Director of Public Prosecutions v Pasoglou

[2017] VCC 131

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00551

DIRECTOR OF PUBLIC PROSECUTIONS

v

DENNIS PASOGLOU

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JUDGE:	HIS HONOUR JUDGE COISH
WHERE HELD:	Melbourne
DATE OF HEARING:	23 February 2017
DATE OF SENTENCE:	23 February 2017
CASE MAY BE CITED AS:	DPP v PASOGLOU
MEDIUM NEUTRAL CITATION:	[2017] VCC 131

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr G. Gray	Office of Public Prosecutions
For the Accused	Mr G. Barns	James Dowsley & Associates

HIS HONOUR:

1Dennis Pasoglou, could you stand up please.  You have pleaded guilty to one charge of intentionally cause injury and one summary charge of commit offence whilst on bail.  These offences carry the following maximum penalties.  Intentionally cause injury, ten years imprisonment.  Commit offence whilst on bail, three months imprisonment or 30 penalty units. 

2It is unnecessary for me to recount the facts of the matter in detail as they are on transcript and contained in Exhibit 1, the summary of prosecution opening on plea.  That opening was accepted by you through your counsel.  I proceed to sentence you on the basis of the facts as open by the prosecutor which I shall now briefly summarise. 

3On 3 August 2015, you and the co-accused, Elia El Azar, went to an apartment in McKenzie Street, Melbourne.  You were looking for the victim
Matthew Nicolli.  You had a conversation with another person Patrick Mar.  Eventually you were able to locate the victim.  At about 9 pm, the victim Nicolli was seen on CCTV footage arriving at 61 McKenzie Street, Melbourne and he was met by you and the other person Mar.

4The victim and Mar returned upstairs to the apartment while you remained downstairs for a short time.  On entering the apartment the victim was confronted by El Azar who began to list a number of matters that had made him angry, including that the victim allegedly owed him money.

5El Azar then produced a pair of metal knuckle dusters and hit the victim to the head and body multiple times, whilst demanding that he produce drugs (ice) and money.  The victim was bleeding profusely from the head.  This is the basis of the charge of intentionally cause injury.  The prosecution case, which you have accepted, is that although you did not strike the victim, both you and
El Azar had previously told Mar of your plan to assault the victim.  Accordingly you are to be sentenced as part of a joint criminal enterprise to assault the victim and cause him injury.

6You were arrested and interviewed at Frankston Police Station on 13 August 2015.  You made no comment to the allegations made against you.  You denied knowing the co-accused El Azar.  You participated in a contested committal on 16 March and 7 April 2016 and were committed to stand trial.  A final directions hearing listed for 3 October 2016 was adjourned to allow negotiations between your counsel and the prosecution.  Ultimately you were arraigned on
17 November 2016 and entered a plea of guilty.

7I stated to you that I have taken into account the following matters in mitigation of sentence.  You have pleaded guilty.  You are entitled to have that fact taken into account in your favour and I do so.  The community has, by your plea, been spared the time and cost of a trial.  Witnesses have been spared the ordeal of giving evidence upon your trial.

8You pleaded guilty after a contested committal and following significant negotiations between your lawyers and the prosecution.  I accept from your plea of guilty that you are genuinely remorseful.  I have been told something of your personal circumstances and these matters are set out in the outline of defence submissions filed by your counsel.

9You are 45 years of age having been born on 14 September 1971.  You are a single man.  You have two teenage boys living in the United States of America.  There has been much death in your family.  You were one of four siblings.  Your two brothers died at the ages of 47 and 42 years in 2005 and 2006 and your father died in 2010.  Your mother has dementia.  You live with your sister in
St Albans.

10You were educated at the Chisholm College until the end of Year 11 and you worked with your father in his marble and granite factory for some years.  You have not worked since your father's death in 2010.  You ultimately hope to return to employment in the marble granite industry.

11You have had a significant issue involving the use of illicit drugs.  You were using drugs, particularly ice, at the time of this offending.  You have had a drug problem for about five years.  It is submitted on your behalf that since the start of this year, you have "been clean". 

12I assess your prospects of rehabilitation as being cloudy.

13Against these matters in mitigation however, your actions were very serious indeed.  This was a vicious attack on the victim.  The context of this attack involved a request for drugs and money.  A further aggravating factor is that this offence was committed whilst you were on bail. 

