Director of Public Prosecutions v Prenga
[2022] VCC 1692
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-22-00085
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANGJELO PRENGA |
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JUDGE: | HER HONOUR JUDGE GWYNN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 September 2022 | |
DATE OF SENTENCE: | 30 September 2022 | |
CASE MAY BE CITED AS: | DPP v Prenga | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1692 | |
REASONS FOR SENTENCE
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Subject: Criminal law
Catchwords: Causing injury intentionally; trafficking in a drug of dependence; possessing a drug of dependence; use false document to prejudice; trespass
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited: Guden v R 2010 28 VR 288
Sentence: Ten months imprisonment, fine of $4200
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A. Norris | Office of Public Prosecutions |
| For the Accused | Mr J. McQuillan | Massi Ahmadzay & Associates |
HER HONOUR:
1Angjelo Prenga you have pleaded guilty on indictment to charges of trafficking in a drug of dependence, causing injury intentionally, using a false document and three charges of possessing a drug of dependence.
2
You have also entered a guilty plea to summary charges of trespass and dealing with property suspected to be the proceeds of crime. In sentencing you for your crimes I must have regard to the maximum penalty for the offences you have committed. Trafficking in a drug of dependence carries a maximum penalty of
15 years imprisonment. Intentionally cause injury and use false document each carry a maximum penalty of 10 years imprisonment. The charge of possess a drug of dependence carries a maximum penalty of five years imprisonment, dependent on the circumstances. I will return to this at a later stage.
3
In terms of the summary offences, trespass carries a maximum penalty of
six months imprisonment. Dealing with property suspected to be the proceeds of crime carries a maximum penalty of two years imprisonment.
4The maximum penalties reflect the seriousness with which parliament regards each offence.
5The circumstances of your offending are set out in a document entitled ‘Summary of Prosecution Opening for Plea’ dated 29 September 2022. This is an agreed document and represents your acceptance of the elements of the offences to which you have pleaded guilty as well as the factual basis on which I am to sentence.
6I turn now to the offending.
The offences
7
As of May 2021, you and your victim, Joseph Lichstein were known to each other. You were residing at an address in Warbler Close, Werribee and
MrLichtstein was housesitting for his mother in Harvard Court, Whittington. On 25 May 2021 you called the victim some 26 times without him answering. At 5.40 pm you sent a message stating, 'Where are you, you disgusting slut?'. These facts are not the subject of any charge but set the context for what then follows. At about 10 pm you arrived at the Harvard Court premises with two friends. You approached the garage where the victim and his friend, Amy Clissold, were socialising.
8As you entered the garage, forming the basis for the summary charge of trespass, Mr Lichtstein threw a bottle of wine at you. This missed and smashed in the corner of the garage. Ms Lichtstein then charged towards you and the two of you began to wrestle and you wrestled your way into a computer room. The last memory of the victim was having you in a headlock before waking up in hospital. Whilst the victim had you in a headlock and the two of you were wrestling in the computer room, you stabbed the victim some seven times with an unknown bladed weapon. This forms the basis for the charge of causing injury intentionally.
9You then exited the computer room saying, 'Let's go, let's go'. You and your two friends then left. Ms Clissold contacted Triple 0 and paramedics attended and treated Mr Lichtstein. The stab wounds had caused bleeding. He was taken to hospital where he underwent treatment. I am told that treatment involved the cleaning of the wounds and some suturing. He was discharged from hospital the following day.
10On 28 May 2021, police executed a search warrant at your premises. You were not present at the time. Police located the following items relevant to your plea hearing:
(a) 317.1 grams of cannabis in a kitchen cupboard forming the basis for charge 3, possess drug of dependence;
(b) a small amount of white crystal substance said to be Ketamine, 0.6 grams I think it was, on a shelf near the kitchen, forming the basis for charge 4, possess drug of dependence; and
(c) two coloured tabs containing LSD on a shelf near the kitchen, forming the basis for charge 5, possess a drug of dependence,
11Police also located documents from Auswell Property Solutions for the rental of a property in Duncombe Park Way, Deer Park, in the name of
Panagiotis Skartslis. Police made enquiries of Auswell Property Solutions and discovered that on 19 July 2020, you signed a lease for a property in
Cuthbert Road, Reservoir. To do so, you provided a driver's licence, Medicare card and passport all in the name of Panagiotis Skartlis. That forms the basis for charge 6, using false documents.
12Under warrant, police received stored communications from your mobile phone for 23 May 2021. The analysis revealed that you trafficked an unknown amount of cannabis.
13
You were arrested on 11 August 2021 at a property in
Canterbury Road, Blackburn South. Police located $4,250 in cash in your jacket pocket, forming the basis for the summary charge of dealing with property suspected to be the proceeds of crime. When interviewed by police you answered 'No comment' to all questions put to you, as is your right. You have remained in custody since this time.
