Director of Public Prosecutions v Portelli

[2013] VCC 1939

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-13-01697

DIRECTOR OF PUBLIC PROSECUTIONS

v

JEREMY PORTELLI

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	4 December 2013
CASE MAY BE CITED AS:	DPP v Portelli
MEDIUM NEUTRAL CITATION:	[2013] VCC 1939

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms M. Zammit
For the Accused	Mr D. McGloane

HER HONOUR: 

1Jeremy Portelli, you have pleaded guilty before me to one charge of attempting to pervert the course of justice and have agreed to hearing the summary charges of driving an unregistered vehicle and unlicensed driving to be dealt with in this matter.

2The facts underlying your offending are as follows:

3This offending occurred with the involvement of other co-offenders, and the offences to which you have pleaded guilty, that is, the summary offences, comprise offending where you were charged on an accomplice basis.

4The primary offender, Shannon Stewart, in March 2011, bought a white Holden sedan which was unregistered.  He contacted another friend, Thomas Gellov, asking him if he wanted to go out with both he and you.  Mr Gellov agreed, and Mr Stewart drove the unregistered car to Gellov's house with you in the front passenger seat, the three of you then driving back to Mr Stewart's home address, after which you drove - is that right?  When it says "co-offender", can I just ask, Madam Prosecutor, is that referring in the summary to Mr Portelli?

5MS ZAMMIT:  There was - yes.

6HER HONOUR:  Sorry?

7MR McGLOANE:  There's a brief period in which it does refer to him driving.

8HER HONOUR:  Sorry, it's just confusing if you answer - - -

9MS ZAMMIT:  Sorry, Your Honour.  Yes, after picking up Gellov, then Mr Portelli drove the three of them back to his address.  There was one brief period.

10HER HONOUR:  Very well.  Yes. 

11After driving back to Mr Stewart's house, you then took over the wheel, drove both Gellov and Stewart to your home address, and this driving, together with the use of that vehicle, relates to the summary offences of driving an unregistered vehicle and unlicensed driving, you not being the holder of a Victorian licence at that time.  You then drove the three of them to Roxburgh Park shopping centre where you and Gellov checked your bank accounts at an ATM and then drove through a nearby McDonald's.  Police, who were patrolling in an adjoining car park, saw the car entering the drive-through and noted there were no registration plates on the car. 

12I am sorry, is it said that it was Mr Portelli who was driving the car during the chase?

13MR McGLOANE:  No, Your Honour.

14MS ZAMMIT:  Not at that point, no, Your Honour.

15HER HONOUR:  Well, why does it say the co-offender drove away?

16MS ZAMMIT:  It's Mr Stewart.

17HER HONOUR:  All right.  Before I go on with this, this is extremely unclear.  Who is the co - - -

18MS ZAMMIT:  Mr Stewart, Your Honour.

19HER HONOUR:  All right.  I am going to start this again, all right, because I have mixed this up.  Co-offender means Stewart.  Because paragraph 6, co-offender is presumably referring to Mr Stewart, not Mr Portelli.

20MS ZAMMIT:  Yes, that's correct, Your Honour.

21HER HONOUR:  And Mr Portelli had some concern that he had not driven on that night.  All right, I am starting this again.  I apologise.

22The facts underlying your offending are as follows:

23A friend of yours, Sharon Stewart, in March 2011 purchased a 1989 Holden sedan which was unregistered.

24At about 9 pm on 16 June, Stewart contacted a friend, Thomas Gellov, and asked him if he wanted to go out with him, Gellov agreeing, and Stewart driving the unregistered the car - is that Stewart or Portelli, because that - - -

25MS ZAMMIT:  Stewart, Your Honour.

26HER HONOUR:  Mr Stewart drove the unregistered car to Gellov's house with you in the front passenger seat.  He then drove you back to his home address - - -

27MS ZAMMIT:  No, Your Honour, this offender then drives the three of them, Gellov, Stewart and himself back to his own address.  That's the one period of driving.

