Director of Public Prosecutions v Musso

[2018] VCC 1516

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-01736

DIRECTOR OF PUBLIC PROSECUTIONS

v

ROBERT MUSSO

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JUDGE:	HER HONOUR JUDGE HANNAN
WHERE HELD:	Melbourne
DATE OF HEARING:	17 September 2018
DATE OF SENTENCE:	18 September 2018
CASE MAY BE CITED AS:	DPP v Musso
MEDIUM NEUTRAL CITATION:	[2018] VCC

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms K. Argiropoulos	Office of Public Prosecutions
For the Offender	Mr C. Mandy	Leanne Warren and Associates

HER HONOUR: 

1Robert Musso, you have pleaded guilty to one charge of aggravated burglary.  The maximum penalty for that offence is 25 years' imprisonment.

2You have further pleaded guilty to one charge of recklessly causing injury.  The maximum penalty for that offence is five years' imprisonment.

3Both offences occurred on 17 March 2016 at the home of the victims in Mernda.  Both victims were known to you through a mutual friend, Tom O'Connell, who had resided with them for several weeks prior to being found deceased on 5 February 2016.  You had visited the premises as a result of that relationship.

4On 7 August of 2017, you were convicted of the murder of Mr O'Connell.

5As regards this offending, on 17 March 2016 at about 10 am, the victims were asleep in their upstairs bedroom when the female victim awoke to hear someone knocking on the doors and windows downstairs, calling her partner's name.  She recognised your voice and ignored you and went back to sleep.

6A short time later, she was again awoken by noises being made by you and at that time she heard the sound of glass breaking, so she opened the bedroom door to investigate.  As she began to walk downstairs, she saw you in the kitchen going through drawers and cupboards.  She yelled out, "Oi", and you ran towards the front door.

7The female victim then called out for her partner and you turned and asked where her partner was.  She informed you that he was still asleep.  You then ran past her and upstairs towards the bedroom.

8The male victim was awoken by you standing over the bed screaming at him while holding two knives, one in each hand.  The victim observed blood on the bed but he did not know where it had come from and he could not understand what you were saying.  He rolled away from you, telling you he did not want to know what you were on about.

9The female victim then entered the bedroom and observed you standing over her partner, who was still in bed and bleeding.  She yelled at you to give her the knives.  You told her you were not going to hand over the knives until you got out of the house.  The female victim informed you that you were free to leave.

10You then transferred both knives to your left hand and used your right hand to punch the male victim in the nose, causing it to bleed.  The female victim told you to leave, and as you did you threw the knives on the couch in the lounge area.  At that time the victim recognised one of the knives as a carving knife that had come from her kitchen.

11After you left, the male victim realised he had a knife wound to his right bicep.  He was bleeding from both his bicep and his nose.  He attended a medical centre and was noted to have a 7 centimetre laceration on his right upper arm, which required suturing.  He did not receive any treatment for the injury to his nose.

12These offences are serious, especially as they relate to the charge of aggravated burglary.  You forced your way into the victim's premises while they were sleeping with the intention of assaulting one of the occupants.  Thereafter you armed yourself with two knives before recklessly causing injury to the male victim with the knife and subsequently punching him.

13We all have a right to live in our community and enjoy the safety and sanctuary of our homes without being subjected to this kind of offending.  The community will not tolerate the invasion of homes.  The message must be clear that condign punishment will result in appropriate circumstances.

14No victim impact statements were tendered upon your plea.

15You have admitted the contents of a criminal record which discloses a history of offending dating back to March of 1996.  You have numerous convictions for matters of dishonesty, drug offending and weapons offences.  Most significant in terms of the sentence I will impose this day is your history of violent offending.

16At Preston Magistrates' Court on 23 April 1997, upon charges of intentionally or recklessly causing injury being proven, you were without conviction placed on an adjourned undertaking.  You breached that undertaking and you were sentenced to be imprisoned for three months, and that sentence was wholly suspended for 12 months.  You breached that order also, and on 26 October the breach was proven but no order was made.

17On 1 November 1999 you were convicted of armed robbery at this court.  You were sentenced to be imprisoned for two years with a non-parole period of nine months, with 86 days reckoned as served.

18On 12 April 2002 at this court you were convicted of attempted armed robbery and recklessly causing injury.  You were sentenced to be imprisoned for a total of three years with a non-parole period of 18 months; 261 days were reckoned as served.

19On 13 January 2007 at the Sunshine Magistrates' Court you were convicted of intentionally causing injury and sentenced to be imprisoned for three months.

20On 5 June 2009 at this court you were convicted of armed robbery, negligently causing serious injury, aggravated burglary, intentionally causing injury and attempted aggravated burglary.  You were sentenced to be imprisoned for a total of seven years with a non-parole period of five.  You appealed that sentence, and on 20 January 2011 your appeal was allowed, and you were sentenced to a total effective sentence of six years with a non-parole period of four years; 851 days were reckoned as served.

21What is clear is that you have a significant history of violence.

