Director of Public Prosecutions v Piccolotto

[2015] VCC 2023

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -14-01618

DIRECTOR OF PUBLIC PROSECUTIONS

v

JASON PICCOLOTTO

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JUDGE:	HIS HONOUR JUDGE M.P. BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	23 September 2015
CASE MAY BE CITED AS:	DPP v Piccolotto
MEDIUM NEUTRAL CITATION:	[2015] VCC 2023

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	Mr D. Gray	Office of Public Prosecutions
For the Accused	Mr B.Johnston

HIS HONOUR:

1For the reasons I think, in this unusual case, I have properly expressed, on each of the two charges before me, theft of a motor vehicle and a threat to kill,
I impose a sentence of imprisonment of one month.  I say nothing about cumulation.  Therefore the total effective sentence is one month. 

2I declare pre-sentence detention of, as I am told, 488 days.  The arithmetic is a bit beyond me at the moment but I suspect you are right about it.  There is no disadvantage to him in any event in only declaring that period of time.  So that is under s.18, 488 days of pre-sentence detention already served.  I will come back to that.  You are asking for disposal orders?

3MR GRAY:  Yes, Your Honour, in relation to a mobile phone.

4HIS HONOUR:  Yes, if you hand them up I will sign them.

5MR GRAY:  We'll hand those up, Your Honour.

6HIS HONOUR:  Yes.

7MR GRAY:  Could we do this, Your Honour, could we email them to
Your Honour's Associate?

8HIS HONOUR:  Yes certainly, certainly.  There is a disposal order and is there something else?

9MR GRAY:  The license disqualification.  Your Honour's mentioned two weeks.

10HIS HONOUR:  Two weeks.  His license is cancelled, that is what is required of me, isn't it?  I cannot suspend it.

11MR GRAY:  No, it can actually be suspended.

12HIS HONOUR:  Well I suspend his license.  Do you have one?  I cannot suspend what he has not got.  I disqualify him from applying for a further license for a period of two weeks under that relevant section.  I make the disposal order.  Is there an application for an order for a forensic sample?

13MR GRAY:  No, Your Honour, he's already on it.

14HIS HONOUR:  All right, there it is.  Now just take a seat.  Now I just return to the question of a s.18 declaration if things go badly for him.

15MR JOHNSTON:  The question is would Your Honour just declare 30 days reckoned as pre-sentence detention?

16HIS HONOUR:  God, it gets more and more unusual.  I do not know how I do that.  What is the section?  Do I have a discretion?

17MR JOHNSTON:  Your Honour, I might just have a look at that section. 

18HIS HONOUR:  Section 18 is it?

19MR JOHNSTON:  Yes, Your Honour.

20HIS HONOUR:  Have you both got it there?  You're both going to your mobile phones in this modern era.  I've got the Act here.  I'll just read it out in case the - you're both straining at the small print there.  I'll help you with that.

21MR JOHNSTON:  Thank you, Your Honour. 

22HIS HONOUR:  "If an offender is, in respect of an offence, sentenced to a term of imprisonment or to a period of detention - " well don't worry about that.  "Any period during which he or she was held in custody in relation to the proceedings for the offence or proceedings arising from those proceedings, including any period pending … must be reckoned as period of imprisonment already served on the sentence". 

23No, "Unless the sentencing court of the court fixing a non-parole period in respect of the sentence otherwise orders".  But I don't think that means I can just select arbitrarily a period of time.  I mean I should imagine, if things go badly for him you'll be able to put an argument about  totality.  I think you mentioned the case earlier, Renzalla would apply wouldn't it?

24MR JOHNSTON:  Yes.

25HIS HONOUR:  But I mean all of that's discretionary.  The other thing I could do is declare nothing but would the 488 days be regarded as related to the trial that's about to start?

26MR JOHNSTON:  I wonder, Your Honour, just thinking aloud about what happens to that time after he was sentenced and served time from the ‑ ‑ ‑ 

27HIS HONOUR:  Well that would be taken into account.  That might resume the status of a s.18 pre-sentence detention.  Or at least would be taken into account by the sentencing court.

28MR JOHNSTON:  Because that's a significant period.  That's, you know, half of the time that he's spent in custody.

29HIS HONOUR:  Yes.

30MR JOHNSTON:  Because then I wonder whether or not, if that is the case, Your Honour can consider that part of the pre-sentence detention on these matters.  But I guess he was on remand for these offences at the time that he was serving sentence on the other ‑ ‑ ‑ 

31HIS HONOUR:  Yes, he's remained on remand and ‑ ‑ ‑ 

32MR JOHNSTON:  Yes.

33HIS HONOUR:  ‑ ‑ ‑ that conviction's been set aside. 

34MR JOHNSTON:  Given Your Honour's comments in court about your consideration of these offences perhaps Your Honour's best to leave it as is and if worse comes to worse I'll be able to make submissions on the basis of what
Your Honour ‑ ‑ ‑ 

35HIS HONOUR:  Yes well there's a transcript of what I said.  I mean surely in our system if he's convicted of the further matter he'll get credit for the time - for the period of time he's spent in gaol.

36MR JOHNSTON:  Indeed.

37HIS HONOUR:  So I mean I've been told, and there seems to be an agreed position, that the relevance of pre-sentence detention related to these proceedings is 488 days so I should declare it.

38MR JOHNSTON:  As Your Honour pleases.

39HIS HONOUR:  All right.  Anything else I need to do?

40MR GRAY:  No, Your Honour.

41HIS HONOUR:  Good thank you.  We'll adjourn until ten o'clock tomorrow.

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