Director of Public Prosecutions v Macri
[2022] VCC 44
•27 January 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-21-01375
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MASSIMILIANO MACRI |
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JUDGE: | HER HONOUR JUDGE CHAMBERS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 December 2021 | |
DATE OF SENTENCE: | 27 January 2022 | |
CASE MAY BE CITED AS: | DPP v Macri | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 44 | |
REASONS FOR SENTENCE
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Subject:Criminal law - Sentence
Catchwords: Plea of guilty – aggravated burglary, robbery and possess a drug of dependence – no prior criminal history – application of Renzella principles – previous good character – excellent prospects of rehabilitation – general deterrence and community protection meet by imposition of lengthy community correction order
Legislation Cited: Crimes Act 1958; Sentencing Act 1991
Cases Cited:Boulton [2014] VSCA 342; Verdins [2007] VSCA 102; Renzella [1997] 2 VR 88
Sentence: Two-year community correction order with conviction
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P. Teo | Office of Public Prosecutions Victoria |
| Mr T. Crouch (For Sentence) | ||
| For the Accused | Mr J. Portelli (For Plea and Sentence) | James Dowsley & Associates |
HER HONOUR:
1Massimiliano Macri, on 15 December 2021, following a sentencing indication given by me,[1] you pleaded guilty to one charge of aggravated burglary contrary to s77 of the Crimes Act 1958 (‘the Act’) the maximum penalty for which is 25 years' imprisonment (Charge 1); one charge of robbery contrary to s75 of the Act, the maximum penalty for which is 15 years' imprisonment (Charge 2); and one charge of possession of a drug of dependence, namely methylamphetamine, contrary to s73 of the Drugs, Poisons and Controlled Substances Act 1981, the maximum penalty for which, in this case,[2] is one year's imprisonment (Charge 3).
[1]Sentence indication hearing conducted on 26 November 2021
[2]It is accepted by the prosecution that the offence was not committed for any purpose related to trafficking in that drug; s73 Drugs, Poisons and Controlled Substances Act 1981.
2You were born on 10 September 1979 and at the time of this offending, in July 2019, you were 39 years old. You had no prior criminal history.
3I turn now to the circumstances of the offending.
Circumstances of the offending
4The prosecution opening, accepted as accurate by your counsel, was tendered in your plea and is the agreed basis upon which you are to be sentenced.
5The victim of your offending is Sharon Johnson, who was 47 years of age at the time. She was not known to you prior to the date of the offence.
6On 6 July 2019, Ms Johnson visited the Gladstone Park Hotel to play the pokies at approximately 3 pm. You are captured on CCTV footage in the smoker's area of the hotel standing near Ms Johnson at approximately 7.33 pm. Later that evening, at 9.15 pm, Ms Johnson won the sum of $1,300 while playing the pokies and cashed her winnings. She left the hotel shortly thereafter.
7CCTV footage from the hotel car park and elsewhere captures you enter your vehicle, a dark-coloured SUV, and follow her home. At around 9.50 pm, Ms Johnson heard someone knock on her door. She opened the door slightly and saw you standing there. She heard you mumble something about the neighbours and, because she was not entirely sure what you had said, unlatched the door. At that point, you pulled the door open and entered her home. This conduct is the subject of charge 1 - aggravated burglary with intent to steal.
8As you pushed your way inside the house, you pushed Ms Johnson to the ground. She fell back into a cupboard door, causing bruising to her left shoulder and forearm. Ms Johnson was screaming, 'No, no, no', as she was unsure what you planned to do inside the house. You walked over her and into the kitchen where you took her handbag containing the $1,300 in winnings, a purse containing two Commonwealth Bank credit cards, $50 in cash, a Samsung Galaxy mobile phone and a pair of sunglasses. This conduct is the subject of charge 2 - robbery.
9As you went to leave the house, Ms Johnson grabbed you by the shirt and a struggle ensued during which your shoe fell off. You then managed to pull away and fled the house. Ms Johnson then ran to her neighbour's house to call the police.
10When police attended, Ms Johnson told them the male resembled a male she had seen at the Gladstone Park Hotel but was wearing a blue jumper at the time. The police also located a blue jumper on the front nature strip near Ms Johnson's units.
11After DNA analysis was undertaken, police executed a search warrant at your home one year later, on 10 July 2020. During the search, police seized clothing and located two small Ziploc bags containing methylamphetamine and a glass pipe. This is the subject of Charge 3, possessing a drug of dependence.
12The DNA analysis conducted of the shoe and blue jumper seized by police at Ms Johnson's house forensically linked you to the offending, with it being 100 billion times more likely if you were the contributor to the DNA found on those items.
