Director of Public Prosecutions v Piccolotto

[2015] VCC 1392

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-01069

DIRECTOR OF PUBLIC PROSECUTIONS

v

JASON PICCOLOTTO

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	29 September 2015
DATE OF SENTENCE:	30 September 2015
CASE MAY BE CITED AS:	DPP v Piccolotto
MEDIUM NEUTRAL CITATION:	[2015] VCC 1392

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Gray
For the Offender	Mr B. Johnston

HIS HONOUR: 

1Jason Piccolotto, on 29 September 2015, you made the courageous decision to plead guilty to one charge of threat to kill.  This offence carries a maximum penalty of ten years' imprisonment.

2

The finalisation of this charge brings to a close a long and extraordinary set of events and court proceedings for which you have been in custody since

3 January 2014, a total of 649 days counting today.

3The chronology of events leading to your plea of guilty yesterday are as follows.  On 16 November 2012, the offending in relation to the charge, Charge 1 here, against Ms Parkes, you were arrested and put in custody.  On 5 December 2012, you were released on bail for that charge, having served 20 days of pre-sentence detention at that time.

4On 3 January 2014, you offended against a Ms May-Sutton and you were subsequently sentence by my brother Judge, Judge Bourke on 23 September 2015 for one month's imprisonment for that offending.  On 17 September 2014, you were convicted in this court before Judge Chettle and sentenced to a total of six years' imprisonment on this and other charges. The sentence was six years' imprisonment with a three and a half year non-parole period.  As I say, the other charges are no longer before the court, there is just the one charge.  The conviction and sentence were appealed by you.

5On 20 and 21 April 2015, the offences relating to Ms May-Sutton were resolved to a plea.  On 9 June 2015, the plea for Ms May-Sutton's charges were adjourned awaiting the outcome of your appeal in relation to these matters. On 11 June 2015, the Court of Appeal ordered a retrial for all of the charges that you have been convicted of in September 2014 and this matter was then fixed for trial on 28 September 2015 before me. 

6On 23 September 2015, as I have said before, the plea in relation to the Ms May-Sutton charge was heard and you were sentenced to one month's imprisonment. On 28 September, as I say, this matter was listed for trial before me.  Pre-trial issues commenced.  In total you have spent on my count 649 days in custody.  Of those 140 days were for fines which were concurrently served.

7You have served a total of seven days for a summary offence.  The actual pre-sentence detention for this charge is only 19 days.  You have served a total of 488 days which your counsel described as “dead time”.  This period of “dead time” occurred because of your offending against Ms May-Sutton whilst on bail for the offence that you are now being dealt with by me.  Despite three bail applications, you have remained in custody for the whole period.

8At the commencement of the trial in this matter, the prosecution made an application to replay Ms Parkes' evidence from the first trial. The basis for the application was the mental or psychological status of Ms Parkes.  Prior to that application being heard by me, negotiations between the prosecution, your counsel and yourself resulted in this proceeding becoming a plea of guilty by you to one charge of threat to kill Ms Parkes.  This obviated any need for Ms Parkes to give evidence or any trial to take place.

9The agreed facts about your offending were set out in the prosecution opening on the plea dated 29 September 2015.  That was Exhibit A on the plea.  I will now recite the agreed facts.

10You and Ms Parkes were, up until 16 November 2012 in a boyfriend and girlfriend relationship which had been going on for some three years.  The two of you had previously resided together at Ms Parkes' parents' address and then at an apartment in Docklands and finally from time to time with your brother at 132 Nicholson Street in Coburg.  The relationship between the two of you had ceased on a number of occasions due to various issues between you.

11On Friday 16 November 2012, you and Ms Parkes were at your address at 132 Nicholson Street in Coburg where you had spent the previous night.  132 Nicholson Street, Coburg shares a rear gate fence with 25 Cole Crescent in Coburg. The address at 25 Cole Crescent, Coburg is owned and occupied by your then grandparents, now your grandmother.

1225 Cole Crescent is also used as a thoroughfare by friends and family to walk between the address that you lived at, 132 Nicholson Street, Coburg to your parents' house at 46 Cole Crescent in Coburg.  The property that your grandparents then lived in and the one you lived in shared a fence line with the primary school.

