Director of Public Prosecutions v Pizarro
[2022] VCC 1096
•7 July 2022
| IN THE COUNTY COURT OF VICTORIA AT LATROBE VALLEY CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-21-00246
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MARQUIS TUPAC PIZARRO |
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JUDGE: | Her Honour Judge Gwynn | |
WHERE HELD: | Latrobe Valley | |
DATE OF HEARING: | 7 & 29 June 2022 | |
DATE OF SENTENCE: | 7 July 2022 | |
CASE MAY BE CITED AS: | DPP v Pizarro | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1096 | |
REASONS FOR SENTENCE
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Subject:Criminal law
Catchwords: Handling stolen goods; aggravated burglary; recklessly causing serious injury; damaging property
Legislation Cited: Sentencing Act 1991
Cases Cited:DPP v Bowden [2016] VSCA 283; DPP v Hogarth [2012] VSCA 302; DPP v Meyers [2014] 44 VR 486; Bugmy v The Queen [2013] HCA 37; Azzopardi; Baltatzis; Gabriel v R (2011) 35 VR 43;
Sentence: 12 months imprisonment & Community Correction order (2 years' duration, 175 hours community work, treatment, judicial monitoring)
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A. Cecil | Office of Public Prosecutions |
| For the Offender | Mr L. Barker | Emma Turnbull Lawyers |
HER HONOUR:
1Marquis Tupac Pizarro, you have pleaded guilty on indictment to charges of handling stolen goods, aggravated burglary, recklessly causing serious injury and damaging property.
2In sentencing you for your crimes, I am required to have regard to the maximum penalties for the offences which you have committed. The maximum penalty for aggravated burglary is 25 years' imprisonment; causing serious injury recklessly and handling stolen goods carries 15 years' imprisonment as their maximum penalty; and damaging property carries a maximum penalty of 10 years' imprisonment. Those maximum penalties reflect the seriousness with which Parliament regards each of these offences.
Offences
3The circumstances of your offending were set out in a document entitled “Summary of Prosecution Opening for Plea ” dated 6 June 2022. That document represented your acceptance of the elements of the offences to which you have entered your guilty pleas, as well as the factual basis on which I am to sentence. It will be summarised in my reasons but I have had recourse to the full document.
Incident One
4Incident one involves the charge of stolen goods. On 28 March 2020, police attended at an address in Gwalia Street, Traralgon in response to a complaint by Mr Krusec that his bicycle had been stolen.
5Police subsequently attended at the unit in which you and Rhonda Harrison resided. You were not present at the time. Police observed a blue and grey mountain bike in the kitchen. Ms Harrison told police that you had brought it home earlier that evening. It is those facts which form the basis for charge 1, handling stolen goods.
6The bicycle was taken by police and it was returned to Mr Krusec.
Incident Two
7On the evening of 18 June 2020, your co-offender and then partner, Rhonda Harrison, was socialising with a neighbour, Jessica Rawson, in Unit 19/14 Gwalia Street. You were at home in Unit 4.
8At around 9:00pm, witness Teresa Barrass attended the complex to catch up with Ms Harrison at Unit 19. At the same time, the victim, Joanne Coulson, arrived at the complex to visit Unit 9. Ms Barrass and Ms Coulson ran into one another, exchanged pleasantries, and then went their separate ways.
9Shortly after Ms Barrass arrived at Unit 19, you approached and asked who she had been talking to. When Ms Harrison discovered that it was Ms Coulson, she became extremely angry and ran from the unit, followed by you.
10Ms Harrison ran towards Unit 9 and entered through the unlocked front door. You entered later, armed with a tomahawk, forming the basis for charge 2 – aggravated burglary. During her subsequent record of interview, Ms Harrison told police that she had dropped the tomahawk prior to entering the premises.