14I turn now to offence gravity and victim impact.
Offence gravity and victim impact
15You, Mr Prenga, have no criminal history. In terms of the offending before me, the first in time, is that of using false documents, the subject of charge 6 and occurring on 19 July 2020 . I know that you used three false documents to rent a property. I note that there was more than one document and that they were documents of identification of sufficient quality to be used for their intended purpose in renting a property under a false name. All that is known to me, other than what your barrister put today, was that you were making arrangements in relation to another relationship outside your one with your then partner, Ms Fossburg.
16In terms of the three charges of drug possession, namely cannabis, Ketamine and Lysergic Acid or LSD, I do not have a basis to form the view that you possessed these drugs for anything other than your own use. This does impact on the sentencing exercise. For the cannabis located by police, the maximum penalty is five penalty units where I am satisfied on the balance of probabilities that your offence was not committed for any purpose related to trafficking that drug and it was a small quantity. The amount of 317.1 grams does exceed what is otherwise referred to as a small quantity. Otherwise, the maximum penalty is one year. It is five years if I am satisfied that it had a purpose related to trafficking.
17Given the amount and the charge of trafficking itself, which I am told relates to perhaps one transaction, I am not satisfied to a requisite standard that your possession of the 317.1 grams was for any purpose related to trafficking. This means that the one year maximum penalty threshold is the one that holds. This determination takes into account that you were a regular, if not daily, user of cannabis at the relevant time.
18For the other two drugs in your possession, the maximum penalty where I am not satisfied on the balance of probabilities that your possession of each of these drugs was for any purpose relating to trafficking, is also one of one years imprisonment. I make the same finding as I did for the charge of possessing cannabis.
19Your offending related to drug possession overall is relatively minor in the context of your own drug use at that time. Of course, you also have pleaded guilty to trafficking in cannabis as outlined. In general terms, cannabis is a dangerous drug which has enormous impact on our community, in terms of on the mental health of its users and the resort to criminal activity.
20In the circumstances where I am told that you trafficked in an unknown amount on a single day, I must assess this offence as being towards the lower end of the scale for its type, if not at the lowest end. You instruct that you sold to one associate who liked the quality of the cannabis which you otherwise had for your own use. That is not inconsistent with the evidence available to the Crown.
21
The most serious of your offending is obviously that contained in the charge of causing injury intentionally, which involved seven separate stab wounds to
Mr Lichtstein. Your victim's memory of the event is unclear and your account is that you retrieved the knife, likely to be a boxcutter, from him and then used it. I do not propose to resolve that account although I note there is no evidence to the contrary, given Mr Lichtstein's inability to recall exactly what happened and that there were no witnesses to the actual stabbing.
22The charge of trespass and the injury that occurred in the victim's mother's home - an environment in which he was entitled to feel safe. You attended with two other persons. I accept that the injury was inflicted in circumstances where you attended his premises and things unfolded quickly from there. That is, Mr Lichtstein threw a bottle of wine at you, launched himself towards you and a wrestle then ensued during which you resorted to stabbing Mr Lichtstein, whilst he held you in a headlock. You do recall stabbing the victim twice after he had let go of you. You left him bleeding on the floor elevating the seriousness of this offence. I note that it is your information that provides the information about the two stab wounds after Mr Lichtstein had let go of you.
23
On the information before me, the injury he suffered could certainly have been much worse, perhaps more by good fortune than good management. Nevertheless, the wounds of themselves appear to be relatively shallow and
Mr Lichtstein was discharged from hospital within a day. I do not have any medical information about the treatment that he did receive over and above the need for cleaning and suturing.
24I note that I have been provided a sentencing snapshot by the Crown for the charge of causing injury intentionally dated December of 2021 and I have had recourse to that document.
25Mr Lichtstein has authored a Victim Impact Statement dated 6 August 2022 and I have had regards to its content.
26The 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.
27In his Victim Impact Statement Mr Lichtstein states that, apart from the initial shock of the incident, he does not have any enduring psychological injuries. He described six weeks of initial discomfort post your assault and that his stab wounds were superficial. He says the physical injuries did not amount to much and that he fully recovered with no enduring pain. Mr Lichtstein says he feels sorry for you given your imprisonment and that this fact has more psychological impact on him than the event itself. He welcomes your release from prison. General deterrence, just punishment and denunciation however remain important sentencing considerations.
Plea of guilty
28In terms of your plea of guilty, the Sentencing Act 1991 obliges me to take into account the stage at which you entered your plea. The events themselves occurred in June of 2020 and May of 2021, the possession of the cash at a later stage. You were charged in August of 2021 with a range of more serious offences than those which are now before the Court. Indeed, the charges to which you have now entered your plea could have been dealt with in the Magistrates' Court jurisdiction.
