Director of Public Prosecutions v Portelli
[2023] VCC 485
•29 April 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-22-00181
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOSEPH PORTELLI |
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JUDGE: | Leighfield | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 March 2023 | |
DATE OF SENTENCE: | 29 April 2023 | |
CASE MAY BE CITED AS: | DPP v Portelli | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 485 | |
REASONS FOR SENTENCE
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Subject:Criminal Law
Catchwords: Stalking – kidnapping – plea of guilty after sentence indication – intellectual disability – reduction in moral culpability – reduction in weight to be given to sentencing purposes of deterrence and denunciation – impact of Covid-19 on burden of imprisonment – totality
Cases Cited:R v Verdins [2007] VSCA 102
Sentence: Total effective sentence of 2 years, 4 months and 14 days, with a non-parole period of 1 year and 4 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr Andrew Grant | Office of Public Prosecutions |
| For the Accused | Mr Luke Barker | Emma Turnbull Lawyers |
HER HONOUR:
Introduction
1Mr Portelli, you have pleaded guilty to one charge of stalking (charge 1) and one charge of kidnapping (charge 2). You have also consented to this court hearing, and pleaded guilty to, two related summary offences being one charge of possess dangerous article without lawful excuse (summary charge 3) and one charge of commit indictable offence whilst on bail (summary charge 6).
2The maximum penalty for committing an indictable offence whilst on bail is 30 penalty units or 3 months imprisonment; for possessing a dangerous article in a public place is 60 penalty units or 6 months imprisonment; for stalking is 10 years imprisonment; and for kidnapping is 25 years imprisonment. Additionally, kidnapping is a category 2 offence under the Sentencing Act 1991 (Vic). This means that I must impose a custodial sentence on you for that offence (which is not imposed in combination with a community correction order), unless at least one of the circumstances set out in paragraphs (a) to (e) of section 5(2H) of the Sentencing Act exists. I note at the outset that it is not submitted, and there is no evidence which establishes, the existence of any of the circumstances in section 5(2H).
3These charges arise from events which occurred between 23 May 2021 and 17 July 2021 when you were between 37 and 38 years of age.
Circumstances of the Offending
4The full circumstances of your offending, the investigation and your arrest and interview, are set out in the Summary of Prosecution Opening for Sentence Indication dated 5 February 2023 which was tendered as Exhibit A on the plea.[1]
[1]I note that some minor amendments were made to the summary on the plea.
5In shorter compass, however, approximately eighteen months prior to your offending you had commenced a relationship with Ms Erica Hanns[2] who was 26 years of age. You were in a relationship for approximately one year, before separating towards the end of 2020. The two of you maintained contact after your separation, but you failed to accept the end of the relationship and constantly messaged and called Ms Hanns.
[2]A pseudonym.
6In May 2021 Ms Hanns was living with her uncle Mr Maximilian Hans,[3] and her partner Mr Antony Greville[4] in a unit in Williamstown. She was being treated for cancer and was undergoing oral chemotherapy treatment and other treatments requiring her to receive four injections per day and blood transfusions every two weeks.
[3] A pseudonym.
[4] A pseudonym.
7In the period between 23 May 2021 and 17 July 2021, you sent thousands of messages from your mobile phone to Ms Hanns. Some examples of those messages are contained within the Summary of Prosecution Opening and I will not repeat the content of them here. It is sufficient to say that within those thousands of messages:
(a) you continually demanded to speak to and see Ms Hanns;
(b) when she refused to see you and told you that she did not wish to see you, or when she refused to respond to your messages, you became abusive, threatening and controlling;
(c) you made accusations that Ms Hanns was lying to you and seeing other men;
(d) you stated that you were outside her unit in Williamstown; and
(e) you and she discussed drugs.
8During the same period you also sent and received messages with a person named ‘Mareo’ who lived in the Williamstown units with Ms Hanns. Amongst those messages were queries by you of Mareo as to whether ‘she’ was there to which Mareo would respond by advising you that her car was there, or that he had knocked on the door to see if anyone was home.
9On 16 July 2021, you sent a substantial number of messages to Ms Hanns, many of which were abusive and threatening. She replied to some of the messages asking you to leave her alone, telling you that you had caused her health to deteriorate, and warning you that an intervention order was in place so you should not come to the Williamstown units.
10On 17 July 2021, in the early hours of the morning, Ms Hanns attended the Williamstown Police Station to report ongoing harassment by you. At 5.09am, police messaged you and asked you to contact them urgently. You did not contact the police. Instead you continued to message Ms Hanns and asked her if she had made a complaint about you to the police. You also called and sent Ms Hanns several messages whilst she was still at the police station in which you said that your motorbike had broken down on the Westgate Freeway and asked her to come and pick you up. When Ms Hanns did not answer or respond, you again sent her aggressive and threatening messages. You and Ms Hanns continued to exchange messages for most of the morning, with you continually demanding to see Ms Hanns. You also called Ms Hanns repeatedly.
