Director of Public Prosecutions v Paolucci
[2015] VCC 1966
•18 December 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
CR-15-01512
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| FELICE PAOLUCCI |
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| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 16 December 2015 |
| DATE OF SENTENCE: | 18 December 2015 |
| CASE MAY BE CITED AS: | DPP v Paolucci |
| MEDIUM NEUTRAL CITATION: | [2015] VCC 1966 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – plea of guilty – intentionally cause serious injury – specific deterrence – good prospects of rehabilitation – lower range of offending.
Legislation Cited: Crimes Act 1958
Cases Cited: DPP v Maxfield [2015] VSCA 95
Sentence:Community Correction Order for a period of 2 years – 50 hours of unpaid community work; treatment and rehabilitation; treatment and rehabilitation counted towards community work; supervision; programs that address factors relating to offending.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr. K. Gilligan | Office of Public Prosecutions |
| For the Accused | Mr. S. Pascoe | Doogue O’Brien George Criminal Lawyers |
HIS HONOUR:
1Felice Paolucci, you have pleaded guilty to one count of intentionally cause serious injury on 6 August 2014, contrary to s.18 of the Crimes Act 1958 carrying a maximum term of imprisonment of 20 years.
2You agree that the summary of the prosecution opening, which was read in open court, is a fair summary of what occurred on 6 August 2014. I do not propose to set out much of what occurred on that day, except for some relevant facts in order for my sentencing remarks to be properly understood.
3Your second marriage failed. Orders were made by the Family Court that you transfer your right, title and interest in your home at Heidelberg West to your wife. You wanted to delay the effect of the orders of the Family Court. Your reason was that you wanted to live there for longer in order to obtain rent from another property you owned before you had to leave and live in that property.
4You enlisted the assistance of your sons to try to give effect to what you wanted. One of your sons, Michael, indicated to you that he did not agree with what you wanted to do. He and your other son, Antonio, visited you at about 5.00 pm on 6 August 2014.
5You became angry. You interpreted the attitude of your sons as lacking respect for you. An argument developed between you and your sons in the lounge room of your home. You walked into the kitchen, picked up a Wiltshire Stay-Sharp carving knife and returned to the lounge room. Michael swung a chair at you to dislodge the knife from your grasp. Michael ran from the house. As he ran across the front lawn, he tripped and fell over a water metre. While he was lying on the ground, you were standing over him thrusting the knife at him. At the same time, you yelled at him, and I quote: "I'm going to fix you, you bastard. I'm going to kill you."
6You then stabbed at Michael's legs. That resulted in you cutting into his left thigh leaving a five to seven centimetre laceration. As you were thrusting the knife at him, Michael grabbed the blade of the knife in order to defend himself. The blade of the knife cut into his thumb and index finger. The knife was then deflected, which resulted in it grazing Michael's stomach, leaving a red line on his skin.
7Antonio then intervened. He struck a number of blows to your head, which stunned you sufficiently for Michael to get up off the ground. Michael and Antonio ran in different directions from your home. You chased Michael down the street past a number of houses before you gave up your chase and returned to your home.
8I have looked at the photographs, and have observed that Michael suffered a very deep laceration to the webbing at the base of his left thumb, which I understand has interfered with nerve supply and an artery in the area of the laceration. Michael required surgery to the lacerations. The left thumb laceration wound required 16 stitches. The left thigh laceration required 13 stitches.
9Michael has not made a Victim Impact Statement. The prosecutor has conferred with him. As a result of the conference, the prosecution has been instructed by Michael to inform me that he does not want you to be imprisoned.
10Your counsel submitted that for a number of reasons, which I will get to shortly, you should not be sentenced to a term of imprisonment, but to a Community Correction Order. The prosecutor submitted that such an order would be within the range of a just sentence.
11You were born in Italy in 1938. You had little schooling in Italy. Your father died when you were 14 years of age. Your brother and sister came to Australia in the 1950s. You followed with your mother in about 1960. You were married when you were about 24 years of age. Michael and Antonio are children born of that marriage. That marriage failed after 25 years. You remarried. You have a 10 year old daughter born of that marriage.
12You have an excellent working history. You commenced working with the State Electricity Service in Morwell, and after pursuing two other occupations, you retired when you were 63 years of age. At the time of your retirement, you were working with Telecom.
13You appear to have an harmonious and working relationship with your second wife. You have an arrangement with her where you take your daughter to school and collect her at the end of the day. She stays with you after school. You cook her dinner before, I presume, she returns to her mother. Your counsel describe your relationship with your daughter as being very important to you.
