Director of Public Prosecutions v Pio

[2016] VCC 53

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

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-15-00891

DIRECTOR OF PUBLIC PROSECUTIONS

v

WILLIAM PIO

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JUDGE:	HER HONOUR JUDGE DAVIS
WHERE HELD:	Melbourne
DATE OF HEARING:	28 January 2016
DATE OF SENTENCE:	2 February 2016
CASE MAY BE CITED AS:	DPP v Pio
MEDIUM NEUTRAL CITATION:	[2016] VCC 53

REASONS FOR SENTENCE
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Subject: Criminal law – plea - sentence             
Catchwords: Possession of a drug of dependence – uplifted Summary Charges of unlawful assault, possessing a controlled weapon and trespass     
Sentence: Total effective sentence of 4 months’ imprisonment, 448 days pre-sentence detention reckoned as time served.              

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms J. Fallar	OPP
For the Accused	Ms O. Trumble	Revill & Papa Lawyers

HER HONOUR:

1       William Pio, you have pleaded guilty to one charge of possession of a drug of dependence, namely less than 0.5 grams of Clonazepam and 5.2 grams of methylamphetamine. The maximum penalty for this offence depends on whether the court is satisfied on the balance of probabilities that the offence was not committed for any purpose related to trafficking. If so satisfied, the maximum penalty is 30 penalty units or one year imprisonment.  In all other cases, the maximum penalty is 400 penalty units or five years' imprisonment.[1]  You have also pleaded guilty to three summary offences which have been uplifted from the Magistrates’ Court at your request: unlawful assault (delivering a one-two punch to the victim); possessing a controlled weapon (a small sized baseball bat); and trespass. The maximum penalties for these offences are, respectively: three months' imprisonment or 15 penalty units; one year imprisonment or 120 penalty units; and six months' imprisonment or 25 penalty units.

[1] Section 73 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic)

2       You have a substantial criminal history (comprising mostly dishonesty offences and trafficking) linked to your addiction to heroin and have served periods of imprisonment in 2006 (18 months), 2007 (five months); 2009 (four months); 2010 (six months); 2012 (four months); 2013 (14 months). You were last released in June 2014. You were arrested in relation to the current  offences on 11 November 2014 and remanded into custody. You have served 448 days pre-sentence detention excluding today. According to your counsel, you had admitted the possession and assault matters in your record of interview and always intended to plead to these offences. Resolution discussions occurred early this year and the matter resolved in the light of the evidence of the victim at the committal, with the prosecution withdrawing the substantive charge of aggravated burglary for a plea of guilty to summary offences only.

3       Your offending is outlined in the agreed prosecution opening which was tendered as Exhibit 1 on the plea and I sentence you on the basis of the fact as set out in that document. The facts may be briefly summarised as follows.

4       You were 30 years old at the time of the offending. The victim was staying at his mother’s St Albans property, with his girlfriend and another friend. You did not know the victim but had been asked by a friend who had a weekly repayment agreement with the victim to talk to the victim about repayment. You went there with a baseball bat because you heard the victim possessed a shotgun.  On 11 November 2014, in the company of an unknown Greek male, you entered the garage of the victim’s St Albans property by opening the garage door. You argued with the victim and he grabbed his shotgun, which was not loaded, and pointed it towards you and pulled the trigger. You grabbed the victim and threw a couple of punches.  Police were called.  You tried to flee but were arrested at the scene.  Police observed a baseball bat tucked into the rear of your track pants. You were placed in a police divisional van.  As a result of police observing your behaviour in the van, a full body search was conducted at the police station which revealed six zip lock bags containing a substance subsequently identified as ice; and one zip lock bag containing five tablets subsequently identified as Clonazepam.

5       The prosecution sought a disposal order to which you consented and I propose to make that order.

6       Your personal circumstances were outlined by your counsel and may be briefly summarised.  You are one of eight children, born here, to Tongan parents.  As is common practice in Tongan culture, you were adopted by a childless maternal aunt and raised by her in New Zealand, with limited contact with your family here.  You were brought here by your father at age nine to attend school here, and you lived with your family, but felt like a stranger.  You started smoking cannabis at age 14, were binge drinking at 15, and used ice and heroin from the age of 18.  You became a heroin addict and committed offences to support that addiction. You left school in year 9 and moved between family members.  You did not acquire any skills and your work history is very patchy.  You did some intermittent farm work.  You suffered a serious arm injury in 2003 when you were attacked with a machete, and this limits your ability to close your left hand or lift weights.  You can therefore not work as a labourer.  Your offending has alienated your family, although they still love you.  You are considering returning to New Zealand when released to live with your aunt.

7       Your counsel made a number of submissions, which may be summarised as follows.  You have an extensive criminal history, which is relevant to specific deterrence, as well as to your risk of reoffending and to your prospects of rehabilitation, but this should not overwhelm the sentencing discretion, although general deterrence is a significant sentencing consideration. Your plea of guilty comes after the victim admitted at the committal that the shotgun produced was his, and not brought by you to the property.  Your plea has spared the State the expense of running a trial and you are entitled to a significant discount for that plea.  Significantly, you made full admissions to police in relation to possession of the baseball bat and the unlawful assault.  In particular, the charge of assault arises from your own admissions to police in the record of interview.  In relation to the trespass, there was no suggestion of forced entry, and the garage was not locked.  Whilst it is conceded that a term of imprisonment is appropriate in this case, a short straight sentence is appropriate and time spent in custody is more than enough to address the sentencing considerations.  You still face one charge of theft from a motor vehicle which was attached to the original indictment and this is listed for a contest mention in the Magistrates' Court later this month. You remain on remand pending the outcome of that remaining matter. 