11Following her attendance at the police station, Ms Hanns had returned to the Williamstown unit where she remained with Mr Greville and Faith Day. At approximately 1.20pm, you attended at that residence and parked your vehicle in the carpark of the units. You were then captured on CCTV loitering in the back carpark, and going up and down the lift and internal stairs multiple times. You had a pole – described as a black extendable baton – in your back jeans pocket whilst doing this (related summary charge 3 – possess dangerous article in a public place). You also made numerous calls to Mareo and called and messaged Ms Hanns whilst at the building. You claimed that you were not in Williamstown.
12At around 3.16pm an anonymous phone call was made to 000 in relation to a male and female arguing. At around this time you went to the door of Ms Hanns’s apartment multiple times and kept calling to her. Ms Hanns did not answer. You walked away from the door and out to the front of the building but then rushed back into the building when you saw Ms Hanns through the window of the apartment. You returned and started banging on the door of her apartment again.
13Your conduct as described in paragraphs 7 to 12 above constitutes charge 1 (stalking). The charge is put on the basis that in the period between 23 May 2021 and 17 July 2021 you engaged in a course of conduct which included loitering near to or attending the victim’s residence, contacting the victim via phone and text messages, making threats to the victim, using abusive or offensive words to and in the presence of the victim, and keeping the victim under surveillance, in circumstances where the victim repeatedly asked you to cease this course of conduct.
14At approximately 3.35 pm, a police car – responding to the 000 call – pulled up outside the Williamstown units. Ms Hanns saw the police arrive, and thinking it would be safe to exit the apartment, opened the door and stepped into the hallway. Once she was in the hallway, she saw you running towards her with what appeared to be an extendable baton above your head. Ms Hanns told Mr Greville to shut the door and he did so. You started smashing the door with the baton and tried to open it. You then grabbed Ms Hanns by her clothing and said ‘you’re coming with me, if you don’t come with me, I’ll fucking kill you. If you go to the jacks, I’ll fucking kill you.’ Ms Hanns screamed and told you she was not going with you. You then dragged her by the arm, down the stairs and out of the building, whilst still threatening her with the baton. You forced her into your vehicle and drove to Williamstown Beach carpark with Ms Hanns still in the vehicle. Ms Hanns felt ill and kept asking you to take her to the hospital. You were raging and abusive. Ms Hanns then asked you to take her to her grandparents’ house and when you refused to do this, she asked you to take her to a chemist in Avondale Heights, which you ultimately agreed to do.
15Your conduct in forcefully taking Ms Hanns away, and depriving her of her liberty, in circumstances where she did not consent, constitutes charge 2, kidnapping. At the time of this offending, you were also on bail (summary charge 6 – commit indictable offence (kidnapping) whilst on bail).
16After driving to, and arriving at, the Chemist Warehouse, both you and Ms Hanns got out of the vehicle and Ms Hanns purchased some items in the store. Ms Hanns asked for the keys and then drove the two of you to McDonalds in Avondale Heights where you purchased food via the drive through. Ms Hanns then drove the two of you to her grandparents’ house in Seddon where she got out of the vehicle and walked into the house. You then sped off in your vehicle.
Arrest and Interview
17On Sunday 18 July 2021 you presented yourself at the Williamstown Police Station, at which point you were arrested and interviewed.
18During the interview, you initially told police that you had been dropped at the police station and did not often carry your phone, but then later admitted that you had driven to the station, and your phone was in the vehicle which was parked in the street. Your car was seized during a break in the interview and later searched whereupon your mobile phone was located and also seized.
19You also told the police, during your interview, that it was your belief that you and the complainant had not separated and that your relationship was ongoing. You conceded that you had attended the Williamstown units. You went there in a white vehicle which was a rental car rented in your mother’s name. You also admitted that once you were at the units you waited there for around three hours, and that you contacted Ms Hanns on the phone during that time. However you said that Ms Hanns agreed to see you and that she came downstairs, and it was there that the two of you had got into an argument. You said that you ‘lost [your] shit a bit’ but that you did not kidnap Ms Hanns.
20You agreed that you were outside Ms Hanns’s apartment when she came out, but said that Ms Hanns grabbed you and that you then both started grabbing each other before you left in the car. You denied threatening Ms Hanns in any way or having any sort of baton whilst at the units. You also denied forcing Ms Hanns into the vehicle at any point.
21You were remanded into custody at the conclusion of the interview, and have remained in custody since that time. As a consequence, you have now been in custody 619 days since your remand on 18 July 2021. However, during that time, you have served both a 90 day term of imprisonment imposed on 30 September 2021 relating to the offences for which you were on bail at the time of this offending, and a 120 day term of imprisonment imposed on 12 January 2023 relating to offences committed against this victim whilst you were in custody. Accordingly you only have 409 days available to you as pre-sentence detention referable to this offending.
