Director of Public Prosecutions v Puglisi

[2017] VCC 1777

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-01069

DIRECTOR OF PUBLIC PROSECUTIONS

v

ETHAN PUGLISI

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	27 November 2017
CASE MAY BE CITED AS:	DPP v Puglisi
MEDIUM NEUTRAL CITATION:	[2017] VCC 1777

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	Mr N. Tehan	The Office Of Public Prosecutions
For the Accused	Ms H. Bate	Slades & Parsons

HIS HONOUR:

1Ethan William Sovanovic Puglisi, you have pleaded guilty to one charge of aggravated burglary; one charge of causing injury intentionally, and one charge of committing an indictable offence whilst on bail.

2The maximum penalties for those crimes are 25 years, ten years, and three months respectively.  You pleaded guilty at an early stage, and you made admissions.  You were 18 at the time of the offending, and you are now only 19.  You have now been in custody for something approaching nine months, and this is your first time in adult gaol.

3You do have significant prior convictions and findings of guilt, but they relate mainly to the Children's Court, and sentences of being detained in a Youth Justice Centre.  You must get the benefit of that early plea of guilty, and whilst remorse is problematic, you certainly must get the utilitarian benefit of it, and I take those matters into account.

4A summary of the offending is that in March of this year, you were in the rear seat of a motor vehicle, with a Ms Peroni. You pulled up at an address where her partner had their child.  She wanted to get the child, it was said she could not, and was to come back later.

5You went back to the car and then went back to the victim's house, and he answered the door.  There was yelling between him and Peroni.  At that point, one Hosking had got out of the car and yelled at the victim something about him "being on the gear again", which he has yelled back at Hosking something about her being "14 years old and pregnant".  The victim then closed the front door.

6At that point, you have gotten out the back of the car and raced towards the front door.  You yelled "You have three seconds to open the door".  You were wearing a black hat, sunglasses and a black bum bag.  You counted to three before kicking the front door open and entering with a small orange and black-handled axe, approximately 15 centimetres in length, a photograph of which I have seen.

7You walked through the front door and up to the victim.  You said "What did you say about my girlfriend", and "You're dead cunt, Jake is coming here to kill you".  He said "Who's Jake?", and then a scuffling started between the two of you, and you hit him on the head - on the back of the head at least, numerous times with that small axe.  He says he started to see stars.

8There were children present, which of course aggravates the offending, and they were frightened.  The fight went outside and you continued to hit him with the axe while he attempted to duck and weave.  That gives rise to the charge of causing injury intentionally, and it is the entering the premises with the small axe that gives rise to the charge of aggravated burglary.

9In any event, the victim ran back inside the house.  You then continued to make threats, for which you are not charged, and ultimately left.  When interviewed by police, you basically agreed that there had been a confrontation, and that you had hit him with that axe.

10He was examined by a Dr Brain, who found the following injuries:  deep six-millimetre lacerations to the back of the head, incision to the forehead, laceration below the right eye, deep occipital incision, two smaller scalp incisions.  Each of those required sutures, as I understand it, except perhaps the last one.

11You have got, as I say, priors, and it is a pretty serious example of an aggravated burglary.  I think also you are probably pretty lucky that you are in this jurisdiction and not elsewhere.  Repeatedly hitting someone around the axe, no matter how small, has to be regarded as serious.  It calls for the application of general and specific deterrence, denunciation and appropriate punishment.  A period of detention in custody is, in my view, clearly inevitable.

12I, originally because of your age and your lack of adult custody previously, had you assessed to see whether you were suitable for Youth Justice.  They have said you are not.  I am not going to fly in the face of that, as the reality is that were I to give you a Youth Justice sentence, you would be returned pretty much immediately, I would have thought, to the adult system in any event.

13I then look to matters personal to you in the terms of determining the length of sentence.  Unfortunately, it has to be reviewed in the light of this being a serious example of aggravated burglary, and a serious intentional injury.

14I have before me a Children's Court report from 2012, a report from psychologist Ms Lofthouse, and two references.  One from Mr Hosking, saying there is work available to you upon your ultimate release, and one from your mother.

15Your background is set out in those reports, and I do not think in this situation I have to go into massive detail.  You are now 19, being 18 at the time.  I accept this commendable summary, if I might say so, of your counsel that you were exposed to chronic physical abuse as a young child.  You were a victim of violence from the hands of parents from a young age.  You have suffered and were exposed to significant drug abuse and neglect in your formative years.

16The situation was that you were placed into care in December of 2005 aged about seven.  I do not think anybody has ever been helped by that.  Since 2005, apart from being placed with a foster family, between April 2009 and 2011 and two short periods of detention, you spent the remainder of your childhood in DHS residential care.

