Director of Public Prosecutions v Pato
[2022] VCC 2021
•17 November 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-19-02210
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| REECE PATO |
---
JUDGE: | HER HONOUR JUDGE QUIN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 August 2022, 24 August 2022, 25 August 2022, 26 August 2022, 29 August 2022, 29 August 2022, 30 August 2022, 31 August and 26 October 2022 | |
DATE OF SENTENCE: | 17 November 2022 | |
CASE MAY BE CITED AS: | DPP v Pato | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 2021 | |
REASONS FOR SENTENCE
---
Catchwords: Aggravated home invasion; Affray, Intentionally damage property
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms L. McDonnell | OPP |
| For the Accused | Ms A. Sutherland | Greg Thomas Barristers & Solicitors |
HER HONOUR:
1
Reece Pato on 31 August 2022, a jury found you guilty of one charge of aggravated home invasion, affray and intentionally damaging property.
You were acquitted of the charge of making a threat to kill.
2
This related to events that occurred in the home of Ali Ingrim in
Cranbourne North in the early hours of 1 February 2020, the February 2020 incident.
3
The maximum penalty for aggravated home invasion is 25 years. Pursuant to s10A(c) the court must impose a term of imprisonment and fix under s11 a
non-parole period of not less than three years, unless the court finds under s10A a special reason exists, a matter I will refer to later in these reasons.
4 Affray five years, intentionally damaging property 10 years.
5 After those verdicts you pleaded guilty to the following additional offence arising out of a different incident that occurred on 13 January 2019 in Carrum Downs, the January 2019 incident. That is one charge of intentionally causing injury with the maximum penalty of 10 years.
6 The prosecution filed a summary of prosecution opening dated 3 June 2022, Exhibit A, relating to the January 2019 incident, the facts of which can be summarised as follows.
7 You and a friend, Stefan Bejatovic went to a party at Taylor Reagan's, the complainant's house in Carrum Downs. There were issues at the party about people putting drinks on the pool table and you ended up in a fight with the complainant.
8 You were confronted by the complainant as you refused to get off the table of move your drink. When you ultimately got off the table the complainant punched you and a fight then ensued between you. Each of you punched and hit out at each other and the complainant bit you on the arm. You were continually being told to leave and to get out of the house.
9 One of the people at the party called the police. They discovered you had left, so did not continue with the call. After you left the property you found out that the complainant had your speaker and you were told that you were not getting it back. You said you wanted a one on one with the complainant to get your speaker back.
10 After about 10 minutes you and the complainant had a confrontation at the door of the house. You argued about the return of the speaker and were abusive and threatening to each other, challenging each other for a fight. The complainant was not aware that you had returned to your car and got a knife. Despite being told a number of times to leave the property you went through the fly wire door and into the property.
11 You and the complainant then engaged in a physical fight again with hitting and punching. When you were hitting the complainant, he noticed you had something in your right hand. He looked down and saw what he described as a big hole in his chest. He felt it stinging. He knew he had been stabbed but was unsure how many times. He saw the blood coming out of his chest. He then looked up to find you had left the room. The stabbing was in the context of the fight between you and the complainant.
12 When others realised what had happened, they confronted you. You grabbed your speaker and left the house. The police were called. The complainant was taken to hospital and had the following injuries. A large open penetrating wound to the upper left chest, an incision to the upper left arm, abrasion to the top of his left shoulder and bruising to the right side of his neck and an abrasion down the side of his neck towards his chest.
13 You went back to your home where you live with your mother. You told her you had been involved in a fight and had stabbed someone, that you had the knife for your protection and that you wanted to get your speaker back.
14 The police went to your house the following morning. In your record of interview you told police about that fight at the party, that you wanted to defend yourself and had the knife on you for your own protection. You maintained you just wanted to get your stuff back and you were protecting yourself from the complainant.
15 You were remanded in respect of this matter for a number of days and then you were on bail by the time of the incident in February 2020 or the matter that related to the trial before me.
16 In short summary form in respect of the February 2020 incident, you attended a party at a house in Cranbourne North. In the course of the night you were involved in an altercation with one of the people at the party RVM. You then left the property.
17 You returned with three other men. You were banging on the door, yelling to RVM to come outside. Eventually, you and the other three men pushed open the front door and came into the house. Some of you had hammers, though on the evidence in the trial you were not so armed. There were a number of people in the home when you all came through and some of the occupants were assaulted.
18 You went to the room where RVM was and damaged the door. You continued yelling out. You remained in the house for a number of minutes. Then you and the other three men left.
19 A victim impact statement was prepared by one of the occupants of the house who was assaulted. He suffers from increased anxiety and social awkwardness. He is fearful as a consequence of you and the others running through the property and is cautious socialising with others.
20 Although no other victim impact statements were filed in respect of the incident in January 2019 or February 2020, it is clear that your involvement in offending on both nights caused fear to occupants in both houses and physical injury to individuals.