Victim Impact
22I did not receive a victim impact statement from Ms Hanns, however in her statement to police which was made the day after the kidnapping offence, Ms Hanns stated that she felt drained and mentally exhausted as a result of what happened. She said that she was petrified and did not feel safe even just walking down the street. She stated that she could not explain how she felt about constantly being stalked and watched by you, but said that even knowing you were locked up, she still felt scared.
23Mr Grant, on behalf of the prosecution, submitted that despite there being no victim impact statement from Ms Hanns which identifies any ongoing impact upon her of your conduct, I would still be entitled to take judicial notice that offending of this kind would be likely to have had some form of ongoing impact upon her. Mr Barker, on your behalf, did not take issue with this submission.
24I am satisfied on the material before me that your conduct did have a considerable impact on Ms Hanns during the offending and in its immediate aftermath. I further accept that there would be some ongoing impact on Ms Hanns given the nature of your offending against her, despite being unable to quantify that impact in any more specific way. I have taken this impact on Ms Hanns into account in sentencing you.
Prior and Subsequent Convictions
25You have a substantial criminal history which dates back to 2007 when you were 24 years of age. You initially came before the court in respect of drug, dishonesty, possession of weapon, and driving offences. However from 2013 onwards, your history consists of multiple injury, assault, criminal damage and family-violence related offences.
26You received your first term of immediate imprisonment, a two month sentence, in April 2013 for a charge of recklessly cause injury and three charges of contravening a family violence intervention order. You then received a community correction order in March 2014 and a suspended sentence in July 2014 for assaults and other related offences – both of which you subsequently breached by further offending of a similar nature. You were again placed on a community correction order – which you breached, this time by persistently contravening a family violence intervention order, threatening to inflict serious injury and being a prohibited person in possession of a firearm, amongst other charges. On appeal you received an 18 month term of imprisonment with a non-parole period of 10 months.
27Following on from this sentence you had a period of some five years wherein your only contacts with the court were three minor appearances in 2018, each of which resulted in either an adjourned undertaking or a fine. Then in August 2020, you again came before the Magistrates’ Court for a consolidation of charges including multiple breaches of a family violence intervention order, unlawful assault, threats to inflict serious injury, criminal damage, and bail offences. You were sentenced to a total effective sentence of 8 months imprisonment (time served) together with an 18 month community correction order pursuant to which you were required to be under supervision, engage in treatment for drug and mental health issues, undertake offending behaviour program, comply with the services specified in a justice plan, and be subject to judicial monitoring. Accordingly, at the time of committing the current offences, you were not only on bail, but you were also in breach of your community correction order.
28As I have already outlined, you have also been subsequently sentenced to a 90 day term of imprisonment for offences which pre-dated the current offences and which were directed at a different victim, and a 120 day term of imprisonment for offences which you committed against the current victim whilst in custody.
29Your prior criminal history is both concerning and relevant to the current sentencing exercise. Despite being afforded a number of opportunities to undertake rehabilitative orders, you have been unable to complete those orders and have continued to offend. I must take this into account when assessing the weight to be given to specific deterrence and community protection in the sentencing synthesis, as well as when assessing your prospects of rehabilitation.
30Insofar as the subsequent convictions are concerned, in considering the sentence to be imposed on the offences before me, I cannot, and do not intend to, further punish you in respect of those matters. However, your subsequent convictions do have relevance to sentencing in two ways. Firstly they have some bearing upon my assessment of your prospects of rehabilitation and the weight which I might give to rehabilitation. Secondly, given that you have served the sentence for those offences during your time on remand and consequently cannot count all of the days for which you have been remanded as pre-sentence detention, I have taken that additional period which you have spent in custody into account when applying the principle of totality.
Gravity of Offending
31Stalking is, by its very nature, a serious offence. It involves an offender engaging in a course of conduct, in respect of a particular victim, with an intention of either causing physical or mental harm to the victim, or of arousing an apprehension or fear in the victim for his or her own safety or that of another person. The objective seriousness of stalking is reflected in the maximum penalty of 10 years imprisonment. Similarly, kidnapping, is also an objectively serious offence, as reflected in its maximum penalty of 25 years imprisonment. Kidnapping offences which involve violence, threats of violence and threats to the victim and their family are considered by the courts to be particularly serious.
32Despite the objective seriousness of each of these offences, as with any offence, the gravity of any particular instance of stalking or kidnapping must be assessed on the circumstances of the case before the court.
