Director of Public Prosecutions v Pezzaniti

[2020] VCC 1215

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 20-00459

DIRECTOR OF PUBLIC PROSECUTIONS

v

ELIJAH PEZZANITI

---

JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:	6 August 2020
DATE OF SENTENCE:	11 August 2020
CASE MAY BE CITED AS:	DPP v Pezzaniti
MEDIUM NEUTRAL CITATION:	[2020] VCC 1215

REASONS FOR SENTENCE

---

Subject:

Catchwords:

Legislation Cited:

Cases Cited:                   Benkic v The Queen [2019] VSCA 34; Holt [2016] VCC 2079

Sentence:  TES 12 months imprisonment; 12 month CCO; drug treatment and

rehabilitation; mental health treatment and rehabilitation;

supervision

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Lenthall (Plea) Ms E. Strugnell (Sentence)	Office of Public Prosecutions
For the Accused	Ms J. Turfrey	Rebecca Boreham Barristers & Solicitors

HIS HONOUR:

1Elijah Pezzaniti, you have pleaded guilty to the following offences which carry the following maximum penalties:

Charge Nos.	Charge	Max Penalty
1	Burglary	10 years
2	Theft of firearm	15 years or 1800 penalty units
3	Non-prohibited person possess registered general category handgun	4 years or 240 penalty units
4, 5	Theft	10 years
6	Arson	15 years
Summary Charge 6	Commit indictable offence whilst on bail	3 months or 30 penalty units
Summary Charge 8	Non-prohibited person possess registered Category A longarm without a licence	2 years or 120 penalty units

2You have admitted prior convictions.  I will return to these later in these sentencing remarks.  

3The Crown tendered the prosecution opening for plea as Exhibit A.  A summary of your offending is as follows:

4On 31 October 2019 around 8 am, you and a co-accused (not to be identified due to age) travelled to your father’s house.  Your father was not home at the time.

5At the time the offending occurred you were drug-fuelled and you had been using methamphetamines for several days.

6You and your co-offender entered the house through an unlocked window.  The charge of burglary is based on your intention to steal at the time of entry. (Charge 1 – Burglary)

7Once inside the property you went to the walk-in wardrobe, where there were two gun safes.  You accessed the larger gun safe using a key that you had in your possession.  You removed a rifle and handgun, a large amount of ammunition and accessories.  You and your co-accused then took a hammer drill from the garage and removed the smaller gun safe, which was bolted to the floor of the cupboard.  This safe contained four handguns; including a Magnum and two .45 weapons, and $24,500 cash.

8Between you, you took four Samurai swords from the main bedroom, some drills and three sets of keys from the garage, and a single-barrel 12-gauge shot gun.  I was later told this shot gun had belonged to your grandfather.

9You loaded all the items you had taken, including the small gun safe, into your father’s Holden car, which was parked in the garage.  (Charges 2, 4 and 5 – Theft of Firearm and Theft) At the time of this offending you were on bail. (Summary Charge 6 – Commit indictable offence whilst on bail) At the time you took the firearms you also did not hold a licence to possess a registered general category handgun or a registered category A longarm. (Charge 3 –
Non-prohibited person possess registered general category handgun; Summary Charge 8 – Non-prohibited person possess registered Category A longarm without a licence).

10You and your co-accused left in the stolen car and you drove to your friend, Brenden Marr’s, house.  You borrowed tools from Mr Marr which you used to open the smaller safe and remove four handguns and the cash.

11You then left Mr Marr’s and drove about 4 ½ kilometres away.  It appears likely that your co-offender then set fire to your father’s car (Charge 6 – Arson) before you both ran off back towards Merbein.  After a distance you separated from each other.

12At around 1 pm, police attended in response to the car fire.  At around 1.30 pm, after speaking to your father, the police went to his home and confirmed the thefts.

13After leaving the scene and separating from your co-accused, you returned to
Mr Marr’s home.  You borrowed his car, drove to a motel in Mildura and checked in.

14Your co-accused was located around 3 pm and, after being taken to hospital for some burn injuries from the car fire, he was taken to the Mildura police station, but was deemed unfit for interview.

15Police attended at Mr Marr’s house at 8.30 pm looking for you.  At the house they found the stolen Winchester rifle, ammunition, and the four Samurai swords.  Mr Marr was arrested and taken to the Mildura station for interview. Police attended at your girlfriend’s house.  She arrived home whilst police were still there.  They searched her car and found one of the .45 calibre handguns. She was arrested and taken to Mildura police station also.