22I am aware that on 7 August of last year you were convicted of murder.  You are currently undergoing sentence in relation to that matter, imposed on 13 December 2017, at which time you were sentenced to be imprisoned for 24 years with a non-parole period of 19 years; 608 days were reckoned as served. While it is not a prior conviction for my purposes in sentencing, both totality and issues relating to the setting of a new single non-parole period make this sentence relevant to the task in which I must engage this day.

23The offending which brings you before this court occurred about six weeks after the murder and prior to your arrest.  Your personal circumstances and the context of the offending are substantially similar.  I have had the advantage of reading her Honour Justice Hollingworth's sentencing remarks.

24You are now aged 39, having been born on 20 December 1978.  You spent the overwhelming majority of the last 20 years in custody and you acknowledge that you are institutionalised.

25You were born in Melbourne to parents of Italian heritage.  You have one older brother.  You report that your youth was marred by violence at the hands of your father and brother.  You took up boxing at about 16 and the abuse stopped once you were able to defend yourself.  You report that your mother was not supportive at that time and that you spent long periods of time away from the family home.

26You attended a number of different schools and as a result of behavioural issues you often found yourself being disciplined and/or expelled.  You found it academically difficult and you were eventually expelled at the end of Year 10 for fighting.  You have only limited, unskilled employment.

27Your main interest after leaving school was boxing.  You were a member of the Amateur Victorian Squad for about four years and the first in your age group.  You report being knocked out in excess of ten times.

28You returned to education in 1995, and it seems completed Year 11, but by this time you were also abusing drugs and that return was fraught.

29As regards your drug abuse history, you smoked marijuana from your mid-teens.  By 18 you were using speed and heroin, and this saw your rapid spiral into offending to support those habits.  In more recent times you have been using ice, as was the case at the date of your offending.

30You have attempted rehabilitation.  At 29, both you and your brother were inpatients at a residential facility but your fighting saw you exited from the program.

31You are in a relationship and you have a daughter who is now aged 20 months.  Your partner and daughter initially visited you in custody but your contact is now by telephone.  Your daughter will be an adult by the time you are released from custody.

32Your visits are now confined to occasional visits from your parents, with whom you now have a better relationship.  I accept that you are isolated in custody and that that increases the burden of imprisonment.

33You are subject to a 23-hour lockdown regime in custody, and that has been the case for some six months and is likely to continue into the foreseeable future.  Your location is for your own protection, relevant to the matters raised upon your plea and not challenged by the prosecution.  I accept that this also increases the burden of imprisonment.

34I have received a report from Ms Lofthouse, a neuropsychologist, dated 11 October 2017.  That report was prepared for your sentencing in the Supreme Court.  Ms Lofthouse opines that you have mild to moderate intellectual deficits consistent with an ABI, noting your history of both head injury and drug use.  She notes that you have poor emotional and behavioural control.  That situation seems unfortunately intractable.

35It is not put that any of the Verdins principles have application, but context is always relevant and informs what is required to be addressed in terms of rehabilitation and protection of the community.

36In my assessment your prospects of rehabilitation are poor.  You have a significant history of violent offending.  The reality is that I must protect the community from repetition of this kind of conduct.  Your eventual release into the community will require careful management of the risk, which at this time in my view remain both real and ongoing, but it is to be hoped that this will ameliorate with time.

37I take into account your plea of guilty.  You have spared the witnesses the ordeal of giving evidence.  You have saved the community the time and expense of a trial.  You are in my view entitled to the full benefit of your plea and I have acted on that basis.  I do think that your plea is some evidence of remorse.

38Your counsel quite rightly concedes that the only disposition open to this court is a term of imprisonment but urges modest cumulation given the sentence you are undergoing and principles of totality.

39As well as matters personal to you, I must take into account other relevant sentencing considerations.  General and specific deterrence must be given weight in the sentence I will impose this day.  The community cannot and will not tolerate offending which so seriously compromises the right of members of our community to feel safe in their homes.  Any sentence must manifest denunciation of your conduct and impose just punishment.  Given your history, specific deterrence must be given weight, as must protection of the community.

40These are serious offences.  In the circumstances I have no option but to impose immediately servable terms of imprisonment.  You are convicted and sentenced as follows.  Would you stand, please?

41Charge 1, aggravated burglary, four years.

42Charge 2, recklessly causing injury, 12 months.

43I direct that seven months of the sentence on Charge 2 be served cumulatively with the sentence upon Charge 1, making a total effective sentence of four years and seven months.

44I direct that two years of that sentence be served cumulatively with the sentence you are undergoing.

45I set a new single non-parole period pursuant to s.14 of the Sentencing Act of 20 years from the date of the Supreme Court sentence on 13 December 2017, noting that 608 days are to be reckoned as served in relation to that sentence.

46I make the disposal order in the terms of the draft.

47I direct it be entered into the records of the court that, but for your plea of guilty, I would have sentenced you to a total effective sentence of six years with three cumulative on the sentence you are undergoing, and set a new minimum of 21 years.

48Counsel is there anything arising?

49COUNSEL:  No, your Honour.

50HER HONOUR:  Thank you very much.  Would you take Mr Musso downstairs, please?  Adjourn the court.

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