abuse for nearly a year at another stage.  So it is clear that is when your father's death was when you relapsed very significantly.

32You stated to Dr Cunningham, and I accept, that your drug use broke your family apart and that your recklessness and drug abuse you see as punishing yourself, as you cannot forgive yourself for the harm you have caused your children.

33It is really up to you.  He said:

"Mr Pascuzzi presents with protective factors that may reduce his risk and support rehabilitation.  He is motivated to abstain from drugs, does not displace blame for his current situation, he was aware of the risk factors, he was motivated to engage with support with his drug use and grief, he has previously been successful in employment and is motivated to return to work".

34All those matters give me some confidence in your prospects.  For both of you the offending has to be regarded as series.  Obviously calls for the application of general and specific deterrence, as well as an appropriate punishment.

35You are both going to have to remain abstinent from drugs.  You, Mr Pascuzzi, have done well in gaol.  As I understand it you are a peer listener, at Marngoneet and that is a responsible position.

36Each of you is expressing a determination and all I can really do is give you an opportunity for parole.  I can do no more than that to enable you to try and continue that.

37In any event, taking all the matters into account, you, Mr Kapitan, Charge 1,
24 months; Charge 2, 21 months; and Charge 3, 6 months.

38I direct that three months of the sentence on Charge 2, two months of the sentence on Charge 3 are served cumulatively upon each and upon the sentence imposed on Charge 1.  That gives an effective total sentence of
29 months.

39I direct that you serve a minimum term of 18 months before becoming eligible for parole.  I direct that 322 days be reckoned as having been served under this sentence, and pursuant to s.6AAA, I say that but for your plea of guilty you would have been sentenced to be imprisoned for a period of 43 months, with a minimum term of 28.

40Even though you are different ages, with different histories, it seems to me that the factors all really balance out in the end and I can see no reason why I should not give you each the same sentence.

41You, Mr Pascuzzi, on Charge 1, 24 months; Charge 2, 21 months; Charge 3,
6 months.

42I direct that three months of the sentence on Charge 2, two months of the sentence on Charge 3 be served cumulatively upon each other and on the sentence on Charge 1.  That gives a total effective sentence of 29 months.

43I direct that you serve a minimum term of 18 months before becoming eligible for parole and I direct that 240 days be reckoned as having been served under this sentence.

44As with Mr Kapitan, I say that pursuant to s.6AAA, but for your plea of guilty, in respect to these matters, you would have be sentenced to be imprisoned for a period of 43 months, with a minimum term of 28 months.

45Are there any other orders I have to make?

46COUNSEL:  No, Your Honour.

47HIS HONOUR:  That's that.  Sorry, I can't hear you, that's it?

48COUNSEL:  Sorry, I beg your pardon.  No, Your Honour.

49HIS HONOUR:  All right.

50COUNSEL:  No further orders.

51HIS HONOUR:  All right, thanks for that.  I'll leave the Bench and if anyone wants to talk to their - can they see their clients?

52TIPSTAFF:  Yeah, I think they can.

53ASSOCIATE:  One client's in there anyway.  One client's in the dock.

54HIS HONOUR:  Yes, all right.  I'll just adjourn it then.  Yes, (indistinct words.)

55TIPSTAFF:  We can hang up individually anyway, Your Honour.

56HIS HONOUR:  All right, well, I'll just leave the Bench.

‑ ‑ ‑