16Around 2 am on 1 November 2019 police attended the Commodore Motel and arrested you.  In your motel room police found the rest of the handguns and $7,500 cash.

17You were arrested and interviewed.  During your interview you stated that:

·you went to the house, broke into the large safe, took the small safe and drove away in the stolen car;

·you stole items that your father loved the most, with the intention of making him feel that he had lost something;

·you disposed of anything you did not need, including burning the paperwork, disposing of the safe and burning the car.  You were planning on putting the money and guns somewhere, but were found by police before you could do this;

·you had thrown much of the money around, including throwing some out of the window whilst driving, and spending some of it on drugs;

·you could not comment on whether someone else was involved, but you wanted your father to know it was all you;

·you had been off your medication for a few weeks, and you had taken up to seven grams of methamphetamine before this offending; and

·there was no reason why you committed the offending on this particular day, but you would do it again. 

18There is now an interim family violence intervention order in place between your father and yourself.  The shotgun is still missing, although you state you do not know where this gun is.

19You were remanded in custody and you have now spent 284 days (excluding today) in custody by way of pre-sentence detention.  I shall reckon this period as already served.

20I now turn to consider the objective gravity of your offending.

21The offences of burglary, theft of firearms and arson are inherently serious, as measured by their maximum penalties.  The Court of Appeal in the case of Benkic v The Queen[1] has recently observed that the increased maximum penalty for theft of firearms (compared to theft simpliciter) reflects Parliament’s intention as to the seriousness with which theft of firearms is to be viewed.

[1] [2019] VSCA 34.

22The seriousness of your offending may be measured by the following factors:

·there were six firearms stolen.  Fortunately, most were recovered, although your grandfather’s shotgun remains missing in the community;

·$24,500 cash was stolen.  This represents a significant loss to your father;

·there was at least a moderate degree of premeditation and planning. You told the psychologist that you had been thinking about it for days; and

·the offending was persistent, in that it required you to borrow tools from a friend in order to break into the smaller gun safe to access the four handguns and the cash.

23Your father made a victim impact statement, which he asked not to be read to the court.  I shall respect his wishes, but it is evident and apparent from your offending that it has caused him considerable anguish.

24In a concise and able plea made on your behalf by your counsel, Ms Turfrey, it was submitted that:

·you did not know that your grandfather’s shotgun was taken and you genuinely have no idea of its whereabouts; and

·although you accepted joint responsibility for setting fire to the car, you do so on the basis of the law relating to joint liability.  In reality, you had no intention to set fire to the car at the outset, your co-offender did so using petrol that you had taken in a jerrycan for the purposes of refuelling the car, and you only became aware of his actions at the last moment. Your co-offender received burn injuries which speak of his proximity to this offending, whereas you did not.  Ms Turfrey submits your moral culpability must be viewed as lower than that of your co-offender for these offences. 

25Ms Lenthall, who prosecuted this matter initially on behalf of the Director, very fairly conceded that the Crown could not dispute these submissions.  After considering the matter, I accept both of these submissions, and I consider that the seriousness of the offending, and your moral culpability in respect to these two charges, must be adjusted accordingly.

26I shall say more about your moral culpability generally after considering your personal circumstances.

27I turn now to consider your personal circumstances.

28You are 33 years old and you were born on 6 June 1987.  You have one younger sister and three older half-brothers.  You remain close to your sister and to one brother.  Your mother gave unchallenged evidence that your childhood was marked by your father’s verbal, emotional and financial abuse, which developed into physical violence.  Your mother states that his financial control was such that you all went without while he bought items such as the guns, the car and other vehicles for his own pleasure.  She states he would sit at the table for hours polishing his guns.  You, your mother and your siblings were expected to work afternoons, evenings and weekends on your father’s block and at his parents' place.

29As you grow older, he became physically more violent.  On one occasion he broke your ribs. 

30Notwithstanding this abuse and violence, it appears that for much of your childhood and early adult years, you still idealised your father and denigrated your mother.  It is apparent that you imitated your father’s verbal abuse and proneness to conflict in your own intimate relationships.  It was only when you turned about 27, after your mother had educated herself and broken free of your father, that you fully rejected his role model and embraced your mother’s care and nurturing.