33I am of the view that your conduct in stalking Ms Hanns was a serious example of the offence. Your conduct spanned a period of almost 2 months; involved you sending her thousands of threatening and abusive messages, keeping her under surveillance and attending at her home on numerous occasions; and continuing your conduct despite repeated requests by the victim for you to stop your behaviour. It is apparent that your offending had a significant impact on the victim. I do not accept that your behaviour was made any less grave by reason of the victim continuing to engage in conversation with you throughout the offending period. However, as I will address in due course, I do accept that the gravity of your conduct must be viewed through the prism of your intellectual disability which impacts on the manner in which you function.
34Turning to the charge of kidnapping – whilst I agree with the prosecution that the offence was somewhat protracted, involved the use of force and threats in getting the victim from the apartment and into the car, and ongoing abusive behaviour towards the victim whilst she was in the car, ultimately I am of the view that your conduct falls towards the middle of the range for this kind of offending rather than at the most grave end. It is significant that the offence concludes at the Williamstown beach carpark despite the two of you remaining together for some time thereafter, and it is notable that your conduct lacks some of the aggravating features seen in the more serious examples of kidnapping such as extensive planning, the victim being tied up or restrained, and injury being caused to the victim. Further, as with the charge of stalking, the overall gravity of your conduct must be viewed in light of the limitations on your cognitive functioning.
35It is, of course, relevant to the gravity of both the charges of stalking and kidnapping, that you committed these offences whilst on both bail and a community correction order. Moreover as a result of you committing these offences whilst on bail, any term of imprisonment imposed upon you by me for these offences must be served cumulatively unless I order otherwise.
36In assessing the seriousness of charges 1 and 2 vis-à-vis each other, despite kidnapping attracting a higher maximum penalty, given the protracted nature of the stalking, the ongoing surveillance, and the volume and content of the messages sent by you to the victim, I am of the view that in the circumstances, your conduct in stalking Ms Hanns is more grave than your conduct in respect of the kidnapping charge. I note that prosecuting counsel conceded that it would be open for me to make this finding.
37Finally, turning to the summary charges, I have been careful not to doubly punish you in respect of those offences. Whilst I have sentenced you for your separate conduct in committing an offence whilst on bail, and possessing a dangerous article in a public place, I have been careful not to increase the penalty imposed on either offence by reason of the type of offence which was committed whilst in possession of the weapon and whilst on bail, in circumstances where each of those facts serves to aggravate the principal offending. However, in assessing the gravity of each of those offences I have taken into account that you do have relevant prior matters for each kind of offence.
Plea of Guilty
38Whilst this case has a somewhat protracted history, your plea of guilty in this case is still a valuable plea.
39As already outlined, your offending occurred between 23 May and 17 July 2021. The matter progressed, via committal case conference, to a contested committal on 11 February 2022, where the victim, Mr Greville and the informant were all cross-examined. You were committed to stand trial in the County Court on that day and the matter was listed on a number of occasions between March and October 2022 for a Directions Hearing, but was adjourned to allow the parties to obtain the transcript from the committal proceeding and negotiate a potential resolution. On 13 October 2022 the matter was again adjourned – but this time for an application for a sentence indication hearing. That application, and a sentence indication hearing, both proceeded before me on 7 February 2023 and I provided a sentence indication on that day. A short time later, on 20 February 2023, you accepted the sentence indication, were arraigned on the current indictment, and entered pleas of guilty to charges 1 and 2.
40Whilst your plea was not entered at the earliest opportunity, it is also not a plea which was entered at the ‘doorstep’ of the trial – with discussions about resolution having been on foot ever since your matter reached this Court. Your plea gains additional utilitarian value by reason of being entered during the current climate of the pandemic which has caused unprecedented disruption to the smooth running of the criminal justice system. I further accept that although you only made limited admissions to your conduct during your record of interview, and pursued a contested committal where the victim was cross-examined, your plea of guilty is still reflective of an acceptance of responsibility and a willingness to facilitate the course of justice. It also saves the witnesses, and in particular the victim from having to give evidence at trial.
41In the circumstances I have given you a substantial discount for your plea of guilty.
Personal Circumstances
42You are now 39 years of age. You were born and raised in Victoria, and are the youngest of three children to your parents Victor and Miriam.
43You were brought up in a stable home environment. Your father, who is now retired, operated a family-owned panel beating business, whilst your mother assisted in the business and ran the household. Your sister, who is now 44 years of age, is a hairdresser, whilst your brother, who is now 42 years of age, runs a panel beating workshop. None of your parents or siblings have ever been in trouble with the police, and you were brought up in a caring home environment. You still maintain a positive relationship with your parents and your siblings, with your sister providing particularly strong support for you when you are in the community.
44Despite the support at home, you struggled academically and had difficulties with literacy and numeracy. You twice repeated grades in primary school, and ultimately left secondary school during your second attempt at completing Year 7. You were approximately 15 years of age by this time. After leaving school, you started working in your family’s panel beating business and worked there for approximately four years. You also worked as a kitchen hand for approximately one year.