21 I was provided with some photos of your injuries after one of the parties. I accept there is a level of extra-curial and punishment given. You suffered injuries yourself. Though that does not excuse your actions.
22
As to your personal circumstances, I was provided with the following material. Reports from psychologist, Daria Sizenko, dated 23 January 2020 and
11 September 2020, RP1, psychological report of Gina Cidoni of
21 October 2022, RP2, documents from the Salvation Army positive lifestyle program and Grant Rimon, RP4, RP5, bundle of references from previous employer, family members and friends, letter from Jack Robb, clinician, Ravenhall Corrections and bundle of certificates, RP6.
23 The reports from the psychologist set out the details regarding your personal history and circumstances. You are currently aged 27. Your parents separated when you were young and you spent time in each of their custody growing up. You reported witnessing physical abuse by your father towards your mother and also significant alcohol and substance abuse when you were in your father's care
24 You have three half-siblings on your maternal side. Your mother and two of your half-siblings prepared letters for me indicating their support to you.
25 You did not have a happy time at school and were bullied. You were able to complete Year 12 VCAL. You had various part-time jobs in retail and hospitality both while at school and after you had finished, when you worked in call centres and administrative work for a number of factories.
26 In October 2018, you were employed as a postman by Australia Post. This was a job you enjoyed. However, given the events in early 2020, that job ceased.
27 I understand that after the January 2019 offending you took steps to address your issues, engaging with the Salvation Army positive lifestyle program and undertaking counselling to address anxiety, depression and emotional regulation.
28 During this time you were employed and were enjoying your job. At this time you were assessed as a low risk of re-offending.
29 However, events did not play out that way and you offended most seriously in the February incident.
30
I note that when you returned to custody on 5 March 2020 on remand at Ravenhall you were eligible for accommodation within the
Everton Mission Based Unit, that you complied with all behavioural expectations and completed the relevant therapeutic programs.
31
You spent approximately seven months in custody and utilised your time well. You were then on bail from September 2020, until you were remanded on
31 August 2022, being a period of almost two years. In that time you were not employed, lived with your mother and had essentially isolated yourself from all your past friends and acquaintances.
32 Since being remanded on 31 August you have been placed at Marngoneet where you now have a job in the industry section.
33
As to your psychological state, in the most recent psychological report
Ms Cidoni opined that you suffered from a borderline personality disorder and post-traumatic stress disorder, which conditions rendered you impulsive and reckless, particularly when alcohol effected.
34 It is clear from all the material that your alcohol consumption played a significant role in your offending on each occasion. Although that may explain your offending it does not excuse it.
35 Ms Cidoni noted that on psychological testing,”
“He presented with borderline personality traits where he can be forcefully energetic and act in rash and hot headed ways… he has low self-esteem. Behaviour can be erratic and appear to be constantly restless and cognitively scattered and have inappropriate and exaggerated responses to conflict where emotions tend to be strong and overwhelming. Emotional dysregulation and severe boundary difficulties in inter-personal relationships are problems where he struggles to orientate yourself to feel at ease in such interactions. Unexpected and impulsive outbursts, low
self-inhibition and emotional volatility lead to angry and damaging behaviours. Mood tends to be unstable and oppressive lows and some manic behaviours were in evidence…”
36 Ms Cidoni also remarked that your mental illness and personality disorder caused difficulties modulating control over behaviour, impaired impulse control, persistent worry, difficulty relaxing, feeling on edge, transient paranoia and managing your emotions. At the core of your problems is a conflict of how to fundamentally orientate yourself to social and situational challenges that range from very simple interactions to major life decisions.
37 Ms Cidoni also notes at paragraph 105, that
“Borderline personality disorder is a debilitating and distressing condition and research suggests prison, itself, may make it worse. Finding yourself in an environment involving effective isolation, surveillance, lack of intimacy, routine, repeated frustration and different values leads to mistrust and aggressiveness and contribute to an emotional overload which results in maladjusted, problematic behaviours, psychotic-like symptoms and extreme behavioural responses.”
38 It was not submitted, given your alcohol consumption on both nights that there was a link between your mental condition and the offending. However, it was submitted on the basis of this opinion that limbs 5 and 6 of Verdins were engaged, that your mental state was such you will find custody more burdensome and that your condition may deteriorate in custody.
39 The prosecution conceded that was the case and I take that factor into account.
40 At the time of the commission of the January 2019 offence you had no prior convictions or any involvement with the courts. These instances of serious offending are clearly a rapid escalation through the criminal justice system.
41
You were aged 23 at the time of the January incident. You are still relatively young, though not a young offender, as that term is defined in the
Sentencing Act. I take your age and lack of priors into account.
42
You were in custody from 26 February 2020, until released on bail in
September 2020. You have been in custody since the verdict in August 2022.
43 During the time you have spent in custody COVID has impacted the conditions for prisoners. Visits have been more limited. Availability of courses has been reduced and movement in prison is more restricted.
