Director of Public Prosecutions v Milano, Antonio

[2015] VCC 713

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

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-14-00002

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANTONIO MILANO

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JUDGE:	HIS HONOUR JUDGE GRANT
WHERE HELD:	Melbourne
DATE OF HEARING:	21 May 2015
DATE OF SENTENCE:	28 May 2015
CASE MAY BE CITED AS:
MEDIUM NEUTRAL CITATION:	[2015] VCC 713

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr N. Batten	OPP
For the Accused	Mr M. Pena-Rees	David Barrese & Associates

HIS HONOUR:

1       Antonio Milano, you have pleaded guilty to one charge of armed robbery and one charge of indecent assault.  The maximum penalty on the first charge is 25 years' imprisonment and on the second charge, 10 years' imprisonment.

2       I have heard a summary of the offending.  It is not my intention to repeat the whole summary.  It has been tendered as Exhibit A in the plea proceedings.

3       Briefly, on 2 May 2013 at about 12.30pm the victim, who was 33 weeks pregnant, was parking her car in Byron Street, Footscray.  You entered her vehicle and sat in the front passenger seat next to her.  You threatened her with a pair of scissors, demanded money and told her to drive you to an ATM.  The victim felt trapped and frightened.  She proceeded to drive at your direction.  You were behaving erratically.  At times you were threatening and at times apologetic.  In the first guise, you made comments about your desire to engage in sexual acts with the victim.  You touched her on her breast and inner thigh.  The touching was, it seems, over clothing.  This behaviour is the foundation for Charge 2. 

4       During the drive you took $200 from the victim’s wallet and her driver’s licence.  You also told her to give you her Cartier rose wedding ring worth $1,500.  This behaviour constitutes the armed robbery.  You insisted the victim withdraw $4,000 from her bank and for that purpose, you directed her to drive to the Commonwealth Bank on Union Road, Ascot Vale.  You got out of the car and waited outside the bank while the victim went inside to obtain the money.  The victim informed the teller you were trying to rob her and police were called.  You left the area.  You did not take the wedding ring with you.  The police found it in the car and returned it to the victim. 

5       CCTV footage from the bank was obtained.  On 30 May 2013, police executed a search warrant at your home and found items that linked you to the scene and the offending.  You denied the offending when interviewed by the police.

6       Mr Milano, this is very serious offending.  You got into the car of a pregnant woman and committed an armed robbery whilst armed with a pair of scissors.  During the drive from Footscray to Ascot Vale, you indecently assaulted her.  It must have been a terrifying experience for the victim.  In this case general deterrence, denunciation and just punishment are all highly relevant sentencing considerations.

7       You do have prior convictions.

8       In 1998 you appeared in the Magistrates’ Court on four separate occasions.  You were found guilty of dishonesty offences, drug offences and, on one occasion, assault with a weapon.  You spent time in Youth Justice Detention. 

9       In 2003 you were fined in the Magistrates’ Court for drug offences.  In April 2004 there was an appearance at the Sunshine Court on a large number of drug and dishonesty offences.  You were also charged with one count of reckless conduct endangering serious injury.  You appealed the sentence of the Magistrate and on the 27 May 2004 you were sentenced in the County Court to a term of 18 months' imprisonment, with a nine month minimum term before you would be eligible for release on parole.  In September 2004 you received a three month concurrent gaol term in the Magistrates’ Court for offences that included shop theft, possess firearm and fail to answer bail.

10      Mr Milano, given this prior criminal history, specific deterrence and protection of the community are also relevant sentencing considerations. 

11      I now move to those matters that are relevant to your background and those matters put in mitigation of penalty.

12      You are 36-years-old.  You told Ms Gianvanni, a forensic psychologist, that your childhood and family life was perfect.  I note that both your mother and father attended court on 21 May to support you, and indeed, they are again present in court today to support you.

13      You told the forensic psychologist that you commenced smoking marijuana in Year 9 and by Year 11 you were smoking on a daily basis.  By the age of 18 or 19 you were associating with the wrong crowd.  You were introduced to heroin and you became “hooked”.  I think it is fair to say that your difficulties with the law since that time reflect your ongoing struggle to remain drug free.

14      To your credit, there have been significant periods in your life where you have been drug free and stable.  You were released from Youth Justice Detention in 1998 and managed to stay out of trouble until 2003.  In 2003 and 2004 you relapsed into drug use and that led to further offending.  As I have already said, you were sentenced to a term of imprisonment in 2004, and you were released on parole.  This must have been late 2004 or early 2005.  After your release on parole you lived with your parents for some months before moving in with your current partner.  The birth of your first child from that relationship seems to have provided a strong incentive for you to tackle your drug problem.

