Director of Public Prosecutions v Rigoli
[2019] VCC 1191
•2 August 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE | Revised Not Restricted Suitable for Publication |
GENERAL LIST
CR 19-00065
Indictment No. J12741227
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| VINCE RIGOLI |
---
| JUDGE: | HIS HONOUR JUDGE HIGHAM |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 16 May 2019 |
| DATE OF SENTENCE: | 2 August 2019 |
| CASE MAY BE CITED AS: | DPP v RIGOLI |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 1191 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – dangerous driving whilst under police pursuit – attempted
carjacking – reckless conduct that may have placed persons in danger
of serious injury – burglary - plea of guilty
Legislation Cited: Crimes Act 1958 (Vic), ss 319AA( 1), 23, 74, 76, 79, 321M
Cases Cited: R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269; Butler v The
Queen [2019] VSCA 132
Sentence: Total effective sentence of 3 years’ imprisonment with a non-parole
period of 18 months’ imprisonment
Section 6AAA declaration: 5 years’ imprisonment with a non-parole
period of 3 years and 9 months---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms C Duckett | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr T Sawyer | Valos Black and Associates |
HIS HONOUR:
1Vince Rigoli, you have pleaded guilty to two charges of theft (Charges 1 and 3) and one charge of burglary (Charge 2), for each of which the maximum penalty is a term of imprisonment of ten years.
2You have also pleaded guilty to one charge of dangerous driving whilst under police pursuit (Charge 4) for which the maximum penalty is a term of imprisonment of three years; one charge of reckless conduct endangering serious injury (Charge 5) for which the maximum penalty is a term of imprisonment of five years and one charge of attempted carjacking (Charge 6) for which the maximum penalty is a term of imprisonment of ten years.
3You have also pleaded guilty to Summary Charge 4, failing to stop a motor vehicle on request, maximum penalty of five penalty units and to Summary Charge 9, failing to render assistance after an accident, maximum penalty 80 penalty units, or eight months' imprisonment.
4Tendered on the plea as exhibit 1 was a Summary of Prosecution Opening and I annex a copy of that document to and incorporate that document in these sentencing reasons.
5In brief, the circumstances of your offending were as follows. At 9:19pm on
17 October 2018, in Campbellfield, you broke into the premises of Bayford Ford, a company from where you had been dismissed two weeks earlier, and ransacked the office area (Charge 2). Your forced entry had triggered a silent alarm, drawing the attention of a security guard. You were then observed driving away from the premises in a Ford Falcon sedan. This was a vehicle on which you had been carrying out mechanical repairs. This unauthorised use underpins Charge 1.6The security guard then called police and two police officers arrived shortly thereafter. Another police vehicle attempted to intercept you, but you drove away at a fast rate of speed, failing to stop on police direction (this is Summary Charge 4).
7Yet another police vehicle attempted to intercept you. You failed to stop on police direction. You then drove at a speed of 140 kilometres an hour in an 80 kilometre speed limit zone, before heading towards the Hume Freeway entrance, where you overtook six vehicles waiting to enter the freeway at a red traffic light. With police vehicles in pursuit, you accelerated through the red traffic signal and onto the freeway, where your vehicle accelerated to speeds of between 140 and 150 kilometres per hour (Charge 4).
8You exited the Hume Freeway and entered the Metropolitan Ring Road, still driving at high speed and still with two police vehicles behind you. At the Edgars Road exit, you came off the freeway and accelerated through red traffic signals. You directly collided with the side of a red Dodge SUV. The force of impact pushed the Dodge across the adjacent lane and into a traffic signal. The vehicle was driven by Mr Edmond Babatunde. His five year old daughter Grace was seated in the rear passenger seat. This is Charge 5. Grace was taken to hospital, but was released the following morning.
9You failed to render any assistance and this is Summary Charge 9. Instead, you got out of your vehicle and ran towards a red Mazda, being driven by
Ms Caley, who at the time was 31 weeks pregnant. You opened her door, which she, in her panic, had been unable to lock, and repeatedly yelled: 'Get out of the car.' This is Charge 6.10Seeing police officers approaching, you ran away from Ms Caley's vehicle towards another vehicle. Police officers caught up with you and you were arrested. The search of your vehicle revealed numerous boxes with Ford car parts, computer monitors, hard drives, toolkits, a laptop and two computer towers, as well as other property. The theft of this property from Ford Motor Company is Charge 3, theft. All of the property was returned to the company.