45By the time you reached 19 years of age you were riding motorcycles and had gravitated towards anti-social peers. You started to support yourself through illegitimate means during your early 20s and this is reflected in the commencement of your criminal history in 2007 as a 24-year-old. You also commenced using amphetamine on a regular basis as a 22-year-old, moving to daily use of methamphetamine in the 10 year period between 23 and 33 years of age.
46In 2008, when you were 25 years of age, you were involved in a high-speed motorcycle accident where you were hit from the side, flipped and hit a barrier. You sustained serious injuries including multiple fractures in your right elbow and arm, right pelvic bone, T5/6 vertebra, right rib and right scapula. You spent over a week in hospital, were placed in intensive care, underwent numerous surgical interventions and required a blood transfusion.
47In the aftermath of the accident you received a TAC compensation payout in the amount of approximately $150,000. Since that time you have managed to undertake some work – in the areas of panel beating, spray painting and factory work, but feel that you have not been the same since your accident.
48You have had a number of relationships prior to your relationship with Ms Hanns, and you have an eleven year old daughter, Hannah, from one of those relationships. Despite this, you have remained living with your parents for most of your adult life, and it is notable that you have never lived independently. At the time of the current offending you were living with your parents and Hannah at your parent’s home. Whilst you had had the primary custody of Hannah for approximately six years prior to being remanded on these offences, your parents have assumed the vast majority of care and parenting responsibilities. Hannah has remained living with your parents since your arrest.
Diagnosis of Intellectual Disability
49I was provided with three reports in respect of your mental health and functioning on the plea – a report of Mr Jeffrey Cummins, forensic psychologist, dated 24 April 2020,[5] and two reports from Dr Matt Treeby, clinical neuropsychologist and clinical psychologist, dated 10 May 2020[6] and 20 March 2023[7] respectively. The two reports from 2020 were prepared in respect of a previous court matter, however they provide context and background in which the most recent report from Dr Treeby can be considered.
[5]Exhibit 3.
[6]Exhibit 4.
[7]Exhibit 5.
50In Mr Cummins report dated 24 April 2020, he expressed the view that you required a neuropsychological assessment given your presentation at the time. He was concerned that you may be suffering an accident-related acquired brain injury as well as a related trauma and stress condition such as post-traumatic stress disorder. He noted that you presented as being of below average intelligence and had obvious memory difficulties. He also noted that you appeared to have difficulty with thinking and processed information at a slow speed. As a result of Mr Cummins’ recommendation, you were then assessed by Dr Treeby in May 2020 who assessed you at that time as having a full scale IQ of 65, together with significant difficulties in daily living, consistent with a mild intellectual disability.
51At the time of the sentence indication in this matter, I was provided with a copy of Dr Treeby’s report from 2020, however was not in a position to be able to determine whether the limitations in your cognitive and intellectual functioning would amount to a mitigating circumstance given the date of the report and the fact that it was written in respect of different offending. Accordingly, an updated report was obtained from Dr Treeby between the sentence indication and plea in this matter, with Dr Treeby conducting further assessments with you over a period of some four hours on 10 March 2023.
52During the assessment you reported to Dr Treeby that you continue to experience difficulties with attention and memory, and are heavily reliant on your mother for reminders. You struggle with reading, writing, spelling and numeracy, and are often confused when required to discuss complex matters with others. You struggle with planning and organising yourself when in the community. You also have longstanding impulsive behavioural tendencies and tend to act on the spur of the moment without adequate forethought or consideration of the consequences. Further, whilst you can complete some domestic duties including cleaning and preparation of basic meals, you have marked and longstanding difficulties with money management and have always required assistance from your parents in the management of financial affairs including paying bills. Your mother provides you with a substantial amount of practical assistance when you are living in the community.
53On testing of your intellectual function, your intellectual ability again fell overall in the ‘extremely low’ range relative to your similar-aged peers, with a full scale IQ of 65. The testing revealed that:
· your expressive vocabulary and general knowledge are markedly limited;
· your verbal abstract reasoning skills are extremely impaired;
· your perceptual abstract reasoning ability is severely impaired;
· your auditory attention span is impaired;
· you have marked difficulties with manipulating information within working memory across tasks;
· your basic information processing speed is impaired;
· you have severe difficulties with complex information processing, divided attention and cognitive flexibility; and
· you have a Grade 2 primary school level of literacy.
54Dr Treeby stated that you performed in an almost identical manner to your previous neuropsychological assessment in 2020, and your results on the testing indicate that you have longstanding cognitive limitations. Your cognitive profile is stable and is consistent with you having a mild intellectual disability. Further, in Dr Treeby’s opinion your cognitive impairment is near global, is longstanding (ie developmental in origin), and will be permanent.
