Director of Public Prosecutions v Portea

[2024] VCC 716

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT SHEPPARTON

CRIMINAL JURISDICTION

CR 22-00578

DIRECTOR OF PUBLIC PROSECUTIONS

v

PHILLIP PORTEA

---

JUDGE:	HIS HONOUR JUDGE CHETTLE
WHERE HELD:	Shepparton
DATE OF HEARING:	22, 23, 24, 26, 29, 30 April, 9 May 2024
DATE OF SENTENCE:	21 May 2024
CASE MAY BE CITED AS:	DPP v Portea
MEDIUM NEUTRAL CITATION:	[2024] VCC 716

REASONS FOR SENTENCE

---

Subject:CRIMINAL LAW SENTENCE

Catchwords:              Sentencing – theft of motor vehicle, burglary, theft of firearm, theft, drive whilst disqualified, make false report to police.

Legislation Cited:      6AAA Sentencing Act 1991.

Cases Cited:-

Sentence:                  Imprisonment, Total effective sentence – 3 years and 8 months, Non-parole period – 2 years and 6 months. Forfeiture and disposal orders. Cancellation and disqualification of licence.

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Miss S. MacDougall	Ms B. Kelly Office of Public Prosecutions
For the Accused	Mr T. Fitzpatrick	JD Law

HIS HONOUR:

1Phillip Portea, you have been convicted by a jury of one charge of burglary and three charges of theft.  You also pleaded guilty before the jury to one charge of theft relating to a Mitsubishi express van stolen on 13 or 14 October 2021 from a Shepparton engineering company.  That was Charge 1 on the indictment.

2At about 4 am on 19 October 2021, either alone or in company of unknown others, you attended at an address in Shepparton.  This is the home of Frank and Nancy Mammone, the parents of your ex-wife Rita Mammone.  Both Frank and Nancy Mammone were away in Melbourne at the time.  You had visited these premises many times before and were familiar with the layout of the premises and its contents.  You removed a flywire screen from an open window at the side of the house and climbed into a sunroom of the house.  You left your handprints on top of a freezer immediately inside the window.  You used a jemmy bar to make a hole in a door, put your hand through and unlocked that door, gaining entry to the rest of the house.  That is the basis of Charge 2, burglary.

3You stole items from the master bedroom and the study of the house.  You also entered a rear shed, opened a locked cupboard, and stole a 22-calibre rifle and an air rifle, which are Charges 5 and 4 respectively.

4From the master bedroom you stole a quantity of jewellery and some cash, about $500, and from the study you stole bank documents and a CCTV hard drive, which is the basis of Charge 7.

5The jury acquitted you of two theft charges, Charges 3 and 6.

6You used a pillowcase to carry away the items you stole from the house, however, mistakenly left your jemmy bar on the bed of the main bedroom.  Subsequent DNA analysis provided extremely strong support for the proposition that the DNA located on that jemmy bar was yours.

7You wrapped the stolen rifle and air rifle in a jacket and concealed them in a bush area known as Reedy Swamp.  Passing witnesses located the concealed weapons at about 2 pm on 19 October and contacted the police who recovered the weapons.

8Neighbours of Mr and Mrs Mammone observed suspicious activity at their address in Shepparton at about 7.40 am on 21 October and contacted police.  Subsequently uniform then crime scene investigators attended the property locating your handprints on the freezer and the jemmy bar on the bed of the main bedroom.

9Police investigators obtained CCTV footage from various places around Shepparton that depict you driving the stolen van in the Shepparton area at 3.24 am and 3.47 am on 19 October.  You also drove the van on 20 October.  Police tried to intercept you in the van on 27 October in Packham Street, Shepparton.  They employed lights and sirens, but you failed to stop and drove away at speed.

10On 28 October you drove the van to the IGA store in Cobram.  Police had you under observation at that location and you became aware of their presence.  You telephoned Triple 0 and falsely reported sighting a drug deal occurring at a bridge near Cobram.  You wanted to draw police away from watching you so you could escape.  That plan failed and you were arrested at 12.30 pm on 28 October in Cobram.  You made a no comment interview later that afternoon.

