Director of Public Prosecutions v Piacentino

[2018] VCC 1552

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-02012

DIRECTOR OF PUBLIC PROSECUTIONS

v

STORM PIACENTINO

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JUDGE:	HER HONOUR JUDGE RIDDELL
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	21 September 2018
CASE MAY BE CITED AS:	DPP v Piacentino
MEDIUM NEUTRAL CITATION:	[2018] VCC 1552

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	Ms E. Zelez
For the Accused	Ms. V. Drago

HER HONOUR:

1Storm Piacentino, you have pleaded guilty to one charge of armed robbery and to a summary charge of dealing with property suspected of being the proceeds of crime.

2By way of background, a Ms Fatima El Ardi owned a silver Hyundai.  Apart from herself, the only other person who drove the car was her ex-partner,
Muhunad Rashid.  Ms El Ardi did not know you or your co-offenders.

3On 28 February 2017, at about 6.50 pm, 29 year old Mr Mina Mankarious was in the company of Rashid and another man.  Mr Mankarious drove with the other two in his BMW to shops in Reservoir.  You and your co-accused, Omar Altaee, then aged 19; and a third unknown male arrived in the silver Hyundai, parking in a way so as to block in the BMW.  Mr Mankarious remained in the driver's seat of the BMW with his window down.  You, with Altaee and a third male approached the BMW and stood by the open driver's window.  Mr Altaee demanded that Mr Mankarious hand over his phone, wallet and keys to the vehicle.  Mr Altaee stated that Rashid owed him $1,400 and that he was taking the BMW as payment.

4Mr Mankarious refused, whereupon you walked back to the Hyundai and grabbed a chainsaw.  You returned to the BMW, approaching the driver's side door.  You pulled the rip cord of the chainsaw twice, firing it into life.  You then put it through the open driver's window onto Mr Mankarious' arm, causing a large laceration that required 20 stiches.  Fortunately the chainsaw stalled somewhat as you put it through the window.

5Mr Mankarious jumped out of the BMW and went inside a shop seeking assistance.  Mr Altaee followed him inside and again demanded his phone, wallet and car keys saying, "You think I'm fucking joking, I will shoot you". 
Mr Altaee then lifted his shirt, revealing what Mr Mankarious believed to be the butt of a handgun tucked down the front of his pants.  Mr Mankarious immediately then handed the keys to Altaee who returned and drove away in the BMW.  You and the third male followed in the Hyundai.

6At about 7.40 pm that evening you and Mr Altaee met up in the two cars at the 7-Eleven store on the Western Ring Road in Ardeer.  Mr Altaee was driving the BMW and you were driving the Hyundai.  You then got into the BMW with
Mr Altaee and together drove away.

7At 715 am, on 22 March 2017, police attended to execute a search warrant at your home at 35 Staughton Street, Melton South.  They observed you get into a Holden Commodore bearing stolen number plates.  You drove away with an unknown male passenger.  You were followed by a second vehicle.  Police attempted to intercept you, activating their lights and sirens, however you failed to stop, turned through a red light signal without slowing down.  You also turned off your headlights and overtook vehicles on the inside lane at dangerous speeds in effort to avoid police.  Police discontinued their pursuit.

8Police re-attended at your home and located there two stolen number plates attached to a vehicle parked in the driveway and one Makita grinder and one Hilti drill; all believed to be stolen.  Those matters relate to the summary charge.

9Later that day you were arrested at the home of your girlfriend in Braybrook.  Police found the stolen number plates which had been previously attached to the Commodore.  You declined to make any comment during a record of interview.

10Apparently the armed robbery was motivated by a debt between Mr Altaee and one of the other men.  In other words it was nothing to do with you.  The decision to try and extract that debt was clearly pre-mediated and involved you acting as a henchmen to assist Mr Altaee.  Though I do accept the obtaining of the chainsaw was a more spontaneous act on your part.  However, in assessing the objective seriousness of the armed robbery I note the fact that it was committed by the three of you in company; it involved the theft of a vehicle; it involved the use of a weapon, which is this case was a chainsaw.  Clearly that is a weapon which has the capacity to inflict extremely serious injury.

11You did in fact inflict an injury during the course of the armed robbery to the victim, which required medical treatment.  It is good fortune that the chainsaw stalled, as the potential for worse injuries was real.  Having an operating chainsaw thrust the window of the car must have been terrifying for
Mr Mankarious.  He has declined to make a victim impact statement.

12The armed robbery continued by way of Mr Altaee's pursuit of the victim into the shop and by his further show of force by threats and the brandishing of a weapon.  Regardless of that weapon actually was, the victim believed it was a gun, which, again, must have been very frightening.  The item stolen was a vehicle, in other words an item of some value.  You and your co-offenders then used that vehicle as your own.

13In assessing your role in this event it is apparent that Mr Altaee was the ring leader who carried the grudge, who made the demands and then who took control of the BMW.  As discussed on your plea this cuts both ways for you however, as you were willing to act in a very violent manner over an issue which was not yours.  It is real vigilante action and it was you who escalated things by going back to the car and getting the chainsaw.  Not enough to just brandish it, it was you who then started it and who inflicted the injury to the victim.

