Director of Public Prosecutions v Pantisano

[2014] VCC 2272

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-01425

DIRECTOR OF PUBLIC PROSECUTIONS

v

DOMINIC PANTISANO

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:	07 October 2014
DATE OF SENTENCE:	16 December 2014
CASE MAY BE CITED AS:	DPP v Pantisano
MEDIUM NEUTRAL CITATION:	[2014] VCC 2272

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Hannan
For the Accused	Ms A. Sharpley

HIS HONOUR:

1Dominic Pantisano, you pleaded guilty to an indictment charging you with three offences of obtaining property by deception, ten offences of attempting to obtain property by deception and one offence of possessing a drug of dependence, namely cocaine, on 6 February 2014.

2The offences occurred between 12 April 2013 and 12 March 2014 and they involved total sums of money either obtained, or which you attempted to obtain, totalling $360,254, although I think you were only successful in relation to the $4875 in relation to Charge 1, the vehicle valued at $44,657 - the subject of Charge 9 - and a similar deception in relation to Charge 14 involving $23,000.

3You have also admitted a number of related summary offences of dealing in property suspected of being the proceeds of crime and making a false report in relation to the loss of a watch; this is Charge 8.  Charge 10; making a false report in a similar vein, Charge 12; making a similar report in a similar vein, Charge 22; making a false report in relation to the theft of a bicycle, Charge 25; fraudulently altering a licence, and Charge 64; making a false report in relation to the watch of the similar description.

4You have also admitted a criminal history which goes back to 1999 and is riddled with offences of dishonesty.  This includes theft and obtaining money by deception, obtaining property by deception, and also offences connected with driving motor vehicles.  You have been sentenced to terms of imprisonment and you have been placed on numerous orders designed to assist you.   You have breached many of those orders in different ways on a number of occasions.  The offences are serious offences.   You knew what you were doing and you knew the consequences, or potential consequences, of what you were doing.  Although, it may reasonably be said that the offending conduct was not particularly sophisticated and you persisted with it in a way that was likely to result in your being detected and prosecuted at the end of the day.

5Turning to matters personal to you I should say that there are victim impact statements which were tendered by the prosecution on the last occasion and applications are made for a forensic sample, compensation and forfeiture of property.

6On the last occasion that this matter was before me - on 7 October of this year - your counsel provided me with an outline of defence submissions, which is Exhibit 1, and a report from Jeffrey Cummins, psychologist, dated 17 June 2014, which sets out a deal about your background history, and a more recent psychological report from Mr Cummins dated 19 September of this year, which supplemented the previous report.  Mr Cummins indicated that you suffered from a mild intellectual disability and he formed the view that you also suffered from a borderline personality disorder.  It was his view that you were able to distinguish between right and wrong, although to quote Mr Cummins:

In spite of his," meaning your "criminal record, it appeared that he was unable to objectively appraise the true wrongfulness of his offending behaviour and his offending history."

7All of that, and other matters relied upon by your counsel on the last occasion, supported her submission that the Verdins principles applied, including in relation to your moral culpability for your offending conduct and the application of the principle of general deterrence; and indeed specific deterrence.

8It seems also that your psychological condition and your mental impairment disability now impacts upon your capacity to deal with a period of incarceration, although it seems that you have made some social contact within the prison system and there is a continuing risk that you will succumb to your vulnerabilities in a prison setting, and that you are, essentially, something of an easy target within the prison system.  All of which seems to me to bear upon the degree to which you are able to manage your time in prison compared with a person without your disabilities, vulnerabilities and impairments.

9You pleaded guilty at an early stage and that is very much to your credit.  I took the view on the last occasion that it was necessary, having regard to your intellectual disability, to get a pre-sentence report, including a report from the Department of Human Services.   You have had considerable contact with the Department of Human Services over the years and appear to have regarded their support of you through Justice Plans in the past as helpful, although you indicated to the assessing officer - or the reporting officer - that you had not breached or committed other offences whilst on the Justice Plan.  That does not seem to be correct.   The combined effects of the two reports is to suggest that your prospects of staying out of trouble are slim indeed and that there is a high risk of your offending again.  Indeed that is the assessment of the Corrections officers who are the authors of the pre-sentence report.