13When you were interviewed by police, you denied any involvement in the offending on 6 July 2019. You said you had been attending the Gladstone Park Hotel for 15 years but denied following the victim or attending her home. You said you had never assaulted or injured a woman in your life. You told police that the methylamphetamine found at your home on 10 July 2020 belonged to a friend.
14I turn now to the offence gravity and the impact on the victim.
Offence gravity and victim impact
15The seriousness with which the community views the offence of aggravated burglary is reflected in the maximum penalty of 25 years' imprisonment prescribed by Parliament. In this case, Ms Johnson was entitled to the sanctity and safety of her home. Having witnessed her cash in her winnings, you had followed her in your car and infringed the security of her home by entering, with a degree of force, in order to steal those winnings.
16After pushing the victim to the ground, you proceeded to steal her winnings and the other items found in her handbag. I reject the submission that this was wholly opportunistic or situational offending. To the contrary, you followed the victim home and, to some extent, deceived her into opening the door to her home. Whilst not sophisticated offending, there was a degree of premeditation and planning in your offending.
17I accept the submission made on your behalf that the incident was relatively short-lived and was not aggravated by being in company with others or by the use of other overt threats or acts of violence, beyond pushing the victim to the ground. You were not armed. Whilst this could not be described as a low-level example of an aggravated burglary, nor is it the worst example of this offence. Nonetheless, it was a particularly frightening experience for the victim.
18Ms Johnson's victim impact statement was read aloud during your plea hearing. Her statement tells of the ongoing impact your offending has had on her life. Ms Johnson no longer feels safe in the unit she had rented for over 20 years. She lives on her own and now fears leaving the house. She rarely goes out on her own anymore. She suffers from anxiety and feelings of vulnerability, particularly at night. Ms Johnson says she required medication for anxiety for the first six months following the incident. I have taken the impact of your offending on Ms Johnson into account in sentencing you.
Personal circumstances
19I turn now to discuss your personal circumstances.
20You were born and raised in Italy and enjoyed an happy and uneventful childhood. You had a close relationship with both parents. Your father's death in 2015 was a significant loss for you. You have a supportive relationship with your older and younger brothers. In Italy, you completed your secondary schooling to a Year 12 equivalent and then worked as a waiter in hospitality for two years.
21At the age of 20, you left Italy to pursue work in Spain and later lived and worked in Monaco, Russia and Denmark before immigrating to Australia in 2004 where you have lived ever since. You had a significant relationship with a woman between 2004 and December 2019 but are now single. You have no children and currently reside with a friend. You no longer have any contact with your former partner.
22You have a strong work history. In 2004, you enrolled in a two-year hairdressing course, which you successfully completed while you worked in your partner's hairdressing salon. You then returned to hospitality and worked in this industry from 2006 whilst also assisting your partner in her cleaning business from 2013. You were last employed in March 2020 as a restaurant manager. More recently, however, you have been unable to secure work and have been in receipt of Centrelink benefits.
23As stated you have no prior criminal history. You also have no subsequent or pending matters. However, relevant to the sentence I am to impose, between 17 September 2020 and 23 February 2021 you were remanded in custody on unrelated charges. You were subsequently granted bail and ultimately, you were discharged on all charges following a committal hearing. This period of 160 days is not available to you as pre-sentence detention pursuant to s18 of the Sentencing Act 1991. However, the law enables me to take this period into account in a broad manner and to reduce the sentence by an amount I consider appropriate in exercising my sentencing discretion based on the authority of Renzella.[3]
[3]R v Renzella [1997] 2 VR 88, at pp 96-97 (Renzella)
24In exercising this discretion, I have had regard to the circumstances in which you served this period on remand for the unrelated charges. Significantly, your time on remand ran in parallel to the custodial restrictions imposed to respond to the COVID-19 pandemic. This included periods in isolation or lockdown to act as a form of quarantine. Additionally, face-to-face contacts with family and friends could not occur, a circumstance that was particularly difficult for you, experiencing your first time in custody.
25For the purposes of the plea you were assessed by psychologist Ms Sandra Cokorilo and her report dated 10 September 2021 was tendered. Ms Cokorilo states you never experienced any mental health problems prior to being remanded. You told Ms Cokorilo that you found the experience of custody traumatic. In your plea hearing, your counsel states you witnessed a stabbing. Ms Cokorilo states you 'described symptoms of severe depression, anxiety and posttraumatic stress' arising from your time in custody but that your mental health has improved significantly following your release. Based on her testing, Ms Cokorilo assessed you as currently experiencing moderate symptoms of PTSD, depression and anxiety, although no formal diagnosis was made.
