Director of Public Prosecutions v Pito

[2014] VCC 1091

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-13-01182

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANTHONY PITO

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JUDGE:	HIS HONOUR JUDGE PARSONS
WHERE HELD:	Melbourne
DATE OF HEARING:	31 March 2014, 3, 11, 16 April 2014, 24 and 25 June 2014
DATE OF SENTENCE:	7 July 2014
CASE MAY BE CITED AS:	DPP v Pito
MEDIUM NEUTRAL CITATION:	[2014] VCC 1091

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 M. Roper	Office of Public Prosecutions
For the Offender	Ms D Caruso	Victoria Aboriginal Legal Service

HIS HONOUR: 

1You, Anthony Pito, have pleaded guilty before me, at a sitting of the Koori County Court sitting in Melbourne, to one charge of attempted armed robbery and one charge of false imprisonment, and I will deal with those matters first.

2The circumstances giving rise to these charges are set out in Exhibit A, the prosecution opening.

3On Monday 18 March 2013, the victim was working as a receptionist at Flagstaff City in West Melbourne.  At about 10 pm on that day you entered wearing a cap and a hoodie as a disguise.  You made some enquiries of the victim as to whether or not a room was available before you produced a flick knife and extended the blade from its handle.  It was about three centimetres long.  You pointed the knife at the victim and demanded money.  She tried to run out of the office and you then pushed her back inside the office and told her to lie down and not move.  In due course you tied her feet together tightly and then her hands behind her back, while she lay face down on the ground.

4You then continued to search for money.  You went into the reception area and continued checking drawers behind the counter and you were observed by the night receptionist who tried to establish who you were.  The night receptionist did not believe your answers and there were then four or five patrons gathered in the place and he drew attention to the fact that you were a thief.  He also recovered keys that you had stolen.  You attempted to leave and then the night receptionist noted you were carrying his bag and he wrestled the bag from you, again shouting out that you were a thief.  You let go of the bag and ran from the hotel. 

5The receptionist subsequently emerged from her hiding place and the police were called.  She had been in those premises where you had secured her for approximately 15 minutes.  Subsequently you were identified from various CCTV footage and also your DNA was found on articles of clothing.

6No victim impact statement was intended in the matter although it is clear from the depositions and the evidence I have before me that there was considerable suffering on her part, given she was kept in a darkened room with her hands and feet tied and you threatened her with a knife.

7As I say, you have also pleaded guilty to a number of other matters.  The circumstances of that are set out in Exhibit C, the Crown opening.

8On 2 February 2013, at 7.10 pm, you and an unknown co-offender entered the Mantra Hotel, at 100 Exhibition Street, Melbourne, through the unlocked front door.  This gives rise to Charge 1, burglary.

9You then unsuccessfully attempted to force open the locked door to the reception office with a screwdriver or similar implement.  You then entered the laundry via the luggage storage area and forced open a coin operated laundry powder dispensing machine and stole an unknown quantity of coins.  This gives rise to Charge 2, theft.  Your image was captured on CCTV footage.

10Between 3 pm on 8 February 2013 and 7.30 am on 8 February 2013, you entered the laundry room of a Ministry of Housing apartment complex known as the Mariner, in Docklands Drive, Docklands.  This gives rise to Charge 3, burglary.

11Once inside, you covered the CCTV camera with wet paper.  You then unplugged the clothes dryer from the wall and took it to a disabled toilet and unsuccessfully attempted to retrieve coins from the machine.  You did the same with two other clothes drying machines but again without success.  This gives rise to Charge 4, attempted theft.  You caused about $500 in damage to the machines in respect of which there is a compensation order.

12At some time between 7 pm on 16 January 2013 and 7.25 am on 17 January 2013, you forced entry to Birches serviced apartments in East Melbourne, by removing a flywire screen and forcing open a window to the office.  This gives rise to Charge 5, burglary.

13You then used a fire extinguisher to forcibly remove a safe mounted on the wall.  You took the safe, which contained $2,854 in cash, the petty cash, pens, keys, the laminator and computer supplies with a combined value of about $4,600.  This gives rise to Charge 6, theft.  No property was recovered.  You left a number of fingerprints which were later identified as yours.