11The following day, you participated in a record of interview, where you made partial admissions to the offending. A blood analysis confirmed the presence of methamphetamine in your system at the time of your offending. You pleaded guilty to the charges on the Indictment and related summary offences at the first opportunity, which was a committal mention on 16 January 2019.
12I turn now to your personal circumstances.
13You were born on 23 August 1991 and are 27 years old. You were born in Sydney. You have an older sister, aged 29 and a younger brother, aged 22. Your parents separated when you were five and although they briefly reconciled at times, you were predominantly raised by your mother, whom you describe as a strong support. It seems, from other material, that at first you blamed your mother for your parents' separation, but you do so no longer. Your relationship with your father is more complicated.
14You were disengaged at school and felt you did not need to focus on schoolwork, because of your desire to be a motor mechanic. You enjoyed a wide circle of friends. After leaving school at age 16, you secured a mechanical pre-apprenticeship. You then obtained an apprenticeship at Bayford Ford, before owning and operating your own mechanics workshop. The consumer demand for your workshop exceeded what you could provide and you did not have enough staff to assist you.
15Ultimately your business ceased operating in April 2018, at which point you returned to Bayford full time and continued doing private work from your house outside of business hours. Your employment was terminated two weeks prior to your offending. You attribute to your termination conflict with your supervisor and to the deterioration of your mental state, impacting your work attendance and performance.
16You state that you do not have any issues with alcohol abuse. You have occasionally used cocaine since your early twenties and you had been using methamphetamine in the year or so leading up to the offending. Whilst you report that you have been dealing with depression and low self-esteem for a considerable period of time, you have never engaged with mental health services. You have no prior or subsequent convictions.
17Tendered on the plea as part of exhibit 4VR, was a bundle of references from your family and friends, most of whom are in Court today. All of them speak of your character and your work ethic and to your expression of remorse and shame for this offending. Your sister Christina gave evidence at the plea hearing, in addition to providing a statement to the court. It seems that your business had begun to suffer due to your inability to say no to people and to people not paying you. You borrowed money from your immediate family to try and keep the business afloat, but this only added to your stress and your sense of being overwhelmed.
18Your sister spoke of occasions when she would go to the family home and find you in bed, obviously not coping. She urged you to seek help. She was aware that you were worried by the debts you had incurred through your business, both to immediate family and to suppliers. Despite her close relationship and many conversations with you, she was unaware of your methamphetamine use. She watched you withdraw and she clearly feels some responsibility, if not guilt, for failing to intervene. There is no doubt that your offending has had an enormous impact upon all of your family.
19Also tendered as part of exhibit 4VR was a report from Ms Carla Ferrari, consultant psychologist, dated 13 May 2019. Ms Ferrari conducted one video interview with you on 13 May 2019. At paragraph 41, she notes that you describe in your history a number of psychosocial stressors, which have led to deterioration in your mental state and functioning over the prior 12 months, resulting in the offending behaviour. Ms Ferrari states at paragraph 66:
'Mr Rigoli appears to meet the criteria for a persistent depressive disorder, on account of his chronic depressive symptoms and low self-esteem.'
She notes your use of cocaine and/or methamphetamine to moderate your symptoms, although such use was not problematic and never for extended periods.
20At paragraph 61, she states:
'Mr Rigoli felt that since being in custody, his mood and anxiety have somewhat improved, as he has had time to himself, to reflect, to process and to consider that he cannot control everything and has developed some acceptance around this, that it will not have disastrous consequences.'
21In Ms Ferrari's view, you learned early in life to suppress your feelings by becoming immersed in your work. You sought self-esteem and identity by success in that field. When you found yourself unable to cope with the demands of your business, you became overwhelmed. One response was to close your business and to go back to your former employer. On your self-report, your mental state gradually worsened from this time.
22You were rehired by the same company that had given you your apprenticeship. Whilst in paid employment with them, you continued to work obsessively, it seems to me, for private clients, staying up for days on end in an attempt to complete unrealistic work targets that you had set for yourself and using methamphetamines to stay awake. You would then sleep for a couple of days, missing days at work. Not surprisingly, this led to your termination two weeks prior to this offending.
23At paragraph 52, Ms Ferrari states:
'He reported that he found it difficult to adjust from running his own business to answering to management as an employee again, resulting in conflict with his supervisors. He also instructed that his diminished mental state and functioning was severely impacting his performance. He was not always punctual, would often fail to attend work and his productivity was not at his usual level.'