13During the morning of that day, you and Ms Parkes had walked to your parents' address at 46 Cole Crescent, Coburg.  Also present at the address was your mother Laura Piccolotto, your brother Christopher Piccolotto and his girlfriend Laura Panzarino.

14At approximately 1.30 pm, you walked in whilst Ms Parkes was brushing her hair in the laundry area.  You locked the door and then threw her mobile phone in a pile of clothes and said, "What the fuck is that?"  You were referring to text messages between Ms Parkes and a friend of yours.  The text messages had been sent by your mutual friend and warning Ms Parkes that you had been using iCloud technology to monitor her movements.  You pushed her up against the door and stood in her face at the same time, yelling at her.  Your arm was above your head, threatening to punch her.  You then said, "I am going to fully fuck you up".

15You claimed she was being unfaithful towards you and with your friend. You said to her, "You're fucking gone".  You then unlocked the locked door, took her phone and walked out of the laundry. She stood there shaking for a few minutes before walking out of the bathroom/laundry area.  Whilst no charges arise out of that conduct, it remains relevant as providing a background against which the charged offence can be assessed and evaluated in a realistic contextual setting.

16At approximately 2.14 pm, you were observed on video footage from a neighbour's CCTV system to walk in the vicinity of 25 Cole Crescent, Coburg and 132 Nicholson Street, Coburg, collected a black bag containing a red handled knife and a silver handgun.

17At approximately 2.16 pm you left 25 Cole Crescent, Coburg and walked back to 46 Cole Crescent, Coburg.  At approximately 2.20 Ms Parkes asked your brother, Christopher Piccolotto what the time was before walking out the front door and north along Cole Crescent.

18You returned towards Cole Crescent, Coburg and observed Ms Parkes walking away from you.  You yelled, "Hey Nicole, fucking come here now". She turned around towards you and you caught up with her.  You then swung the black bag over to your front and produced a silver coloured handgun in your right hand, then yelled, "It's your lucky day".  You then slid the slide on the gun back and placed a bullet inside the gun before closing the slide.  You then yelled, "Get in the fucking house".

19Ms Parkes was crying and told you that she did not want to go in the house.  The prosecution accept it cannot prove beyond reasonable doubt that the silver gun referred to in this summary is a real gun.  Mrs Piccolotto, that is your mother, and your brother Christopher were standing at the front of 46 Cole Crescent, Coburg watching.  You then walked up behind Ms Parkes and she was forced inside the house.

20Your mother and brother spoke to you and they said, "You stop. What's wrong?  What's wrong?"  You then yelled at Ms Parkes, "Get into the fucking bathroom".  She continued to cry and stated she did not want to.  You pointed the gun at her and said, "Sit on the fucking toilet, shut up.  If the cops come I'm gone".  You then entered the toilet area and locked yourself in with Ms Parkes.

21Whilst she was seated on the toilet, you were standing up.  You produced a red handled 30 centimetre long knife.  You bent down and pressed the edge of the knife into her leg.  She felt the pressure of the knife and she said, "I'm gone.  You're going to kill me".  You then stood up on your feet and started jumping from one foot to the other waving the knife around.  You then started singing, "You're fucking, you know you are fucked", then jabbed the tip of the knife into the wooden cabinet causing a dent to that cabinet.

22You then turned away from her momentarily and she ran to the door, unlocked it and then ran into the kitchen where your mother and brother were standing. She pleaded with your mother and brother to call the police.  She ran to the front door and attempted to push it open but she was grabbed by you.  You have then thrown her against the wall.  You stood in front of her and waved the gun in her face and said, "I will smash you in the head with this gun".

23You walked her over to the lounge room and pushed her into a seated position and you repeatedly told her, "You're fucked".  You pointed the gun at your brother and said, "What did she say?"  You were referring to Ms Parkes asking your mother to call the police.  Your brother said, "She said help".  You have then said, "If you call the cops I'll shoot you too".