11At your plea you pleaded guilty to six summary offences related to the driving of the van and the false Triple 0 call I just outlined.  You pleaded guilty to driving whilst disqualified on 19, 20, 27 and 28 October and failing to stop the vehicle on police direction on 27 October.  You also pleaded guilty to a charge of make false report to police relating to the false Triple 0 telephone call.

12Victim impact statements were tendered at your plea.  Each of the victim impact statements contain some material that was irrelevant and inadmissible to these matters.  I have had regard only to relevant matters and ignored the irrelevant and inadmissible matters in those victim impact statements.  Frank and Nancy Mammone made a joint victim impact statement, Exhibit B.  They feel hurt and invaded by your crimes, they have difficulty sleeping and are nervous at night.  They have installed extra security and are stressed and anxious.  They feel unsafe in their own home.  The jewellery you stole had great sentimental value to Nancy Mammone and your theft of documents threatens their privacy and security.

13Your ex-wife Rita's victim impact statement, Exhibit C, outlines her personal feelings of guilt for exposing her parents to you.  She has seen the fear they suffer at the invasion of their privacy.  She also experiences pain at the fear and stress your crimes have caused your children.  Your burglary and theft have clearly aggravated the stress she suffered when your marriage failed.

14You son, Sam, states in Exhibit D that your decision to steal from his grandparents has made him see you as a threat to his safety.  This has caused him significant trust issues; he feels betrayed by you.  Your actions turned a place of precious memories into a trauma-filled location.  He is upset at the way you have ruined his grandparents' life.  He suffers insomnia, mental health issues and fear and he has required medication.

15Your daughter, Sophie, provided Exhibit E.  She is afraid to come to Shepparton because of your crimes.  She feels anxious and has difficulty sleeping.  She feels hurt, fear, anger, and betrayal.  She has obtained assistance from a psychologist and a mental health worker to deal with issues you have caused her.

16I take the relevant parts of the victim impact statements into account in sentencing you.

17You have admitted a prior criminal record.  In 2018 you were sentenced to a community corrections order for drug trafficking and possession and use charges.  In January 2019 you were sentenced to another community corrections order for persisting contravention of a family violence order.  In April 2019 you were sentenced to 43 days' imprisonment for a further persistent contravention of family violence order offence.

18You breached your community corrections orders on four occasions.

19In January 2020 you were sentenced to five months' imprisonment for stalking and persistent contravention of a family violence order.  On 26 February 2020 you were sentenced to 62 days' imprisonment and a two-year community corrections order for offences of make threat to kill, commit offence on bail, breach of family violence intervention order, breach of bail condition, threatening serious injury and carrying a controlled weapon.

20It follows that you were serving your community corrections order at the time you committed the offences for which I am to sentence you.

21Relevant to your traffic offences, you have prior convictions for driving whilst authorisation is suspended and driving with drugs in your blood and oral fluid.

22Turning to your personal circumstances.

23You are now 44 years of age being born in May 1980.  You grew up in the Shepparton area and attended school until Year 11 level.  You then undertook a motor mechanic apprenticeship and have worked in that industry until 2018 when drug use and mental health issues saw you dismissed. 

24You met your ex-wife when you were 19 years old, and you married in 2004.  That marriage ended in 2018.  Your two children, Sam, and Sophie, as I said, completed victim impact statements in the case.

25Your grandfather died in 2017, setting off your mental health issues.  When your marriage failed your mental health severely declined.  You commenced abusing illicit drugs to self-medicate your depressed anxiety and your panic attacks, you were suicidal and violent.

26In 2022 you were diagnosed with mild symptoms of generalised anxiety disorder.  A report from psychologist Carla Ferrari, Exhibit 2, prepared in October 22, indicates that you then had indications of paranoid personality traits and schizoid traits that were moderate and level.  Ms Ferrari was of the view that you suffered from a major depressive disorder and a moderate stimulant use disorder as well as paranoid personality disorder traits.