14

At some time between 5 pm on 15 February 2013 and 9.45 am on

18 February 2013, you again entered the laundry room at the Ministry of Housing apartment complex known as the Mariner in Docklands.  This gives rise to Charge 7, burglary. 

15You then unplugged three clothes dryers from the wall, took them to a disabled toilet and this time managed to break them open and removed about $750 in coins.  This gives rise to Charge 8, theft.  In the process you caused about $500 in damage to the machines and again you left a number of fingerprints.

16On 20 February 2013, at 9.45 am, for the third time you entered the laundry room of the Ministry of Housing apartment complex known as the Mariner in Docklands.  This gives rise to Charge 9, burglary. 

17You managed to steal about $750 in coins.  This gives rise to Charge 10, theft.  In the process you caused $1380 in damage to the machines.  You were identified by the CCTV.

18You were arrested at Southern Cross railway station on 1 March 2013 and you made "no comment."

19On Tuesday 29 January, at about 6 pm, police were called to Leigh Street, Footscray, where they found you and another man arguing with a group of people.  It transpired the argument was over drugs and you appeared to be drug affected.  You were detained for the purposes of a search and the search revealed you carried a controlled weapon.  This gives rise to the summary charge which is before me pursuant to the relevant legislation and to which you pleaded guilty. 

20You were then arrested and searched and police found seven sets of keys and a garage remote key which had been stolen in burglaries from the three separate properties.  This gives rise to Charge 11, handling stolen goods.

21Finally, on Monday 18 February 2013, you attended at a unit in Thomastown belonging to your mother.  You yelled at her through the front door, became angry and damaged the security door.  The damage was estimated at $300.  This gives rise to Charge 12, criminal damage.

22You then called 000, admitted damaging the door and when police attended you said you had rung 000 "so you can lock me up."

23Your pleas are said to be at the earliest time.  As I say, there are various orders sought in that opening and not opposed by counsel on your behalf.

24Of course as was pointed out by your counsel there are a number of mitigating factors.  You have pleaded guilty and you are entitled to have that fact taken into account in your favour and I do so.  The community has by your pleas in these matters been spared the time and cost of a trial and witnesses have been spared the ordeal of giving evidence upon your trial.  I can tell you the sentence I intend to impose is far less than would have been imposed had you been found guilty after a trial.

25Further, I take into account in your favour that you intimated early your intention to plead guilty to these charges.  You were quickly apprehended with respect to the first matters and, as I say, the Crown makes the concession in the circumstances that it was an early plea.

26As is customary in the Koori County Court hearing, I was assisted during that part of the plea known as the sentencing conversation by two elders of the Aboriginal community.  What emerged was that you have recently identified yourself as a person of Aboriginal descent.  Your father contacted you relatively recently in your adult life and he is a man who comes from Gippsland and is a member of Gunai Kurnai people.  Your mother is from the Cook Islands.

27You told us during the sentencing conversation that you had never previously identified yourself as an Aboriginal person for reasons that were personal to you.  In the circumstances it was clear that your identification as an Aboriginal person and your attempt to establish your links to your Aboriginal family and also to understand more closely the circumstances of your early life have become a very important thing in your life.

28In addition to the sentencing conversation in which you revealed a significant amount about your early life and the great unhappiness attendant upon that period in your life, particularly the fact that your mother, as you said, was a prostitute who had seven children and who did precious little to support any of you in your early life, with the ultimate result that you and your siblings were all fostered.

29There are a number of other documents before me which also set out the circumstances of your personal history and I will reflect on those matters in a moment. 

30Perhaps it is best to set out what the High Court recently said in the case of Bugmy v. R [2013] at p.37.  At paragraphs 43 and 44 the following was said by the court:

"The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life.  Among other things a background of that kind may compromise the person's capacity to mature and to learn from experience.  It is a feature of a person's make up and remains relevant in the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.  Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving full weight to an offender's deprived background in every sentencing decision.  An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated, such that the offender's moral culpability for the inability to control the impulse may be substantially reduced.  However the inability to control the violent response to frustration may increase the importance of protecting the community from the offender."

