Director of Public Prosecutions v Marinucci

[2018] VCC 162

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-01801

DIRECTOR OF PUBLIC PROSECUTIONS

v

VINCENZO MARINUCCI

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JUDGE:	HIS HONOUR JUDGE MASON
WHERE HELD:	Melbourne
DATE OF HEARING:	16 February 2018
DATE OF SENTENCE:	23 February 2018
CASE MAY BE CITED AS:	DPP v Marinucci
MEDIUM NEUTRAL CITATION:	[2018] VCC 162

REASONS FOR SENTENCE

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Subject:Plea - sentencing

Catchwords:             Attempted armed robbery

Legislation Cited:     Sentencing Act 1991

Cases Cited:Boulton & Ors v The Queen [2014] VSCA 342

Sentence:3-year Community Correction Order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms E. Ramsay	Office of Public Prosecutions
For the Accused	Ms D. Caruso	Patrick W Dwyer

HIS HONOUR:   

1Vincenzo Marinucci, you have pleaded guilty to one charge of attempted armed robbery.  This offence carries a maximum penalty of 20 years' imprisonment. 

2You were born on 29 March 1989 and you are now 28 years old.  At the time of offending some 18 months ago you were 27 years of age.

3You have a history of previous convictions for similar and other offending, to which I will refer in more detail later. 

4The victim in this matter, Declan Hepburn, was aged 17 years at the time of the offending.  He was catching the train home with a friend on 6 August 2016 when he was confronted by you trying to rob him using an extendable baton.  You were travelling on the train with your co-offender, Matthew Kirkopoulos, who was aged 17 at the time. 

5The circumstances of the offending are as follows.

6Mr Hepburn had boarded the train at Greensborough station and was travelling to Eltham station.  He and his friend sat some distance away from you and your co-offender who were seated towards the other end of the carriage. 

7You put your finger up at Mr Hepburn, then you two both stood up, walked over and sat down in the seat opposite him. 

8You began to antagonise the victim, saying, "Is there something wrong with me?  Is there something you want to ‘staunch’ from me?"  The victim tried to placate you by saying, "No, there's not, you're fine."  You persisted, saying, "You think we are little bitches.  You want my clothes, don't you?"  The victim continued trying to placate you by saying, "I don't want anything."

9You then told Mr Kirkopoulos to give you the baton, which resulted in him pulling a baton out of his pocket and handing it to you. 

10With the baton in your hand (unextended at this stage) you said to Mr Hepburn, "Have you got a problem with me?  Why are you looking at me?"  The victim continued trying to deflect, saying that he wasn't looking at you.  You then flicked the baton out so that it was fully extended and said to the victim, "Give me your jumper and empty your pockets." 

11The victim was terrified of being assaulted with the baton and took off his jumper.  His friend told him not to hand it over and then said to you that you needed to calm down.  The train stopped at Montmorency station and the victim jumped up and ran off the train.  This was a stop earlier than he had planned to disembark.  He ran straight into the post office and called his mother, then the police. 

12The attempted armed robbery can be seen in footage supplied by Metro Trains, albeit without audio. 

13The fear experienced by the victim throughout the ordeal is evident from the footage. 

14Mr Kirkopoulos was recognised in a Crime Stoppers' picture by his mother, who notified police.  He was arrested and an analysis of his mobile phone produced evidence identifying you as the primary offender. 

15You attended the Victoria Police Centre by appointment on 14 June 2017 and were arrested and interviewed about the offending.  During the interview you made "no comment" responses to the allegations put to you. 

16You were granted bail on the day of your arrest, so there is no pre-sentence detention. 

17Your plea of guilty was entered at the first opportunity on 6 September 2017 at the committal case conference. 

18I now turn to your personal circumstances. 

19You had a troubled childhood with your parents' regular separations, residential moving and consequential disrupted schooling.  You lived intermittently with your father, then your mother.  Your father was an alcoholic with an extensive criminal history and your father's partner (other than your mother) was also an alcoholic and would often self-harm. 