55Of relevance to my task in sentencing you, Dr Treeby identified that:
· your overall level of intellectual function is worse than 99% of your similar-aged peers;
· you impress as socially, behaviourally and emotionally immature relative to your chronological age;
· you appear to have a limited ability to engage in consequential, reflective or insight-oriented thinking;
· you now have a long history of difficulties with regulating your social behaviour and emotions in an age-appropriate manner, which can be explained, in part, by your extremely low level of intellectual function;
· your executive impairments mean that you struggle to problem solve and apply logical reasoning when confronted with difficult situations;
· you are easily overwhelmed and when your coping resources are exceeded you may be inclined to resort to suboptimal, ineffective or clearly problematic coping and problem-solving strategies for example interpersonal aggression;
· your impulsive behavioural tendencies mean that you may act rashly without due consideration of the consequences;
· you have difficulty in exerting control over your emotional reactions, and unpredictable or changing environments may elicit emotional responses such as anger;
· you are slow to process information and have difficulties with generating and expressing thoughts; and
· you have impulsive tendencies and struggle to regulate your emotions in an age and socially appropriate manner.
56In Dr Treeby’s opinion, these impairments would have been evident at the time of your offending, and you will continue to experience these impairments moving forwards.
57Further, Dr Treeby is of the view that:
· whilst you clearly understand the concepts of right and wrong, your ability to fully appreciate the consequences of some of your actions can be considered questionable given your mild intellectual disability;
· your ability to make reasoned and appropriate judgments in various situations can be considered doubtful – with your ability to control your emotions and behaviour being even more impaired during times when you are anxious, distressed, jealous or substance-affected;
· your marked concreteness in your language causes you to encounter difficulties when you are required to effectively resolve conflict, negotiate and communicate effectively with others; and
· you have severe difficulties with cognitive flexibility and appear to have the tendency to become fixated on alleged or perceived infidelity on the part of women with whom you have been intimately involved in the past. This results in jealousy experiences which you have failed to down-regulate appropriately at various points and has resulted in your use of problematic strategies including aggression and controlling behaviour.
58Ultimately Dr Treeby was of the view that the difficulties which you face in your intellectual functioning have contributed to your offending. However, he stated the following:
I maintain the opinion that cognitive impairment cannot entirely account for Mr Portelli’s offending behaviour which I note is versatile and now dates back to 2007. He has longstanding problems with conforming to social norms with respect to lawful behaviours and my impression remains that he has antisocial personality traits. There is a history of relevant prior offending between 2013 and 2021 and it is increasingly clear that Mr Portelli has aggressive and controlling behavioural tendencies in the context of intimate relationships. He has difficulties with appropriately managing experiences of jealousy and he struggles with down-regulating anger in a socially-appropriate way.
59Dr Treeby noted that given your degree of executive dysfunction, learning difficulties and limitations with more complex living skills, you will require some degree of permanent ongoing support upon your release from custody to minimise the chances of recidivism and optimise your functioning. Further, he was of the opinion that you may benefit from:
· engaging with an organisation that has specific programs to assist offenders with cognitive impairments in the community;
· participating in treatment with a forensic psychologist – albeit any treatment would need to be appropriately modified to account for your significant cognitive limitations;
· participating in a men’s behaviour change program; and
· drug and alcohol counselling with a focus on relapse prevention.
60Dr Treeby was of the view that you are at a high risk of re-offending given your multiple risk factors, and your prospects for rehabilitation are guarded. However in his view your risk of re-offending would be reduced should you address your methamphetamine misuse and actively engage with appropriate services upon your release into the community.
61Mr Barker, on your behalf, submitted that given the impact of your intellectual impairment upon you, a number of the principles in R v Verdins [2007] VSCA 102 are enlivened in your case. In comprehensive submissions, Mr Barker argued that your impairment reduces your moral culpability for your offending conduct to a mild to moderate degree; reduces the weight which should be given to general and specific deterrence to a mild to moderate degree; and increases the burden of your imprisonment to a mild degree in comparison with other offenders who do not have your difficulties. In relation to the latter, Mr Barker submitted that whilst this was not specifically addressed by Dr Treeby, it is a matter which the court could take into account given the numerous difficulties which you face due to your intellectual functioning.
62Mr Grant, on behalf of the prosecution, conceded that the difficulties which you face in your intellectual functioning, and in particular in analysing complex situations and in acting impulsively, are matters which had a role to play in your offending and give rise to a reduction in your moral culpability, and in the weight to be given to general deterrence and denunciation in the sentencing synthesis. However he submitted that conversely, these factors serve to highlight the risk which you pose to the community and the need for you to have supervision and assistance when you are released back in to the community.
