Director of Public Prosecutions v Piccolotto

[2020] VCC 1401

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-20-00528

DIRECTOR OF PUBLIC PROSECUTIONS

v

DANIEL PICCOLOTTO

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JUDGE:	HER HONOUR JUDGE TODD
WHERE HELD:	Melbourne
DATE OF HEARING:	4 September 2020
DATE OF SENTENCE:	10 September 2020
CASE MAY BE CITED AS:	DPP v PICCOLOTTO
MEDIUM NEUTRAL CITATION:	[2020] VCC 1401

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:   Plea of guilty – one charge attempt to pervert the course of justice – one charge cultivate a narcotic plant (cannabis) -  summary charges of failing to appear on bail and committing indictable offence on bail – offending at lower end of scale – unsatisfactory delay in being charged – early plea – impact of COVID-19 restrictions – prior conviction for attempting to pervert the course of justice.

Legislation Cited:  Bail Act 1977; Drugs, Poisons and Controlled Substances Act 1981;  Sentencing Act 1991.

Cases Cited:DPP v Aydin & Kirsch [2005] VSCA 86; DPP v Fairclough [2020] VCC 152; DPP v Furlong [2016] VCC 991; DPP v Lam [2017] VCC 612; DPP v Oksuz [2015] VSCA 316; DPP v Tansey [2016] VCC 1051; R v Rogerson (1992) 174 CLR 268; Saleem v R [2014] VSCA 190.

Sentence:  Total effective sentence of 7 months imprisonment and a fine in the amount of $1000.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms M. Zammit	Office of Public Prosecutions
For the Accused	Mr C. Marshall	C Marshall & Associates

HER HONOUR:

Introduction

1       On 7 December 2018 a Magistrate sitting at the Broadmeadows Magistrates' Court requested a community corrections assessment be undertaken in relation to a man who was pleading guilty to some driving charges and to a breach of a court order.  During the sentencing hearing, the accused tendered two documents, presumably in the belief that their contents might help mitigate his sentence.  The plea was adjourned and the accused man’s bail was extended.  On the return date, 11 December 2018, the Magistrate referred the accused to the Office of Corrections for assessment for a Community Corrections Order.

2       The two documents tendered to the Court were given to the corrections officer performing the assessment.  The first document purported to be a letter attesting to the accused man’s employment with a carpentry company; the second document a reference from an organisation called the ‘Australian Anti Ice Campaign’, in which the man’s participation in that organisation was recognised.  Both documents had spelling mistakes and were unsigned; these flaws caused the community corrections officer to investigate the documents’ provenance.  They were quickly found to be false.  The matter was referred to Police, and sometime later a search warrant was executed on the accused man’s home in Coburg.  During that search Police located three cannabis plants growing in pots.  These offences occurred while the accused was on bail having been charged with other, unrelated indictable offences.

Pleas of guilty and maximum penalties

3 Daniel Piccolotto, you have pleaded guilty to one charge of attempting to pervert the course of justice contrary to the common law, which carries a maximum penalty of 25 years' imprisonment or 3000 penalty units (Charge 1); one charge of cultivating a narcotic plant (cannabis) contrary to section 72B of the Drugs, Poisons and Controlled Substance Act 1981, which carries a maximum penalty of 1 year imprisonment and/or 20 penalty units in these circumstances (Charge 2).[1]  You have also pleaded guilty to related summary charges of committing an indictable offence on bail (rolled up to incorporate 3 charges), which carries a maximum penalty of 3 months' imprisonment or 30 penalty units, and failing to appear on bail, which carries a maximum penalty of 2 years' imprisonment.

[1]It was common ground on the plea that the cultivation was not committed for any purpose relating to trafficking.

4       You have admitted a prior criminal history.

Circumstances of the offending

5       The circumstances of your offending are set out in the Amended Summary of Prosecution Opening for Plea, dated 2 September 2020; that document is Exhibit A on the plea and forms part of these reasons.  I will summarise the facts giving rise to your offence here.