11
You both then went directly to the main bedroom where you located the victim,
Ms Coulson. Ms Harrison charged at Ms Coulson, striking her with a wooden pole which she found inside Unit 9. During the assault, the wooden pole she used broke into two pieces. Another occupant, Mr Stevens, tried to intervene by standing between the victim, you and Ms Harrison.
12
You assaulted the victim with the tomahawk and picked up a serrated knife from a table in the room. You swung the knife over the top and around the side of
Mr Stevens but did not connect with Ms Coulson. You then picked up the tomahawk, holding it from the butt end, and continued to try and hit the victim.
Ms Harrison was not said to be complicit in you assaulting Ms Coulson at this point.
13Mr Stevens was eventually able to usher both you and Ms Harrison from the bedroom by pleading for you to stop and by falsely claiming that there were children in the unit. Before leaving, you and Ms Harrison said “Don’t you dog us and call the cops. Because don’t forget we know where you live and we’ll come through and get you.” On the way out, the tomahawk was used to strike the front door of Mr Steven’s unit approximately five times, causing damage and the basis for charge 4, damaging property. You left with the knife you had obtained from the unit.
14You and Ms Harrison then returned to Unit 19 where you hid the tomahawk and the knife.
15Police and paramedics were called to the scene, with police arriving first. They administered first aid on Ms Coulson who was bleeding profusely from a deep laceration to her head. Whilst initially lucid, alert and able to provide details of the assault, her condition did deteriorate.
16By the time paramedics arrived, the victim was pale, cool, diaphoretic and complaining of dizziness. Initially they were unable to record her blood pressure or palpate a radial pulse. Blood loss was estimated at a litre. Ms Coulson complained of severe head pain to her occipital area. She required urgent transport to the Latrobe Regional Hospital for treatment.
17As a result of the incident, Ms Coulson suffered a fractured skull and an 8cm laceration to her head, requiring large amounts of blood clot to be cleaned and evacuated, sutured for haemostasis and stapled for closure. She also had multiple bruises and lacerations to her body. These injuries were mainly caused by you using the tomahawk. Ms Coulson discharged herself after three days in hospital. These facts, the estimated blood loss, combined with the ongoing sequalae described by Ms Coulson in her victim impact statement, form the basis for the charge of recklessly cause serious injury.
Arrest and Investigation
18Police attended at Unit 19, surrounded the premises and, on hearing and observing movement within the property, asked that you and Ms Harrison surrender. There was no response.
19Police forced entry. You were located hiding in a pantry cupboard.
20The premises were searched. Police located the tomahawk and kitchen knife in a bedroom cupboard.
21During your record of interview with police you made admissions. You explained your motive was Ms Harrison wanting an apology from Ms Coulson following a previous assault upon her by the victim. You explained that you had just “lost it.”
Offence gravity and victim impact
22The charges of handling stolen goods and criminal damage are relatively minor in themselves and in the context of your young age and lack of prior convictions.
23Otherwise, your Counsel properly concedes that your offending is of a serious nature and would have been very frightening for the victim.
24The purpose of a victim impact statement is to give those affected by your crime the opportunity to participate in the criminal justice process by informing the court about the effects of the crime upon them.
25Ms Coulson has provided a statutory declaration dated 17 June 2022 in which she details the ongoing impact on her of your offending. Physically, she describes ongoing migraines and memory loss. Psychologically, she has been left in a state of constant fear and anxiety. She has become somewhat housebound and has had to undergo psychological treatment. She states “I feel that I will never be the same person again because of what they have done to me”.
26Aggravated burglary is axiomatically a serious crime. The charge of aggravated burglary as particularised against you is entry as a trespasser with an intent to commit an offence involving an assault to a person therein and at the time you had with you an offensive weapon, namely a tomahawk.
27This offence, of course, is complete on entry but informed by what occurs once entry has been gained.