63I agree with both counsel that the principles in Verdins are enlivened in your case. It is clear, in my view, from Dr Treeby’s report that your intellectual functioning was a significant – albeit not the only – contributing factor to your offending. Your ability to exercise appropriate judgment, to make calm and rational choices, and to be able to fully understand the consequences of your behaviour are all impaired. These are matters which, in my view, lead to a moderate reduction in your moral culpability for the offending. Similarly I am of the view that the weight to be given to general deterrence, denunciation and specific deterrence should also be reduced to a moderate degree for the reasons advanced by both counsel.
64I am, however, of the view that the impact of your intellectual functioning does give rise for concern when considering your prospects for rehabilitation, and the weight to be given to the sentencing purpose of community protection. Dr Treeby is of the view that your risk of re-offending, whilst high, can be moderated if you engage in programs directed at your particular issues which are appropriately modified to take into account your difficulties. He also made it clear that you will need ongoing supports when released back into the community.
65Whilst Mr Barker did not expressly rely on the second principle in Verdins – that is that the condition may have a bearing on the kind of sentence that is imposed and the conditions in which it is served – I am of the view that this principle is also relevant in the current case. In my view your case is one where – as a result of the impact of your intellectual functioning – community protection is best achieved through a combination of time spent in custody, together with an extended period of time in the community where you are supervised and supported to receive appropriate treatment and programs. When consideration is given to this aspect, in combination with the principle of totality (that is taking into account the total time which you have already spent in custody), I am of the view that any sentence which I impose upon you should allow you the opportunity for an extended period of time on parole.
Impact of Covid-19 on Burden of Imprisonment
66During the period you have been on remand, you have been impacted by the pandemic in a number of ways – in particular in your first year of being remanded. You were subject to quarantining, extended lockdowns, and had limited access to programs and services. Further your access to family and friends was significantly restricted until recently, with an extended period of time during which you were unable to receive personal visits.
67The current situation in relation to Covid-19 restrictions in custody is very different to that which was in place during the last two years. In-person visits from family and friends have largely resumed and lockdowns as a result of Covid-19 are less common. Further there has been a resumption of education, rehabilitation and work opportunities – albeit in a more limited capacity than pre-Covid. The restrictions facing prisoners as a result of Covid could not accurately be described as ‘substantial’ at this current period of time.
68However, I do accept that in the current environment the concern or anxiety of a person in custody as to their own health in respect of Covid may still be present due to a prisoner’s inability to control their own environment. I also accept that there may still be some minimal impact on a person in custody due to the limitations which still remain over education and rehabilitation opportunities. Moreover in your case, there is an additional burden of imprisonment by reason of the impact of your impaired intellectual functioning.
69I have taken the substantial additional burden of your time in custody to date into account when sentencing you – and have further taken into account that there will be some limited additional burden of imprisonment upon you in respect of any time which you serve subsequent to today’s sentence.
Sentencing Submissions and Comparable Sentences
70Mr Mortley, on the sentence indication, and Mr Barker on the plea, both conceded on your behalf that your offending does warrant a term of imprisonment. However, at the time of the sentence indication, Mr Mortley submitted that there would be nothing preventing the court from imposing a term of imprisonment on the kidnapping charge and a combination sentence on the balance of the offences. On the plea – which followed the sentence indication where I had indicated that I did not consider a combination sentence to be appropriate and identified that subject to further material being provided, a term of imprisonment with a maximum head sentence of three years would be imposed – Mr Barker submitted on your behalf that the new neuropsychological material should lead to a moderation in both the head sentence previously indicated by me and any corresponding non-parole period which I had been contemplating in the absence of that material. Mr Barker submitted that any non-parole period imposed should allow the opportunity for you to have extended help and assistance in the community when released.
71Mr Grant, on behalf of the prosecution, submitted that your offending constitutes serious examples of stalking and kidnapping and the sentencing purposes of general deterrence, denunciation and just punishment are important sentencing considerations. Further, given the fact that the current offences were committed whilst you were on bail, and given your significant and relevant criminal history, specific deterrence and protection of the community are also important sentencing considerations. Accordingly, he submitted that the only appropriate sentence in this case is a sentence of imprisonment involving the imposition of a head sentence and a non-parole period. He submitted that whilst the new material reduces to some extent the weight to be given to general deterrence and denunciation in the sentencing synthesis, it adds to the weight which needs to be given to community protection. Accordingly he submitted that the new material should not make much, if any, difference to the end result.