31Going back though, you struggled at school and by adolescence you were mixing in an anti-social peer group which used violence against others.  You left school at 16.  By this time, you had started using drugs with your peers.  At age 20, you were convicted of drug offences, including trafficking amphetamines.  I accept from the material that it was a relatively small amount, but over the trafficable quantity, and it was found in your possession.  You received a community based order without conviction.  Initially, you failed to comply with that order, but in 2008 you were again placed on a CBO without conviction, which I believe was completed.

32You did not come before the courts again for 10 years, until October 2018, when you were fined for possession of ecstasy, being in control of a prohibited firearm and ammunition without exemption or license, possession of methylamphetamine,  driving while suspended and committing an offence whilst on bail.

33In that 10 year period, you had completed an apprenticeship and worked successfully as a cabinetmaker and then as a stonemason.

34In this time, at the end of a long-term relationship, age 24, you then formed another four year relationship with the mother of your step-daughter and your son.  It was this relationship in particular that bears the same hallmarks of verbal aggression and conflict as you experienced at the hands of your father. There are family court proceedings on foot to determine your contact arrangements with your children.

35Relatively recently you commenced a new relationship, just before you engaged in this offending.  You have remained in contact with your new partner whilst on remand.

36In 2017 you were involved in a serious motorcycle accident.  Since the accident, you have had ongoing shoulder pain and have been more prone to anxiety attacks and anger.  You have been prescribed sodium valproate for neuropathic pain.

37It was against this background of your failed relationship and the ongoing contact issues, and then coping with your motorcycle injuries, that you again commenced using methamphetamines at an uncontrollable rate.

38The psychological report of Dr Lauren Gradstein states that there is medical and psychological information available identifying that you underwent significant changes in cognitive skills, personality and social behaviours following this motorcycle accident.  In May 2018 you were diagnosed as meeting the diagnostic criteria for mild to moderate chronic adjustment disorder.  Dr Gradstein, however, states that you no longer have these symptoms.

39In her report, Dr Gradstein concludes your family environment was characterised by dysfunction, repeated family violence and poor attachment, and that you were taught anger and aggression by your father as a means to manage conflict and to express your emotions.  Like your father, you used violence to externalise your feelings as you grew older.  Your friends and peers at the time perpetuated your drug use.  The situation was moderated by a long period of constructive employment, but the motorcycle injuries and relationship breakdown led you to increase your drug use to cope, causing you to lose stable employment. Dr Gradstein said these factors:

'Likely increased his propensity to have a low tolerance for frustration and ruminate about how others had negatively impacted on him.  His current offences appeared to occur in this context. 

Mr Pezzaniti presented with a history of anxiety and depressive symptoms, consistent with the prior diagnosis of an adjustment disorder. There is no evidence of this being current.  It seems likely that he met the diagnostic criteria for a moderate substance use disorder at the time of his offending.'

40Dr Gradstein also noted that you have a tendency to externalise your problems, that is, to blame other things within your environment for your problems. 

41It appears since you have been in custody, you have remained drug-free.  I was provided with a urine screen report, dated 6 April 2020, which showed a negative result to all drugs tested.  In addition, you have used your time in custody to undertake vocational and self-reflective courses.

42I return to consider the moral culpability for your offending.  As I have already stated, I consider that your moral culpability is reduced in respect to the charge of arson and in relation to the missing firearm.  Whilst it remains a concern that the firearm is in the community and cannot be accounted for, I do not consider it has been established that you intended that weapon to be removed, or that you necessarily caused it to go missing.

43Overall, it is apparent that you have no remorse for your offending.  You told the police that you would do it again; such is the hatred you feel for your father.

44Ms Lenthall submits that your motive is an aggravating factor, that is, that you wanted to hurt your father and you did, to a very significant extent.

45On the other hand, Ms Turfrey submits that your motive and lack of remorse must be seen against the turbulent history of family abuse, violence and detachment suffered by you, your mother and your siblings at the hands of your father.  Given your mother’s evidence was unchallenged and largely independently supports histories you previously and independently supplied to psychologists, I consider that your moral culpability for your offending must be slightly moderated.

