Director of Public Prosecutions v Mammoliti
[2019] VCC 47
•1 February 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-01853
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JASON MAMMOLITI |
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JUDGE: | HER HONOUR JUDGE DAVIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 January 2019 | |
DATE OF SENTENCE: | 1 February 2019 | |
CASE MAY BE CITED AS: | DPP v Mammoliti | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 47 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Aggravated Carjacking – drive while disqualified – failing to report accident to police – substantial criminal record – reduced intellectual capacity – whether “special reason” to justify displacing of mandatory non-parole period – no “special reason”
Legislation Cited: Road Safety Act 1986 (Vic); Sentencing Act 1991 (Vic)
Cases Cited:Bugmy v The Queen (2013) CLR 571; DPP v Hudgson [2016] VSCA 254; R v Verdins (2007) 16 VR 269
Sentence: Imprisonment for a period of 6 years with a non-parole period of 4 years
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J Manning (Plea) Ms K Thomson (Sentence) | Office of Public Prosecutions |
| For the Accused | Ms E Byrt | Papa Hughes Lawyers |
HER HONOUR:
1 Jason Mammoliti, you have pleaded guilty to one charge of aggravated carjacking which carries a maximum penalty of 25 years’ imprisonment. As aggravated carjacking is a category 1 offence, s 5(2G) of the Sentencing Act1991 (‘the Act’) requires the Court to make an order for imprisonment on this charge. Pursuant to s10AD of the Act, the Court must also impose a non-parole period of not less than 3 years unless the Court finds under s10A that a “special reason” exists. In addition, upon conviction for Charge 1, pursuant to s 89(4)(c) and (5) of the Act, because you do not hold a driver’s license the court must disqualify you from obtaining a licence for such period as the court specifies. If no period is specified in the order, the period is 3 months.
2 You have also consented to the uplifting of two summary charges flowing from related conduct on the day of the carjacking, and pleaded guilty to those offences. The first of the uplifted summary charges, Charge 5, is a charge of driving whilst disqualified, and, because you have a prior conviction for this offence, the maximum penalty is one of 240 units or 2 years’ imprisonment.[1] The second uplifted summary charge, Charge 6, is a charge of failing to report an accident to police. The relevant maximum penalty is that of 10 penalty units or imprisonment for a term not less than 14 days and not more than one month.[2]
[1]Section 30(1) of the Road Safety Act 1986 (Vic)
[2]Section 61(1)(5) of the Road Safety Act 1986 (Vic)
Circumstances of the offending
3 The prosecution tendered a Summary of Prosecution Opening which you have accepted and which sets out the circumstances of your offending and I sentence you on the basis of the facts set out in that document. I refer to them briefly.
4 At the time of offending, you were 39 years of age, homeless and unemployed. You had been disqualified from obtaining a driver’s licence. You were also the subject of a Community Correction Order.
5 Just before midday on Saturday 2 June 2018, your victim, Brian Ritchie, who was 84 years old, drove his Toyota Camry to the Brimbank Central Shopping Centre. A few minutes later, you were captured on CCTV at a nearby service station, looking into an empty vehicle with an open door which was at a bowser. You closed the door before walking to the shopping centre’s carpark. There, Mr Ritchie, unable to find a parking spot, had pulled over near Red Rooster, and was using his phone to contact his wife. You approached his car, opened the driver’s side door, leaned into the car, released his seatbelt, grabbed him by the arm and dragged him out of his car and onto the road. He fell to the ground, dropping his phone and losing a hearing aid. You got into his car, and drove away, leaving him lying in the middle of the road. The episode lasted 17 seconds. Mr Ritchie was on the ground for two minutes before receiving assistance from a passer-by who called emergency services.
6 Mr Ritchie saw his doctor later that day and again on 4 June 2018. As a result of your offending, he suffered bleeding to the finger, a scratch to his right ear, bruising to the right arm and swelling and abrasions to both elbows and both knees. He was prescribed an antibiotic. This conduct is the subject of Charge 1: Aggravated carjacking.