24Ms Parkes moved towards the end of the couch toward the exit.  You then said, "I'm going to have to tie her up.  Chris, go and get some rope to tie her up".  Ms Parkes stood up and walked toward the front door and grabbed the handle.  You have said, "You really do want me to shoot you".  You then lifted her over your shoulder.  She has kicked her legs about and grabbed onto your brother's T-shirt.  She has kicked you and was released from your hold momentarily.  She grabbed hold of a nearby bird cage and you grabbed her at the same time resulting in her falling backwards and hitting her head on the floor.  She has moved to the couch and sat on it after that.

25You then stood in front of her and grabbed hold of her by the neck with your left hand and choked her.  At the same time you have placed the gun against her left temple.  You pushed the gun into her temple and said, "Don't fucking move".  You started counting down from ten. She believed that she was about to be killed.

26That is the charge of threat to kill. You have then let her go, faced your mother and brother and said something to them.  Ms Parkes ran out of the back door and through the side gate at Cole Crescent.  You have chased her and yelled, "You're fucking dead, get back here". She continued to run south along Cole Crescent past No.25 down Beckley Street and west up a lane into Nicholson Street.  She ran towards 114 Nicholson Street, Coburg where she stopped a worker at the address who then called the police.

27Police arrived after and spoke to Ms Parkes.  Meanwhile you were observed to emerge from the laneway near 118 Nicholson Street, Coburg which links up with Beckley Street in Coburg.  At approximately 2.55 pm the police arrested you.  You were searched, found to be in the possession of two mobile phones, one of which belonged to Ms Parkes.  You were then taken to Fawkner Police Station where a record of interview was conducted.

28Mr Gray on behalf of the prosecution submitted that the court was to proceed on the basis that the prosecution could not prove beyond reasonable doubt that the silver gun was a real gun.  He also stated that imitation pistols can have the sliding action described in the summary but not take real bullets in the breach.  I have proceeded on the basis that the gun was an imitation pistol but that Ms Parkes thought it was a real one at the relevant time. 

IMPACT ON YOUR VICTIM

29Ms Parkes did not prepare and sign a formal victim impact statement.  The prosecution, with the consent of your counsel, tendered an email from Ms Parkes to Ms Isobel Chabaud who is an officer at the OPP dated 30 September 2015.  It is Exhibit 3 on this plea.

30In the email Ms Parkes sets out her fear of your family and friends coming to her workplace.  That statement is contradicted by the evidence given by Ms Parkes at the first trial and the email communication sent by her to you on 9 December 2014 which is Exhibit 4.  Nevertheless, I accept that Ms Parkes has seen fit to relocate interstate and start afresh with the help of her family.  She sets out how she had started to put things behind her after the last trial and this process was reversed by your successful appeal and prospect of a new trial happening.

31Your plea, as I have said before, has saved her the stress and anxiety of giving evidence.  Again, and hopefully, she can resume her recovery now that this case is at an end.  The best for both of you would be that you never have any contact of any kind whatsoever in the future.

PERSONAL CIRCUMSTANCES

32You are 26 years old next month.  At the time of this offence, you had just turned 23. The last three years of your life have been consumed by the fallout from this offence and in combination with subsequent offending.  You have the support of your mother and father and your brothers and grandmother.  Your family are hardworking people who are contributors to the family itself and to the community.  Your family have three properties in close proximity where your parents, your grandmother and your brother live. 

33Upon release from prison, you have a family and a home to go to.  You have grown up in the Coburg area.  You were educated and St Bernard's Primary School and then St Joseph's Catholic College to Year 12.  In Year 12, you did a VCAL course in the automotive training section of that course. 

34After leaving school, you completed a four year carpentry apprenticeship with LU Simon.  You were retrenched when you were approximately 22 years old and at or about this time, your use of amphetamines started to spin out of control.

35As a young man between 15 and 20 years of age, you were a gifted Lacrosse player.  You represented Victoria and were a member of the Moreland Lacrosse Club.

36You have one prior conviction for driving whilst suspended.  You were fined for this offence at the Broadmeadows Magistrates' Court only 16 days before this offending occurred.  Upon your release from prison, you will return to a loving family and a chance to work in a concreting business where your father works.  You will also have the opportunity to go into a bed and breakfast type business owned by your grandmother at Queenscliff.  As I said before, you are a fully qualified carpenter.