28
In terms of the charge of aggravated burglary, I am assisted by the decisions of the Victoria Court of Appeal, including the of DPP v Bowden [2016] VSCA 283,
DPP v Hogarth[2012] VSCA 302 and DPP v Meyers [2014] 44 VR 486. It was in Hogarth that the Court held that sentences generally imposed for confrontational aggravated burglaries were too low and that sentencing practices needed to change to reflect the objective gravity of this kind of offending. This was further clarified by the decision of DPP v Meyers, which included a non-exhaustive range of factors to be considered in assessing the objective gravity of an aggravated burglary which is, as I have said, complete on entry. The factors referred to include:
(a) the offender's intent at the point of entry;
(b) the mode of entry, such as by forcing a door or breaking a window;
(c) whether the offender was carrying a weapon;
(d) whether the offender was alone or in company;
(e) the time of day at which the burglary took place;
(f) what the offender knew or believed about who would be inside and/or about the person(s), where they would be; and
(g) whether the offender was someone of whom the victim was particularly frightened.
29
In your case, your entry was through an unlocked door, very shortly after
Ms Harrison, in circumstances where both of you were in pursuit of Ms Coulson. You would have believed her to be present within the premises. At the time of your entry you believed that Ms Harrison had previously been assaulted by her cousin Daisy Fenton and that Ms Coulson was present for that assault. I am told that Ms Fenton was prosecuted for such an assault; Ms Coulson was not. According to your interview with police, you did not even know Ms Coulson.
30You were in a relationship with Ms Harrison at the time of your offending and I accept that you were, in part, motivated by that relationship in your decision to be involved. This of course does not excuse your actions.
31Whilst I accept that your actions overall were spontaneous and the decision to arm yourself was literally as you entered the premises, you showed no hesitation in using that tomahawk, and in circumstances where you had turned your mind to a serious injury being caused to Ms Coulson yet continued your attack. With two of you onto one, Ms Coulson was necessarily made more vulnerable.
32General deterrence is an important sentencing objective for this offence in this context, as is discouraging you from acting in such a way in the future.
33Of course your offending occurred in the home of another person, Mr Stevens, who was likely to have been frightened. Mr Stevens had nothing to do with your grievance with Ms Coulson and was entitled to feel safe in his own property. Of course it was his property, not Ms Coulson's, that you are responsible for damaging.
34Overall, I accept for the charge of aggravated burglary it is towards the mid-range, not quite at. The recklessly causing serious injury is in itself obviously and, as described, serious.
Plea of guilty
35In terms of your plea of guilty the Sentencing Act obliges me to take into account when you entered your plea. Your matter resolved at a case conference held in March of 2022. Case conferences are part of the court’s response to the
COVID-19 pandemic and the resulting backlog of trials. They are designed to discuss pathways to resolution where possible, or to narrow the issues prior to listing any trial.36Given the matter resolved to a significantly less serious charge than that on which you were committed to stand trial, I consider your plea of guilty to be at an early opportunity.
37There is clear value in saving the witnesses the need to give evidence and relive what would be traumatic events, and there is extra value in saving the community the time and expense of contested proceedings.
38Your decision to plead guilty in the context of the COVID-19 pandemic has additional value, as it provides certainty and finality to all parties in circumstances where the court's operations have been disrupted and many trial dates await fixing.
39Based on the materials before me I do accept that your plea of guilty is one of remorse.
40These factors will be taken into account in your favour.
Personal circumstances
41I turn now to your personal circumstances. You are now aged 20 years but were just 18 at the time of the offending.
42You were born in Melbourne but removed from your mother’s care when aged around three years, growing up in various residential and foster care homes.
43It is your understanding that your parents separated soon after you were born and that both were heavy users of heroin. You had minimal if any contact with your parents.
44Each of your parents are now deceased. Your father died when you were aged approximately eight years and your mother died when you were aged approximately 16 years, both due to drug overdose.
45You began your own drug use after your mother’s death. Your primary drug of choice is cannabis, but you also use methylamphetamine. You were using both drugs at the time of the offending.
46You have an older sister aged approximately 21 years with whom you speak occasionally.
