Director of Public Prosecutions v Pegorari

[2019] VCC 2055

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

AT BENDIGO
CRIMINAL JURISDICTION

CR 19-01696

DIRECTOR OF PUBLIC PROSECUTIONS

v

WILLIAM PEGORARI

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Bendigo
DATE OF HEARING:	9 December 2019
DATE OF SENTENCE:	9 December 2019
CASE MAY BE CITED AS:	DPP v Pegorari
MEDIUM NEUTRAL CITATION:	[2019] VCC 2055

REASONS FOR SENTENCE
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Subject:  Home invasion, theft.
Sentence:  2 years community corrections order.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D.R. Cordy
For the Accused	Mr J. Portelli

HIS HONOUR:

1William Pegorari, you have pleaded guilty to one charge of home invasion, one charge of theft and a related charge of summary assault.  The maximum penalty for the offence of home invasion is imprisonment for 25 years and the maximum penalty for theft is imprisonment for 10 years, and the maximum penalty for summary assault is imprisonment for three months.

2You can see from the maximum penalties set by the parliament of this state that this kind of offending is regarded very seriously.  If you needed any further evidence of how seriously the parliament regards these matters, you need look no further than the fact that the offence of home invasion is also what is described in the Sentencing Act 1991 as Category 2 offence. There are a number of provisions being various sub-sections for s.5 of the Sentencing Act, commencing at sub-s.(2H) and following, which deal with matters that the sentencing court must take into account, and in a case like this unless there are substantial and compelling circumstances that are exceptional and rare, the court must impose a term of immediate imprisonment for this offence, and a term of imprisonment without, in addition, a community corrections order.  So these are very serious matters.

3I will return to the provisions in the Sentencing Act shortly.  The circumstances of your offending are set out in an agreed summary of prosecution opening dated 18 November 2019.  That was read in open court by the learned prosecutor, Mr Cordy, and your counsel, Mr Portelli agreed that the summary was accurate and forms a proper basis upon which I can proceed to sentence you for these crimes.  It is not necessary that I again repeat what is there set out except in a very summary way.

4At about 5.45 am on the morning of 18 April of last year, about two weeks after you turned 19 years of age, you went in company with other young men to an address in Echuca.  You entered through an open door and went to the bedroom of the occupant, who was then asleep.  He woke up to find you and the other two offenders in his room.  You said to him, 'I don't want to hurt you.  We just want your stuff', before saying words to the effect of, 'If you call the cops you're going to get hurt'.  One of your number held a small blade like a pair of scissors and it is unclear who held the weapon.  You told the police that it was one of the other co-offenders, and I am prepared to act on that basis.

5You fled the house but not before taking the iPhone and wallet containing $150.  That property belonged to the occupant.  Police soon located you and the co-offenders by use of the, 'Find my iPhone' ap, and you were arrested and interviewed and you cooperated fully with the police.  You have accrued one day of pre-sentence detention before being released on bail.  As I said, you were 19 at the time of this offending and you were 19 years of age at the time of sentencing, which means that you are, for the purposes of the law, a young offender.

6Whilst this is a serious offence of home invasion, it is by no means, in the circumstances here, an offence which falls at the higher end of the scale.  In my view, it falls very much towards the lower end, as does the offence of theft.  You were charged with that offence on the basis that you committed these crimes together with others, and you were also charged with the offence of assault on the basis that the actions of the three of you threatened the occupant.

7You have pleaded guilty to the charges at the earliest available opportunity and you cooperated fully with the police.  For that you are entitled to a reduction in sentence and this will be reflected in the sentence that I will shortly pass.  Because you have pleaded guilty you have saved the time and cost of a trial, you have admitted responsibility for your offending, and you have advanced the course of justice.

8Mr Portelli on your behalf filed a very helpful outline of his submissions in writing to the court, and I mark that as Exhibit 1 on the plea.  He relied upon your youth in particular.  The courts have for a very long time sentenced young offenders on the basis that the primary consideration in sentencing a young offender is rehabilitation.  You come before the court as a young offender and with no prior convictions, and there is every reason to believe, I think, that you can be completely rehabilitated.

9You have had a very disadvantaged upbringing.  Your mother was of Aboriginal heritage and your father English, but both your natural parents were afflicted by addiction to both drugs and alcohol and both have now deceased.  You, from a young age, have been of concern because of your behaviour, but you have been luckily supported throughout your life by your foster parents, both of whom were in court to support you today, and if I may say so, they have done a remarkable job bringing you up, and you should be grateful to them because a lot of people come before the courts with similar background to you.  The exception with you is that you have not previously been in trouble with the law.  That of itself is, to use the words of the statute, rare and exceptional having regard to the circumstances in which you have grown up.

10Mr Portelli relied upon the fact that you made full admissions when interviewed and you cooperated fully with the police and you, by your pleas and by your letter to the court today, which I received into evidence, and by what you said to the police, exhibited, I think, genuine remorse and contrition for what was a stupid act on your part.  This offending, I think, occurred because a lot because of your background history.  I was told that you were attempting to reconnect with your Aboriginal heritage but that led you to associate with others, and because of peer group pressure you appear to have offended.