15      A report from your local GP, Dr Phan, indicates that you went onto a methadone treatment program in 2006.  You also obtained employment with Tapi Asia Pacific.  You worked with that company until early 2013.  Your former employer has provided a strong written reference in which he says this, and I quote: “Tapi Asia Pacific employed Antonio Milano from 2006 until 2013.  His early role was as an assistant in warehouse operations.  He demonstrated a real commitment to the job and became a key member of the team.  He continued to improve his skill set and was made warehouse manager.  During this period I understand Antonio’s personal life improved and with the financial stability of the job he was able to purchase a home and focus on growing his young family.  Antonio proved to be reliable, hard working and showed no signs of any of the previous drug issues that we were aware had occurred in the past.”

16      Your third child, Tristan, was born on 26 October 2012.  Dr Phan explains how your life started to spiral out of control from about this time.  After the birth, your partner, Ms Vu, suffered postnatal depression.  In addition, the child was placed in intensive care after being diagnosed with viral meningitis.  The child remained in intensive care for six weeks.  Dr Phan has written about that time, “Mr Milano was trying hard under extreme pressures to care for both children and his wife when Tristan was discharged and returned home and this is when things started to turn bad for Mr Milano and Ms Vu.”

17      Clearly things became very difficult for you.  Dr Phan prescribed antidepressant medication with the aim of bringing your depression and anxiety under control.  You were not coping with your responsibilities at work and your employer became concerned about your circumstances.  Eventually you lost your job.  Under the weight of these problems you relapsed into drug use.

18      At the time you committed this offence you had consumed a considerable quantity of ice.  This would explain your erratic behaviour.

19      I detail these matters, not because they excuse your conduct but, because they do help explain how a man who had done so well for about eight years should get involved in this serious offending in May 2013.  I note that you have no prior history for sexual offending or for armed robbery.

20      After your arrest on the current charges, you were also interviewed in relation to other alleged offences, where one of the victims was the daughter of a former underground identity.  She was also a girlfriend of a member of the Haddara family.  You were remanded in custody.  Whilst on remand you were threatened because of your alleged involvement in these other matters.  After reporting the threat to the authorities you were segregated and placed in a protective environment.  Your report resulted in two weapons being located.  You were then regarded by some within the prison system as a person who had cooperated with the authorities.  I do accept that upon your return to prison it is likely that you will serve time in protective custody.  This is a matter for me to take into account in determining your sentence.

21      When it was eventually established that you had nothing to do with the other matters you applied for bail.  You were released on bail on 21 October 2013.  In determining an appropriate sentence in this matter I note your very good progress since you were bailed.  You went back onto methadone and a series of drug screens over the last seven months show methadone to be the only drug in your system.  You have attended your local GP regularly and you were supported by your family.  You re-engaged with the local football club and, in March 2015, you commenced a Certificate III Civil Construction Plant Operations Course.  You have an ambition to work in the construction industry.

22      You did not enter an early plea of guilty.  Indeed, you required the complainant to give evidence at the preliminary hearing.  Your counsel explained that at the time you were in denial because you were afraid of going back to prison.  

23      After the final directions hearing in this matter there was discussion between your legal representatives and the prosecution that led to a resolution of the case.  You were arraigned on 27 February 2015 and entered a plea of guilty.  A fresh indictment was filed over on 21 May 2015 and you again entered a guilty plea.

24      I accept that you have now accepted responsibility for the offending.  I give you credit for the guilty pleas.  It has at least meant the complainant has not had to go through the difficult experience of giving evidence in a trial.  Your guilty plea has also saved the community the cost and expense associated with a criminal trial.

25      I am satisfied that you do have reasonable prospects for rehabilitation.  My only reservation relates to your past history of relapse into drug use.  If you remain drug free, I am confident you will remain out of trouble in the future.

26      Mr Milano, the seriousness of your offending must be marked by the imposition of an immediate term of imprisonment.  However, the matters in mitigation have persuaded me that upon completion of a suitable term, you should be released into the community with the intensive support that can be offered on a Community Corrections Order.  

27      Will you stand please?

28      Mr Milano, on the charge of armed robbery you are convicted and sentenced to 21 months' imprisonment.

29      On the charge of indecent assault you are convicted and sentenced to six months imprisonment. I direct that three months of that sentence be served cumulatively upon the sentence imposed on Charge 1.

30      This makes a total effective sentence of 24 months.

31      I make a declaration that you have served 152 days by way of pre-sentence detention.  

32      Upon completion of the sentence of imprisonment you are to be released on a Community Corrections Order for a period of two and a half years with the following special conditions:

33      To be under supervision for the period of the order; to participate in assessment and treatment for drug abuse; and to participate in mental health assessment and treatment.  You are to attend the Sunshine Corrections Office within two working days of your release from prison. 

34      Given the nature of this offending, and the way this order is structured, I do not consider it appropriate to fix a non-parole period on the imprisonment term. 

35      Mr Milano, had you pleaded not guilty and been found guilty after a trial, I would have sentenced you to a total effective imprisonment term of five years with a minimum term of three years. 