14Issues of general deterrence, denunciation and just punishment must be at the forefront of my sentencing considerations.  I take into account the maximum penalty for armed robbery is 25 years' imprisonment.  In relation to the proceeds of crime charge the maximum penalty is two years imprisonment.

15Your counsel outlined your background during your plea and I have also received a report from Ms Alison Mynard, clinical psychologist, and heard evidence and received material from Ms Julia Calandro of the Department of Health and Human Services Disability Services.

16Your background was difficult and you have suffered a deal of depravation.  Your mother had serious drug addiction and you were born a heroin addicted baby.  You do not know and have never known your father.  Your grandparents removed you from their daughter's care when you were a three year old.  You then resided with them for your formative years.  When your mother did appear from time to time she was more of a destabilising influence than anything.

17Although your grandparents did their best for you, your formative years were understandably difficult, given the absence of your parents.  You suffered real abandonment issues and you felt awkward at school not having your parents around.  Your grandmother confirmed these matters to Ms Mynard.  Further, that your maternal uncle lived with you.  He was violent and would smash the house.  You and your grandparents were victims of his violence.  He tried to assault you numerous times.  You recalled hiding from him in a closet and your grandparents trying to protect you.

18You started acting out both against your grandparents and having issues with school.  Your grandmother reported that you had low-frustration tolerance and struggled to complete even small tasks.  You had adaptive skill deficits, including at the age of nine being unable to shower or dress independently or make your own breakfast.

19At approximately ten years of age you were diagnosed with a mild intellectual disability.  In primary school you were allocated funding for a learning aid in the classroom, but this made you more self-conscious.  You only attended the first year or so of secondary school, opting not to continue.  You have poor literacy skills.

20Your drug and alcohol abuse started when you were a 12 year old.  You associated with a group of older adolescents who introduced you to cannabis, alcohol, MDMA, ecstasy and speed.  You felt accepted and protected by them and so followed their lead.  By the time you were 17 you were using cannabis and methamphetamine regularly.  You became paranoid at times.  You also abused Valium and experimented with other drugs.  You say by the time of your remand for this offending your drinking was out of control.

21When you were 18 years old your grandparents decided to sell the family home.  You were left homeless.  This was difficult and you again felt abandoned.  You tried unsuccessfully to live with your mother.

22Immediately before the offending in this case you were living in a rental accommodation that was apparently unfit for habitation.  Squatters had moved in.  There were issues about the state of the house and unpaid rent.  This was a stressful time for you.

23Twelve months prior to this offending your dog had passed away.  He had been your pet for 16 years.  This must have been a significant event for you as the dog had been your constant companion in an otherwise disrupted life.  At that time you attempted suicide and increased your reliance on drug and alcohol.  The anniversary of that event coincides roughly with the offending before me.

24I must take into account specific deterrence in your case.  You have a number of serious prior convictions.  There are several for violence, including unlawful assault, making a threat to kill, criminal damage, contravene family violence intervention orders, possessing controlled weapon, and most recently in 2014 and again in 2015, you were dealt with for separate offences of recklessly causing injury.  Penalties imposed reflect the fact that you have been given a number of opportunities, which must have taken into account your background and your status as a registered client with the Department of Health and Human Services Disability Services.  DHHS Disability Justice became involved with you during your teens.  I heard evidence from Ms Julia Calandro, case manager at Disability Justice who has known you for some time.

25In 2009 a Plan of Service was provided for court purposes with conditions to engage you with case management, education, vocation programs and support to get your learners permit.  You were on an eight month probation order, but failed to complete it.

26In a 2011 Client Overview Report prepared for Sunshine Magistrates' Court you were reported to have “always been resistant to engage with any supports disability services has attempted to provide”.

27Unfortunately your non-compliance is a theme.  You have been trialled on antidepressants and Valium, but were non-compliant.  You have seen counsellors but stated you did not want to talk with them.  You have been offered opportunities to explore employment and education options, including to improve your literacy by Disability Services, but have been reluctant to engage.  You were placed on Community Correction Orders in 2014 and 2015, however according to Ms Calandro's letter of April 2017, tendered on the plea, and her evidence, these were contravened.  Drug and alcohol use has formed the backdrop for both the offending and your lack of compliance with efforts aimed at your rehabilitation.

28Ms Mynard says you area a concrete thinker who suffers some confusion and anxiety.  You reached diagnostic criteria for generalised anxiety disorder.  You scored in the extremely severe ranges of anxiety and moderate range for depression and stress.  She reports that you have impairment in comprehension and processing abilities, reasoning skills and working memory.  She described you as likely to struggle with interpreting complex information and says your perceptual reasoning abilities are impaired, including difficulty with problem solving and logical reasoning skills.  You told her that you are a follower, loyal, but she concludes misguided.  She says your consequential thinking is impaired.

29Considerations of Verdins[1] were urged upon me by your counsel.  I do not believe there is enough basis for me to conclude that there is a causal nexus between your offending behaviour and your mild intellectual disability. 