47You report traumatic foster care experiences which include various and serious forms of abuse I will not refer to in this sentence, as the material is otherwise before me. You moved homes regularly. This naturally affected your education. You attended multiple high schools due to your unstable living situation. To your credit, Mr Pizarro, you managed to complete a year nine education.
48I understand that you were diagnosed with ADHD during your school years.
49You have experienced significant episodes of self-harm and multiple suicide attempts.
50You are yet to experience any form of paid employment.
51I accept that this background gives application to the Bugmy principles. That is, I accept that your moral culpability should be reduced as a result of this social deprivation and disadvantage in your formative years. Your moral culpability for the offending cannot be equated with that of a person who had committed the same offending but who had had the benefit of a stable and normal upbringing during their childhood and adolescence. It is a factor to be taken into account in your case.
52From the age of 17 years you resided with your then partner, Rhonda Harrison, in Traralgon, where you lived until your arrest.
Materials tendered
53Tendered on your behalf was a psychological report authored by Dr Aaron Cunningham, psychologist, dated 8 June 2021. Your full-scale intelligence quotient was assessed at 103, such that you perform better than 55% of your aged peers. In essence, despite the difficulties you faced with your education and your early years, you are an intelligent person.
54You do, however, present with complex and traumatic childhood, and in Dr Cunningham’s opinion you are psychologically and emotionally immature. At the time of your offending you were emotionally dependent on Ms Harrison for your sense of stability, acceptance and belonging.
55You also spoke to Dr Cunningham about the circumstances of your offending, telling him that Ms Harrison was the only reason you had reduced your drug use and that she gave you a will to live. You also spoke of your regret for your actions.
56In terms of your risk of future violent offending, Dr Cunningham was of the opinion that you presented with a moderate risk. This risk can be reduced by you ceasing to use drugs and alcohol, whilst also improving your mental health and stability in housing.
57A psychological report dated 9 May 2022 and authored by Ms Gina Cidoni, psychologist, has also been tendered. You described the circumstances of your offending in similar terms to that described to Dr Cunningham. You explained to Ms Cidoni that you were intoxicated at the time of the offending and became involved because of your love for Ms Harrison. Ms Cidoni was of the opinion that you exhibit a tendency towards dependency and subordinating yourself to stronger figures, without whom you may feel anxious and helpless. You have a fear of being left to care for yourself and can be compliant to avoid this, as well as act in a way not consistent with your own beliefs so such supports remain. This does, in part, give context to your involvement in the offending.
58You again expressed regret for your actions and the injuries which the victim sustained.
59You presented with substance use disorder. Your capacity to respond functionally to stressors is severely compromised and you experience high distress, disturbing thoughts and a tendency to react to situations in unhelpful ways. These traits are exacerbated when under the influence of drugs.
60Ms Cidoni also assessed your risk of further violent offending as within the medium range. In her opinion your future risk will be reduced if you can maintain abstinence from drugs and consider treatment. She expressed concern for you given the negative influences within the prison system, which is another factor I have taken in account.
61The reports tendered were not subject of challenge and I take them into account.
62In summary, Mr Pizarro, they seem to indicate that you are not unintelligent. You have a degree of resilience, and whilst you present with a moderate or medium risk of future violent offending, this risk can be reduced through you accessing treatment. To reduce that risk it appears essential, Mr Pizarro, that you are drug-free.
Prospects for rehabilitation
63In terms of your prospects for rehabilitation, I am told that you tried Datura whilst in custody, which apparently made you quite ill. Otherwise, you have tried to maintained abstinence.
64In a decision of Azzopardi;Baltatzis; Gabriel v R (2011) 35 VR 43; at [34]-[36] Redlich JA made clear the reasons to prioritise youth as a sentencing consideration. These included the simple fact that:
(a) Young offenders are immature, and may not fully appreciate the nature, seriousness and consequences of their criminal conduct;
(b) It is recognised by the Courts the increased potential for young offenders to be rehabilitated, which is obviously in the public interest; and thirdly,
(c) That incarceration can impair, rather than enhance, a young offender’s prospects of rehabilitation.