36      I make the disposal order sought by the prosecution.  Mr Milano, do you understand what has happened?

37      PRISONER:  Yes, Your Honour.

38      HIS HONOUR:  It is a total effective term of 24 months, less 152 days which you have already served by way of pre-sentence detention.  Upon completion of that term of imprisonment, you will be on a Community Corrections Order for two and a half years, and upon release from prison, you will have to attend the Sunshine Community Corrections Centre within two working days.  Is that all clear?

39      PRISONER:  All clear, yes Your Honour.

40      HIS HONOUR:  Thank you.  Are there any other matters, gentlemen? 

41      MR DONAGHY:  No, Your Honour.  I'll just (indistinct) the disposal order is no longer pursued. 

42      HIS HONOUR:  All right.  Thank you for that.  In those circumstances I will not make a disposal order. 

43      MR DONAGHY:  If Your Honour pleases.

44      PRISONER:  Your Honour, can I just have a quick chat to my lawyer please? 

45      HIS HONOUR:  Sorry.  I'm happy for you to talk to the child but you can't touch - - -

46      PRISONER:  No, my lawyer. 

47      HIS HONOUR:  It's your lawyer, certainly.  Sorry. 

48      MR BARRESE:  May I approach?

49      HIS HONOUR:  Certainly. 

50      MR BARRESE:  Thank you.  I understand there are members of the media present.  Your Honour mentioned particular names, given Mr Milano's situation when he was previously in custody.  No doubt he'll be returning to protection but he is just concerned by the fact of - I'm not sure what will be reported and how extensive this coverage will be, but he is genuinely concerned for his welfare because even in a protection unit things happen, as Your Honour will no doubt have heard.  Names were mentioned of the other complainant in that separate matter, who she was affiliated with, although her father wasn't named.  Mr Milano does have genuine concerns for his welfare and that's all he wishes to raise to the court.  I'm not sure exactly - I understand there's a sketch artist in court and there's also a member of the media present but that is a genuine concern for Mr Milano and I think one that is fairly held by him, in the circumstances of what's before the court. 

51      So I'll just have to make a formal application for a suppression.  That's something that I may have to do but I would obviously be doing it on the fly, Your Honour.  Those instructions just came. 

52      HIS HONOUR:  The Open Courts Act will apply to this particular matter. 

53      MR BARRESE:  Yes.

54      HIS HONOUR:  But on the plea the person's name, or the family name that I have mentioned, was mentioned in open court on the plea.

55      MR BARRESE:  Yes.

56      HIS HONOUR:  It is a situation where members of that family are still in prison and will be aware of the fact, in any case, that Mr Milano had made this complaint. 

57      MR BARRESE:  No doubt. 

58      HIS HONOUR:  So I'm not sure that there is any change in the position that he's been in, which is that those people are aware that he'd made a complaint about them and that's not going to be any different after today's proceedings.

59      

MR BARRESE:  I accept - as Your Honour - I wasn't here on the plea. 

Mr Pena-Rees appeared so I wasn't sure if there were media present.

60      HIS HONOUR:  I didn't invent the name. 

61      MR BARRESE:  No, no.  I was aware of the name, I'm not suggesting that at all but I wasn't sure if media were present on that occasion.

62      HIS HONOUR:  They may not have been present but it's - - -

63      MR BARRESE:  It's on the record. 

64      HIS HONOUR:  It's been on the record. 

65      MR BARRESE:  Yes, I accept that, Your Honour. 

66      HIS HONOUR:  I'll hear if the Crown want to say anything on it.  Mr Donaghy?  Do you want to be - - -

67      MR DONAGHY:  I just note, Your Honour, that as that other person is the victim of a sexual offence, the usual prohibitions in identifying that person would apply so I wouldn't expect details of that person to be published. 

68      HIS HONOUR:  That is actually a telling point because there can't be any identification that would link a potential victim. 

69      MR BARRESE:  The members of the media are present.  They've heard Your Honour's remarks and obviously they need to abide by those perimeters.

70      HIS HONOUR:  The members of the press are, I'm sure, fully aware of their obligations of law but given that this is an issue that was canvassed on the plea, and the name had been mentioned before, and those in the system - I mean, the reason Mr Milano is in protective custody is because those people have something against him.  So that's not going to alter - - -

71      PRISONER:  No, sorry Your Honour.  I was in protective custody at the time of this - when all that happened and I'm still back in protection custody but I can't go to certain places because of - if that comes out again tonight, well my option is 24-hour lockdown. 

72      MR BARRESE:  I guess the point was that Mr Milano, as a result of the original allegations, was in protective custody when this incident was complained to the authorities.  So he was already in protective custody and this incident occurred in protective custody so those were the circumstances.

73      HIS HONOUR:  Yes.  I'm not going to make a special order in this case.

74      MR BARRESE:  As Your Honour pleases.

75      HIS HONOUR:  Thank you. 

76      MR BARRESE:  Can I just briefly approach Mr Milano?

77      HIS HONOUR:  Certainly.

78      MR BARRESE:  Thank you. 

79      HIS HONOUR:  You might want to be with your client when he signs the order because he will have to sign the Community Corrections Order.

80      MR BARRESE:  Yes. 

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