20You left school at Year 10 and worked in various jobs until age 16 when you began an apprenticeship as a chef.  You qualified at age 20 and since have maintained steady work in hospitality venues.  You have rarely been out of work and are currently working as head chef at a café in Mentone.  You have been working there for the past three months.  The owner of the business has provided a reference in which he expressed his very high regard for how you have applied yourself to the responsibilities he has given you, stating that you take your role very seriously, you are punctual, professional, responsible, trustworthy, patient with younger staff and that your work ethic is second to none. 

21The other references to your character tendered on the plea endorse your remorse, sense of disgrace and development towards a more stable and mature life. 

22As I noted earlier, you are now 28 and you were 27 at the time of this offending. 

23You have an extensive criminal record for one so relatively young, and predominantly for violence and drug offences.  You have prior convictions for armed robbery and robbery. 

24On 27 October 2008, you were sentenced by His Honour Judge Pilgrim of this Court to a community-based order for 18 months for two charges of armed robbery committed when you were 18 years old.  You subsequently breached this order and were re-sentenced to four months' imprisonment wholly suspended for 12 months.

25On 3 March 2009, you were sentenced in the Melbourne Magistrates' Court for a number of offences, including robbery and recklessly causing injury, to an aggregate three months' imprisonment wholly suspended for 18 months.  Again, you subsequently breached this sentence and the three months' imprisonment was wholly restored. 

26You have appeared in Magistrates' Courts again in 2010, in 2011 (twice), in 2012, in 2014 (three times), in 2015 (again twice) and in 2016.  You have received either fines or terms of imprisonment. 

27On the second occasion in 2014, on 7 June 2014, you were sentenced in the Melbourne Magistrates' Court for a number of offences, including threatening serious injury, damaging property, obtain financial advantage by deception and recklessly causing injury, to an overall nine months' imprisonment and an earlier suspended sentence of nine months' imprisonment was fully restored and directed to be served cumulatively.  You appealed the sentence to the County Court and in August 2014, His Honour Judge Ryan allowed the appeal, imposing the same terms of imprisonment, but directing a minimum period of imprisonment before eligibility for parole of 12 months. 

28I note that despite this sentence you re-offended again and incurred convictions twice in 2015, once in 2016 and twice in 2017. 

29The convictions since the date of your present offending are not considered as prior offending for sentencing purposes, however may be considered in the context of your prospects of rehabilitation and likelihood of re-offending. 

30I note that on each occasion in 2017 you were sentenced to a community correction order.  On 19 May 2017, you received a community correction order for 18 months with conditions including treatment and 50 hours of unpaid community work, and on 12 October 2017 you received another community corrections order for 18 months with conditions including 200 hours of unpaid community work.

31It appears that your last offending occurred in November 2016 and that you have not re-offended since that date. 

32I note that the reports from Corrections personnel and your treating psychologist are that you are engaging well both in compliance with the community correction orders as well as within the alcohol and drug treatment program.  It is reported that you are being supervised on a two-to-three week basis by Corrections, you have commenced the community work conditions and you have accrued no unacceptable absences.  You have attended 12 complex alcohol dependence sessions with psychologist Ms Fisicaro and you are engaging well and have voluntarily maintained regular attendance at Alcoholics Anonymous.

33A report from Ms Cidoni, consultant psychologist, was tendered on your plea.  Ms Cidoni referred to your tumultuous childhood, early drug and alcohol abuse and resultant history of regular offending.  Ms Cidoni assessed your psychological condition through discussion and formal clinical testing.  In particular, Ms Cidoni referred to your tension and anxiety, depression and concentration difficulties.  You revealed occasions of intense distress, reflecting on past traumatic events.  You have a tendency for being unreliable and irresponsible under stress and have difficulty with forward planning.

34In summary, Ms Cidoni opines that you exhibit anti-social personality traits that are exacerbated with substance abuse.  You have used alcohol and other substances to cope with the problems and stressors in your life.  You present as a disadvantaged person suffering acute mental illness, where psychiatric opinion and management may offer you some relief. 

35Unsurprisingly, it is recommended that you should continue with the psychological counselling that is currently in place.  In her opinion, Ms Cidoni concludes that, from a clinical perspective, imprisonment would be a retrograde step in view of your presenting problems and your efforts to date on the current community correction orders. 