27You abused illegal drugs to effectively self-medicate your depression and paranoia issues.  You used methamphetamine, cocaine and GHB.  She states:

Factors outlined above which are linked to Mr Portea's offending behaviour and impaired functioning:  It is clear that his behaviour is a significant departure from his usual conduct that since 2018 his untreated mental health has played a significant underlying role in his offending as well as having perpetuated his substance use as a method of coping throughout his life, which has exacerbated his risks of impulsive poorly considered behaviour.  He is motivated to address his mental health in order to stabilise his life and functioning and to reduce his reliance on substances as a form of self-medication, cognisant of the negative consequences of this on himself and his children.

28Ms Ferrari assessed you then as a moderate risk of recidivism. 

29Although that report was prepared for your family violence matter, it sets out the issues that were impacting your behaviour at the time of your burglary and theft offences.  Ms Ferrari was of the view that your issues of low coping resources would make imprisonment more onerous for you than for someone without your issues.  I take that opinion into account in sentencing you for these offences.

30Your burglary offence was a serious example of that offence.  You planned your crime carefully, knowing the movements of the Mammones.  You disconnected the power and removed the CCTV hard drive to conceal your identity.  The effects of your crime on the Mammones, your ex-wife and children has been significant.  You have demonstrated absolutely zero remorse for your offending.  You manufactured complex scenarios in an attempt to explain away the finding of your handprints and DNA.  You even suggested through your counsel,
Mr Pearson, that the police or Frank Mammone planted your jemmy bar at the scene of your crimes.

31Your theft of firearms, particularly the rifle, is concerning.  You were a paranoid drug addicted man with a history of domestic violence stockpiling weapons and ammunition.

32You stole the Mitsubishi van to effectively obtain somewhere to live.  You slept in the van and engaged in a course of conduct to conceal your theft by modifying and painting the van.  You drove it regularly at a time you were disqualified, and you sought to evade, and did evade, police apprehension.

33Principles of general deterrence, specific deterrence and just punishment are significant sentencing factors in your case.  I must express the community's denunciation of your offending and protect the public from you.

34Your counsel properly conceded that nothing other than an imprisonment is appropriate in this case.

35On all charges you are convicted.

36On Charge 1, theft of the van, you are sentenced to be imprisoned for six months.

37On Charge 2, burglary, you are sentenced to be imprisoned for two years and six months.

38On Charge 4, theft of the air rifle, you are sentenced to be imprisoned for four months.

39On Charge 5, theft of the .22 rifle, you are sentenced to be imprisoned for nine months.

40On Charge 7, theft of the cash, jewellery, bank documents and hard drive, you are sentenced to be imprisoned for 12 months.

41On the related summary offence, Charge 8, failing to stop on police direction, you are sentenced to be imprisoned for one month.

42On Charges 9, 10, 11 and 12, the four charges of drive while disqualified, you are sentenced to an aggregate term of imprisonment of three months on the four charges.

43On Charge 14, make a false report to the police, you are sentenced to 14 days' imprisonment.

44Taking into account principles of cumulation and totality I order that three months of the sentence imposed on Charge 1, three months of the sentence imposed on Charge 5, six months of the sentence imposed on Charge 7 and two months of the aggregate sentence imposed on the Summary Charges 9, 10, 11 and 12, be served cumulatively upon the sentence imposed on
Charge 2, which I declare to be the base sentence.

45That is an effective total term of imprisonment of three years and eight months.

46I order that you serve two years and six months of that sentence before being eligible for parole.

47I declare that 149 days, not including today, of that sentence has already been served by way of pre-sentence detention.

48I make the forfeiture and disposal orders sought by the prosecution.

49In respect of Charge 1, the theft of the van, I order that any driver's licence you hold be cancelled and you be disqualified for three months from today from obtaining a driver's licence.

50Pursuant to s6AAA of the Sentencing Act I indicate that but for your plea of guilty to Charge 1, I would have imposed a term of imprisonment of 12 months, and on the summary offences I would have imposed an aggregate term of imprisonment of six months.

51Are there any other orders required, Miss MacDougall?

52MISS MacDOUGALL:  No, I do not believe there are, thank you, Your Honour.

53HIS HONOUR:  Anything from you, Mr Fitzpatrick?

54MR FITZPATRICK:  No, Your Honour.

55HIS HONOUR:  I will terminate the link and I will stand down until 10 o'clock.

‑ ‑ ‑