Director of Public Prosecutions v Piccolotto
[2015] VCC 884
•29 April 2015
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. 15-00705
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANIEL PICCOLOTTO |
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JUDGE: | His Honour Judge Bourke MP | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 29 April 2015 | |
CASE MAY BE CITED AS: | DPP v Piccolotto | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 884 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr K Doyle | |
| For the Accused | Mr W Toohey |
HIS HONOUR:
1 Daniel Piccolotto, you are to be sentenced for two charges of theft and one charge of common assault. The maximum sentences are ten years imprisonment for theft and five years imprisonment for assault.
2 You pleaded guilty before me to these offences on 21 and 24 April. When interviewed by police, on 13 January, 2014 you exercised your right to silence. You were charged with a number of offences including these, kidnapping and intentionally causing injury. There was a contested committal on a large number of offences. There were several defendants and the cross‑examination of witnesses ran for three days. You were committed for trial and in this court you faced indictments alleging offences including these still before me and the other offences I have identified.
3 The matter was listed before me on 21 April. There were two indictments and it was proposed that there be two trials. There were three other accused across the range of charges alleged. The allegations arose out of two main series of events on 31 December 2013 to 3 January 2014 and 10 January 2014.
4 On 21 April a plea indictment was filed and you pleaded guilty to the two car theft charges. After further negotiation on 24 April another plea indictment was filed and you pleaded guilty to assault. Other offences including, as I have said, kidnapping and intentionally causing injury have been discontinued against you.
5 You receive the benefit of your pleas of guilty and the level of cooperation that history of the proceedings against you shows. Your pleas of guilty have facilitated the interests of justice.
6 At your plea hearing which ran on 27 April Mr Doyle, for the Crown, tendered a written prosecution summary on the plea and photographs of injury caused to Shady Karam. Mr Toohey, for you, tendered certificates related to rehabilitation programs you have undertaken in remand custody.
7 The circumstances of your offending are described in the tendered Crown summary which is Exhibit A.
8 The offences occurred on or between 31 December 2013 and 10 January 2014. You knew a number of persons who lived in the Reservoir Coburg area. They included your brother Jason Piccolotto, Brittany Culmsee, Peter Hall, Krystal May-Sutton, the victim of the car theft on or about 3 January, and (related to the events leading to your assault of Shady Karam on 10 January), Mohammed Akkari and James Pieri.
9 There seems to have developed at this time ill feeling and grievance between persons within both groups. These related to a stolen car, a loan of cars and money and perhaps romantic affiliation. The disputes may not, in fact seem not to have been connected. Motivations behind the machination between these persons are not clear to me.
10 In short, in such a context, Culmsee took May-Sutton's Honda motor vehicle. Theft by you and her was effected at least by 3 January when you were seen in the car. You and she seem to have kept possession for some days. During that time you and Culmsee drove without paying for and thereby stealing petrol at a Coles Express service station in Tullamarine. This was on 3 January. The car was recovered by police on 11 January.
11 On the night of 9 January into the early hours of 10 January you were at the home of James Pieri in Reservoir. Culmsee, Karam, Pieri and at the time others were there. There was dispute about money and cars. At one point, in this context but without very clear explanation it seems to me, you struck Karam over the head with a full bottle of whisky. He suffered minor injuries. Assisted by your parents you attended police by arrangement on 13 January in relation, it seems, to both alleged episodes of offending.
12 Mr Toohey described your personal history and circumstances. You are 27 years of age. Until I granted you bail on 27 April you were in remand custody. That has been for about 15 months. You presently live with your parents. They are again present in court today. The home is in Reservoir.
13 Your parents present as law abiding and supportive of you. You are the eldest of three boys. You came from a good background, left school after Year 12 and have completed a carpentry apprenticeship. In teenage you were a talented ballroom dancer and in adulthood have fought successfully, including overseas, as a kick boxer.
14 It seems that following being retrenched in early to mid 2012 you gravitated to amphetamine use and that milieu. You remained unemployed but for sporadic work with an uncle. Your parents were very concerned.
15 Your criminal record seems consistent with this narrative. Between October 2013 and April 2014 there are two court appearances which seem related to the same multiple offending. There are theft, drug possession and weapon offences. You were ultimately fined.
16 It was in the drug use culture and setting that you have committed these offences before me. I was told that relevant persons, including you, were using methylamphetamine on the two occasions of these offences. I see it as consistent with the behaviour.
17 The most significant aspect of this case is that you have now served 15 months. This was serious offending and you have a relevant, although not extensive, prior history. Accordingly, the sentencing considerations of deterrence, particularly general deterrence, denunciation, your moral culpability and the need for proportionate punishment are relevant. However, I find that those matters can be met by imposing a sentence of 12 months imprisonment. This permits your immediate release.
18 This is a sentence not argued against by the Crown as being outside the appropriate range. I have also considered favourable matters. They particularly include your plea of guilty and what I see as genuine prospects for rehabilitation. You have behaved consistently with that in prison, have what seems good family support and have the capacity for productive, successful employment. I sentence you as follow. Stand up please.
19 Now I just remind myself that it is not on the same indictment. Common assault is E10138740. Mr Doyle, you filed over a plea indictment. Is it C1409440A2?
20 MR DOYLE: I'll check, Your Honour.
21 HIS HONOUR: There have been so many indictments filed. They're presently spread across the four files and we will set to and reorganise that when we get a chance. I just need the number of it.