10Your compliance with court orders in the past has been poor and you have committed offences whilst on Community Corrections Orders and on Justice Plans.  It seems to me that your prospects of rehabilitation continue to be poor, but I have to look to balance the sentencing considerations in a way which still promotes your rehabilitation to the extent that that is consistent with other sentencing principles.

11There is no doubt in my mind that having regard to your criminal record and the commission of many offences of a not dissimilar nature in the past, that a term of immediate imprisonment is not only warranted but required.  The question then arises as to how long that should be and what other orders should be made, not just for your rehabilitation but for the continued protection of the community, and indeed the further punishment of you in addition is encompassed within a term of imprisonment.

12The report from the Department of Human Services attaches a Justice Plan and the recommendation, on balance, seems to be that you are suitable for a Community Corrections Order with conditions including a Justice Plan.  I think that the period of 212 days that you have already served is barely enough to reflect the seriousness of these offences, but on balance I do not see any utility in adding to that term of imprisonment at this stage.   Rather I think the community in the end is going to be best protected by continuing to persevere with Community Corrections Orders and with the continuing support and efforts of the Department of Human Services to adjust your attitudes and behaviours so as to reduce the risks of further offending.

13For those reasons I am inclined to impose a term of imprisonment of 212 days, and that would require me to declare that 212 days pre-sentence detention be deducted from that period, which would enable your immediate release.   But I would be doing that only on the basis that you were the subject of a Community Corrections Order for a period of two years from today, that the conditions of the order include that you be under the supervision of the Department of Corrections, judicial monitoring - and I would be requiring you to come back in three months' time and we will see how you have progressed in that time - a condition that you undergo treatment and rehabilitation and any other programs or course of treatment which is directed by the Department of Corrections - and that is expected to be addressed within the Justice Plan - and also an order that you be the subject of a Justice Plan throughout that two year period of the order.

14You are familiar enough with what Community Correction Orders are all about but it is necessary for me to say a bit more about it.  The first question that you have to ask yourself is whether you think you can stay out of trouble, because if you do not and you commit offences punishable by imprisonment during the next two years then you are going to come back, probably before me, and you will leave the court with no choice other than to re-sentence you for these offences and to impose a term of imprisonment over and above that which you have already served.

15You can understand that here and now, whilst I am looking at you across the court, but can you retain it in your mind for the next two years and stay out of trouble?  Because if you cannot then there is not a lot of point of me putting you on the order.  I would be better off sentencing you to a term of imprisonment and allowing you to see that through.  Are you able to contemplate staying out of trouble for the next couple of years?

16OFFENDER:  Yeah.

17HIS HONOUR:  Yes.  Of course if you do commit another offence punishable by imprisonment in that period you will be liable for punishment for the breach of the order, which could carry three months imprisonment, and for the punishment for the offence that puts you in the breach, as well as coming back here.  So it is like having a suspended sentence hanging over your head during the period of the next two years.

18OFFENDER:  I've already got one, Your Honour.

19HIS HONOUR:  I'm sorry?

20OFFENDER:  I've already got a suspended sentence.

21HIS HONOUR:  Have you?  All right.

22OFFENDER:  Yeah, four months.

23HIS HONOUR:  Well this one is not a suspended sentence but it does have a similar effect in that it is still hanging over your head.  All right?  So if you add on the four months you could be up for quite a decent stretch if you commit further offences.

24Now there are of course a number of other conditions that you will have to comply with.  You will have to turn up for appointments for supervision and also comply with the terms of your Justice Plan.  If you do all that, well that is the end of the matter, but there is a fair bit to negotiate over the next couple of years and it does carry a punitive element in the sense that it does inconvenience you and you will be breached if you fail to keep appointments and do not have an adequate excuse for doing so.  So you will have to maintain your adherence to the order during the period of the next two years.

25OFFENDER:  Yeah.