7 You continued driving the Camry for about 45 minutes before crashing it in Sunshine, causing extensive damage to the car. This conduct is the subject of uplifted summary Charge 5, driving while disqualified. You fled on foot and failed to notice police of the accident or the damage caused. This conduct is the subject of uplifted Charge 6, failing to report to police. On 19 June 2018, police surveilled ATMs on the Sunshine West shopping strip, and stopped you. You gave a false name and refused to provide the bank card you had just used. You were arrested and cautioned. You were later interviewed and provided a ‘no comment’ response to all allegations.
8
You have been remanded in custody since your arrest on 19 June 2018 and, as at, but excluding today’s date, you have served 227 days of pre-sentence detention. You pleaded guilty at the first committal case conference on
11 September 2018.
9 The prosecution sought a disposal order for your shoes, to which you have consented.
Criminal record
10 Your criminal record was tendered. It is an extensive record, dominated by offences of dishonesty, drug possession, driving offences, burglary and criminal damage. In terms of violent offending, you were fined without conviction in 1997 for intentionally or reckless cause injury. You have subsequent convictions for recklessly cause injury in 1999, 2001, 2003 and 2009. In mid-2017, you were convicted of aggravated burglary and unlawful assault (among other offences).
Victim Impact statements
11 Mr Brian Ritchie and his wife, Barbara Ritchie, made Victim Impact Statements and these were tendered[3] and read aloud in court at their request.
[3]Exhibits 4 and 5.
12 In his Victim Impact Statement, Mr Ritchie states that due to his age and the suddenness of your movement, he was unable to resist being pulled from his car onto the road. He felt shocked and powerless. As he lay on the road his head was less than 15 centimetres from the rear tyre of the car as it began to move. He was distressed to learn from police when they attended the scene that his car had been seriously damaged in a crash. As a result of the carjacking, he suffered the injuries referred to at paragraph 6 above. Since your offending, he has become much more cautious when leaving home, making sure to lock his car doors and checking his surroundings before leaving his car. He has sought some counselling.
13 In her Victim Impact Statement, Mrs Ritchie states that her husband was highly traumatised by your offending, as well as suffering multiple lacerations, damage to his clothing and personal effects. Mrs Ritchie states that she is now very vigilant about locking car doors, avoids parking in quiet places, and checks her surroundings before leaving her car. She tries to park close to the entrance of shopping centres. She worries about her husband, who she says is not the same man since the carjacking.
Personal Circumstances
14 Your counsel tendered three psychological reports: a neuropsychological report by Dr Nerissa Cordy dated 2 September 2016[4]; a neuropsychological report by Leanne Kennedy dated 26 December 2018[5]; and a psychological assessment and report dated 7 January 2019 by Alice Crole[6]. These reports contain details of your background and personal circumstances and I will summarise them briefly. Your counsel also tendered two letters from your partner, Amanda Ficarra,[7] as well as a letter from Harpers Electrical and Data dated 14 January 2019[8] which indicates that upon your release from prison there is a job available for you in Queensland as a warehouse assistant.
[4]Exhibit E.
[5]Exhibit F.
[6]Exhibit B.
[7]Exhibit C.
[8]Exhibit D.
15 You were born in Melbourne to Italian parents. From the age of two, you started living with your grandparents because of physical abuse you suffered largely at the hands of your father. He would hit you, tie you up, and lock you out of the house. You lived with your grandparents for substantial periods of your early primary school years and were close to them. You felt loved by them. They enforced reasonable boundaries and never abused you. You were diagnosed with Attention Deficit Hyperactivity Disorder (‘ADHD’) and took dexamphetamine between the ages of 6 and 10 years. You were also diagnosed with depression, anxiety and paranoid thinking at an early age. You retaliated physically against your father’s abuse when you were 13 years old and the abuse stopped, although your mother treated your sisters as your father had treated you. You were expelled from school in Year 9 but went on to complete Years 9 and 10 at various other schools before settling at Niddrie Technical School where you completed Year 12. You had heart valve surgery in 1990. Your grandmother died in 1990 and your grandfather died in 1996. Your life went downhill after he died and you engaged in heavy substance abuse to relieve your anxiety and to make your problems ”go away”. You then began a cycle of offending. You started smoking and drinking at the age of 14, smoking cannabis at the age of 15, and using other drugs (including speed, heroin, ecstasy, valium, benzodiazepines and barbiturates) from the age of 17. You have overdosed 14 times during your twenties, and were hospitalized each time.