11I received into evidence a psychological report from Gina Cidoni, a consultant psychologist, and she has also outlined a number of facts relating to your background, all of which I have taken into account, but she administered some psychological testing of you and found that you have a full scale IQ or intelligence quota of 79, meaning that 92 per cent of individuals your age would perform better.  You are regarded as being of borderline intelligence.  You suffer from depression, for which you have in the past been medicated but only for a short time.  You have been using cannabis in your teenage years and you told Ms Cidoni that you still do.  That is not good because it will ultimately lead to further trouble and you told her that you began dabbling in ice in 2018 and that is what probably led you into this offending along with the wrong peers, and you told Ms Cidoni that you ceased using ice or methamphetamine after you have been charged with this offending.

12Mr Portelli submitted, and his submission was not opposed by the prosecution, appropriately in my view, that there are circumstances here which when taken together are substantial and compelling and exceptional and rare as to why I should not make an order sending you to prison but, rather, make a community corrections order, which I will do, and I will come to that in due course.

13The relevant provisions in the Sentencing Act, in my view, are very clear.  They set out in clear terms that for the offence of home invasion you must be sent to prison unless there are substantial and compelling circumstances that are exceptional and rare, but there are in a number of sections the legislation provides that the court can have regard to a number of factors normally applied in sentencing.

14It depends upon, I think, the weight that one gives to each of those factors.  Here, I think, special weight must be given to your unfortunate background, none of which was of your making, where you have had a difficult early life.  You are of a part Aboriginal heritage.  You have no prior convictions.  You are remorseful and I think having regard to your mental state there are real reasons why there should be less weight placed upon general deterrence in this matter, and your general state of mental health, I think, also impacts on the kind of sentence that the court should hand down.

15I am satisfied that substantial and compelling circumstances that are exceptional and rare have been made out in this case and, as I say, the prosecution does not oppose the making of a community corrections order without a term of imprisonment being ordered in this case in the circumstances of it.  Accordingly on charges  1 and 2, that of home invasion and theft, I make a community corrections order with conviction.

16The community corrections order will commence this day for a period of two years with conditions that:  you undergo 100 hours of unpaid community work; that you undergo supervision; and that you undergo programs for treatment and rehabilitation from drugs and in regard to your mental health.

17On the summary charge you are convicted and discharged.

18I do that on the basis that most of the matters that make up that charge merge with the other offending, in my view. For the purposes of s.6AAA of the Sentencing Act, had it not been for your pleas of guilty to these charges I would have imposed a term of imprisonment of three years and I would have ordered you to serve a minimum term of two years. Are there any other matters,
Mr Cordy?

19MR CORDY:  Yes, Your Honour.

20HIS HONOUR:  Are there any ancillary orders?

21MR CORDY:  There are no ancillary orders, Your Honour.  Is Your Honour's intention that treatment and rehabilitation be credited towards the 100 hours?

22HIS HONOUR:  Yes, it is.  Yes, it is, and that will be in the order that will be signed.

23MR CORDY:  As Your Honour pleases.

24MR PORTELLI:  As Your Honour pleases, thank you, sir.

25HIS HONOUR:  Thank you for bringing that to my attention.  Any questions arising out of that, Mr Portelli?

26MR PORTELLI:  No, Your Honour.

27HIS HONOUR:  Come out of the dock if you would again, please, Mr Pegoraro - Pegorari, I am sorry.  No, Mr Pegorari, before you leave you need to understand a few things.

28OFFENDER:  Yes.

29HIS HONOUR:  First is that you must report to Echuca Community Corrections within two days; do you understand that?

30OFFENDER:  Yeah, I will say yes.

31HIS HONOUR:  The next is that you must comply with this community corrections order in every way.  That is you must attend when directed for unpaid community work.  You must attend for supervision when required and you must go to all of the programs prescribed for you;  You understand?

32OFFENDER:  Yeah, I understand, Your Honour.

33HIS HONOUR:  Any time that you spend attending programs related to ensuring that you get off drugs and that to assist you with your mental health, that will come off the unpaid community work hours.  Do you understand?

34OFFENDER:  Yes, Your Honour.

35HIS HONOUR:  So it is in your interest to attend all of those things, but most importantly, it is important that you do not reoffend in any way during the period of two years; do you understand?

36OFFENDER:  Yes, I understand, Your Honour.

37HIS HONOUR:  if you do you will breach the order, and if you do you will be brought back before me.  Do you understand?

38OFFENDER:  Yes, I understand, Your Honour.

39HIS HONOUR:  And save for a miracle, you will go to gaol because you will be re-sentenced for a very serious crime.  Do you understand?

40OFFENDER:  Yes, Your Honour.

41HIS HONOUR:  So you've been given a second chance, all right?  Now, in your letter to me you told me how you have let down your parents, your foster parents who are in court with you.  Now, do not let them down again by breaking this order, will you?

42OFFENDER:  (Indistinct words.)

43HIS HONOUR:  They have been very good to you and you take the opportunity that you have been given.  You understand?

44OFFENDER:  Yes, Your Honour.

45HIS HONOUR:  Very well.  On the rising of the court you are free to leave.

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