46Moreover, the great evil against which the maximum penalty for theft of firearms seeks to protect, is the theft of those firearms for their illegal and anonymous use in other criminal activity.  Your motive was entirely removed from this.  Putting aside the shotgun, the firearms that you took were all returned.  Although you cannot take any credit for the return of the weapons, they were still available for return because you had not sought to dispose of them on the black market or to criminal associates.  In this way, the theft of firearms does not represent the most serious category of this offending.

47Let me make it clear, however, that your father's history with you provides no excuse for your offending, and I want to make it clear that your offending still attracts the principles of deterrence, denunciation and a measure of protection of the community.  You face further time in prison for your actions.  The community will not tolerate retribution against family members by such criminal acts.

48Ms Turfrey submitted your sentence should be mitigated by the following factors:

·your plea of guilty was made at the earliest time after making full admissions to the police.  In this way, your plea has significant utilitarian value;

·you have limited prior convictions with a 10 year gap in offending between 2008 and 2018.  This indicates that with the structure of employment and a pro-social network, you can remain drug and
crime- free;

·moreover, this is your first time in custody.  You have tried to use your time on remand constructively and your health and mental health have improved in that time.  Prison in this way, she submits, has been a salutary lesson;

·you have the solid support of your mother, who will provide you with accommodation upon your release from prison; and

·I note that the symptoms of your adjustment disorder are no longer present and you should be able to face release into the community with a clear state of mind.

49Ultimately, Ms Turfrey submitted that, subject to assessment, I should impose a community corrections order, in combination with your period of imprisonment.  Ms Turfrey submitted that time served should be sufficient.
I made it clear at the plea hearing that you will have more time to serve before you are released.

50Ms Lenthall, on behalf of the prosecution, submitted that the principles of deterrence, denunciation and protection of the community loomed large in your offending.  Moreover, these offences occurred whilst you were on bail for another matter.  Ms Lenthall submitted that an element of specific deterrence was warranted, given your prior criminal history and lack of remorse.

51Ms Lenthall provided comparable cases of Benkic and Holt.[2]I have considered those cases, but as Ms Lenthall herself submitted, current sentencing practices are only one factor to take into account. I must not be unduly influenced by what other courts have done.  Rather, I must impose a sentence which is appropriate to your offending, taking into account the objectives sentencing principles and the matters personal to you, so far as those personal matters have weight.

[2] [2016] VCC 2079.

52Ms Lenthall submitted that the prosecution agreed to a combination sentence being within range, noting that by virtue of the charge of arson, any period of imprisonment may be imposed in combination with that community corrections order.

53After considering all of the material and hearing from both counsel, I ordered your assessment for a community corrections order.  That assessment has come back as favourable.  Using the service risk assessment tool, the Community Corrections officer has assessed your risk of re-offending as being a medium risk.  What that means, Mr Pezzaniti, is that you are going to have to work hard to ensure that you remain drug and crime-free and not slip back into old peer groups and old ways.  You are assessed as suitable to undertake an order with conditions, specific conditions of treatment and rehabilitation for drug issues, treatment and rehabilitation for mental health services and supervision. 

54Every CCO has a number of core general conditions attached which I am going to read them to you now, and I just need you to acknowledge that you understand those general conditions and that you consent to those general conditions being part of your order.  I know that they were explained to you as part of the assessment and I know that you consented to the order being made, but it is my duty to take you through them and then explain the consequences of not complying.

55All right, so, the first is, Mr Pezzaniti, you must not commit, whether in or outside Victoria during the period of the order, any offence punishable by imprisonment, whether or not a period of imprisonment is actually imposed for that offence.  So you understand that? 

56OFFENDER:  Yes.

57HIS HONOUR:  Thank you.  The next is that you must comply with any obligation or requirement prescribed by the regulations.  That is, you must comply with all obligations to do with seeing you through the order.  Do you understand that?

58OFFENDER:  Yes.

59HIS HONOUR:  Thank you.  You must report to and receive visits from the Office of Corrections during the period of the order.  Do you understand that?

60OFFENDER:  Yes.

61HIS HONOUR:  All right.  You must notify the Office of Corrections within two days of any change of address or employment.  So if you get a job, you have got to notify the Office of Corrections.  If you move out of your mum's, you have got to notify the Office of Corrections.  If you quit the job and get another one, you have got to notify them.  Do you understand that?

62OFFENDER:  Yes.

63HIS HONOUR:  Do you understand that you must not leave Victoria, except with the permission, either generally or in relation to a particular case, of the Office of Corrections?