36The conduct in which you engaged on the occasion of this offending is serious.  It is serious notwithstanding that it was an attempt rather than a completed offence.  The offence was only interrupted by the terrified victim making a break from the train and running away.  It was a reprehensible act committed in a public place, it was completely unprovoked and your victim was a youth. 

37The closed-circuit television evidence shows that you had been drinking alcohol at the time of the offending and you clearly admitted to Ms Cidoni that you had consumed a large amount of alcohol prior to offending.  The fact that you were likely intoxicated at the time of offending is no excuse for your conduct.  It does, however, inform a relevant underlying condition.

38As an adult you have offended practically every year since you were aged 18, when you committed an armed robbery with factual parallels to the current circumstances now ten years later.  Similarly, that matter was heard in this Court. 

39Over the intervening years you have received multiple dispositions by the courts to assist your rehabilitation, including suspended sentences and treatment conditions within community-based orders with, I note, some breaches, as well as more deterrent-directed dispositions such as fines and terms of imprisonment.  Unfortunately, you have continued to offend. 

40In mitigation, I take into account the matters referred to by your counsel, including:

·    that the circumstances of the offence fall in the lower range of seriousness;

·    your plea of guilty and your expressions of remorse;

·    your application to maintain regular employment generally;

·    specifically, your excellent application to your current employment;

·    the evidence of the finer points of your character as expressed by those close to you;

·    your difficult and disrupted childhood and adolescence;

·    your alcohol addiction and underlying mental health issues;

·    in particular, 2 very significant aspects:

- the fact that you have not reoffended now for 15 months, and

- the application and commitment you have shown to your compliance with the 2 community correction orders you are currently undertaking.

41The basic purposes for which a court may impose a sentence are punishment, deterrence (both specific to you and general to make an example of you to others), rehabilitation, denunciation and protection of the community.  In sentencing I must have regard to a range of matters, such as the seriousness of the offending, your culpability for it, its context, your personal circumstances and those of the victim.  I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that as far as possible offenders are rehabilitated and reintegrated into society. 

42I have given close consideration to the principles expressed in Boulton & Ors v The Queen[1] and the further expressions of those principles by the Court of Appeal in subsequent decisions of that court.  I have also carefully considered the provisions of the Sentencing Act 1991, in particular s.5, and case summaries and recent sentencing statistics for the helpful albeit limited assistance they provide. These resources must also be considered in the context of the particular circumstances of the instant case.

[1][2014] VSCA 342

43Whilst your actions on this occasion, together with your prior criminal history, arguably call for a sentence which is directed to the more punitive aspects of specific and general deterrence, in my view the ultimate goal of sentencing - being the protection of the public - is more likely to be achieved if your current application and progress towards rehabilitation is not disturbed. 

44In balancing the various considerations, I am acutely aware that your criminal history would suggest that a pessimistic view of your prospects of rehabilitation would be justified.  Whilst I accept that there is a risk in allowing greater emphasis on rehabilitation in your sentence that I would ordinarily apply, I am prepared to take that risk because I accept that the evidence of your recent application to your current orders does show a change in attitude and a desire to comply. 

45I have had the experience before of how young men who have regularly offended through their early twenties can, with application and maturity, change and lead a better life.  The evidence suggests that you have the capacity and capability of making that change.  I do not think that your prospects of rehabilitation are extinguished. 

46In striking the balance that I have, I have also considered a mixed sentence of imprisonment together with a community correction order commencing immediately upon your release. 

47It is imperative that in order not to re-offend, you overcome your alcohol problem.  In my view, this is more likely to be achieved if your current commitments to work and treatment are not broken and you are continually supported by close supervision while in the community, including judicial monitoring by me and receiving regular one-on-one intensive therapy. 

48You have been assessed and found suitable for a further community correction order. 

49Mr Marinucci, would you please now stand.

50On Charge 1 you are convicted and ordered to serve a community correction order for a period of three years. 