16 After leaving school you worked in upholstery for two to three years, and then attempted a carpentry apprenticeship, which you abandoned after 3 months due to substance abuse. You worked as a concreter between 2011 and 2013.
17 You have been living on the street for most of your life since leaving school, apart from periods when you were in prison (which was for significant periods between 2000 and 2010) and apart from a five year period between 2010 and 2015 when you lived with your partner, Amanda Ficarra. You have not had any family contact since 2010. Whilst in prison in 2017 and also upon your release, you had counselling with a forensic psychologist, Dr Suzanne Vidler, in relation to your issues with anger, drugs and relationships.
18 In her letters to the Court, Ms Ficarra describes your five year relationship together as a happy one, which ended when she took up a job opportunity in Queensland in 2010 but you did not follow her. She states that when you lived together you were caring, honest, hardworking and decent, and that you led normal lives together, without any drug use by you, living at her father’s house. She is very supportive of you, calling you every day. She indicates that you plan to move to Queensland to live with her after you are released and that you have a full-time job waiting for you there. Your counsel said that she calls you up to five times per day.
19 In 2015, when Ms Ficarra left Victoria, you were again homeless, drug-affected and began offending again. You were stabbed by a stranger and suffered a ruptured spleen, which had to be removed. In 2016, you fell off your bike and fractured your clavicle but did not seek medical advice because you feared being unable to pay any associated bills. As a result of the untreated fracture, you contracted septicaemia and encephalitis. You were in hospital and in-patient rehabilitation for several months. As a result of that attack, you lost confidence and became more mistrustful of others, fearing that others are out to get you. You reported to Dr Cordy that your memory difficulties had worsened since your septic illness.
20 In relation to your current offending, you told Ms Crole and Ms Kennedy that, at the time of offending, you were on ecstasy, suffering from drug withdrawal and in need of more drugs. You told Ms Crole that you felt guilty for hurting Mr Ritchie and that you keep asking yourself why you did what you did to him. You told Ms Crole that you would not allow it to happen again. You also expressed regret for your actions to both Ms Crole and Ms Kennedy.
21 Dr Cordy diagnosed you as having a background of low average intellectual abilities, reduced high-level attention, slowed processing speed and executive dysfunction, which in combination affected the efficiency of your new learning and memory skills.
22 Ms Kennedy found that on testing you have a borderline impaired level of overall intellectual ability. She noted that this represented a deterioration in your intellectual ability since the assessment of Dr Cordy, which may be accounted for by your experience of septic shock. Ms Kennedy stated that your impairments of processing speed, planning, organization and perseveration, would have been present at the time of offending. However, you told her you were drug-affected at the time and in withdrawal from heroin, feeling as though you needed to escape. For this reason she considered it likely that your mental state, that is, being under the influence of substance abuse and withdrawal from heroin, contributed to the commission of the offence.[9] Given your impaired mental functioning, she opined that the deterrent effect of punishment has less impact on you than on the general population. She noted that because you showed difficulties on testing in changing your behaviour in response to the environment and became, in her words “stuck in a way of responding”, this “might result in difficulties in the prison environment”.[10] She did not specify what any of those difficulties might be.
[9]Exhibit F, 10
[10]Exhibit F, 10
23 Ms Kennedy opined that you require intense rehabilitation to address your substance abuse, in the context of stable accommodation and income, appropriate medication, regular meals and purposeful activities.