6       On 7 December 2018 at the Broadmeadows Magistrates’ Court you entered pleas of guilty to a number of driving charges and a charge of breaching a Community Corrections Order.  In the course of that plea you tendered two documents.  The case was then adjourned to 11 December 2018 and your bail extended.

7       On 11 December 2018 the Magistrate ordered that you be assessed for suitability for a Community Corrections Order.  Ms Rizwan Mohindudeen conducted the assessment.  The documents you had previously tendered on your plea were provided to Ms Mohindudeen to assist her: firstly, an unsigned letter of employment, which claimed to have been written by a Mr Matt Lonbuild.  The letter stated that you had started working three days a week with ‘Lonibuild’ Carpentry (the spelling of the company name was inconsistent throughout the document) on 29 November 2018, and the ‘author’ Mr Lonbuild confirmed that you had not missed a day of work and were ‘one of the hardest workers I have’.  That document is Annexure A to Exhibit A on the plea.

8       Ms Mohindudeen was also given a reference which claimed to be from the Australian Anti Ice Campaign (‘AAIC’).  The reference included a statement that you were registered as a volunteer with AAIC and were undergoing training to become an educator within schools and communities to speak on the dangers of ‘ice’ and other drugs.  It includes the sentence: ‘over and above our program we are aware that Daniel is engaged with his local church which is also supporting her [sic] spiritually.’  Later it says:

‘we hope that the court considers that he is taking measurable steps to recover from addiction and she [sic] is looking forward to going back by helping others understand the dangers associated with ICE’. 

That document is Annexure B to Exhibit A on the plea.

9       Ms Mohindudeen became suspicious about the documents and questioned you about them.  You were not able to remember the name of your employer.  Ms Mohindudeen then investigated the documents further.

10      She found out that Lonibuild Carpentry was a company that was deregistered in 2017; the number given for Lonibuild Carpentry had ‘caller restrictions’  when dialled.  She also confirmed with Ms Kollias, the AAIC State Operations Manager, that you were not, and never had been, involved with that organisation.

11      Ms Mohindudeen, armed with this information, wrote her assessment report and set out what she had discovered.  The report is Annexure C on Exhibit A on the plea.

12      Included in that report is the following statement:

‘The quandary that the assessing officer has is that based on the fraudulent documentation provided it is difficult to place credence to the veracity of the information that Mr Piccolotto has provided to this service during today’s assessment.  For a CCO to have its intended effect the person must be forthcoming in terms of the information provided in order for the interventions to be tailored accordingly.’

13      Later that same day when your matter was called in Court you failed to appear before the Court and two warrants were issued for your arrest. (That conduct goes to Summary Charge 7- failing to appear on bail)  The matter was then referred to Police.

14      Subsequently, Police contacted Mr Lonigro, the owner and director of the deregistered company Lonibuild Carpentry, who confirmed that he did not write the letter of employment, that he did not know or employ anyone by the name of Daniel Piccolotto and that the contact number in the letter did not belong to him or his business and that no one by the name of Matt Lonbuild was associated with his company.

15      On 17 January 2019 a search warrant was executed on your house as part of the investigation into the alleged attempt to pervert the course of justice.  During that search Police found three cannabis plants growing in pots in the backyard, with a self-watering system.  The three cannabis plants weighed approximately 170.5 grams.  (This is Charge 2- cultivate a narcotic plant.)

16      On 11 December 2018 you were on bail for other offending.  The commission of this offence gives rise to Summary Charge 4- committing an indictable offence while on bail.

Arrest and interview

17      On 10 July 2019 you were arrested, but were deemed ‘unsuitable for interview’.  You were released pending summons for this matter, but were remanded in custody on the same day for unrelated matters.

18      On 10 January 2020 you were charged with offences now before the court.  On 21 February 2020 you were brought before the Melbourne Magistrates’ Court for a filing hearing.

19      On 3 April 2020 the matter resolved at a committal mention and you were remanded in custody on this matter.

20      Your case was then transferred to the County Court for a plea hearing.

Prior convictions

21      You have admitted prior matters in Victoria, Western Australia, and New South Wales dating back to 2011.  Some of those matters involve acts of deception in the context of government or administrative action.  In 2011 you were found guilty of making a false statement to a customs officer.  Significantly, you have a prior conviction for attempting to pervert the course of justice dealt with in this court on 9 December 2015.  Your other offending suggests relatively low-level offences relating to drugs and property.