51The community correction order commences today and ends on 22 February 2021.  The Corrections centre you will attend is the Moorabbin Community Corrections Service at 1140 Nepean Highway, Highett and you must attend there within two clear working days of today, that is, by 4 pm next Tuesday 27 February. 

52All the mandatory terms of a community correction order apply and the additional conditions I impose are that: 

·    you be under the supervision of the Community Corrections officer; 

·    you perform 200 hours of unpaid community work, cumulative on the orders that you currently are undertaking, as directed by the Regional Manager;

·    you undergo assessment and treatment (including testing) for alcohol abuse or dependency, as directed by the Regional Manager;

·    you undergo assessment and treatment (including testing) for drug abuse or dependency, as directed by the Regional Manager;

·    you undergo mental health assessment and treatment, including (but not limited to) mental health, psychological, neuropsychological and psychiatric, if necessary in a hospital or residential facility, as directed by the Regional Manager;

·    you undergo programs or courses aimed at addressing factors relating to your offending as directed by the Regional Manager;

·    you participate in programs and/or courses that are consistent with achieving the purpose of treatment and rehabilitation that may include employment, educational, cultural and personal development programs, as directed by the Regional Manager;

·    you attend, as directed, for judicial monitoring. 

53I have also imposed this special condition that you attend for judicial monitoring.  This means that you have to come back to this court every so often - it will be every couple of months initially - for me to see how you are going: are you attending the courses? are you getting the assistance that you need? are there any issues you need to discuss? 

54If there is an issue about you not getting the resources that you are entitled to under the order, I can deal with that, so it is not just a question of you not performing, it could be a question of whether a course or treatment is not getting prioritised for you.  It is designed to support you, not to be intimidation.  Do you follow that?

55OFFENDER:  Yes, Your Honour. 

56HIS HONOUR:  Your first attendance for judicial monitoring is to be on 13 April 2018 at 10 am. 

57Now I believe from the pre-sentence report that you have had the mandatory terms of the community correction order explained to you.  However, it is appropriate that I briefly summarise them here.

58The mandatory terms are that:

·    you must not commit another offence for which you could be imprisoned during the time that the order is in force;

· you must comply with requirements of Regulation 17 of the Sentencing Regulations 2011, which essentially set out your obligations as to your attendance at the Community Corrections Centre, such things as not attending drug or alcohol-affected;

·    you must report to and receive visits from a Community Corrections officer;

·    you must report to the Community Corrections Centre, that is, the Moorabbin Centre, within two clear working days of the order starting, and as I have already indicated, that is by 4 pm next Tuesday 27 February;

·    you must notify a Community Corrections officer of any change of address or employment, within two clear working days after the change;

·    you must not leave Victoria without first getting permission to do so from a Community Corrections officer; and

·    you must obey all lawful instructions from and directions of Community Corrections officers - such directions may be given either orally or in writing. 

59Do you understand and agree to those conditions, Mr Marinucci?

60OFFENDER:  Yes, Your Honour.

61HIS HONOUR:  If you are ill or if there are exceptional circumstances, the order may be suspended for a period of time and if your circumstances materially alter you may apply for a variation or cancellation of the order.  In either case, you must notify the Moorabbin Community Correctional Centre, and

I recommend that you obtain legal advice if any of these things happen. 

62However I must warn you, and you will be aware of this, but I specifically warn you now, that if you breach any condition of this order, you will likely be brought back to court and that will be before me. 

63One of the options open to me is to cancel the community correction order and re-sentence you on the original charge and I may also deal with you for the breach, which is an offence itself, by sending you to prison for up to three months. 

64Mr Marinucci, do you understand the consequences of breaching your community correction order?

65OFFENDER:  Yes, Your Honour.

66HIS HONOUR:  I will ask you to sign the correction order shortly. 

67At the plea hearing the Crown sought a forfeiture order under s.32 of the Confiscation Act 1997 to which you consented and I have made that order today.

68Could the correction order be passed please to Mr Marinucci by his representative today. 

69Mr Marinucci, you can leave the dock for this purpose and just take a seat behind your counsel. 

70Any other matters from counsel?

71COUNSEL:  No, Your Honour.

72HIS HONOUR:  All right.  9 o'clock Monday.

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