14There is no victim impact statement, however I accept that this was no doubt a terrifying experience for the victim.  I note that the victim suffered a hematoma laceration and swelling to the left side of his head and tenderness to his back.  The medical assessment indicated that the victim had suffered at least four separate blows to his face and head.  I have seen the photographs which indicate the nature of the lacerations to the victim's head. 

15You have admitted before me numerous prior convictions.  There are court appearances between 8 May 2013 and 27 April 2001 involving convictions for driving offences, drug offences and offences of violence.  I do note, however, that the most significant offences, and these involve violence, namely armed robbery, false imprisonment and intentionally cause injury, resulted in your conviction and sentence to a term of imprisonment of four years in the Melbourne County Court on 27 April 2001.  There was a non-parole period of two years and six months.

16These offences of violence were committed many years ago.  In more recent times, your criminal history has involved driving offences and drug offences and offences of dishonesty.  It is also relevant to note that you did have a number of unrelated matters for which you were sentenced to four months imprisonment with a 120 days declared as pre-sentence detention on 8 February 2016.

17It is also relevant to note that you are now in custody, having been arrested yesterday in respect of a number of summary matters which involve breach of bail, driving whilst your licence was suspended, fraudulent use of registration plates and theft of a motor vehicle.  There may also be other offences with which you will be charged.

18I have had regard to the principle of totality, particularly in respect of the time in custody in relation to other offences.  The pre-sentence detention in this matter is 119 days. 

19As well as the matters to which I have referred, I must also take into account the need for general and specific deterrence.  Specific deterrence is relevant having regard to your lengthy criminal history.  General deterrence is also of considerable importance in a case such as this.  This type of offending must be discouraged.  I am called upon by the Sentencing Act to manifest the community's denunciation of your conduct and generally to impose a just punishment. 

20It was submitted on your behalf that I ought impose a sentence of imprisonment of time served.  It was not in dispute that the nature of this offending warranted a sentence of imprisonment.  An alternative submission was put on your behalf that you ought be sentenced to a term of imprisonment in combination with a community corrections order. 

21It was submitted on behalf of the prosecution that a sentence of imprisonment was required.  The prosecution submitted that it was a matter for me to determine whether time served was appropriate and the prosecution did not oppose what has been described as a "cocktail", namely a sentence of imprisonment and a community corrections order.

22In the past you have received various community correction orders.  There has been, and that is subsequent offending, after those orders were imposed.  It is in my opinion also relevant that you are now 45 years of age.  You now find yourself in the circumstances of being relatively isolated in terms of family.

23I have had regard to the summary of the sentencing snapshot that was provided to me by the prosecutor. 

24Having regard to all relevant facts and appropriate sentencing principles I am satisfied that I have no alternative but to impose a sentence of immediate imprisonment.

25I do not consider that this is an appropriate case for a "cocktail", namely a sentence of imprisonment in combination with a community corrections order.  Rather, in my opinion, this is a matter that is appropriately dealt with by a straight sentence of imprisonment. 

26On Charge 1, you will be convicted and sentenced to eight months imprisonment.  On Charge 2, the summary offence of committing an offence whilst on bail, that was summary Offence 10, convicted and sentenced to one month's imprisonment.

27I direct that the sentence of one month's imprisonment on the summary Offence 10 be served cumulatively on the sentence on Charge 1.  The total effective sentence is nine months imprisonment.  As prescribed by s.18(4) of the Sentencing Act, I declare that the period of time you spent in custody is 119 days, which is to be reckoned as time already served under the sentence.  I direct that such be noted in the records of the court.

28Pursuant to s.6AAA of the Sentencing Act, I state that the sentence of a non-parole period I would have imposed, but for the plea of guilty, is 14 months, with a non-parole period of nine months.

29MR BARNS:  As Your Honour pleases.

30MR GRAY:  Your Honour pleases.

31HIS HONOUR:  That covers everything?

32MR BARNS:  It does, Your Honour.

33MR GRAY:  Yes, Your Honour, yes.

34HIS HONOUR:  Yes, thank you very much for your help Mr Gray,
Mr Barns. 

35MR BARNS:  Thank you.

36HIS HONOUR:  Just adjourn, thank you.

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