SENTENCING CONSIDERATIONS

37I turn to sentencing considerations.  In sentencing you, I must have regard to a range of factors such as the seriousness of your offence and your culpability for it, your personal circumstances and those of your victim Ms Parkes.  I am required to balance those interests with the interests of the community in denouncing your criminal conduct and the interests of the community in seeking to ensure, as far as reasonably possible, that you as an offender are rehabilitated and reintegrated into society.

38I am mindful of the provisions of the SentencingAct and in particular s.5 (4C) which directs a sentencing court to consider whether a community corrections order can achieve the purpose for which this sentence is imposed.  I have reviewed the case of Boulton in considering if a community corrections order would be appropriate in your case and I have had you assessed for a community corrections order and you have been assessed as being suitable.

39As part of the governing principles to be considered in sentencing you, I must take into account current sentencing practices.  That enquiry is directed particularly, but not exclusively, to the kinds of sentenced imposed in comparable case and the statistics of those sentences at the time.

40I have considered the statistics and current sentencing practices mindful that each case must be considered in the light of its own particular circumstances and many of the cases would be distinguishable from your case, as indeed they are from one another. In this regard I have noted Exhibit B which are the sentencing snapshots dated May 2015 handed up by Mr Johnston. 

41You have pleaded guilty to the charge.  Your plea of guilty has the utilitarian value of allowing the orderly and effective administration of justice. There is a certainty of outcome and the resolution of the substantive issues raised by your offence.  Your plea also allows for the preservation of court and police resources to deal with other matters.  Your plea vindicates public confidence in the legal process set up to protect the community in which you live.

42You have, by your plea, relieved your victim from giving evidence against you.  It facilitates some closure for her.  Your plea of guilty also indicates and demonstrates remorse.  Your plea is also a clear acknowledgment by you that you accept the responsibility for your criminal behaviour on this occasion.  Your plea also recognises you are willing to facilitate the course of justice in the community.

43I previously referred to the timing of your plea of guilty in these reasons.  Your plea has spared your victim the potential of giving evidence for a third occasion in circumstances where you know it would have been psychologically difficult for her to do so.  You are entitled to a discount in sentencing, even though your plea is at a late stage.

44You are a relatively young offender at age 23 when offending and now 25 at the time of sentence.  In Mills case which is reported at (1994) 4 VR at 235, the following three propositions were set out in the sentence of young offenders: (a) youth of an offender, particularly a first offender should be a primary consideration for a sentencing court where that matter properly arises; (b) in the case of a youthful offender, rehabilitation is usually far more important than general deterrence. This is because punishment may in fact lead to further offending. Thus for example individualised treatment focusing on the rehabilitation is to be preferred. Rehabilitation of course benefits the community as well as you, the offender.

45And thirdly, a youthful offender is not to be sent to adult prison if such a disposition can be avoided, especially if he is beginning to appreciate the effects of his past criminality. The benchmark for what is serious to justify adult prison may be quite high in the case of a youthful offender and where the offender has not previously been incarcerated, a shorter period of imprisonment may be justified.

46It is a basic principle of sentencing law that when a young offender is to be sentenced, the sentencing disposition should be tailored so far as possible consistently with other applicable sentencing principles to promote your rehabilitation. This serves the interests of both the individual and the community.

47Your incarceration on remand has been for an extraordinarily long time for a first time in prison. The time on remand more recently has been particularly difficult after the prison riots in July 2015.  The result of that is that you have been subjected to 23 hour lockdown and restricted prison movement.

48I also take into account that whilst you have been in adult prison - that whilst your time in adult prison is not pre-sentence detention for the purpose of this offence, it is appropriate to consider the total of your incarceration when fixing a term of imprisonment. The court is not only empowered but obliged to take into account your pre-sentence detention as a matter of justice. In this case you have been in custody for a total of 488 days which is not part of your pre-sentence detention to be declared pursuant to s.18 of the Sentencing Act.  It is time you have served on remand because you could not get bail due to your subsequent offending whilst on bail for this offence.