26HIS HONOUR:  Do you understand?  All right.  That order will be drawn up and when it is I will pronounce the sentencing order.  I take it you have discussed this with your client?

27MS SHARPLEY:  I have, Your Honour.

28HIS HONOUR:  You have?  Yes.  When the order is drawn up I will ask that you go through the terms with Mr Travers just to make sure he understands exactly what he is up for?

29MS SHARPLEY:  I will, Your Honour.

30MR HANNAN:  Yes, Your Honour, application was made for compensation for two recipients, and one is Sander Finance and one BMW.

31HIS HONOUR:  Yes I saw those orders in the file.  Do you have copies of the orders for ‑ ‑ ‑ 

32MR HANNAN:  Not at the moment, Your Honour, but ‑ ‑ ‑ 

33HIS HONOUR:  No.

34MR HANNAN:  ‑ ‑ ‑ we can send those to your associate in an hour or so?

35HIS HONOUR:  Yes, all right.  Well I think I've got a draft of one of those orders, that was to a Sander?

36MR HANNAN:  Yes.

37HIS HONOUR:  I'm not sure I've got the other one in draft form, but anyway if you could send those orders?  I take it there was no opposition to those orders?

38MS SHARPLEY:  It wasn't formally opposed, Your Honour, but I indicated that Mr Pantisano, upon his release from custody, will be in receipt of a disability support pension.

39HIS HONOUR:  Yes.

40MS SHARPLEY:  And his employment prospects are not great and it's unlikely he'll be able to ‑ ‑ ‑ 

41HIS HONOUR:  Yes.  No I understand that, it's in the case he wins the lottery or something.

42MS SHARPLEY:  Yes, Your Honour, we had that discussion on the last occasion.

43HIS HONOUR:  Yes.

44MR HANNAN:  In fact, Your Honour, I do have duplicates of each of those orders.

45HIS HONOUR:  You do?  Excellent.

46MR HANNAN:  And, Your Honour, I have duplicates of the forfeiture order as well.

47HIS HONOUR:  Yes.

48MR HANNAN:  And that's the forfeiture of the drugs and paraphernalia.

49HIS HONOUR:  Yes.  Was there a s.464ZF as well?

50MR HANNAN:  Yes.  We don't have copies of that because we didn't know whether it was going to be a custodial one or a ‑ ‑ ‑ 

51HIS HONOUR:  Non-custodial, yes.

52MR HANNAN:  ‑ ‑ ‑ non-custodial one, Your Honour.  Again my instructor will forward that to your associate this morning to serve it upon the accused man.

53HIS HONOUR:  Yes.

54MR HANNAN:  We'll do so on his lawyers.  It requires him to attend after 28 days from today and then within a four week period from then, but that should be made clear at least on the document and then to his lawyers.

55HIS HONOUR:  Yes.  So which police station will it be?  Can you tell me that?

56MR HANNAN:  Preston.

57MS SHARPLEY:  Reservoir.

58MR HANNAN:  Reservoir.

59HIS HONOUR:  Reservoir?

60MR HANNAN:  Yes.

61HIS HONOUR:  All right.  Well if you could draw it up with the Reservoir Police Station address on it ‑ ‑ ‑ 

62MR HANNAN:  Yes.  Thank you, Your Honour.

63HIS HONOUR:  ‑ ‑ ‑ then I shall sign it in due course and return it.  Yes but for your plea of guilty I would have sentenced you to three years and a non-parole period of two years.  Yes, thank you Ms Sharpley.  Mr Hannan I think I can make the orders in aggregate form, can I not?  In relation to all of the offences including the latest summary offences?

64MR HANNAN:  You mean for the Community Corrections Order?

65HIS HONOUR:  Well term of imprisonment for a start.

66MR HANNAN:  Yes.

67HIS HONOUR:  Two hundred and twelve days and the Community Corrections Order?

68MR HANNAN:  That's a good question, Your Honour.  I apologise, I didn't check up on those.  Can I just check the summary offences?

69HIS HONOUR:  I've only just turned my mind to it, I have to say, so otherwise I'd have given you a bit more warning.