31

Exhibit 2 was a report for a case conference to be held in Fitzroy, on

9 February 1995.  You were the subject of that case conference.  You were then aged 12 and identified as a Cook Island Aboriginal and the purpose of the case conference was to discuss your placement needs.  It was noted that your family first came to the attention of the Child Protection Department in 1981 and since that time issues have consistently arisen within the family to maintain intermittent involvement with protective concerns being your mother's extreme use of physical violence towards her children.

32The history of your placement since 1989 is set out in the materials and is simply a sad reflection of the circumstances that you had to confront as a very young person. 

33Attached to that document is another document dated 6 February 1995, again with respect to you.  That document sets out that you are on a custody order to the Secretary due to your mother's inability and unwillingness to care for you and your three siblings.  Sadly, your mother indicated she was unable to care for you and your three brothers due to her commitment "to further her education."  However she states that if the department is able to provide her with an ongoing placement support worker who would support her in the care of her children she would be willing to have them in her home.

34Exhibit 1 is a disposition report in support of an application to extend custody to the Secretary.  That is dated 2 February 1995, and you are the subject of that application.  Listed are your prior court appearances between 1992 and 1994 and various matters that were referred to.  I do note in the assessment section that it is clear your behaviour was problematic and you were described as "a deeply troubled youth who has significant problems with anger and anger control, socially isolated from peers and suffers deep feelings of worthlessness.  He is desperately seeking limits and boundaries and feels quite scared, but at the present time there does not appear anyone who can do this for him."

35I further note that in that report there is a reference to your mother who was frequently "out for long periods of time and often late into the night leaving Anthony locked out of the flat without sufficient food or clothing, leaving him to fend for himself."  A draft case plan was there for you, the terms of which are set out.

36Exhibit 6 is a document entitled "Decisions of annual custody review meeting" held at Smith Street, Fitzroy, on 19 November 1993, and again you were the subject of that report.  Again there is a reference to the use of extreme violence towards you and your siblings and your mother apparently had been convicted for an assault on you.

37In more recent times of course I have the neuropsychological report of Dr Lindsay Vowles and I note the conclusion as follows: 

"It appears from a fairly comprehensive sampling of cognitive abilities, using tests with established sensitivity and reliability, to identify neuropsychological abnormalities that Mr Pito is currently demonstrating, significant cognitive disabilities which would constitute a diagnosis of intellectual disability at the moderate level of a continuum.  I believe that this may have prevented him from understanding the implications of his actions on the victims in some respects.  He has some probable additional impairment in cognitive efficiency and speed which may be related to cumulative negative events leading to acquired brain impairment in a person of longstanding intellectual disability.  Short term recall is confused and disorganised, as well as having excessive forgetting, but this is only at the mid-level compared to his executive disabilities.  Thus from current test results it would be seen to have the additional diagnoses of amnesic syndrome at the mild to moderate level and dis-executive syndrome at the moderate to severe level.  From this assessment, I cannot be confident if these new disabilities are related to the longstanding drug and alcohol abuse or the cumulative trauma to the brain or both.  My opinion is the lifelong intellectual limitations would make new or ABI more disabling.  Although I was not asked to make recommendations as part of this referral, I would endorse the suggestions that Mr Pito be referred to the disability services program both within the prison system and on release in order to obtain appropriate support, case management and effective psychiatric treatment modified to his cognitive abilities.  He will require additional and specific support and supervision if he is to survive a prison sentence or to succeed in completing any parole conditions in the community.  Without extra resources or people without adequate training and working with intellectual disability and communications disorders and depression and serious drug dependence, Mr Pito's likelihood of failure if very high."

38In addition to that of course I have the report of Carla Lechner, a clinical and forensic psychologist, who regularly reports to the court in circumstances such as this.  That is Exhibit 4, dated 21 May.  She helpfully sets out your personal circumstances and I think it useful to summarise them at this stage.

39You are currently aged 30 and one of seven children born to Mikaya Peter.  Notwithstanding the contrary proposition in the report, you do know the identity of your father, he having been in touch with you a couple of years ago and he is a Graham Edwards from the Gunai Kurnai people.  You estimate that you have been exposed to five step fathers in your life. 

40You have a relationship with a woman called Misty and with her you have two sons, Jeremiah, eight, and Josiah, seven.  You grew up in Richmond and Elwood and you attended Richmond West from Prep to Grade 4.

