Director of Public Prosecutions v Pappagiannis

[2016] VCC 845

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -15-01961

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOHN PAPPAGIANNIS

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	20 June 2016
CASE MAY BE CITED AS:	DPP v Pappagiannis
MEDIUM NEUTRAL CITATION:	[2016] VCC 845

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Plummer
For the Accused	Mr D. Holding

HER HONOUR: 

1John Pappagiannis, proceedings were conducted, pursuant to the provisions of Part II of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1991, "The Act".  That jury heard evidence from Dr Katinka Morton, a consultant psychiatrist employed by Forensicare, regarding her assessment of you. 

2The jury, by its verdict, accepted that you could not meaningfully understand the court's processes, nor participate in your defence by instructing a legal practitioner.  You are unable to describe any processes of which you could enter a plea.  Dr Morton is of the opinion you are unfit to be tried, due to your intellectual disability, and did not believe you would be fit in the next 12 to
24 months.  The jury therefore found that you are unfit to be tried under the Act.

3After that finding, another jury found that you had committed four charges of assault.  You were found not guilty of a charge of criminal damage, Charge 3.  Those proceedings or the special hearing was conducted under Part III of the Act.

4The circumstances of your offending are set out in the summary of the prosecution opening.  The informant gave evidence, adopting the contents of this document and the circumstances relating to the assault charges were not challenged. 

5On 23 February 2015, at about 1 o'clock, Ms Karen Venuto was at Moorabbin train station.  You verbally abused and swore at her when she was on the platform.  You did not know each other.  She was scared and went to the ticket office to get help.  While she was on the phone calling the police, you continued swearing at and abusing her.  While she was waiting for the police, you threw a can of Coke towards her, spat at her and continued to behave in a threatening manner towards her.  Ms Venuto was clearly distressed and wanting to seek refuge in the ticket box.  This is the conduct constituting Charge 1 and much of this incident was captured on CCTV, which was played to the jury. 

6On 11 March at about 11.30 am, Ms Venuto was again at Moorabbin train station.  You gestured to her and threatened her and she quickly got on the train.  That is Charge 2. 

7On 9 April at about 4.30 pm, Ms Venuto was coming out of the station at Moorabbin.  You pointed at her and threatened and abused her.  That is the conduct constituting Charge 4.

8On 18 April at about 4.45 pm, in the vicinity of the Moorabbin train station,
Ms Venuto was with her friend and two young children, walking on the footpath.  You approached them and again verbally abused and threatened her.  That is the conduct constituting Charge 5. 

9Your behaviour towards Ms Venuto on each of these occasions has caused her to be afraid and scared, particularly as it continued.  This incident has caused her to be on high alert and more hesitant about going out and utilising public transport. 

10I received evidence, pursuant to s.42 of the Act, from Ms Venuto, setting out the impact of your offending on her.  That is by virtue of a victim impact statement and also in evidence in court today.  It is apparent that your behaviour has had a significant impact on her. 

11As a consequence of the jury finding that you committed those offences, I am required under the Act to declare you are liable to supervision, under Part V, or order that you be released unconditionally.  (See s.18(4).of the Act)

12Having declared that you are liable for supervision, a report was prepared, pursuant to s.41 of the Act.  I received a report prepared by Catherine
Leigh-Smith, psychologist, dated 10 June 2016, in addition to a certificate of available services, pursuant to s.47 of the Act.  I am required to consider both of these prior to making either a custodial or a non-custodial supervision order. 

13Section 39 of the Act provides that,

"In deciding whether to make a supervision order, the court must apply the principle that restrictions on a person's freedom and personal autonomy, should be kept to a minimum, consistent with the safety of the community."

14I have considered the circumstances of the events which gave rise to the charges, as outlined above.  I have read and considered the report provided by Ms Venuto and also considered her evidence provided to me today.  As previously indicated, this offending has had a significant effect on her
day-to-day functioning, and has caused her high anxiety, stress and caused her to change her normal routines.

15I have considered the report of Ms Leigh-Smith.  In preparing her report, she had available to her information from a number of sources, including professional opinions dating back to 2009 until 2016, including the report of
Dr Morton.  In her report, she addresses:

i.A diagnosis and prognosis of your condition;

ii.Your response to treatment, therapy or counselling; and,

iii.Suggested treatment or other plan for managing your condition. 

16Ms Leigh-Smith sets out the following conditions: 

(1) That you continue to access counselling services on an ongoing basis                 to recuse the likelihood of your re-offending. 

(2) You continue to participate in Outreach services, provided through                 Berry Street, and

(3)  You continue to receive case management through Disability    Services. 

17It is also recommended that consideration be given to increasing your level of support in a residential setting, and that you be encouraged to explore vocational, educational and/or recreational options. 

18As required, the s.47 certificate sets out an outline of available facilities and services, if I am minded to impose a non-custodial supervision order. 

19The prosecution did not argue that a custodial order was warranted and does not oppose the making of a non-custodial supervision order.

20Having considered the matters pursuant to s.40 of the Act, and bearing in mind all the matters to which I have referred, I am satisfied a non-custodial supervision order ought to be made. 

21As I have previously declared you, John Pappagiannis, are liable to supervision under Part V of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.

22Pursuant to s.26(2)(b) of the Act, the following conditions apply: 

·You are to be under the supervision of the Secretary to the Department of Human Services or their delegate. 

·You are to comply with lawful directions of the Secretary to the Department of Human Services or their delegate.

·You are to reside at a location as directed by the Secretary to the Department of Human Services or their delegate. 

·The nominal term of the order is two and a half years and is to commence    on this day, 20 June 2016. 

23The Secretary to the Department is directed to arrange the preparation and filing with the court, a report at intervals of not more than 12 months for the duration of the order, and a major review must be undertaken at least three months before the end of the nominal term of the order, being - what is that date please? 

24MR PLUMMER:  20 December 2018.

25HER HONOUR:  Being 20 December 2018. 

26Consistent with the recommendations in the report, it is noted on the file that the following should be considered in relation to matters under the supervision or lawful direction of the Secretary to the Department of Human Services.  That is, DHHS disability client services are to provide case management for the duration of your order to facilitate your participation in services aimed at reducing the likelihood of you re-offending.  Case management to include regular care team meetings to provide supports staff and members of your treating team with the opportunity to monitor your engagement with services and any changes in your risk. 

27You are to engage in psychological counselling and offence specific therapy to address areas such as relationship, anger management and problem solving, and DHHS is to continue to facilitate Outreach support to assist you in developing your independent living skills and access the community safely.  Outreach support is to assist you to continue to reside in the community. 

28Are there any other matters that need to be included please?

29MR HOLDING:  No.

30MR PLUMMER:  No, Your Honour.

31HER HONOUR:  I will just stand down, thank you. 

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