24 Ms Crole diagnosed you as suffering from Post-Traumatic Stress Disorder (‘PTSD’) in relation to the stabbing incident in 2015. She also considered that you have an antisocial personality disorder, although she noted that you expressed remorse for your current offending against Mr Ritchie, and accepted responsibility for your actions. Further, she considered that you suffer from ADHD, methamphetamine and heroin use disorders (both in sustained remission in a controlled environment). She concluded that your PTSD was unlikely to have contributed to your recent offending, but that the relevant contributing factors were your cognitive limitations, substance abuse/withdrawal, and presence of antisocial personality disorder.
25 Ms Crole identified your risk factors as including: long history of offending with terms of imprisonment; long-term intravenous polysubstance abuse; antisocial personality disorder, and executive dysfunction that may render you more impulsive, mistrustful of others, and unstable across housing, vocational and financial domains. She considered that you need rigorous supports to address these factors. However, she noted that your protective factors include your acceptance of full responsibility for your actions, your long-term relationship with Ms Ficarra, detoxification from drugs of dependence in custody, and desire to re-engage with your former therapist, Dr Vidler. She noted that you are not currently medicated for your ADHD and that this should be reviewed by a GP specialising in ADHD or a psychiatrist. I propose to make a note to that effect on any orders that I make today. She recommended that your receive counselling, ideally from Dr Vidler, in relation to your PTSD symptoms. She expressed no opinion in relation to the impact of incarceration on your psychological state.
Plea submissions
26 Your counsel made submissions which can be briefly summarised as follows. The objective seriousness of the offending is acknowledged, and it is accepted that the victim was left with injuries as well as being traumatised by the incident. However, the offence was not premeditated or sophisticated, did not involve attempts to disguise yourself, occurred as a panicked response to a belief that you needed to escape from where you were, and took place over a very short period of time.
27 In mitigation, your counsel relied on a number of matters. First, that your deprived background ought to be given some weight.[11] Second, that whilst in prison you have been making good use of your time, working as a gardener billet and taking courses in drug and alcohol, and in managing stress. Third, that you have continued daily contact with your partner and her support in your plans to move, once released, to live with her in Queensland. Fourth, you have a job available to you there with an electrical and data company. Fifth, your very early plea of guilty and your expression of remorse to Ms Crole and to Ms Kennedy. Sixth, there ought to be some application of Verdins[12] principles 5 and 6 given that you suffer from PTSD and because of this a custodial sentence may weigh more heavily upon you than on a person without this condition. You may also have difficulties in prison flowing from your limited intellectual functioning.
[11]Bugmy v The Queen (2013) CLR 571 (‘Bugmy’).
[12]R v Verdins (2007) 16 VR 269 (‘Verdins’).
28 Finally, it was submitted that it is open to the court to find, pursuant to s 10A(2)(c)(ii) of the Act that you have impaired mental functioning – due to the mental illness of PTSD – that would result in you being subject to significantly more than the ordinary burden or risks of imprisonment. It was submitted that this constitutes a ‘special reason’ permitting the imposition of a non-parole period of less than three years.
Prosecution submissions
29 The prosecution conceded that your offending was opportunistic, involved no disguise, and took only a matter of seconds. It was conceded that you pleaded guilty at the earliest opportunity and that you have expressed remorse. However, it was noted that the offending was brazen, committed in daylight in a shopping centre carpark against an elderly man who was left lying on the road alone for two minutes before being assisted by passers-by; that after offending you drove for 45 minutes, crashed the car, left the scene, disappeared for three weeks and then gave a false statement to police. In addition, the prosecution submitted that you were well cared for by your grandparents, and did not start offending until 1996, and so the level of deprivation relied on does not reach a level which attracts the principles set out in the case of Bugmy.[13] Even if the court finds a reduced level of moral culpability flows from your upbringing, it was submitted that there is still a very high need to protect the community from your behaviour. It was submitted that your prospects of rehabilitation are only guarded.
[13]Bugmy at [43]-[44].
