Director of Public Prosecutions v Michael Armando Oliveira

[2014] VCC 572

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-13-00055

DIRECTOR OF PUBLIC PROSECUTIONS

v

MICHAEL ARMANDO OLIVEIRA

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JUDGE:	HER HONOUR JUDGE DAVIS
WHERE HELD:	Melbourne
DATE OF HEARING:	29 April 2014
DATE OF SENTENCE:	22 May 2014
CASE MAY BE CITED AS:	DPP v Michael Armando Oliveira
MEDIUM NEUTRAL CITATION:	[2014] VCC 572

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW
Catchwords:  Sentence – recklessly cause injury
Sentence:  Community Corrections Order for 12 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D. Guesdon	OPP
For the Accused	Mr C. Watson	Doogue O’Brien George

HER HONOUR:

1Michael Oliveira, on 24 February 2014, you were found guilty of one charge of causing injury recklessly to Alfred Caruana. On that day, no verdicts were returned on Charge 1 (aggravated burglary) and Charge 5 (assault of Jenni May-Anne Petrusch), while verdicts of not guilty were returned on Charge 2 (robbery of a gold chain from Alfred Caruana) and Charge 4 (theft of certain money belonging to Alfred Caruana). 

2

The offence of causing injury recklessly carries a maximum penalty of five years’ imprisonment.  By its verdict, the jury was not satisfied that you entered Mr Caruana's home on 16 April 2010 with intent to steal, nor that you robbed him of a gold chain, nor stole money from him, nor that you assaulted

Ms Petrusch. However the jury clearly rejected your account that you never touched Mr Caruana. 

3The prosecution submitted that you should be sentenced on the basis that you entered Mr Caruana's home without his consent, pushed him to the ground, and in the course of this incident, Mr Caruana, an elderly man, suffered an abrasion to the face, scalp, swelling to the top of the head, and increased troponin levels, which required him to be conveyed to hospital to be monitored for his pre-existing cardiac condition.

4The prosecution also agreed that something happened on the night which led you and the female to smash a bathroom window and escape the house through it, and suggested that it was the arrival of Ms Petrusch, Mr Caruana's neighbour at the front door that led to this. 

5The prosecution noted that there were relevant subsequent matters; affray, two charges of recklessly cause injury, and a charge of attempted armed robbery concerning offences which occurred on successive days in August 2010, for which you were sentenced on 30 September 2011 to two years, six months imprisonment, with a non-parole period of one year, eight months. 

6These offences were committed in the company of Ms Egan, a heroin addict with whom you were in a relationship at the time.  She was the main offender in both of these incidents. On the first occasion the affray occurred in a shopping centre while she was trying to steal a bag. On the second occasion, she was trying to steal a bag from a person in the car park, and stabbed the victim in the arm with the scissors. You then helped her to try to take the victim's bag. I note that it was as a result of the DNA profile obtained in relation to the subsequent matters that your DNA was matched to this offence. 

7You were interviewed in March 2012, charged on 23 July 2012, and were committed for trial on 16 January 2013. You were serving your sentence on the subsequent matters until your release on parole on 2 May 2013. You were bailed on this matter in February 2013, and you completed your parole on 22 February 2014. This offending did not interfere with your parole and there is no relevant pre-sentence detention. Since your release from prison you have not committed any offences. 

8The prosecution acknowledged that your lower intellectual functioning is to be taken into account in a general way, along with the fact that your offending occurred when you were in the company of someone who was a bad influence on you. 

9The prosecution also accepted that you have successfully completed parole and conceded that you have prospects of rehabilitation if you stay away from drugs and people who are no good for you.

10It was conceded that the injury sustained by Mr Caruana was not at the high end of “injury”, but it was submitted that given that the assault occurred in the elderly victim's own home, in relation to matters which were none of your business, a fine constitutes insufficient punishment and the appropriate disposition is a Community Corrections Order. 

11You counsel  submitted that in spite of the jury verdict, not all of your evidence in relation to the circumstances of the offending should be rejected.  In particular, it was submitted I should accept that you did not decide spontaneously on your own to enter Mr Caruana's house that night and that you did so when called upon by the female to assist her, in relation to her dispute with Mr Caruana concerning payment for sexual services she had rendered to him on other occasions, and to assist her to collect her belongings and get away from the house.  Your actions were not premeditated, there was no relevant prior violent offending.

12Your counsel submitted that in the four years since you committed this offence, what has happened is that you committed further, more serious offences in 2010, went off heroin and back onto a methadone program, went to gaol for the first time, served your sentence, completed your parole, have not offended further, have obtained full-time employment as a fork lift driver, have returned to live with your parents, and have remained drug free and free of association with Ms Egan. 

13Your counsel said that since being in gaol, you have committed yourself to a path of rehabilitation. Your parole officer told your solicitor that you complied "really well" with your parole conditions of reporting to your parole officer and attending drug counselling, and that you committed no breaches.

14

In relation to your personal circumstances, your counsel relied on the report of Dr Aaron Cunningham, dated 8 September 2011, which was prepared in relation to the subsequent matters for which you were sentenced on

30 September 2011. 

15His report notes that you were raised by your parents, who both worked and are still together, and that you have one younger sister who works full-time.  You are very close to your grandparents and would often go to their place when your parents argued.  As a teenager you had a three year relationship with a young girl, which ended when she died in a car accident. You started smoking cannabis at age 15, you completed Year 11 at school, but reported being bullied there. After school you worked as a security guard and worked in your parent's pawn brokerage store, then worked as a fork lift driver.