Nature and Gravity of the offending

22      The courts have long recognised that the charge of attempting to pervert the course of justice covers a very wide range of conduct, but the seriousness with which parliament regards the offence in its highest forms is indicated by the 25 year maximum penalty.[2]  This penalty reflects the fact that the offence ‘strikes at the heart of our legal system and the administration of justice’,[3] however it is also a number that must be kept in perspective.[4] 

[2]DPP v Oksuz [2015] VSCA 316.

[3]Ibid per Kyrou JA [95].

[4]DPP v Aydin & Kirsch [2005] VSCA 86 per Callaway at [7].

23 There are many different ways in which the course of justice may be perverted,[5] and the seriousness depends on the circumstances of each case.

[5]R v Rogerson (1992) 174 CLR 268 at 280 per Brennan and Toohey JJ; DPP v Aydin & Kirsch [2005] VSCA 86 per Callaway Buchannan and Eames JJ at [14].

24      On the plea, my attention was taken to a number of similar cases where offenders had attempted to rely on false documents in the context of the Drug Court.[6]  Other cases provided involved the provision of false references in plea hearings to avoid sentences of imprisonment or the provision of false statements or information in an attempt to cause criminal trials to be adjourned.  It was put on your behalf, and I understood the prosecution generally concurred, that your case fell within the same broad range adumbrated by these cases, and I agree.

[6]DPP v Lam [2017] VCC 612; DPP v Tansey [2016] VCC 1051; DPP v Furlong [2016] VCC 991; DPP v Fairclough [2020] VCC 152.

25      It was also put on your behalf that the two documents, if they had been accepted, were of little consequence to the sentencing process, and that this reduced the gravity of your offending: your case should be distinguished from cases where the sentencing stakes were higher, such as the accused man in the case of Saleem,[7] who sought to avoid the operation of a two-year suspended jail term by use of false documents.  I note that the charge is not an inchoate offence despite the use of the word ‘attempt’: once the intention to pervert and the act giving effect to that intention coincide, the offence is completed.  If the focus of the offence is to protect the administration of justice, and public confidence in that administration, it is of only minor significance that in that context the person doing the act had less or more to gain, or was more or less successful.  The point is that the confidence that exists between the Bench and those who are appearing for sentence is eroded. [8]

[7]Saleem v R [2014] VSCA 190.

[8]Ibid [35].

26      The prosecutor took issue with your counsel’s submission that this offending is at the lower end of the range in this category of charge.  The prosecutor also drew my attention to your prior conviction for the same offence but, significantly, submitted that your earlier offence was of a more serious nature.  (That offending is referred to below, but broadly consisted of attempting to alter a witness’ report of an offence to police).  She also submitted that the range of cases provided on the plea, which included sentences from a Community Corrections Order to 3 years' imprisonment, was broadly indicative of the legally available sentences in this case.

27      As already stated, there is a broad range of conduct contemplated by this charge.  From a survey of the authorities, it appears that cases where the accused occupies a position close to the heart of the administration of justice (lawyers, police and one would also assume judicial officers) will be more culpable than someone offending as in this case. Other matters that are taken into account include: the relative sophistication of the offending, its duration, whether others are co-opted, and whether the conduct strikes at the capacity to secure an appropriate conviction.[9]  It is clear that the public has to have confidence that Magistrates, who must efficiently decide many complex cases each day are making Court orders on the basis of trustworthy materials.

[9]See cases of DPP v Aydin & Kirsch [2005] VSCA 86; DPP v Oksuz [2015] VSCA 316.

28      Your attempt to influence the sentencing process was unsophisticated and naïve.  The documents contained multiple errors and inconsistencies; you were unable to verify the most basic details on questioning.  In my assessment of the gravity of your offending, it is of little moment that your documents had limited potential to affect the outcome of your case. However, your conduct did not involve co-opting witnesses, nor was it sophisticated or engaged in by someone who owed special duties to the administration of justice.