41I do not think it appropriate or helpful to quote from Carla Lechner with respect to your early history which is set out in a much more detailed fashion in the earlier exhibits.

42After leaving school, you returned to your mother's care and you went to the Cook Islands with your mother where you worked.  You returned to Melbourne from the Cook Islands in late 1999, when you lived with your sister, Theresa, and you went back to your old life of selling drugs.  Further, you were devastated about your sister's suicide in 2001.  That led to an escalation in your drug use. 

43It is clear that your adult life has been characterised by substance abuse, offending and gaol time.  Apparently the only time you have been out of prison for a sustained period was during 2003-2007 when you were caring for your young children.

44With respect to your drug and alcohol history, it was noted that you began drinking alcohol at the age of eight to nine years and by the age of 17 you were drinking a lot, although you say you ceased drinking in about the year 2007.  Your use of drugs is described in the report and I should note that on the evening when you committed these offences you had taken a lot of drugs, such that you now have very little memory of the events of that evening.

45Another matter that was referred to me by Ms Lechner and by yourself is the fact that you find it hard to survive in the community.  Indeed you explained to the elders during the sentencing conversation that on an occasion, perhaps more than one, you have refused to leave gaol because you had nowhere to go, even after your sentence was completed.

46Further I note in the time that you have been on remand, you have spent eight months of that time, according to your own explanation, in management.  I understand from what you described and what is accepted by the prosecution that you refused to leave your cell for reasons which have to do with your emotional difficulties and as a consequence you have remained in what is referred to as management, which I understand is a gaol within a gaol, where you are in effect almost completely isolated.

47I must say that the circumstances of your incarceration on remand have not been made absolutely clear, nor would they become clear I think unless somebody was specifically able to refer to all your clinical notes, but I accept that for sentencing purposes the overwhelming proportion of your time on remand has been spent in the management unit, for reasons associated with your intellectual and emotional and psychiatric problems.

48I note that the results of Ms Lechner's testing were that you had a score in the moderate extreme range on the depression inventory.  You give a history of four suicide attempts with no psychiatric intervention.  You appear caught in a cycle of using more and more drugs to assist you with your low mood state but inadvertently aggravating your symptoms.  Further, psychometric testing indicates your intellectual function is likely to be in the borderline range with particular deficits in your abstract verbal reasoning.  It was also her view that you are "evidencing some symptoms of institutionalisation despite your protestations to the contrary."  In summary it was her view: 

"I note that he has an extensive prior history that has arisen in the setting of a chronic and long term poly substance abuse dependency problem.  He also presents with symptoms of depression arising from a dysfunctional family background, eight years in State care and the suicide of his sister in 2001.  Mr Pito has been in and out of gaol for most of his adult life.  He appears to function best in a structured environment and demonstrates some signs of institutionalisation.  He would benefit from placement in a residential drug rehabilitation program as a stepping stone to the broader community.  In the absence of such assistance his prognosis remains guarded."

49As I say, your prior convictions have been admitted and of course are the subject of various reports which are before me.  Clearly the nature and extent of those prior convictions are of relevance in the sentencing process. 

50With respect to your rehabilitation, I agree with the remarks of the relevant experts insofar as they have been set forward and described as problematic or guarded.

51Of course as well as the matters personal to you to which I have referred ,including the question of rehabilitation, matters such as general deterrence and specific deterrence are always important in cases such as this, although of course as conceded by Mr Roper, who appears for the prosecution, and indeed it is the submission of your own counsel that these principles must be moderated as the case of Verdins sets out, given the case clearly applies to you in your circumstances.

52

I must sensibly moderate the application of both general and specific deterrence in your case, given the combination of your intellectual disability, your acquired brain injury and the other emotional difficulties from which you suffer. The matters are set out in the neurological report and also adverted to in

Ms Lechner's report, which specified the range and nature of your problems.

53As I say, there is no doubt that the case of Verdins and the six propositions apply to you.  Your time in prison has no doubt been more difficult than for the usual prisoner, given the range of your problems and the inevitability of you spending time in the difficult circumstances described.