70MR HANNAN:  Could Your Honour just give me a moment and I'll check it?

71HIS HONOUR:  Yes.

72MR HANNAN:  They all carry imprisonment, Your Honour, as an option.

73HIS HONOUR:  Yes.  I think that's all I'm really to be concerned about isn't it?

74MR HANNAN:  That's all that needs to be ‑ ‑ ‑ 

75HIS HONOUR:  If they all carry terms of imprisonment?

76MR HANNAN:  That's right.

77HIS HONOUR:  All right,  yes.  In relation to each of the 14 charges on the indictment I convict you, and in relation to each of the related summary offences - that is Charges 7, 8, 10, 12, 22, 25 and 64 - I convict you, and in respect of those offences I sentence you to an aggregate term of imprisonment of 212 days and I declare pre-sentence detention totalling 212 days as the period to be reckoned as time served on the sentence I have just imposed, and to be deducted administratively, which will enable your immediate release, and I also order for each of those offences, obviously concurrently, a Community Corrections Order for a period of two years with - in addition to the core conditions - a condition that you be the subject of supervision of a Community Corrections officer for the period of the order, that you must undergo programs consistent with the purpose of treatment and rehabilitation which may include, but are not limited to, employment, educational, cultural or personal development programs as directed by the regional manager, and it is anticipated that will be done within the Justice Plan.

78You are to report back to me on 16 March of next year at 9.30 am, all right?  You will have to mark that in your diary or some other means of remembering it because you will need to be back here by 9.30 on that day.  All right?  And that will be for the purpose of me seeing how you are going with the order and hopefully you will have complied with it completely up to that point.

79And the last additional condition is that you participate in the services specified in the Justice Plan, which no doubt you have seen, for the period of the order, which is two years from today.  You will be required to report to the Reservoir Community Correctional Services Centre at 909 High Street, Reservoir, within two clear working days of today.  All right?  So you better make sure that you comply with that condition otherwise you will be in breach immediately, all right?  Now do you consent to be placed on the Community Corrections Order that I have just indicated?

80OFFENDER:  So ‑ ‑ ‑ 

81HIS HONOUR:  You agree that ‑ ‑ ‑ 

82OFFENDER:  Yeah.

83HIS HONOUR:  ‑ ‑ ‑ you are placed on that order?

84OFFENDER:  Yeah.

85HIS HONOUR:  You have signed the order?

86OFFENDER:  Yeah.

87HIS HONOUR:  You are now bound by it.  But for your plea of guilty I would have sentenced you to a total term of imprisonment of three years with a non-parole period of two years.

88MR HANNAN:  Just with respect to the orders, Your Honour?

89HIS HONOUR:  Yes?

90MR HANNAN:  Your Honour ordered an aggregate sentence for the imprisonment and not for the CCO's?  In my submission, Your Honour, it ‑ ‑ ‑ 

91HIS HONOUR:  Is it an aggregate for the CCO's?

92MR HANNAN:  It'd be better because ‑ ‑ ‑ 

93HIS HONOUR:  Yes, aggregate for the CCO's.

94MR HANNAN:  Yes, Your Honour.

95HIS HONOUR:  Yes, that's right.  That's what I intended it was just a bit clumsy I think.  And I make the orders for forfeiture and compensation in accordance with the drafts that I have just signed and I order that you submit to the provision of a forensic sample, which will mean that you will have to report to the Reservoir Police Station within the period specified in the order.  It is not available today but it will provided to you.  I ask you to do that as soon as you can and you will be required when you do report to provide a scraping from the inside of your mouth.

96If you do that that is the end of the matter.  If you fail or refuse to do that when requested by an authorised officer that officer will have the authority to take a blood sample from you and may use reasonable force to obtain that sample.  I am sure you will not put them to that trouble.  All right?  Yes, thank you.

97VOICE FROM BODY OF THE COURT:  Your Honour he wanted to speak with the justice worker?

98HIS HONOUR:  Yes, all right.  Yes if you don't mind that's all right by me.  I'll leave the Bench briefly whilst you re-arrange things.

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