29
There have been a number of administrative delays not of your making, during which time you have remained in custody. The charges resolved on
31 August 2022. Given that you originally faced charges of aggravated home invasion, reckless conduct endangering serious injuries and others, the resolution in fact represents your first opportunity to plead guilty and I consider your plea to be at an early stage. Your plea has utilitarian value in saving the Court the time and expense of contested proceedings and importantly the need for Mr Lichtstein particularly, as well as other witnesses, from having to give evidence.
30Your plea of guilty has additional value at this time in the context of the COVID-19 pandemic as it provides certainty and finality to all parties in circumstances where the Courts operations have been disrupted and many trial dates remain unfixed. The Court of Appeal has made it clear to this Court of the need for that additional discount. I accept that you have expressed some remorse for your actions.
31I take all of these factors into account in your favour.
Personal circumstances
32I now turn to your personal circumstances.
33You are now aged 28 years. You were born in Albania. You have an older brother, Eringerto, known as Eri, whom is four years older and a younger sister Antonia, whom is three years younger. In 1998, when you were aged six years, your parents migrated to Italy in circumstances where they were fleeing the Albanian Civil War. This was a difficult transition due to both language and cultural barriers and you observed your parents to have significant adjustment issues.
34Your father worked as a plumber and electrician and your mother began working once you and your siblings were in school in Italy. Your father was an abuser of alcohol and was often physically violent to your mother and siblings. Your home life became one of instability and fear and you were reluctant to spend time at home.
35Your family was not wealthy and you left your schooling in Italy to provide additional financial support. You left home at 17 years of age. You moved to Sweden when you were 20 years old and lived there for three years before moving to Australia on a working holiday. You met your partner, Mimi Fossburg, in Sweden and she came to Australia with you. The relationship has not survived your incarceration and Ms Fossburg has returned to Sweden, although I am told today that you do remain in touch.
36Your brother came to Australia approximately five months before you and you have a stable and supportive relationship with him. Eri has provided a reference dated 1 September 2022. He is aware of your offending and describes it as very far from the person who is before the Court. He has never known you to be violent. Eri describes you as a lover of life, community and people, and that you leave a positive impact on the lives of others. He also speaks of your remorse. I have taken the reference into account.
37
During your time in Australia you have worked in hospitality as a temporary chef and as a waiter> You have also worked as an Italian teacher for the
St James of Apostle Primary School. Numerous letters have been tendered from your students and other teachers thanking you for your work with them and wishing you well into the future.
Rehabilitation
38As a direct consequence for your offending, you have spent now some 414 days in custody, not including today. Your brother has remained a support and your parents are aware of your offending and have been in regular contact which is no mean feat given they still remain in Italy.
39Your time in custody has been during the Corrections response to the COVID-19 pandemic. In general terms, this has involved quarantine upon reception to any prison, periods of lockdown within the prison, less access to therapeutic and educational programs and less access to personal visits. This, in my view, makes the remanded and sentenced prisoner experience more burdensome than it would otherwise be and I take this into account in a general sense.
40
You have tried to use your time wisely and have managed to complete two drug rehabilitation courses whilst in custody, certificates supporting this were tendered. I accept that there has been considerable sanction and deterrence to date in the
414 days you have already served. This is in the context of you having no prior convictions, the resolution that was ultimately reached to much less serious offences than those with which you were initially charged, and your concern about your deportation to which I will shortly refer.
41In the circumstances, specific deterrence and protection of the community have a limited role to play in the sentencing exercise.
Deportation
42You are not an Australian citizen. You have received communications from Australian Border Force, dated 5 October 2021, that you do not hold a visa and that you will be kept in immigration detention on any release from the custody of Corrections Victoria until you are removed from Australia. This determination pre-dates your resolution of the charges. I do not know the basis of a decision made by Australian Border Force.
43In Guden v R 2010 28 VR 288 at 294, the Court of Appeal said, and I quote,
'The fact that an offender will serve his or her term of imprisonment in expectation of being deported following release may well mean that the burden of imprisonment will be greater for that person than for someone who faces no such risk.'
44This of course depends on the personal circumstances of the offender. In your particular case I am told you are an Italian citizen and your any return will be to Italy. Your parents and sister still reside there and obviously you lived there between the ages of six years until you were 20 years of age. Whilst it could not necessarily be said that you have not made your life in Australia, your closest family relationship is with your brother and he and his partner do reside here. I have been told you have resigned yourself to returning to Italy. Nevertheless, I accept the burden of imprisonment is heavier on you than a prisoner who does not face such a risk and that this is an additional source of stress for you.