44 You were in custody when these measures were first introduced. Restrictions still remain and it is uncertain how long they will remain and in what form. I take into account that custody is more burdensome for you given these COVID times.
45 In respect of the January incident, I take into account your plea of guilty. Though it could not be said to have been offered at an early stage. You have, however, saved the cost to the community of a trial and no witnesses were required to be called, including the victim.
46 Further, given the impact that COVID has had on the administration of justice in this State your plea is of a greater value in assisting with reducing the court backlog. I accept your plea to this matter is also indicative of remorse.
47 As to the objective seriousness of this offending, in relation to the January 2019 incident, your actions were to some degree spontaneous, though you did go and get the knife from the car. You were not necessarily the aggressor in the physical altercation. Though clearly, you went too far in stabbing the complainant. There was a level of provocation connected to your actions from the complainant and others at that party. You were fortunate that the injuries were not more significant.
48 In respect of the February 2020 incident, you were on bail in respect of the January 2019 incident. You went back to the property with three others, some of whom were armed with hammers. You were seeking retribution for offence earlier in the night.
49 The event was of short duration, as indicated by the CCTV footage but it occurred in a person's home in a neighbourhood area, there were a number of occupants in the house and the neighbours were also frightened and concerned.
50 There were similarities in the offending on both occasions with you engaging in violent behaviour and returning to the property to address a grievance. You, clearly fuelled by alcohol, acted in an aggressive and a violent manner on both occasions.
51 Your counsel relied on a number of factors to support the submission you had good rehabilitation prospects. You have shown that you can engage with services and counselling to address your issues, particularly when you were released on bail for the January incident and when you were on remand from February 2020.
52 You have remained out of trouble from September 2020, until you were remanded after verdict. You have no prior convictions. You are relatively young. You have a good employment history. You have support from your mother and family and friends.
53 The prosecution did not dispute and I accept your rehabilitation prospects are good.
54 The seriousness with which parliament regards aggravated home invasion is reflected by the maximum penalty under s10A provisions.
55 It was submitted by your counsel that a special reason existed, that is under sub-s(e) that there are substantial and compelling circumstances that are exceptional and rare and that justify doing so, that is, finding special reasons exist.
56 Reference was made to s10A(2)B and (3) and Lombardo. It was conceded the tests had a high threshold, but it was not easily surmounted but submitted that a combination of your circumstances, including your mental health issues, lack of priors, employment and family support and the relatively short duration of the offending was such as to constitute a special reason.
57 I have considered the analysis of like provisions in Lombardo at C, at paragraphs 64-90. The aggravated home invasion took place when you were on bail for another serious offence and involved a similar circumstance.
58 To amount to a special reason the circumstances must be both powerful and wholly outside run of mill factors typical of that kind of offence or in this instance aggravated home invasion, see paragraph 65.
59 A combination of factors can amount to a special reason. I do not however accept that those matters, namely your age, mental state, support and circumstances of the offending amount to a substantial and compelling reason or powerful or that they are rare and exceptional.
60 As recognised the test under sub-sE is a high threshold to overcome. Taking the matters put on your behalf into account, along with the relevant provisions, I am not satisfied a special reason exists.
61 Your conduct on both occasions should not be tolerated. In the context of drinking alcohol and partying both times you managing to inflict and injury with a knife to one of the residents and forcefully enter a residence in company with others for the purpose of assaulting another resident.
62 General deterrence, denunciation and protection of community are all relevant sentencing considerations. Given your limited history specific deterrence has less relevance. Though given the similarities in your conduct in offending it is still a consideration.
63 Taking all relevant matters into account and mindful of the mandatory provisions that apply to you, I sentence you as follows.
64 In respect of the indictment containing one count of intentionally cause injury, you are convicted and sentenced to a term of imprisonment of 15 months.
65
In respect of the trial indictment in relation to Charge 1, aggravated home invasion, you are convicted and sentenced to a term of imprisonment of
five years.
66 In respect of the affray, you are convicted and sentenced to a term of imprisonment of eight months and in respect of damaging property, you are convicted and sentenced to a term of imprisonment of six months.
67
Six months of the sentence imposed on the single count indictment, that is
six months of the sentence imposed in respect of intentionally cause injury will be cumulative giving a total effective sentence of five years and six months and I set a non-parole period of three years.
68 In respect of the indictment with intentionally cause injury, pursuant to s6AAA of the Sentencing Act, if you had not pleaded guilty to that matter I would have imposed a term of imprisonment of three years.
69 Any other matters? The PSD, please?
70 MS McDONNELL: Your Honour, it's 280 days.
71 HER HONOUR: I declare 280 days PSD.
72 MS McDONNELL: And Your Honour, just the disposal orders if they might be made?
73 HER HONOUR: Yes. The disposal orders as provided to me will be signed. Thank you.
74 MS McDONNELL: If the court pleases.
75 HER HONOUR: Thank you.
76 MS SUTHERLAND: As Your Honour pleases.
- - -
0
1
0