Director of Public Prosecutions v Montiroli

[2012] VCC 844

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

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-11-01180

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANDREA MONTIROLI

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JUDGE:	HER HONOUR JUDGE COTTERELL
WHERE HELD:	Melbourne
DATE OF HEARING:	7 June 2012
DATE OF SENTENCE:	22 June 2012
CASE MAY BE CITED AS:	DPP v. Montiroli
MEDIUM NEUTRAL CITATION:	[2012] VCC 844

REASONS FOR SENTENCE

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Catchwords:

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M Perry	Office of Public Prosecutions
For the Accused	Mr M Fisher	Galbally & O’Brien

HER HONOUR:

1       Andrea Giuseppe Montiroli, You have pleaded guilty before me to one charge of extortion, with threat to inflict injury.  The maximum penalty for that offence is 15  years imprisonment.  The facts of the matter were opened by the prosecution and a summary of that opening was tendered as Exhibit A on the plea.

2       The circumstances of your offending is that on 16 November 2010, you attended an address at 5 Myrtle Street, Brighton, where Matthew Deloia, who is the complainant in the matter, was working with other family members to construct townhouses.  He had been a friend of yours and apparently your friendship had waned in the more recent times. 

3       You left your vehicle with a gun in your hand and you demanded $100,000 from him.  You did that in full view of other workmen, Mr Deloia's father and Mr Deloia's brother.  The father, Mr Phillip Deloia, sent his sons to the basement of the building construction and asked you to leave, as there were a lot of discussions going on between you and, first of all Matthew, and then Michael Deloia.  He told you to leave in no uncertain terms and you did so.  The police were called and during the investigations that followed, no handgun was located and it is not known whether it was real or not, whether it was loaded, it just remains information that is not available. 

4       It appears that you felt that the complainant owed you money because you had left him in control of the premises that you lived in while you went away.  When you came back, there were items missing but there is absolutely no evidence that Mr Deloia was involved in any way in those thefts. 

5       This is clearly serious offending, however, it all occurred in a matter of minutes.  No one was injured and no property was damaged.  As a result of this offending, you spent some six days in custody, before being released on bail.  You have a prior criminal history, which involves mainly motor vehicle offences, however, you were also given a suspended sentence on 29 November 2007, for unlawful assault and assault with a weapon, which in that case was a knife.  Apart from that, you also breached an intervention order in relation to your former wife, by contacting her.  So your history is not one of a violent man.

6       Your personal history is that you are now 40 years old.  You were born in Italy and educated there.  You came to Australia when you were about 20, to be with your partner, who you had met at Perugia.  You later married her and you have two children, Alessandra who is 12 and Joshua who is ten. You had regular contact with those two children, until you were charged with other offences and remanded in custody.  The rest of your family, your parents and your three siblings, one brother and two sisters, are all in Italy, so you are relatively isolated here.

7       You have had a long history of involvement in drugs, which started in Italy when you were about 14, with the use of cocaine, however you remained drug free whilst you were married to your partner, Renata, and you led a productive working life and even started your own business.  You have been unemployed for about the last two years. 

8       As your marriage broke down, you relapsed into cocaine use and then began to supplement the use of cocaine with methylamphetamines, Xanax and other prescription drugs. 

1. Dr Erin Cunningham, in his report dated 21 May 2012, indicates that you have no intellectual impairment, but you have a substance use disorder.  However, he says that you have insight into your drug use, insight into the risk of future relapse into drug use and that you are motivated, at this stage of your life, to withdraw from that abuse of drugs and to cease your drug use altogether.  He writes that you have several current protective factors that may reduce your risk, stabilise you in the community and improve your psychological functioning.  I quote, "Mr Montiroli has previously maintained stable employment in his own business.  He has maintained accommodation in Elwood and contact with his children.  He presents with insight in his need for drug and alcohol treatment." So whatever the outcome of these matters, Mr Montiroli, you must go on with that rehabilitative treatment. 

1. You have also taken steps to rehabilitate yourself.  You entered into the Refocus Residential Program.  I note that you left because you relapsed into use and were then readmitted and spent some two months there and then continued in that program as an outpatient, following your inpatient treatment. 

1. Your chronic drug abuse and your substance use disorder, have in part, arisen from and been involved in a number or serious events in your life: the breakdown of your marriage, the loss of another long term relationship which followed your marriage, the loss of your own business and your then inability to get employment. Your drug use has clearly had a devastating affect on your life and has resulted in you offending against the law. You will clearly need ongoing therapy, if you are to break out of that cycle.

1. I take into account those matters put on your behalf.  I also take into account your plea of guilty and the submissions of both members of counsel, and I have also taken into account the factors that I am required to take into account, by the Sentencing Act: the principle of general deterrence, that is that the sentence I impose must deter other people from behaving in the way you did, in approaching the recovery of a debt, by attending the premises armed with a firearm.  Secondly they must understand that serious consequences flow from that behaviour.  Secondly, I also take into account specific deterrence, that is that you, yourself, must be deterred from committing further offences of this nature. 

1. I am reasonably comforted by the matters that have been contained in the report of Dr Aaron  Cunningham, and also by the fact that you managed to have a productive life for some ten to 12 years, when you first came to this country.  However, I do take into account that you need to understand that serious consequences flow, if you continue to use drugs and offend.

1. I am also required to denounce your conduct, on behalf of the community, and I do so absolutely.  A community will not tolerate that people use drugs and go and attempt to recover debts, whether they are real or imaginary, with the use of a firearm and threats.

1. I am also required to impose just punishment in all the circumstances and in balancing those matters, I have reached the conclusion that the only appropriate sentence is one of imprisonment.  However, in your case, having listened to the submissions of both counsel, it is appropriate that that sentence be wholly suspended. 

1. A suspended sentence is not an exercise in leniency, it is an order which is designed to give the major benefit to the community.  It is designed to allow you a special attempt to rehabilitate yourself and to return to your previously productive form of life.  If you were to breach the sentence, you would be brought back.  If you were  to breach it by committing an offence for which you could be gaoled, you will be brought back and dealt with and you may be ordered to serve the term  of imprisonment which I am about to suspend.

1. Would you please stand for me, Mr Montiroli.

1. On Charge 1, you are convicted and sentenced to two and a half years imprisonment and that sentence is wholly suspended for a period of two and a half years.

1. I declare that six days of pre-sentence detention be deemed time served and that that fact be reflected in the court record and in respect of s.6AAA of the Sentencing Act, I declare that but for your plea of guilty, I would have sentenced you to three and a half years imprisonment, with six months to serve. 

1. MR FISHER:  As Your Honour pleases.