Expert report
45Tendered on your behalf was a psychological report dated 31 August 2022, authored by Mathew Staios, Clinical Neuropsychologist. In that document he sets out much of your personal history. In Mr Staios's opinion you meet the criteria for cannabis and stimulant use disorder in early remission in the context of being in a controlled environment, that is your remand.
46Your psychosocial and developmental history has been characterised by your unstable early childhood in the context of immigration to a foreign country with your parents as refugees and where they experienced significant adjustment issues and unresolved trauma after escaping Albania. Your family life was one characterised by your father's alcoholism and violence which resulted in your unhealthy attachment style, fear and emotional instability. This has led to excessive substance use as a means of escapism.
47Your counsel does not call into your aid the principles of the R v Verdins and Ors [2007] 16 VR 269.
48Illicit drugs have been part of your life since you were a teenager. You have been a habitual user of cannabis since the age of 17 years and came to use stimulants in your adulthood. You were using both cannabis and stimulants regularly at the time of your offending. It is undoubtedly your use of drugs which has caused you trouble in terms of where you would otherwise want to be in your life and is undoubtedly part of the milieu in which you were mixing at the time of your offending. It is the only impediment to your otherwise good prospects for rehabilitation.
49Mr Staios sees protective factors in you having a lack of offence history, stable accommodation, stable employment, and family support through your brother. You are willing to engage in treatment and, importantly, you have commenced that process whilst in prison.
Sentencing
50I will make the ancillary orders as sought for the forfeiture of the cash seized and invite the parties to resolve the disposal order, at which time once an agreement is reached, that document will also be signed.
51Now, I am about to turn to the sentencing exercise. Any matters that cause counsel any concern?
52MR NORRIS: Just for pre-sentence detention, I believe you stated 414.
53HER HONOUR: I did.
54MR NORRIS: It should be 415.
55HER HONOUR: I said 414 not including today is that - - -
56MR NORRIS: It's 415, not including today.
57HER HONOUR: All right. Well where I've referenced 414 I'll amend that to 415, thank you Mr Norris. Anything from your end Mr McQuillan?
58MR McQUILLAN: Nothing, Your Honour, thank you.
59HER HONOUR: All right.
60The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. In sentencing you I do have to have regard to a range of matters which include the seriousness of the offending, your culpability for it, your personal circumstances and those of your victim.
61I am also required to balance the interest of the community in denouncing criminal conduct, with the interest of the community in seeking to ensure, where possible, that offenders are rehabilitated and reintegrated into society.
62I have taken into account the sentencing guidelines and to s5 of the Sentencing Act where relevant to your case. I have taken into account the current sentencing practices for the offences to which you have pleaded guilty as well as the important principles of totality, proportionality and parsimony.
63In terms of the summary charge of trespass, you are convicted and discharged.
64On the summary charge of possess proceeds of crime you are convicted and fined the amount of $1,000.
65On charges 4 and 5, you are also convicted and discharged. They relate to the Ketamine and Lysergic Acid.
66On charge 3, you are convicted and fined the amount of $750.
67On charge 6, using a false document, that is an offence completely separate from your other offending and the first in time and, if dealt with in isolation, unlikely to have attracted a term of imprisonment. I therefore propose to convict you and fine you the amount of $1700, reflecting the quality of the documents but otherwise being in ignorance as to their use, of course, it is their use with which you are charged.
68On charge 1, trafficking in a drug of dependence as indicated, I find that to be relatively low level, if not at the lowest level, you are convicted and fined the amount of $750.
69
On charge 2, intentionally cause injury, you are convicted and sentenced to
10 months imprisonment, that is in effect the term of imprisonment overall. I reckon 415 days as having already been served.
70Section 6AAA of the Sentencing Act requires me to state the sentence I would have imposed had you not pleaded guilty to the charges. If not for your pleas of guilty, you would have been sentenced to a total effective sentence of 16 months imprisonment with a minimum of 10 months imprisonment before being eligible for parole.
71Any questions, queries or matters arising?
72MS McQUILLAN: Not from me, Your Honour, thank you.
73MR NORRIS: Not from me, Your Honour, as the court pleases.
74HER HONOUR: All right. Well I'll leave the two of you to sort out the schedule to the disposal order. If it remains as it is, it remains as it is, but I just want you to turn your attention to that and if you reach an agreement I'll deal with it in chambers.
75MR McQUILLAN: Thank you, Your Honour.
76HER HONOUR: All right, otherwise I thank you both for your assistance. I'll close the court until 9 am on Monday and leave you to speak privately with your client should you wish to do so, Mr McQuillan.
77MR McQUILLAN: I appreciate that Your Honour, thank you.
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