72Mr Grant conceded that a number of the features of your case are unique, and, accordingly, the assistance provided by sentencing statistics, and the sentences imposed for offences of a similar character are necessarily limited in the assistance they can provide for this reason. However, he referred me to a number of cases where offenders have been sentenced for either stalking[8] or kidnapping.[9] He submitted that these cases can provide some guidance as to current sentencing practices in relation to each offence. I have read each of those cases and agree with the concession made by Mr Grant that none of the cases referred to are completely comparable in terms of the factual scenario or the circumstances of the accused. However, I have had regard to each of the cases referred to as they do provide some guidance as to the application of the relevant sentencing principles in respect of each type of offence, and also can be used as yardsticks that illustrate (although not define) the possible range of sentences available.
[8]DPP v Amato [2017] VCC 145; DPP v Briggs [2021] VCC 345; and Wasif v The Queen [2022] VSCA 182.
[9]The Queen v Zaydan [2004] VSCA 245; DPP v Haillay [2019] VCC 2223; DPP v Herring (a pseudonym) [2019] VCC 2229; DPP v De-Leo {2020] VCC 245; and DPP v Castillo (a pseudonym) [2020] VCC 289.
Other Sentencing Principles
73As noted at the outset, kidnapping is designated as a category 2 offence. This enlivens section 5(2H) of the Sentencing Act 1991 which provides that in sentencing an offender for a category 2 offence, I must make an order under Division 2 of Part 3, other than a term of imprisonment in combination with a community correction order, unless one of the circumstances set out subsections (a) to (e) of that section exists. It was conceded by your counsel that whilst your intellectual functioning is a significant mitigating circumstance, it does not reach the threshold required to establish a reason under s5(2H)(a) to (e). I agree with that concession. As a result of this provision, I cannot impose a combination sentence in respect of the charge of kidnapping.
74The principle of parsimony does require me to consider in respect of the other charges which you face whether, in light of all of the material before the court, a sentence other than imprisonment can satisfy all of the sentencing purposes. This is particularly relevant to the charge of stalking. As I identified during the plea hearing, having considered all of the material, I am of the view that even with the weight to be given to the sentencing purposes of general and specific deterrence, and denunciation being moderated, the stalking charge is too serious for either a community correction order, or a combination of a term of imprisonment and community correction order to be imposed upon it. Accordingly, I do agree with the prosecution submission that a term of imprisonment with a head sentence and non-parole period is the only appropriate disposition in this case.
75However, taking into account the additional material which was produced on the plea which established the applicability of Verdins principles in this case, I have come to the conclusion that the sentence which I impose should be less than that which I indicated at the time of the sentence indication. Whilst I agree with prosecuting counsel that the weight to be given to community protection must be increased in the sentencing synthesis given the risk to the community which your intellectual functioning creates, I do not agree that that increase directly correlates with the decrease in the weight to be given to the principles of general deterrence, specific deterrence and denunciation, not least because I am of the view that community protection in this case requires more than just the imposition of additional time in custody.
76Having taken into account all of the sentencing considerations in this case, I am of the view that given the seriousness of the offending, your prior criminal history, and the need for the sentence to be one which gives weight to community protection, and also to general and specific deterrence and denunciation – albeit to a moderated degree, that the only disposition open in this case is a term of imprisonment with a non-parole period. However, I am also of the view, having regard to the various mitigating factors, that it is important for you to be given an opportunity for an extended period of time on parole where you will be able to work towards rehabilitation in a supervised environment.
77I have, of course, taken into account in sentencing you that you may be required to serve every single day of the sentence I impose and have endeavoured to ensure that the total sentence is one which would still be appropriate if you were required to serve every day.
Sentence
78Mr Portelli, on charge 1, stalking, you are convicted and sentenced to imprisonment for a period of 1 year and 9 months.
79On charge 2, kidnapping, you are convicted and sentenced to imprisonment for a period of 1 year and 5 months.
80On related summary charge 3, possess dangerous article without excuse, you are convicted and sentenced to imprisonment for a period of 21 days.
81On related summary charge 6, commit indictable offence whilst on bail, you are convicted and sentenced to imprisonment for a period of 21 days.
82Seven months of the term of imprisonment imposed on charge 2, 7 days of the term imposed on related summary charge 3, and 7 days of the term imposed on related summary charge 6, will be served cumulatively on the term of imprisonment imposed on charge 1 and each other.
83That makes a total effective sentence of 2 years, 4 months and 14 days.
84I order that you serve 1 year and 4 months of that sentence before becoming eligible for parole.
Pre-Sentence Detention
85The period of 409 days of pre-sentence detention, not including today’s date, is hereby declared as having already been served in respect of this sentence and I order that such declaration and its details be entered into the records of the court.
Section 6AAA Declaration
86Pursuant to s6AAA of the Sentencing Act 1991, I indicate that had you pleaded not guilty to the charges for which you received a term of imprisonment today and been convicted of them, you would have been sentenced to a total effective sentence of 4 years with a non-parole period of 2 years and 10 months.
Ancillary Orders
87As a matter of completeness, I note that there were no ancillary orders sought.
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