29      In all the circumstances I find that your offending belongs at the lower end of the scale of attempts to pervert the course of justice.

Personal Circumstances

30      Mr Piccolotto you are 32 years old.  You were 31 years old at the time of the offending.  You were educated to the end of year 12 and then successfully completed a carpentry apprenticeship.  You then worked in the construction industry until the middle of 2012 when you were retrenched from a medium-sized company.  

31      In your youth, you successfully competed in ballroom dancing events and as a kickboxer.

32      After your retrenchment from work, you increasingly used amphetamines and other stimulants.  Your life then descended into a period marked by criminal offending and drug use.

33      You have a son born in January 2017 who currently lives with his mother and your parents.

34      Your counsel did not seek to rely on any written references or materials on your plea.  It would have been difficult for him to do so in this context.

Prior history

35      Your criminal history in Victoria commences in 2013.  Though I note charges dealt with in Perth in 2011 and in New South Wales in 2012. In 2011 you were found guilty of making a misleading statement to a customs officer.  Significantly, in 2015 you were convicted in the County Court at Melbourne of the charge of attempting to pervert the course of justice.  There are other prior convictions for dishonesty, though they are of a different character and at a lower level.  Most of your history speaks of drug use and the offending that regularly accompanies it.

36      In relation to the prior conviction for attempting to pervert the course of justice, I have been assisted by reading His Honour Judge Meredith’s reasons for sentence in that case delivered on 9 December 2015.  This conduct consisted of an attempt to make a witness withdraw or change a statement concerning the commission of a crime against him.  That conduct occurred in the context of threats to burn down a house and discussions about blowing up people’s cars.  On that occasion, you were sentenced to two concurrent Community Corrections Orders in relation to counts of attempt to pervert the course of justice and the theft of a motor vehicle.  The orders were for a duration of 24 and 12 months respectively.  Contravention hearings followed and you were ultimately resentenced on the original offending to a term of six months' imprisonment.

37      Although your history of completion of Community Corrections Orders is imperfect, you have completed parts of them successfully including performing community work orders and completing drug and alcohol treatment.

38      I have also read the sentence delivered by His Honour Judge Bourke on 29 April 2015.  On that occasion, you had pleaded guilty before His Honour to two charges of theft and one charge of common assault.

39      You have been in custody continuously since your arrest on other matters on 10 July 2019 and I understand that those matters are listed for a contested committal hearing on 20 October 2020.

40      It was conceded by your counsel that the fact that you are currently on remand for unrelated charges (and your failure to complete previous Community Corrections Orders) renders the only possible sentencing option in your case a term of imprisonment.

41      Having regard to that submission, and to your prior conviction for attempting to pervert the course of justice for which you received a CCO I agree that the only sentence available to me in your case will be imprisonment.  I have had regard to the six months' gaol you previously served on His Honour Judge Meredith’s sentence.  However I also note the prosecutor’s concession that this example of the offending is less serious than the one before His Honour.

42      I am obliged also to consider your prospects of rehabilitation; this is somewhat difficult in the light of your prior history and the fact that you are on remand for other charges.

Stage of plea

43      This matter resolved at the first committal mention.  I accept that your case resolved at the earliest possible opportunity and that fact goes heavily in your favour.

44      At a time where the public health emergency has prevented criminal trials from being held, I consider that your plea is particularly valuable; it reduces the already large backlog of cases to be heard in the future.

Delay

45      The offence of attempting to pervert the course of justice was complete on 11 December 2018, however, a warrant was not executed on your home (and I note that you were absent at this event) until 17 January 2019.  Further delay occurred between that occasion and the date of your ultimate arrest on 10 July 2019 for other matters.  A significant and further delay then occurred between 10 July 2019 and your being charged with these offences on 10 January 2020.  There was little by way of satisfactory explanation for this delay.  The offence was complete at the Broadmeadows Magistrates’ Court on 11 December 2018 and Ms Mohindudeen was apparently able to investigate both documents in an afternoon.  Although you were missing for a time, by 10 July 2019 the authorities knew your whereabouts because you were in custody from 10 July 2019.  The delay between the offending and being charged here is unsatisfactory.  You had this matter hanging over your head for over a year before you were charged and I take that into account in your favour.