22 MR DOYLE: The number - - -
23 HIS HONOUR: Yes, of the first indictment.
24 MR DOYLE: - - - of the common law assault indictment?
25 HIS HONOUR: No, I've got that, A.2?
26 MR DOYLE: Point 1 Your Honour. I'm on 21.4.
27 HIS HONOUR: It is C1409440A1, is it?
28 MR DOYLE: Yes Your Honour.
29 HIS HONOUR: So that contains the others.
30 MR DOYLE: Yes.
31 HIS HONOUR: All right, that's fine.
32 MR DOYLE: That's right, yes.
33 HIS HONOUR: I sentence you as follows.
34 On Indictment C1409440A.1 on Charge 3, theft of a motor car, you are sentenced to three months imprisonment.
35 On Charge 4, theft of petrol, you are sentenced to one month imprisonment.
36 On Indictment E10138740 on one charge of common assault you are sentenced to ten months imprisonment.
37 I direct that two months of Charge 3 on the first indictment be served cumulatively upon Charge 3 on the second indictment. That is a total effective sentence of 12 months.
38 I declare under s.18 469 days of pre-sentence detention. I indicate that had you not pleaded guilty I would have imposed a sentence of 18 months and set a non parole period of 12 months. That means this. You would have stayed in prison subject to a decision by the parole board which these days is not readily granted.
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39 What are the other matters I need to do? Is there a forensic sample?
40 MR DOYLE: There was. There is - this is my fault, Your Honour. The other day I looked at the legislation. There was a - in respect of another investigation there was a sample taken that was used in this investigation. It seemed to me the outcome of that is an automatic retention but I'm told there might be some controversy about that.
41
HIS HONOUR: Well if that's gone on the database I'm not going to make
him - - -
42 MR DOYLE: No, it hasn't. I hasn't.
43 HIS HONOUR: Why don't they?
44 MR DOYLE: Sorry?
45 HIS HONOUR: Why don't they? I'm told time and time again - you see people with 14 pages of prior convictions - - -
46 MR DOYLE: Yes, I know.
47 HIS HONOUR: - - - and I'm told that they need another one.
48 MR DOYLE: Well my understanding is that - my view of the legislation is that's probably enough for an automatic retention but I'm told that I might not be right about - I might not be right about that.
49 HIS HONOUR: I see. There are issues of what you retain and what you don't retain.
50 MR DOYLE: Yes exactly, Your Honour.
51 HIS HONOUR: Mr Toohey, can he give us an example of his saliva?
52
MR TOOHEY: Well he can, Your Honour, but what concerns me about all of this over the years is that a man's brought before the court on a charge of theft, two charges of theft and a common assault and to be getting samples from people such as that, if the legislation says that that's what has to
happen - - -
53 HIS HONOUR: No, it doesn't have to happened. It's my discretion but I think I would - I would take into account what I've described as the various machinations and movements behind this. It would be irresponsible not, wouldn't it?
54 MR TOOHEY: Well - - -
55 HIS HONOUR: What I'm really concerned about is if a sample's taken it should, in the normal course, get on the database so people aren't forever giving samples.
56 MR TOOHEY: Well he's already done it and - - -
57 HIS HONOUR: I'm told that's not on the - - -
58 MR TOOHEY: - - - through no fault of his own they wipe. I don't understand that but - - -
59 HIS HONOUR: Neither do I but I think - - -
60 MR TOOHEY: Anyway I don't want to hold proceedings up.
61 HIS HONOUR: I think I need to do it and the reason - I'll state the reasons. It's not what he's ultimately pleaded guilty to but there are events that lie behind it that mean in a responsible way I think I need to do it.
62 MR TOOHEY: Very well, Your Honour.
63 HIS HONOUR: All right. Well you need - what you've got - - -
64 MR DOYLE: I don't have an order right at the moment. I’ll get that done.
65 HIS HONOUR: That's all right. You can send it up to me.
66 MR DOYLE: Yes, thank you.
67 HIS HONOUR: You have got to give a sample of your saliva again. It doesn't appear to have arrived on the database for reasons that I don't understand but maybe - that maybe sensible. So you've - you know what happens, don't you? You give a sample of your saliva. If you do it cooperatively that's the end of it and if you don't a sample of blood may be taken by injection and reasonable force used. You'll have to attend the Reservoir Police Station at a time after two weeks but before six weeks to do that. I've stated the reasons why I've - why I've granted the order. It's - it's circumstances that I see to potentially lie behind these offences. I'm not saying you're guilt of them but that affected my decision on this. You have a prior history. It's not an extensive one and that's a minor matter on this issue.
68 So there you are. I'll sign the document when it arrives. Now you can come out of the dock and join your parents and that's all I need to do, I think.
69 MR DOYLE: Yes Your Honour. Just before we start the trial, Your Honour, I did attend to meet the witness this morning but she hadn't arrived yet.
70 HIS HONOUR: That's all right.
71 MR DOYLE: I just need a few minutes with her.
72 HIS HONOUR: Well I'll go back to my room and - do you need to be somewhere else, Mr Toohey, do you?
73 MR TOOHEY: No, not for the rest of the day, Your Honour.
74 HIS HONOUR: Well you behave yourself, Mr Toohey.
75 MR TOOHEY: I'll try, Your Honour.
76 HIS HONOUR: All right. Well I'll stand down and we'll search for those other indictments.
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