14You have a criminal record. You were charged with criminal damage, breach of an intervention order, unlawful assault and three firearms offences in 1994. You have not offended in any way since that time, nor since you were charged with this offence.
15You have suffered the misfortune that your second marriage has failed. You have suffered the added misfortune that the property of your second marriage has been divided by an order of the Family Court leaving you with less assets than I daresay you hoped you would have in the later years of your retirement.
16As a direct result of your offending on this occasion, your relationship with your sons has been seriously affected. Your counsel inform me that you were very sad that your relationship with your sons has come to this, but you recognise it is a situation which you have created. At present you have no ongoing relationship with any of them.
17Your counsel tendered a reference from Mr Sina Waratny, dated 7 December 2015. He holds you in high regard. He understands you to be an honest, hardworking, peace-loving, generous person and someone who has demonstrated a concern for the well-being of your children. Your counsel also tendered a report of Dr Soccio, General Practitioner, dated 18 November 2015. He has been your general practitioner since 2000.
18You suffer from a number of medical conditions. You suffer from coronary heart disease, which requires the use of a cardiac pacemaker and the insertion of cardiac stents. You suffer from hypertension, which requires prescription of anti-hypertensive and lipid-lowering medication.
19You suffer from depression which requires the prescription of an anti-depressant. You suffer from a degenerative lower back condition which requires the prescription of anti-inflammatory medication.
20Dr Soccio describes each of your medical conditions as chronic medical conditions. He expects that you will experience a steady deterioration with those medical conditions and that you will require medical treatment for all of them for the rest of your life.
21Although Dr Soccio has said very little about how those medical conditions affect your capacity to function, I think it is fair to infer that at your age they are probably disabling and will be more disabling as you grow older.
22Both your counsel and the prosecutor referred me to the DPP v Maxfield [2015] VSCA 95 to demonstrate that the circumstances of your offending, make a release on a Community Correction Order a sentencing option. The accused in Maxfield stabbed her domestic partner twice in the shoulder, once in the lower back and once in the chest, resulting in the removal of his gall bladder and appendix and in addition, he suffered a collapsed lung. The injuries suffered by that victim were significantly greater than the injuries suffered by your son, Michael.
23Inevitably, the personal circumstance of the accused in Maxfield are to be distinguished from yours. For example, she suffered from an intellectual disability. She was sentenced to a 12 month Community Correction Order and on appeal by the Director of Public Prosecutions, the Court of Appeal sentenced her to a three year Community Correction Order with conditions attaching to it.
24Despite that distinguishing feature, the accused in Maxfield was not of the advanced years that you are, nor did she suffer from the disabilities from which you suffer. Both your counsel and the prosecutor's submissions were very helpful to me in weighing up the relative seriousness of your offending and whether a Community Correction Order is the sentencing option which I should prefer.
25I propose to give only short reasons for why I will release you on a Community Correction Order. Those reasons are:
·You are 76 years of age and in ailing-health;
·It is a reasonable inference that your health will continue to deteriorate in the short term. You would, therefore, find a term of imprisonment to be very onerous;
·You were, except for your prior conviction, otherwise a man of good character who had worked hard throughout your life and otherwise it would be fair to describe you as a decent man;
·You pleaded guilty, although at a relatively late stage after a contested committal hearing. You eventually pleaded guilty on 28 August 2015 at a Directions Hearing in the Supreme Court. You are not entitled to the full benefit that would ordinarily be attracted by an early plea of guilty, but you have saved the State the expense of a trial, and the witnesses the trauma of going through a trial;
·You are at a time in life when you no doubt wanted to enjoy the companionship of your children. Your offending has all but destroyed your relationship with your sons, and whether that relationship can be revived to any degree is unknown. That is a significant punishment in itself;
·It is very unlikely that you will re-offend. Your record, except for one blight on it, suggests that you are not a person given to serious anti-social conduct. Your prospects of rehabilitation therefore, are very good;
·The circumstance of your offending and the wounding which you inflicted on your son probably brings it within the lower range of offending for this serious offence.
26The sentencing principles which are relevant to you are general deterrence, specific deterrence, denunciation and rehabilitation. The community would expect that a stern sentence should be imposed upon someone like you, however, I accept your counsel's submissions that because of your age and your level of disablement, that you are less of a vehicle for a full expression of general deterrence, than if you were a younger person without that level of disablement.
27Even so, the community would expect that the sentence will reflect an element of general deterrence, so that those who might think of conducting themselves like you did, might think differently, because a significant sentence will await them.
28You also need to be specifically deterred so that you will control your temperamental nature and not resort to drawing a knife and making an attack on a person to make your point. It was a disgraceful and potentially very dangerous thing which you did, and especially against one of your own children who you seem to have misunderstood. He was trying to help you, not hinder or interfere with you in any way.