28HER HONOUR:  After that time, you took over the wheel and drove Stewart and Gellov back to your home address.  Stewart then took over the wheel and drove with the other two in the car to the Roxburgh Park shopping centre, where bank balances were checked at an ATM and then drove to a drive-through at McDonald's.  Nearby police who were patrolling saw the car exiting the drive-through and saw that there were no registration plates attached to the car.  As they manoeuvred into position behind the car to intercept it, Mr Stewart drove away from police at a fast rate of speed, continuing on even after police activated their warning lights and sirens.  He drove in such a manner that Mr Gellov asked Stewart to pull over because he thought they were going to crash, but Stewart then drove over a roundabout, clipped the edge, going straight ahead, losing police by making a sharp left-hand turn and then, while trying to make a right-hand turn in another street, lost control of the vehicle, which collided with a letterbox and impacted with an adjoining fence before he then drove away to the end of the crescent.  The collision was seen and heard by people nearby.  Stewart parked the car and, while running from the car, said to Gellov he could not afford to get caught by police and told him to make up a name.  Police patrolling the area were advised by witnesses of the damage and found the unoccupied car, at which time they noted the tyres were not in a roadworthy condition.  Gellov approached police and said a Jarrod White, who had run off, was the driver, after which you and Stewart approached police and stated that Jarrod White was the driver.

29Your actions in driving the unregistered vehicle at a time when you did not have a valid Victorian driver's licence comprise the summary charges.  Your actions in informing police, along with Stewart and Gellov, that the driver of the vehicle was a man named Jarrod White, who had run away, underlies the charge on the indictment, attempting to pervert the course of justice.  You swore in a statement that you had been picked up in the car by a man you knew as Jarrod, saying he was driving at the time, and this also underlies the offending on the indictment charge.  You were not interviewed in relation to this matter.  Ultimately police discovered who the true driver was.  Shannon Stewart was charged, he appeared before me and was placed on a community-based order for a period of 15 months on 23 January 2013.

30I now turn to your personal circumstances.

31MR McGLOANE:  Your Honour, he is 20.

32HER HONOUR:  You are now 20 years of age, you have three older sisters and live with your parents, who are supportive of you, your father working at the Moonee Valley Racecourse, and your mother working at Coles.  You had some learning difficulties and left school partway through Year 9 and began working at Coles.  You have also worked with your father and undertaken other work, but you are presently unemployed.  You began using cannabis from the age of about 15 and you started binge drinking at that age as well, which alcohol use increased to daily use by 2012.  You have never held a licence.  At the time of this offending you were part living at home and part living away from home, although that situation has now changed, as I have said, and you are now living at home with your parents.

33You had, prior to this particular offending, previously appeared before the Children's Court in relation other driving matters, for which you were placed on a good behaviour bond, and around the time of this offending, slightly before it and after it, you were involved in numerous episodes of offending primarily involving driving offences as well as a charge of robbery, which your counsel informed me involved you with another man essentially ambushing a pizza delivery boy and stealing money from him.

34In October this year, in a consolidation, you were placed by the Sunshine Magistrates' Court on a 15 month community-based order which, from all reports, you are responding well to and which also has conditions relating to alcohol use and anger management.

35A neuropsychological report relating to neuropsychological testing that was carried out upon you showed that in many respects you are functioning well but that you do have difficulty with executive function and some memory difficulties; executive functioning, referring primarily to a lack of a capacity to be organised, to make sensible decisions and so forth.

36You were also, following a failure to appear in relation to several of the charges, taken into custody and ultimately bailed, a condition being that you attend the Court Integrated Services Program, which you did and which you undertook well.  I received reports from CISP managers indicating you had engaged well, that you had become alcohol-free, that you had undertaken the sorts of therapeutic demands placed on you by that program and that essentially your situation had settled, that even though you remain unemployed, you are motivated and that you are very keen to undertake employment and that you are certainly using the services offered to you both by CISP at the time you were on that program and by the Community Corrections Order upon which you were ultimately placed.  That being so, it seems to me, and I note that this course is not disputed by the prosecution, that I should best deal with you by placing on a Community Corrections Order, for which I have had you assessed and for which you have been found suitable.