17You were smoking cannabis by ten, methamphetamine by 15.  You have been abused in a number of ways, and I do not need to go into all that, but I take it clearly into account.  You are virtually illiterate, and have a very poor educational history.  You are prone to paranoid thinking, and your assault in this situation was clearly borne by frustration and a lack of perception of consequence also appears to be clear when looking at this prior history - an anger component.  I do not again have to go through all the reports that are before me.  I think it is probably sufficient just to mention one thing from the report of Jane Lofthouse, that your test scores would suggest that you have a mild to moderate intellectual impairment, a significant deficit in verbal abstract reasoning and verbal learning, which were most likely present at the time of the offending.  She points out that they do not fully explain the longstanding nature of your offending, but executive dysfunction is probably a significant factor, and I think that has to be right in terms of moral culpability. 

18I am well aware of the decision of Bugmy, and it is a situation where it is going to be difficult for you to escape from that background, and I would much rather have put you in the Youth Justice environment, but unfortunately I am not able to do that.

19Were you 30 years of age, I think that the sentence I am about to impose would have been far greater than it is now.  But I am well aware of the matters outlined in the Court of Appeal in the matter of Toumngeun, where the President acknowledged a couple of matters from DPP v Leech:

"It is particularly important this court should not devalue or deny the right of a sentencing judge to act mercifully in a case where it seems to the judge to be an instance where an opportunity for reformation of an offender ought be granted, and after all make a decision which rebounds very much to the benefit of the community".

20The President himself said in DPP v Tokaba:

"A sentencing judge should be astute to investigate whether a non-custodial disposition is to be preferred, even in the case of a serious offence, that in the long term the community's interests will be best served by that course.  This course should seek the public understanding of the fact that apart from the interest of the individual and the sort to rehabilitate, an important interest in itself, there is a vital community interest in maximising the prospects of rehabilitation of an individual who has been convicted of a serious crime.".

21I am also fully aware of the decision in Boulton and the myriad of decisions that have flowed from, and as a consequence, of that decision.  At 19, you can still get out of all this.  It is not going to be easy, but I think that the prospects of your rehabilitation should be good if you can get control over anger and the like.  If you can do that, the risk of you reoffending should be low.  If you on your ultimate release reoffend in this way, you are going to have reached an age where some judge, if not me, is going to give you a very serious sentence indeed.

22Originally I intended to give you a head sentence with a non-parole period.  This morning is was pointed out to me that since the decision of Younger, it has now returned to position where a judge can, by not declaring time served, impose a sentence which in his or view is of greater benefit to everybody, and then can be followed by a community corrections order.

23You have now done - I wrote that down, how many days has he done?  You have now done 267 days in adult custody.  In the sentence that I impose, I am not going to declare that time as presentence detention.  It will enable me to give you the disposition of a community corrections order, and the therapeutic benefits of that, together with the punishment involved in it, which will involve attending appointments and generally a disruption of your life. 

24Whether you can comply with it is another matter.  But I think in all the circumstances, from a judge's point of view, and the community's point of view, it is certainly worth a try.

25Accordingly, you are sentenced to be imprisoned on Charge 1 for a period of two years, on Charge 2, two years.  On Charge 3 - sorry, the summary matter, one month to be served concurrently.

26I direct that nine months of the charge - of the sentence on Charge 2 be served cumulatively on the sentence of charge - sorry, I was about to give you a non-parole period.  Should have written it out again, should I not?

27Right, that is what I wouldn’t have done, so you know that now.  What we will do - I will give you an aggregate on one and two of nine months, one month on the summary matter, concurrent.  To be followed by a community corrections order of two years with the conditions that are outlined.  That is, treatment for drug, treatment for - programs to reduce reoffending, anger management, and supervision.  That will be with conviction, and it will be for a period, as I said, of two years.

28If you agree to sign that, I will say that but for your plea of guilty, you would have received a sentence of four with a three.  And I direct that there be no pre-sentence detention for the reasons I have outlined.  I think I have to. 

29COUNSEL:  As Your Honour pleases.

30HIS HONOUR:  Probably the only other thing when I revise it, I will put in that he has full time work available to him upon his release, which is an important factor in his situation.  But that will be - as I say, just revise that back into the body of the sentence.  Right, nothing else I need to do?

31MS BATE:  No, Your Honour ‑ ‑ ‑

32HIS HONOUR:  There was a disposal, I think I signed that last time?

33MS BATE:  Yes Your Honour.

34HIS HONOUR:  Yes, that is all right.

35MS BATE:  Nothing outstanding from the Crown's perspective, Your Honour.

36HIS HONOUR:  No, all right.  Well just stand up for a second for me, Mr Puglisi.  You have got the chance of doing this, right?  You know yourself you could have killed that bloke.  Pull a stunt like this again, you will probably end up with a six with a four, or seven with a five, something like that.  Fair enough?

37OFFENDER:  Yes Your Honour.

38HIS HONOUR:  All right. 

39OFFENDER:  Thank you very much Your Honour.

40HIS HONOUR:  Yes, take him down, thank you.  All right, thanks Ms Bate, Mr Tehan.