64OFFENDER:  Yes.

65HIS HONOUR:  Now, Mr Pezzaniti, you will need to check, because you will be living in Mildura, will you not, with your mum?

66OFFENDER:  Yes.

67HIS HONOUR:  In relation to the border restrictions at the moment, you will need to check with the Office of Corrections, but sometimes there are local exceptions, so that you can work, for example, immediately over the border and things like that.  So you will need to be very clear with the Office of Corrections what leaving Victoria means in your circumstances.

68OFFENDER:  Yeah.

69HIS HONOUR:  The next is, that you must comply with any direction given by the Office of Corrections that is necessary for them to ensure that you comply with the order and they can give any direction, either orally or in writing.  Do you understand that?

70OFFENDER:  Yes.

71HIS HONOUR:  Do you consent to the other conditions I want to impose, being the treatment and rehabilitation for drugs, treatment and rehabilitation for mental health issues, and supervision;  do you understand each of those conditions?

72OFFENDER:  Yes.

73HIS HONOUR:  And do you consent to an order being made, Mr Pezzaniti?

74OFFENDER:  Yes I do.

75HIS HONOUR:  All right.  I must also explain this to you.  If you do not comply with the order, that is, if you do not, for example, turn up for supervision when required or if you do not undertake any assessment or treatment for drug or mental health issues, if you breach the order by non-compliance, you can be brought back before me, you can be charged with the offence of breaching the community corrections order and you can be sentence for breaching the order and re-sentenced on these offences.  Do you understand that?

76OFFENDER:  Yes.

77HIS HONOUR:  And as you know from the terms of the order, you can also breach the order by committing further offences and that would lead to the same result, that is, that the order would be breached and you would be brought back before me for re-sentencing.  So for your understanding the way in which the breaches can occur, and you taking into account that the Office of Corrections assesses you as a medium risk of re-offending, that is, not a high risk, but not a low risk of re-offending, do you still consent to me making an order for a community corrections order?

78OFFENDER:  Yes.

79HIS HONOUR:  All right, thank you.  All right, I will move straight to sentence then, Mr Pezzaniti.

80I intend to impose a sentence which recognises the principle factors of deterrence, denunciation and protection of the community, but also recognises that you have reasonable prospects for your rehabilitation.  I must also take into account the principle of totality and reach an overall sentence which is not crushing in all the circumstances.

81So in all the circumstances, I intend to sentence you to the following periods of imprisonment, after which I intend to order that you serve a period on a community corrections order:

Charge Nos.	Charge	Max Penalty	Sentence	Cumulation
1	Burglary	10 years	5 mths	Concurrent
2	Theft of firearm	15 years or 1800 penalty units	9 months	Base
3	Non-prohibited person possess registered general category handgun	4 yrs / 240 penalty units	4 months	Concurrent
4,	Theft	10 years	6 months	1 month
5	Theft	10 yrs	4 months	1 month
6	Arson	15 years	6 months	1 month
Summ Charge 6	Commit indictable offence on bail	3 months 30 penalty units	2 months	Concurrent
Summ Charge 8	Non-prohib person possess registered Category A longarm w/out a licence	2 years / 120 p u	2 months	Concurrent
TES	12 mths
PSD	284 days
6AAA	33 months / 21 months NPP

82That leads to a total effective sentence of 12 months' imprisonment, to which I order you undertake on top, a 12 month community corrections order. 

83So the Community Corrections Order will start on the expiration of your sentence of 12 months, with the special conditions that I have outlined of drug treatment, mental health treatment and supervision.

84You must report to the Corrections office at 59 Madden Avenue in Mildura.  You will do that by telephone initially I imagine, Mr Pezzaniti, and you must do that within two business days of your release from prison. 

85I reckon the period of 284 days, excluding today, reckoned as already served.

86I make the 6AAA declaration that, but for your plea of guilty, I would have sentenced you on all the offences, all things being equal, to a term of 33 months, with 21 months to serve. 

87Now, Ms Strugnell, are there any other issues that need to be addressed on behalf of the Crown?

88MS STRUGNELL:  I don't believe so, Your Honour.

89HIS HONOUR:  Thank you.  Ms Turfrey, is there any issue from your perspective?

90MS TURFREY:  No, Your Honour.

- - -