26As to the impact of custody on your mental health, Ms Cokorilo states:
'There is concern that additional imprisonment may cause a decompensation of his mental state. Further, he has not sought psychological counselling to address his trauma arising from [his] previous custodial experience, and remains highly avoidant. It seems fair to opine that a further period of remand would cause re-triggering of past trauma and severe deterioration in his already compromised and fragile mental state'.
Sentencing submissions
27In written submissions that were expanded upon at the plea hearing both counsel highlighted a number of matters they submit should be given weight in the sentence I impose.
28First and foremost, by your plea you acknowledge your responsibility for this offending. Your plea, although not at the earliest opportunity, has spared the victim Ms Johnson, and the community, the burden of a trial and has utilitarian value. The benefit of your plea is particularly heightened against the background of trial delays occasioned by the COVID-19 pandemic. I have taken your plea into account in your favour in mitigation of sentence. During your assessment interview with Corrections, you continued to deny your involvement in the offending but did not reconcile from your guilty plea. In the circumstances, I am unable to determine your plea is accompanied by genuine remorse for your conduct.
29Mr Portelli, who appeared on your behalf, emphasised that you have remained offence-free since the offending in July 2019, a period in excess of two years. Combined with the absence of any prior criminal history, he submits this delay has been an opportunity for you to demonstrate your excellent prospects of rehabilitation. I accept that submission. In this light, I accept that your offending in July 2019 can fairly be characterised as an aberration and out of character. In making this assessment, of course, it is concerning that your only instance of offending was such a serious one.
30Your counsel submitted that one of the principles enunciated by the Court of Appeal in Verdins [2007] VSCA 102 was engaged in your case, namely that there is a risk that, if imprisoned again, your mental health condition would deteriorate. I accept that submission based on the opinion given by Ms Cokorilo. I further accept that the need for the sentence to operate as a specific deterrent to you has largely been addressed by your previous experience of custody. This is evidenced, in part, by an absence of any subsequent offending over in excess of two years.
31I accept the prosecution submission that the predominant sentencing considerations in this case are general deterrence, just punishment and denunciation. In sentencing you I must deter others who may be minded to invade the sanctity of another's home to steal from them. As the decision of the Court of Appeal in Boulton[4] highlighted, a community correction order is a punitive order and in appropriate cases may be suitable for even relatively serious offences which might previously have attracted a sentence of imprisonment. I consider this to be such a case, particularly having regard to your previous period on remand on unrelated charges in onerous circumstances and my application of the Renzella discretion.
[4]Boulton [2014] VSCA 342
32You were assessed for a community correction order and have been found suitable. As part of that assessment, a separate report was prepared by Forensicare, which found no basis for a mental health condition to be imposed. This is consistent with Ms Cokorilo's finding that, following your release from custody, your mental health 'significantly improved'. The Corrections assessment did, however, recommend assessment for drug and alcohol treatment, an assessment I agree with. You were assessed as a low risk of future offending and accordingly supervision was not recommended. Accordingly, I have not imposed supervision as a condition of your order.
33Taking each of these matters into account, in addition to the maximum penalty imposed for each offence, I sentence you with conviction to a two-year community correction order on Charges 1 and 2. It is a condition of the community correction order that you complete 180 hours of unpaid community work and be assessed for both drug and alcohol treatment. If such treatment is recommended, you must comply with all lawful directions to engage in treatment and counselling.
34In addition to the conditions I have imposed there are standard conditions. First and foremost, you must not commit any other offences punishable by imprisonment during the two-year order. You must report within two working days of your release to the Broadmeadows community correction office. You are required to advise your supervising corrections officer of any change of address where you are living and working and you must do so within two clear working days. It is a term of all community correction orders that you must submit to visits as directed and you must obey all instructions and directions of your corrections officer. You are not able to leave the State of Victoria without prior permission of your supervising corrections officer.
35You should be aware that the order can be breached if you do not comply with either the conditions of the order or if you further offend while it is in place. If you do, you would have to return before me for breaching the order I have imposed this day. You may have to resentenced on the charges and I may have to sentence you for breaching the order.
36In relation to Charge 3, the charge of possession of a drug of dependence, you are fined, without conviction, in the sum of $800.00.
37Pursuant to s 6AAA of the Sentencing Act 1991, I declare that had you not pleaded guilty to these offences but been found guilty following a trial I would otherwise have imposed a sentence of 10 months' imprisonment followed by a two-year community correction order.
38Finally, I make the disposal order sought by the prosecution, noting it is not opposed.
39Mr Macri, can you confirm that you consent to the making of the community correction order. Yes, thank you, that will be noted on the terms of the order.
40Do counsel have any questions?
41MR CROUCH: Not from me, Your Honour.
42MR PORTELLI: No, Your Honour.
43HER HONOUR: All right. Thank you for your attendance. Ms Johnson, thank you also for your attendance at court today.
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