Time in custody

46      It was not until your committal mention on 3 April 2020 that you were remanded into custody on these charges.

47      During part of the period since your remand you were serving other sentences imposed by the Magistrates’ Court on 21 February 2020 and on 7 May 2020 in relation to unrelated offending.  When the periods of custody imposed on those cases are taken into account, the time you have spent in custody on the case before this court is 66 days.  This calculation was the subject of agreement between prosecution and defence on the day of the plea.

48      I have already dealt with the question of the delay in charging you.  I also take into account the principle of totality in that had you been charged earlier, you may have had some advantage in terms of orders for concurrency with those sentences.  Although I was not given details of those cases, I consider that at you have been disadvantaged by the serial charging in your case.

49      Little was said on your plea about the charge of cultivating a narcotic plant.  It is accepted by the prosecution that this was not in relation to trafficking and it was broadly for your personal use.  I accept this and that it was a relatively small and unsophisticated setup and I will sentence you accordingly.

Impact of public health measures

50      Since your remand on this case, the public health measures in Victoria have meant that the conditions of incarceration have, to some degree changed for all prisoners in the corrections system.  All prisoners are unable to receive visits, have less access to phone calls, and all prisoners have to deal with the anxiety of being in an environment they do not control, in circumstances where infection rates have risen, now in two separate phases in Victoria and I have taken this into account in your favour.

51      Since your arrest, you have been incarcerated in Barwon prison.  Before the health restrictions were imposed, you had enrolled in a 24-hour drug rehabilitation course; that course ceased and remains incomplete.  You have had less time out of your cell, and less time in the yard, since the restrictions have been in place and I take that into account in your sentence.

Sentencing considerations

52      I have to impose a sentence that properly punishes you, denounces this behaviour and deters you (and others) from committing similar offences.  The principle of general deterrence is a particularly powerful factor in sentencing for offences of this kind.  This sentence has to have an impact on other people who may consider similar conduct; the public perception of the courts’ integrity is an important part of the administration of justice.  The community has to be protected from such an erosion.

53      Moreover, specific deterrence does have a role to play in your case because of your prior conviction for the same offence.

54      I am also obliged to reflect on current sentencing practices for similar offences and I have done so with the assistance of both counsel.

55      I note that you have now been in custody since 10 July 2019 and are awaiting resolution of other matters currently listed for committal in October 2020.

Disposition

56      Mr Piccolotto, this is the usual point that I would ask you to stand up to hear the actual sentence but on the screen, it does not really make any sense.  So just stay seated; stay where you are.

57      Daniel Piccolotto, on the charges of attempting to pervert the course of justice, cultivation of a narcotic plant and related summary offences  you will be sentenced in the following way.

58      On Charge 1, attempting to pervert the course of justice, you will be convicted and sentenced to a period of custody of 7 months.

59 On Charge 2, cultivating a narcotic plant (cannabis) contrary to s.72B of Drugs, Poisons And Controlled Substances Act, you are convicted and fined in the amount of $1000.

60      On Summary Charge 4, committing an indictable offence on bail, I sentence you to 1 month imprisonment.

61      On Summary Charge 7, failing to appear on bail, I sentence you to 1 month imprisonment.

62      The sentences on Summary Charges 4 and 7 are to be served concurrently.

63      This amounts to a total effective sentence of 7 months' imprisonment and a fine on Charge 2 of $1000.

64 Pursuant to s.18 of the Sentencing Act 1991, I declare that 66 days are reckoned as a period of imprisonment already served under the sentence I have imposed.

65 Pursuant to s.6AAA of the Sentencing Act 1991, I declare that, but for your plea of guilty, I would have imposed a total effective sentence of 12 months' imprisonment.

Ancillary Orders

66      I make the order for disposal that has been sought in relation to the Cannabis Plants.

67      Counsel, are there any questions in relation to the sentence?

68      MS ZAMMIT:  No, Your Honour.

69      HER HONOUR:  All right then.  I thank counsel for their assistance in this case and we will adjourn until tomorrow.

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