65I accept that these considerations have application to your case. Arguably, the community is better served, indeed better protected, by steering young offenders away from a life of crime and from being contaminated by those in the adult jail system.
66In your particular case, whilst having experienced a particularly traumatic upbringing, you have no prior convictions. You have now had the sanction and deterrent of a considerable period on remand in adult custody, some 326 days.
67In addition, your period in custody has also been during the Corrections response to the COVID-19 pandemic where I accept in general terms that there has been less access to freedom of movement within the prison system, less access to educational and rehabilitative programs and less access to contact visits from friends or family. New inmates are required to quarantine for 14 days on each occasion of a prisoner movement. In a general sense this does make any remanded or sentenced prisoner experience more burdensome than it would otherwise be.
68Psychological assessments have confirmed your intelligence and that you do not present with any particular barrier to rehabilitation and, importantly, you are amenable to treatment.
69Your rehabilitation, Mr Pizarro, has its foundation in your resolve for a better way of life and you being prepared to access and accept treatment.
Parity
70The parity principle demands that any sentence imposed reflects differences in the culpability and personal circumstances of co-offenders, and avoids unjustifiable differences in co-offender sentences.
71
Ms Harrison did not appear at her further plea on 29 June 2022 and is therefore yet to be sentenced. In brief terms, her charge of aggravated burglary did not include the presence of a weapon. She was charged with common law assault upon Ms Coulson related to her use of a stick and not the injuries caused by the tomahawk. She was somewhat older than you, and had a relatively minor criminal history. She was said by the Crown to be the instigator of what transpired on
18 June 2020.
Sentencing submissions
72In terms of sentencing submissions on your behalf, it is submitted that the court could properly impose a sentence of imprisonment in combination with a corrections order as opposed to a circumstance where your sentenced to a period of imprisonment with a non-parole period.
73The Crown accept that submission, as do I.
74I have taken into account the provisions of s44 of the Sentencing Act 1991.
75I have had you assessed as to your suitability for a Community Corrections Order and, given the contents of the psychological material, asked that a mental health assessment also be conducted.
76An assessment outcome report dated 8 June 2022 tells me that you are unsuitable for a Community Corrections Order. You were also described as forthcoming in that assessment and that you appear to show remorse for your actions. The concern on behalf of correctional services was that you did not have accommodation and that you did express some intent to return to drug use upon any release. Their concern was that you may not be position to comply with a corrections order.
77Section 37 of the Sentencing Act obliges me to seek an assessment when considering the imposition of a corrections order. The making of an order also requires the consent of the offender. Whilst I do understand the concern expressed by the assessor, I do not see the recommendations made in the assessment undertaken as a basis to form the view that you should not receive a corrections order if that is the appropriate penalty for the offending taking into account all relevant sentencing considerations.
78A report dated 14 June 2022 from the Mental Health Advice and Response Service recommends that there be ongoing assessment and treatment for your mental health should a corrections order be imposed.
Sentencing
79In terms of sentencing, the basic purposes for which a court may impose a sentence do include punishment, they include general deterrence (that is, sending a message into the community), they include specific deterrence (that is, sending a message to you), rehabilitation is included, as is denunciation and the need to protect the community.
80In sentencing you, I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances, and those of your victim. In so doing, I need to balance the interests of the community in denouncing criminal conduct with the clear interest the community has in seeking, where possible, that offenders are rehabilitated and reintegrated into society. This has even greater importance when dealing with a young offender.
81I have taken into account the relevant sentencing guidelines in section 5 of the Sentencing Act. I have taken into account current sentencing practices for the offences to which you have pleaded guilty and, importantly, the principles of totality, proportionality, and parsimony.
82In relation to charge 1, handling stolen goods, you are convicted and discharged.