29Any person who draws a knife and causes a wounding must have their conduct denounced in the sternest fashion. Again, I repeat you drew a knife and attacked your son when he was in the most vulnerable position, lying on the ground trying to defend himself.
30After giving due consideration to the gravity of your offending, the plea made on your behalf by your counsel, and the very helpful submissions made by a very experienced prosecutor, I am now persuaded that I should release you on a Community Correction Order with appropriate conditions.
31I consider that releasing you on a Community Correction Order is proportionate to the gravity of this offence in the light of the objective circumstances of its occurrence and I would now ask you to stand please, and I want you to listen very carefully as this is interpreted to you.
32On the charge of intentionally cause serious injury, you are to be released on a Community Correction Order for a period of two years with the following conditions:
·That you be supervised, monitored and managed as directed by the Secretary to the Department of Justice;
·That you have any appropriate mental health assessment and treatment. That may include psychological, neuro-psychological, psychiatric or treatment in a hospital or residential facility;
·That you attend any appropriate programs that address factors relating to your offending;
·That you attend any appropriate educational, cultural and personal development programs consistent with the purpose of the treatment and rehabilitation condition as directed;
·That you undertake 50 hours of unpaid community work with all hours of treatment and rehabilitation to be counted as unpaid community work.
33I will now read to you a warning regarding the Community Correction Order and you must listen carefully.
34In addition to the conditions I have specifically imposed, you must also abide by the terms that apply to all Community Correction Orders. These are:
35That you must not commit any other offence during the two year period the order is in force, being any offence for which you could imprisoned, even if a court would not choose to impose imprisonment.
36You must report to, and receive visits from a Community Corrections officer.
37You must report to the Community Corrections Centre at Heidelberg Community Correctional Services within two clear working days of today.
38Also, 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, where you live or work, within 48 hours of that occurring.
39Finally, you must obey all lawful instructions from, and directions of Community Corrections officers.
40Do you understand the conditions I have imposed, and the general terms that apply?
41ACCUSED: (Through Interpreter) Yes, I do, Your Honour.
42HIS HONOUR: Before you consent to the making of such an order, you must understand that the contravention of any condition attached to the Community Correction Order, except for a contravention of a direction by the Secretary, is itself an offence punishable by three months' imprisonment.
43Contravention of a Community Corrections Order also carries with it the prospect that you will be brought back before me and re-sentenced for the original offences. Do you consent in those circumstances to the imposition of such an order?
44ACCUSED: (Through Interpreter) Yes, I do.
45HIS HONOUR: If it had not been for your plea of guilty, I would have sentenced you to 18 months imprisonment with a Community Corrections Order on the same terms, except that I would not have required you to undertake unpaid community work.
46You can now be seated. Mr Pascoe, you can approach Mr Paolucci if you wish.
47MR PASCOE; Thank Your Honour, thank you sir.
48HIS HONOUR: And lastly, I have considered the application by the prosecutor for an order that you provide a forensic sample. I propose to grant the application and make the order. I will now read a warning regarding the taking of such a sample. You must listen carefully.
49Madam Interpreter, do you have this as well? You can be seated. Mr Pascoe, in your absence your predecessor consented to this.
50MR PASCOE: Yes, Your Honour, I've had opportunity speak to Ms Swiney. I understand it is by consent, sir.
51HIS HONOUR: This is the, in a sense, the proforma forensic sample warning. Do you want to copy of it do you?
52MR PASCOE: No, Your Honour. Thanks.
53HIS HONOUR: Application was made by the prosecution for the provision of a forensic sample by taking a scraping from your mouth or a blood sample. Having regard to the seriousness of the circumstances of the offending, I find that the granting of the order is in the public interest, and I note that you have consented through your counsel to the making of that order. I will make the order, and indeed I have, and I have already signed it.
54I am required to warn you that if at the time you are requested to supply a sample of your DNA by scraping from the inside of your mouth, under supervision by an authorised member of the police force, then the sample will be taken in that way, but if, when requested by the officer to provide the sample in that way, you either fail or refuse to provide the sample, the officer is authorised to obtain a blood sample and to use reasonable force to obtain that blood sample.
55Gentlemen, anything else?
56MR GILLIGAN: No, Your Honour.
57MR PASCOE: No, Your Honour.
58HIS HONOUR: Yes, all right, well I'll permit Mr Paolucci to be released. Sorry there is one thing I have forgotten to do before you all go. If you don't mind waiting a moment, the order has just been printed out. I will sign that and have you leave with a copy of it.
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