54I must also consider the question of the protection of members of the community from you and bear in mind the likelihood of your re-offending which I find to be very much dependent on whether or not you are able to respond appropriately to the assistance which will be made available to you on your release from prison. 

55Indeed this morning I had the advantage of the evidence given before me by Mr Jeffery Anthony Lee, who is a Disability Justice worker, a qualified social worker, employed by the Department of Human Services.  He gave evidence as to what it is that will be made available to you on your release from prison and he will be able to work in tandem with the people who will supervise the community corrections order which I intend to impose in your case.

56Further, the elders, who are currently present in court, also made available the material with respect to Wulgunggo Ngalu and it may be that at some time that may be an appropriate place for you to attend, but that will depend on the circumstances after your release from prison.

57In all the circumstances, I have no alternative with respect to the matters but to convict you and I sentence you as follows:

58On Charge 1, there will be a sentence of 18 months' imprisonment.

59On Charge 2, a sentence of six months' imprisonment.

60On Charges 3-15 and the summary charge, there will be a three year community corrections order with conviction. 

o  There will be no work component. 

o  There will be treatment and rehabilitation. 

o  You must undergo assessment and treatment including testing for drug abuse or dependency as directed by the regional manager. 

o  You must undergo assessment and treatment including testing for alcohol abuse or dependency as directed by the regional manager. 

o  You must undergo mental health assessment and treatment including but not limited to mental health, psychological, neuropsychological and psychiatric in a hospital or residential facility as directed by the regional manager.

o  You must undergo programs or courses aimed at addressing factors relating to the offending as directed by the regional manager.

o  There will be a judicial monitoring order and you must attend for review on 6 October, that is three months after the order takes effect.

61With respect to the prison sentences:

62

I order that Charge 1 is the head sentence and the six months on Charge 2 will be served concurrently with Charge 1.  That is a total effective sentence of

18 months.

63I note that you have spent 475 days of pre-sentence detention served in respect of these matters and no others and that is to be taken into account.

64I understand on that basis, therefore, that you have approximately two and a half months to serve yet in prison before your release upon that community corrections order if you consent to the order and agree to it being made.

65HIS HONOUR:  Mr Pito, what that all means is this, that you have got two and a half months to serve, but when you get out there will be that community corrections order.  Have you had chance to explain that to him, Ms Caruso?

66MS CARUSO:  I have and I will again, Your Honour.

67HIS HONOUR:  That will be printed out.  Do you agree to that order being made and do you consent to it?

68OFFENDER:  Yes.

69HIS HONOUR:  You understand, Mr Pito, that you are running out of chances?

70OFFENDER:  Yes.

71HIS HONOUR:  I cannot say what would happen if there was any future offending, but clearly with your prior convictions and all the other difficulties, it is going to be hard to do anything other than gaol.  Of course in your circumstances it is not a good alternative. 

72Again, I do not think there is probably much more I need say.  You have got some excellent people around you who are going to assist you as you come back into the community with all of the sorts of things you need, so I trust that that will work.  In any event, we will see how it goes. 

73What will happen after three months, we will all come back to court and we will see how you are going and if things are not working out well, that will be an opportunity to, for the court at least, to do what it can, if it can assist in any way.  The hope is we are just going to hear good news on 6 October.  Time will tell.

74Thank you, Ms Caruso, would you mind attending.

75Just for s.6AAA purposes, but for your pleas of guilty, there would have been a sentence of three years with a non-parole period of two years.

76Yes, all right, thank you.  I think that concludes the matter.  Ms Caruso, thank you for your efforts, which have been considerable and appreciated by the court.  Mr Roper, also, you and your instructor, it has been a long and difficult court case and again thank you for your involvement.  I also thank of course the elders who were originally involved in the hearing and also the elders involved today.

77Finally, Mr Pito, there is not much point in me saying much today because you have got two and a half more months to serve.  I am sure it is not going to be easy for you, like the last 400 odd days have not been, but what you do have on release is Mr Connell and Mr Lee who are available to assist you and there will also be the community corrections order people. 

1. You probably have had one of the most difficult lives I have ever read about. However because we cannot be with you every day, you need to make the correct decisions.  You have got people around you who can help you but in the end it is up to you.  ‑ ‑ ‑