30 It was also submitted that, in the light of the experts' reports, neither Verdins principles (limbs 5 or 6) nor s 10A have any application. It was submitted that you have been on remand for 6 months and your mood has been assessed as good and as not attracting any diagnosis of anxiety or depressive disorder. There was no expert opinion to the effect that, in terms of your PTSD, the burden of imprisonment had worsened for you in that period or would worsen in future. On the contrary, it was noted by Ms Kennedy that you would benefit from regular meals, medication and a structured regime. It was noted that you have been using your time in custody well and have the support of your partner.
Analysis and conclusion
31 It is clear from the maximum available sentence and the requirement, absent any “special reason”, to impose a minimum non-parole period of three years, that Parliament regards the offence of aggravated carjacking as a very serious offence, in which the principal sentencing considerations are those of denunciation, just punishment, specific and general deterrence and protection of the community. I must also take into account your personal circumstances and your prospects of rehabilitation.
32 The offence you committed is a serious example of this type of offence as it was committed while you were subject to a Community Correction Order. You acted brazenly in broad daylight in a shopping centre carpark against an 84 year old man sitting in his idling car, who was dragged from his car in a matter of seconds and dumped on the road, suffering bruising and lacerations. Elderly drivers are particularly vulnerable and must be protected against offending of this kind. Fortunately, there were no weapons involved, no threats made, and no other violence involved. Your victim was shocked and terrified by the incident and his wife was shocked and upset by the incident. Since then, they are very cautious about locking the car they are in and always look around them before getting in and out of the car. His wife says that the victim is a changed man since the incident. She worries about him when he goes out.
33 Your offending must also be seen in the context of a substantial criminal record. While your relevant prior matters for assault or recklessly cause injury date back to 2009 and then 2007, 2003, 2001, 1999 and 1997, you have recent prior convictions (2017) for aggravated burglary and theft.
34 However, there are a number of significant mitigating factors affecting the determination of an appropriate sentence. First, your very early plea of guilty had the utilitarian effect of saving the Court the time and cost of a trial, saved the need for the victim to give evidence at a trial and to have to relive the circumstances of the offending in a public forum. I accept that your plea of guilty is some evidence of remorse. I also accept that you have made expressions of remorse to Ms Crole and to Ms Kennedy.
35 Second, you suffered a deprived childhood. As a very young boy, you were badly physically abused by your father, as detailed above at paragraph 15, to the point where you were sent to live with your grandparents for a number of years. You returned to live with your parents and sisters in the later years of primary school. However, you suffered from ADHD, anxiety and depression at an early age and were using alcohol and cannabis at the of 15 and a variety of other drugs from the age of 17. You remained very attached to your grandparents, however, and were bereft after your grandmother died in 1990 and your grandfather died in 1996. You have spent most of your life living on the streets since leaving school in Year 12. By then, you were abusing a variety of drugs. During your twenties, you overdosed 14 times. Whilst the level of deprivation you experienced may not be so great as to enliven the principles set out in Bugmy, I consider that it nonetheless is very significant and is to be regarded in more general terms as affecting your moral culpability.
36 Third, at the time of offending your already low intellectual capacity had worsened, and become “borderline”, after your hospitalization for septic shock resulting from an untreated fractured clavicle in 2015. Your limited intellectual functioning was reflected in compromised speed of processing, planning and organization skills, and accompanied by perseveration. Ms Kennedy opined that on testing you showed difficulties in changing your behaviour in response to the environment and opined that your tendency to get “stuck in a way of responding” might result in difficulties in the prison environment. I consider that your moral culpability is to be regarded as somewhat reduced by virtue of your borderline intellectual capacity. In addition, because of this reduced intellectual capacity, you are not as appropriate a vehicle for the sentencing principle of specific deterrence as an offender without this reduced intellectual capacity, although this factor may also limit your prospects of rehabilitation and elevate the need to protect the community from you.