[1]R v Verdins; R v Buckley; R v Vo [2007] VSCA 102; 16 VR 269; 169 A Crim R 581

Ms Calandro said in evidence that despite concrete thinking and not always thinking of the consequences of your actions you are aware of what is right and wrong.

30In my view the issue squarely is your drug and alcohol abuse.  That use is chronic and serious.  Clearly, when intoxicated, you have at times behaved in very violent and irrational ways.  Drug and alcohol taking does not and cannot mitigate moral culpability.  Ms Mynard states,

"When intoxicated by alcohol Mr Piacentino's cognitive abilities are likely even more impaired".

31Your history of offending behaviour and appearances at court would no doubt have made you aware of that fact.

32I do take into account in a more general way your deprived background and that you do have some cognitive limitations.  I take into account your serious anxiety and depression, and the fact this is making imprisonment more difficulty for you.  I take into account you are still a relatively young man[2] and that this is your first time in custody and has been a significant period on remand.

[2]Date of birth – 1 August 1991

33In terms of assessing your prospects of rehabilitation, alongside the issue of community protection, I note several matters.  Firstly, you pleaded guilty at a reasonably early stage, though, after a committal hearing.  Nevertheless, you do receive the benefit of your plea.  I take it as a sign that you accept responsibility for your part in this offending and as a sign of remorse. 

34I have read in the report of Ms Mynard that you express shame for your behaviour in relation to your offending and Ms Calandro confirms those sentiments.

35Secondly, I accept that you are finding some insight and a new determination to abstain from drug use.  To that end you have cut ties with your co-offender and do not wish to have contact in the future.

36I have also read the letter you have dictated while you have been custody, wherein you express a view that you have reached a point in custody where you feel you are a changed person.  You say you have reflected on why you are in the position you are in.  You have attended group counselling and one-on-one sessions, as well as attending a Men's Behavioural Change Program.  You say you have learnt to identify the negatives and positives "of who I was when I arrived in prison and who I will be upon release".  I have received an impressive bundle of certificates in that regard.  I have also received a Long Program Completion Report, which outlines your persistence in completing that program despite your literacy and some cognitive difficulties.

37You say you are now motivated to make changes in your life.  Your success will depend squarely on your ability to put your sentiments into action once you are released to the community.  Namely, to withstand the temptation of drug and alcohol abuse.  Your motivation to achieve that goal is reflected in the number of negative urine screens which have been provided.

38Thirdly, I accept as a real positive the fact that even after contravention of your CCOs you did remain in contact with Disability Services.  You are fortunate to have their ongoing support.  Ms Calandro impressed me as a dedicated professional who was part of a team of people trying to assist you.  That team's dedication has continued even though you have been remanded in custody now for a significant period of time.  She says the support will exist when you are released.  You need to commit to taking up that support and following their recommendations.  I accept you have been able to do so in the past and I hope that you are able to do so in the future.

39Fourth, you have the ongoing support of your family and girlfriend.  Your half-sister was in court.  Your grandparents are still supportive, though they are now in their 80s.  All of these people, as I understand it, have offered you accommodation when you are released.

40There are some positive signs and some reasons for hope, given those matters I have just outlined.  If you can put your commitment into action your future life may look different.  Given your history your prospects of rehabilitation are still guarded, but as I say there are some positives.  Hopefully those are a reflection of the fact you are taking your time in custody to turn yourself around.

41Your counsel urged a combination sentence.  In my view the offending here, coupled with matters of specific deterrence and chronic drug and alcohol abuse make that sentence inappropriate.  In my view a sentence with a non-parole period is warranted.  However, I do take into account the matters in mitigation.

42If you could stand now, Mr Piacentino, please.

43Taking all of those matters into account the sentence I impose is as follows.  On the armed robbery charge you are convicted and sentenced to four years and three months' imprisonment.  In relation to the summary charge you are convicted and sentenced to six months' imprisonment with two months cumulative on the armed robbery sentence, which is the base sentence.  That gives a total of four years' and five months' imprisonment.  The non-parole period that I direct you serve before you become eligible for parole is two years and seven months' imprisonment.

44In relation to pre-sentence detention, I declare you have already served 541 days as part of this sentence.

45In relation to s.6AAA, but for your plea of guilty the sentence I would have imposed would have been a total of six years' imprisonment with three years and eight months non-parole period.

46Now, there were disposal and forfeiture orders sought, were they in relation to Mr Piacentino?  You can have a seat, Mr Piacentino.  As well as Mr Altaee.

47MS ZELEZ:  There are some specific to Mr Piacentino.

48HER HONOUR:  Yes, I thought so.  Yes.  There's no opposition, from memory, in relation to that.

49MS ZELEZ:  No, Your Honour, they're by consent, thank you.

50HER HONOUR:  Yes, thanks very much.  All right, well, I'll make those in the terms that are sought.  Unless there are any other matters that concludes things.

51MS ZELEZ:  As the court pleases.

52MS DRAGO:  As the court pleases.

53HER HONOUR:  All right, thanks very much.  All right, we'll have Mr Piacentino removed please.  Thank you.

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