49The subsequent offending was finalised on 23 September 2-15 with a sentence of one month imprisonment. The delay in resolution of this charge between November 2012 and now is not entirely all of your making. The delay between the trial in 2014, that is September 2014, and now, approximately a period of one year, is not your responsibility.  The delay has the effect of an extended period of uncertainty for you.      

50Whilst you have been in custody, as I understand it three of your grandparents have passed away and you were not able to attend any of their funerals.  I also take into account the totality of the time you have spent in custody from 3 January 2014.  As I have said before, it is your first time in custody except for the 20 days initially served by you immediately after this offence.

51Your offending on this occasion was a serious example of this serious offence.  The offending was in circumstances of a domestic relationship and involved the use of a weapon, an imitation gun.  Your counsel appropriately conceded this offence was a serious example of the serious offence.  The prosecution submitted that in all the circumstances of this case, a court would not fall into error if a community corrections order, either alone or in combination with a term of imprisonment, was imposed for this offence.  Your own counsel submitted that a community corrections order was the appropriate disposition.

52The considerations of specific and general deterrence and denunciation do call for imprisonment in this case.  I have moderated the term of imprisonment that is to be imposed for the reasons I have outlined just now.  You have been assessed as suitable for a community corrections order.  A community corrections order is the best way to assist you in your rehabilitation and that way you can get back to your family and enable you to lead a productive life and contribute to the community in which you will live.

53You owe that much to the honour and memory of your deceased grandparents who came to this country no doubt to make it a better life for your father, mother and yourself.  Will you stand please.

54On Charge 1, you are convicted and sentenced to three months' imprisonment.  You are also on that charge to serve a three year community corrections order commencing 48 hours after your release from prison.  The conditions of the community corrections order are that you are to be supervised; that you receive drug assessment and treatment; that you receive alcohol assessment and treatment; and that you do programs as directed for reduction of re-offending.  That is a total effective sentence of three months.

55I declare that pre-sentence detention that you have served, 19 days, to be deducted administratively from that sentence. Pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty, I would have sentenced you to three years' imprisonment with two years non-parole period.  That is a significant discount. That is how much I see the value of your plea in this case and that is why I call it a very courageous decision.

56Pursuant to s.6F of the Sentencing Act, I declare that you have been sentenced as a serious offender and I will sign the disposal order when it has been handed up to me in that regard.

57MR GRAY:  Your Honour, I have that document now and my friend has one.  I believe it is consented to.

58HIS HONOUR:  You can take a seat, thanks.  Sorry, the disposal order.

59MR GRAY:  Yes, Your Honour.  I need three copies signed apparently.

60HIS HONOUR:  I have signed those disposal orders.

61MR GRAY:  Your Honour, just one - he is sentenced as - pursuant to 6F as a serious violent offender, I think.

62HIS HONOUR:  Violent offender is it?   I just thought it was serious offender.  Serious violent offender.

63MR GRAY:  Thank you, Your Honour.

64HIS HONOUR:  Mr Piccolotto, that concludes what I have to do so that what I am about to say is just gratuitous but it is just advice for you.  I can understand how cross and angry you will be that you have spent three years of your young life in custody effectively over these incidents.  The best way for you to deal with this going forward is put it behind you.  It will take you some time to, I will use the "soften" from the period of time you had to harden yourself in custody in order to survive custody but go back to your parents, go back to your family and get some work. That will fix that up for you and you will be right.  Stay away from the drugs.  Good luck.  Sorry, I have to get you to sign the community corrections order.  There was something else.

65MR JOHNSTON:  If I could approach Mr Piccolotto?

66HIS HONOUR:  Yes, certainly. Mr Johnston, thanks very much for your assistance in this matter.  As you well know, it has been a tortured path for this piece of litigation, all the charges and I thank you very much for your assistance in it.

67MR JOHNSTON:  As Your Honour pleases.

68HIS HONOUR:  And the same for you, Mr Gray.  Thank you very much.

69MR GRAY:  Thank you, Your Honour.

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