37 Fourth, I consider that the period between 2010 and 2015 when you lived with Ms Ficarra, worked full-time, had counselling, and did not offend, demonstrates your ability to live a normal life. You have been using your time in prison to work as a gardener billet and to take drug/alcohol and stress management courses. Given that your relationship with Ms Ficarra continues, that you intend to move to Queensland to live with her after your release, and that you have an offer of full time employment there, I consider that your prospects of rehabilitation overall are reasonable.
38 Finally, I indicate that I do not consider that on the expert material before me either limb 5 or limb 6 of Verdins is made out, as there is no evidence before me to the effect that due to your PTSD a sentence of imprisonment will weigh more heavily on you than it would on a person in normal health nor any evidence of a serious risk that imprisonment will have a significant adverse effect on your PTSD or your mental health.
39 In determining the appropriate non-parole period, I have been asked to consider whether, under s 10A of the Act, a “special reason” exists, which obviates the requirement that there be a non-parole period of not less than three years. As indicated above, your counsel relied on impaired mental functioning by way of a mental illness, that of PTSD, and submitted that it was open to the Court to find that due to this condition you would be “subject to significantly more than the ordinary burden or risks of imprisonment”.
40 It is clear from the language of the section that the intention of Parliament is that the burden imposed on an offender who seeks to escape the operation of s 10A, should be a heavy one, and not one which is capable of being lightly discharged.[14]
[14]DPP v Hudgson [2016] VSCA 254.
41 I note that Ms Crole’s opinion was that your PTSD condition was unlikely to have contributed to your offending.[15] She recommended that you receive counselling in relation to your PTSD symptoms, but expressed no opinion that due to this condition, your time in custody would carry for you “significantly more than the ordinary burden or risks of imprisonment”.
[15]Exhibit B, 9.
42 There is therefore no expert opinion nor any other evidence establishing that there are substantial and compelling circumstances that justify a finding that a “special reason” exists.
43 I also consider that the matters relied upon by your counsel in relation to s10A are more appropriately dealt with as general mitigatory matters, and I have dealt with these at paragraphs 34-37 above.
44 For these reasons, I indicate that whilst I accept that you suffer from PTSD, I am not satisfied that, due to this condition, your time in custody would carry for you “significantly more than the ordinary burden or risks of imprisonment”. It follows that in sentencing you this Court must impose a non-parole period of at least three years.
Conclusion
45 Would you please stand, Mr Mammoliti. On Charge 1, aggravated carjacking, you are convicted and sentenced to a term of imprisonment of 6 years, with a non-parole period of 4 years.
46 In relation to Charge 1, pursuant to s 89(4)(a)(i) of the Act, I disqualify you from obtaining a driver’s licence for a period of 3 years.
47 On the first of the uplifted summary charges, Charge 5, which is a charge of driving whilst disqualified, you are convicted and sentenced to 5 months’ imprisonment, to be served concurrently with the term imposed on Charge 1.
48 On the second of the uplifted summary charges, Charge 6, that of failing to report an accident to police, you are convicted and sentenced to 14 days’ imprisonment, to be served concurrently with the term imposed on Charge 1.
49 I declare that you have served, up to but not including today, 227 days of pre-sentence detention and order that such declaration be entered into the court’s records and that this period be deducted administratively from the term of imprisonment imposed today.
50 I declare pursuant to s 6AAA of the Sentencing Act1991 that, but for your plea of guilty, I would have sentenced you to a term of imprisonment of 8 years imprisonment with a non-parole period of 5 years and 4 months’ imprisonment.
51 I will also make the disposal order sought by the prosecution, to which you have consented.
52 Are there any other matters?
53 MS THOMSON: No, Your Honour.
54 MS BYRT: No, Your Honour.
55 HER HONOUR: I just wanted to indicate that I would be noting on the orders made that Mr Mammoliti be assessed by a medical practitioner or a psychiatrist in relation to medication for his ADHD and for counselling for his PTSD symptoms.
56 MS BYRT: Thank you, Your Honour.
57 HER HONOUR: Thank you. You can remove Mr Mammoliti.
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