16At the age of 24 you began using cocaine, ecstasy and amphetamines, and by the age of 25, were using heroin. At times you went on to a methadone program, at other times you used heroin. 

17Your relatively minor offending in 2004 and 2005 was linked to drug use. You were on methadone between 2004 and 2007 and were working. You went off methadone. You were living at home and working full-time when you entered into a relationship with Ms Egan, a heroin addict in around 2010. She persuaded you to give up work. Your use of heroin increased while you were with her. You last used heroin in April 2011. 

18Dr Cunningham found that you met the criteria for substance abuse disorder.  He assessed you as having a full-scale IQ score of 70, which would warrant assessment by Disability Services, and which indicated that your thinking and reasoning abilities are impaired, relative to others. 

19Dr Cunningham concluded that you were at low to moderate risk of reoffending, which would be reduced further by cessation of your heroin addiction and negative peer associations, and that you were at low risk of future violent offending.  He noted that your sister told him that you could not care for yourself without family support and structure, in relation to washing and eating, that you are easily led and regularly bring people home who have robbed your grandparents house.

20Dr Cunningham noted that you had insight into the wrongfulness of your behaviour and were very motivated to resume fork lift driving work. He felt that you had stable accommodation and had ceased taking heroin and would benefit from working and from ongoing drug and alcohol counselling. 

21I note that your counsel did not submit that Verdins principles were directly engaged in this case, but relied on your lower intellectual functioning in a general way.       

22

I note the report of your drug and alcohol counsellor, Ms Kelly, dated

27 February 2014, to the effect that you had attended counselling, showed a commitment to abstaining from heroin, were stable on your dose of methadone, were working full-time and allowing your sister to manage your finances, to reduce your temptation to spend the money on illegal substances.  You had ceased contact with negative influences, including Ms Egan, and were spending more time with your family and with your dog. 

23

I note the report from your general practitioner, Dr Gunzberg, dated 30 April 2014, to the effect that you first became a patient under his care in the First Step Program in 2003; that he did not treat you between 2007 until you

re-engaged with the service in June 2010. You continue on a methadone maintenance program and receive 50 milligrams of methadone daily. 

Dr Gunzberg stated that he has no concerns with your dosage or compliance on the program, and that you have attended eight scheduled sessions since being released from gaol in May 2013. 

24I also note the payslips forwarded to me today by your counsel, which indicate that you have been working full-time as a fork lift driver on a casual basis since 2 April 2014, earning approximately $690 per week net. 

25You counsel submitted that a fine would be sufficient punishment in the circumstances of this case. You indicated your willingness to undergo a Community Corrections Order, and I propose that you be assessed for suitability for a 12 month order, involving drug assessment and treatment and mental health assessment and treatment. 

26I have taken into account all of the matters raised by counsel, as well as the material tendered. I consider it appropriate to sentence you on the basis that your offending was not premeditated; that you entered Mr Caruana's house in response to a request for help from the female who was in the house arguing with him; that you pushed him to the floor; that his injury was sustained as a result of the push to the floor; and that you then made your escape from the house with the female, through the back window, on the basis either that you sought to avoid any further contact with Mr Caruana, or that you wanted to avoid Ms Petrusch, who had entered the house via the front door. 

27I note the absence of relevant prior matters. In particular, in spite of the serious subsequent matters, which resulted in a substantial period of imprisonment, I note that you have demonstrated good prospects of rehabilitation by completing your parole; staying on the methadone program and away from heroin; ceasing your association with Ms Egan; returning to live at home; and obtaining and maintaining full-time employment as a fork lift driver. 

28I note that you were assessed by Community Corrections Order on 29 April 2014 as suitable for a Community Corrections Order. I also note that the prosecution seeks Disposal Orders in relation to a number of items, and that these orders are not opposed, and I will sign these orders in a moment. 

29Would you please stand, Mr Oliveira? 

30Given that you entered the home of an elderly man on his own, at night, without his consent and pushed him to the ground, I consider that the imposition of a fine would be inadequate punishment. In all the circumstances, I consider it appropriate to impose a Community Corrections Order for a period of 12 months. 

31Given your full-time work commitments, I do not consider it appropriate to order you to perform unpaid community work, however I propose to impose the following requirements: 

(1) That you attend for assessment and treatment, including testing for drug      and dependency as directed; and 
(2) Secondly that you undergo mental health assessment and treatment as        directed. 

32In addition to the conditions that I have specifically imposed, you must also abide by the terms that apply to all Community Corrections Orders. 

These are that you must not commit any other offences during the period of the order being in force, that is 12 months from today.  Any offence for which you could be imprisoned, even if a court would not choose to impose imprisonment. You must report to and receive visits from a Community Corrections officer. You must report to the Community Corrections Centre at Carlton within two clear working days of today, that being Monday 26 May. Also, you must not leave Victoria without first getting permission from a Community Corrections officer and you must inform the Community Corrections office of any change of address of where you live or where you work within 48 hours of that occurring. Finally, you must obey all lawful instructions from and directions of Community Corrections officers. Do you understand the conditions I have imposed and the general terms that apply?

33OFFENDER:  Yes, Your Honour. 

34HER HONOUR:  Thank you.  I must also tell you that if you do not comply with any of these terms and the conditions imposed, you risk being brought back in front of me and I would then have to consider whether to re-sentence you.  Do you understand?

35OFFENDER:  Yes, Your Honour.

36HER HONOUR:  All right. You may be seated, thank you.  Are there any other matters? 

37MR WATSON:  Nothing further, Your Honour.

38MS GUESDON:  No, Your Honour. 

39HER HONOUR:  No, all right, then I will just sign these orders. We will adjourn, thank you. 

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