37I spoke to you before sending you off to the assessment, Mr Portelli, about how important it is that you understand you absolutely need to stay out of cars, that you have quite a criminal history now in relation to offending with a car, and that this is something you very much need to bear in mind, particularly given, as I understand it, you are extremely interested in cars, you work on cars, and probably have some ambitions in the future about working with cars.  You are not going to get much of a job working on cars if you have not got a licence, and every time you get picked up for driving offences, the time that you will spend without a licence gets longer and longer.  I am satisfied, however, that the community-based order will not interfere with the progress you have made so far and will indeed assist you, and so in relation to each of the charges - can I do that in relation to the unregistered?  I don't think I can.

38MR McGLOANE:  No, (indistinct) financial penalty.

39HER HONOUR:  Very well.  In relation to the charge of attempting to pervert the course of justice, I am going to place you on a community-based order for 12 months.  I will order that you undertake 150 hours of unpaid community work.  I am also going to order that you undergo assessment and treatment for alcohol use.  Probably you may feel that that is unnecessary at this stage, and indeed, if you are sent off in relation to that, it will probably be decided that that does not need to be continued with.  Nevertheless, it still seems to me an appropriate condition to put. 

40It is also recommended that a condition be attached that you undergo assessment and treatment for drug use.  That is basically in relation to your cannabis use.  I also order that you undergo assessment and treatment for mental health difficulties.  That is basically to do with any anger management problems that you may have, problems you have about making sensible decisions and so forth.  It is noted that you have yet to get general psychological counselling, but it does seem to me that that is not a bad idea for you to participate in.  It is not a bad idea for you, as a young man, having a conversation with someone about how to make better decisions in your life. 

41I also ask that the question of employment programs be looked at in relation to you.  It is noted that under that condition, consideration could be given to your participation in vocational and other programs, and I do order that you participate in any programs designed to assist you in employment.

42I also need to advise you as to the core conditions which are attached to any community-based order.  They are that you must, within 48 hours, that is, two working days, of having received this order, report to the Community Corrections Office.  Whilst on that order, you must obey all lawful directions of the Community Corrections Officer.  You must not leave Victoria without permission of the Community Corrections Office.  You must advise the Community Corrections Office of any change of address or employment within 48 hours, and, of course, whilst this order is in force, you must not commit any offence punishable by imprisonment. 

43If you do not stick to the conditions, which include a condition of not re-offending whilst on this order, you will be brought back before me on a breach of community-based order and I will re-sentence you on the original sentences, all right, Mr Portelli?  I can tell you, if you come back before me because you have not been toeing the line with the Office of Corrections or because you have been caught in a car again, it is not going to be a pleasant outing for you.  Do you understand?

44PRISONER:  Yes.

45HER HONOUR:  Thank you.  Do you agree to be placed on the order?

46PRISONER:  Yes.

47HER HONOUR:  Thank you.  We will just prepare the documentation.  The other fundamental condition is that you must report to and receive visits from the Office of Corrections.  Thank you.  All right.  I will just get you to sign that, thank you.

48(Community-based order signed and acknowledged)

49In relation to each of the summary charges, you are fined the sum of $100, and I order that you be given six months to pay that.  What that means is you have got six months to get the money together.  The sensible way to deal with that is starting sending money in on a regular basis.  Your counsel will inform you how to do that.  But if you turn up at the end of six months and say "I haven't got it, I haven't got time", they are not going to be very interested in you, all right?  Whereas, if you have made some effort to pay before, you will probably be dealt with in a more sympathetic manner.  Does that make sense to you, Mr Portelli?

50PRISONER:  Yes.

51HER HONOUR:  Good.  Thank you.  Yes, I think that is all I need to - pursuant to s.6AAA, I declare that had you not pleaded guilty, I would have placed you on a community-based order for a period of two years.  Thank you.  I am not going to leave Bench, because I have got counsel coming in to resume the trial after that.  So I thank counsel for their attendance. 

52Good luck, Mr Portelli.

53PRISONER:  Thank you.

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