8       The prosecution acknowledged that the victim had chosen not to provide a victim impact statement, but submitted that an aggravating feature of your offending was going to the victim’s premises with the baseball bat.  It was also submitted that you knew you had drugs with you at the time and tried to conceal them. The prosecution submitted that a term of imprisonment was an appropriate disposition, that the summary offences arose out of the one incident and that the sentences for these could attract substantial concurrency, but that that there ought to be some cumulation in respect of the sentence for the possession charge.

9       I accept the matters put on your behalf by your counsel and adopt them as part of my reasoning in reaching the sentencing disposition referred below. There was no suggestion by the prosecution that the possession offence was committed for any purpose related to trafficking and I therefore approach the sentencing task for this offence on the basis that the maximum penalty is 1 year imprisonment or 30 penalty units.

10      I consider that your offending in relation to this offence is at the low end of seriousness. I accept that the three summary offences arise from the one incident.  I consider it appropriate to impose an aggregate sentence for those summary offences.  I consider it appropriate for there to be some cumulation in respect of the possession offence.  I consider that your offending overall is at the lower end of seriousness. General and specific deterrence, denunciation and just punishment are relevant considerations.  I note your relatively youthful age, but consider in all the circumstances your prospects of rehabilitation are guarded.

11      Would you please stand, Mr Pio.

12      On the summary charges, I impose an aggregate sentence of three months’ imprisonment.  On the charge of possession of a drug of dependence, you are sentenced to three months’ imprisonment, one month of which is to be served cumulatively upon the sentence imposed in respect of the summary offences.  The total effective sentence is that of four months’ imprisonment.  I note that you have already spent 448 days in pre-sentence detention excluding today, and I order that this be deducted administratively and entered into the records of the court.  In particular I note that the period of imprisonment referable to the matters is to commence on 11 November 2014.

13 I declare pursuant to s6AAA of the Sentencing Act 1991 (Vic) that, but for your plea of guilty, I would have sentenced you separately on the summary charges to a term of imprisonment of two months on each charge and on the possession charge to a term of imprisonment of four months.

14      Are there any other matters that need to be dealt with?

15      MS FALLAR:  Was a disposal order made?

16      HER HONOUR:  Yes.

17      MS FALLAR:  Thank you, Your Honour.

18      HER HONOUR:  All right.

19      MS TRUMBLE:  Can I just check with Your Honour?  So it is three months' imprisonment aggregate for the three summary offences?

20      HER HONOUR:  That is right.

21      MS TRUMBLE:  Three months in respect of the possess drug of dependence, one month cumulative, making a total effective sentence of four months.

22      HER HONOUR:  That is right.

23      MS TRUMBLE:  With that time already declared as served.

24      HER HONOUR:  That is right.

25      MS TRUMBLE:  Yes.

26      MS TRUMBLE:  Thank you, Your Honour.

27      HER HONOUR:  All right. We are just going to print the draft orders so your counsel can check the pre-sentence detention.

28      MS TRUMBLE:  Yes, Your Honour.

29      HER HONOUR:  All right, thank you.  You want to declare the days?  It is all right, we can do that.

30      MS TRUMBLE:  It does not bother me, it is just I just do not know whether Central Records will query the declaration, because normally you declare it as days because you normally have not had enough days, so the records just declare it as days.

31      HER HONOUR:  We can just put in brackets however many months and days that comes to.

32      MS TRUMBLE:  Yes.

33      HER HONOUR:  So 448 days is how many months and how many days?  It depends because it depends which months they are, whether they are short months or long months.

34      MS TRUMBLE:  That is right.  I cannot remember how they calculate it.

35      HER HONOUR:  Once you have to do that, you will have to get a calendar and go back and do all the calculations, that is why this is much more correct.

36      MS TRUMBLE:  Yes.  No, look I am happy.

37      HER HONOUR:  Yes.

38      MS TRUMBLE:  If Your Honour changes it to four months, perhaps if it could be put in brackets that the accused has spent a period of 448 days in custody.

39      HER HONOUR:  Yes.

40      MS TRUMBLE:  So that it is just brought to the attention that we have got more than enough days.

41      HER HONOUR:  Absolutely, yes.

42      MS TRUMBLE:  Yes, all right.  Otherwise it is fine.

43      HER HONOUR:  How many months do you say 448 days is?

44      MS TRUMBLE:  Fourteen months or thereabouts, is it not?  Yes.

45      HER HONOUR:  Yes.  Yes.  Just as I understand, the four month period that you are referring to from November 2014 to March 2015.

46      MS TRUMBLE:  Yes.

47      HER HONOUR:  How do you get that?

48      MS TRUMBLE:  The 11 November is the date of his arrest.

49      HER HONOUR:  Yes.

50      MS TRUMBLE:  In relation to these matters.

51      HER HONOUR:  Yes.  The 11 March 2015?

52      MS TRUMBLE:  That is just four months from 11 November 2014.

53      HER HONOUR:  I see.

54      MS TRUMBLE:  I am assuming that is where that comes from.

55      HER HONOUR:  I see.  I see, so you are just counting forward the four months.  All right, I follow that.

56      MS TRUMBLE:  Yes.  I mean you probably do not need to have the end time, but as long as 11 November is noted as, what, for that period of time coming from there.

57      HER HONOUR:  That is all right.

58      MS TRUMBLE:  What I will do is I will get my instructor to seek from Central Records a release date for Mr Pio.

59      HER HONOUR:  Yes.

60      MS TRUMBLE:  So that we know that it is clear that they have got it right as well, so.

61      HER HONOUR:  Excellent, thank you.  Thank you, Madam Prosecutor, for your assistance and we will adjourn.  All right, thank you.

62      MS FALLAR:  Thank you.

63      (Disposal orders signed and acknowledged.)

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