83In relation to charge 4, criminal damage, you are convicted and fined the amount of $300.
84For the remaining 2 charges, that of aggravated burglary and recklessly cause serious injury, I propose to impose an aggregate sentence as I am satisfied that those offences are founded on the same facts, or form, or are part of, a series of offences of the same or a similar character. Your offences were committed in very close proximity time-wise and motivated by the exact same context.
85Accordingly, Mr Pizarro, you are convicted and sentenced to 12 months' imprisonment.
86326 days are reckoned as having already been served.
87That sentence is in combination with a Community Correction Order of 2 years' duration, during which I am asking you to:
(a) perform 175 hours of community work;
(b) to be supervised by the Office of Corrections;
(c) to undergo drug treatment;
(d) to undergo treatment for your mental health;
(e) to submit for an offence specific programs as recommended.
(f) I am going to offset 75 hours of the community work against the treatment conditions. More treatment, less community work;
(g) In your particular case because I genuinely want to see how you go, I am also going to ask that you come back before me for judicial monitoring, so I can keep a track on how you are going and also to make sure the Office the Corrections implementing the services that you need to have that better way of life you say that you want.
88You should know that in addition to the conditions that I have imposed there are standard conditions. The first and foremost of those is that you must not commit any other offences during the two-year period – offences, that is, that could be punished by imprisonment. Essentially, Mr Pizarro you need to stay out of trouble, right? You must also report within two working days of your release to the nearest Community Corrections Office. You must advise your corrections office of any change of address of where you are living or working and do so within two clear working days. It is a condition of all corrections orders that you must submit for visits as directed, and obey all of the instructions and directions of a corrections officer. You cannot leave the State of Victoria without their permission.
89In my view, the order presents you with a chance to change your life in a positive fashion, should you choose to take up that opportunity and the supports that should be made available. The order can be breached if you do not comply with the conditions and the order can be breached if you re-offend with an offence punishable by imprisonment whilst it is in place. If you do, Mr Pizarro, you come back here. I will have to deal with the offence of contravening the order and I may have to resentence you and start all over again, and let me assure you I do not want to do that.
90Section 6AAA of the Sentencing Act requires me to state the sentence I would have imposed had you not pleaded guilty. If not for your plea of guilty you would have got two years with a minimum of 12 months.
91Now, what I am going to do now is stand down so that Mr Barker can take you through the corrections order. I can only put you on that order if you agree. It is a matter for you. I will give you the opportunity to speak with Mr Barker and come back when you finish. So I will stand down temporarily.
(Short Adjournment)
92MR BARKR: Thank you, Your Honour, I've been through those terms with Mr Pizarro. He consents to the order being made.
93HER HONOUR: All right, thank you very much I appreciate that. Just give me a moment.
94MR BARKER: There may be some emergency management days that can be taken under consideration in his case too. So it might be that he gets out a little bot sooner than the 39 days that Your Honour had left over. Do you want me to take it up with the prison officers down there today?
95HER HONOUR: All right so I'll list that for judicial monitoring on 6 October at
10:00 am. So Mr Pizarro, I don't know where you're going to be then, maybe you don't either. You can connect in remotely, but on 6 October in some way or form you'll appear in court before me and I will get a report from the Office of Corrections telling me how you are going.96OFFENDER: Yes.
97HER HONOUR: All right, so I really just want to read good things.
98OFFENDER: Yes, thank you.
99HER HONOUR: You heard me say to Mr Barker last time, this year I dealt with someone who partied as soon as they got out. And that person got charged with culpable driving very shortly there afterwards because they got behind the wheel of a car when they were off their nut and killed another person. So I understand you'll be excited about release but please be careful.
100OFFENDER: I will.
101HER HONOUR: All right, well, Mr Barker thank you very much for your assistance, Mr Cecil thank you as well.
102MR CECIL: Thank you, Your Honour.
103HER HONOUR: Mr Pizarro, I'll see you in October.
104OFFENDER: Thank you.
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