24Again, at paragraph 69, she states:
'It is clear that Mr Rigoli was under significant stress at the time of offending and this would have led to deficits in his insight, judgement, decision-making and his ability to rationalise or properly weigh up the consequences to his actions. Underlying this was a chronic history of depressive symptoms, which he had never sought treatment for and had used his career to avoid having to deal with. Additionally, Mr Rigoli admitted to use of substances periodically during this period as a way of increasing his energy and motivation to ensure he met demands, given his deteriorated mental state.'
25She identified no evidence of mania, psychotic symptoms, nor any entrenched personality disorder. She assessed you as a low risk of reoffending and I accept that assessment. In an addendum report, apparently of the same date, Ms Ferrari was expressly asked to consider whether the principles in the well-known case of Verdins[1] are applicable. Mr Rigoli, I rely upon Mr Sawyer to explain what those well-known principles are in due course, both to you and to your family.
[1]R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269
26Her answer to that question was:
'It is my professional opinion that some of the principles of Verdins appear to be applicable in Mr Rigoli's case. He was experiencing severe mental health issues.'
I take that to be a reference to your depression.
She continued:
'The severity of his depression in the lead-up to the offences significantly impacted his functioning and would have affected his cognitive functioning, ability to exercise appropriate judgment, make calm and rational choices and to consider his actions and their consequences during an extended period of emotional turmoil and under stress. This is evidenced by
Mr Rigoli's pre-morbid functioning. He had never engaged in antisocial behaviour previously, even under periods of significant stress operating his own business. It is therefore considered that its oppressive symptoms were a causal factor in the current offending.'
If I may make this observation, that seems to be an exercise in bootstraps reasoning, if ever I encountered one. However, at paragraph 13, she continued:
'On the subject of deterrence, an individual with severe mental health issues is an inappropriate vehicle for deterrence as a whole, particularly as the illness was operational prior to and during the offending.'
She also expressed concern that your condition might worsen in prison, absent suitable and uninterrupted therapeutic provision. In these terms:
'There is a potential Mr Rigoli's mental state may be worsened in custody if his issues are left unresolved, due to factors such as transfers to another prison, availability of regular sessions whilst in custody, or the potential that he may be released prior to treatment being finalised.'
As to the burden of prison upon you, she states:
'Whilst Mr Rigoli is not particularly distressed in custody, he continues to experience depressive symptoms, which are perhaps worsened, given that he's a first time offender, he's naïve in the prison environment and has tended to isolate himself from others, for fear of becoming involved with an antisocial circle of influence, which he wishes to avoid. There is limited capacity for treatment and support. Individuals with mental health issues, regardless of their severity, often experience prison as more onerous than the average offender.'
27I understood her to be saying that principles 5 and 6 of Verdins were engaged.
28Ms Ferrari was not called by the defence on the plea to give evidence in support of her opinion and thus I was provided with no assistance at all as to why, other than from a sense of grievance and a sense of resentment, you should have chosen to burgle the premises of your former employer, which is where this sorry state of affairs begin, returning to the venue, once you had petrol in your car and then stealing a large amount of valuable equipment.
29Indeed, on this matter, Ms Ferrari was completely silent. Nor does she explain how her opinion was qualified, if at all, by your substance abuse, on your report, three days prior to the offending and reflected in the toxicology report. At paragraph 33 of the main report, she stated:
'The use of substances three days prior to the offending perpetuates and can exacerbate impulsive, disinhibited and reckless behaviour, particularly in the context of sleep deprivation, which further impacts judgment and behaviour. These factors increase Mr Rigoli's potential to engage in criminal misconduct'
30In relation to the unanswered questions that Ms Ferrari's report posed, I ordered a Forensicare report to gain further assistance. Exhibit 6 was a report from Professor Daffern, dated 24 July 2019. That report reiterated your personal narrative, placing greater emphasis on your sense of rejection when your brother did not wish to come and work with you. So in that regard, it gave me some further clarity.
31Significantly, Professor Daffern reports an account of the offending from you, was unpersuasive and indicated your continuing offence minimisation, your lack of insight into the impact of your crimes upon others and your belief that you are not meant to be in prison and inferentially, do not belong there. Now, I make clear, I am making no adverse findings in that regard.
32As to your depression, Professor Daffern writes:
'His depression may well have contributed to his earlier difficulties with employment and led to impaired psychological and social functioning and an escalation in his substance abuse. However, in my opinion, it was his amphetamine withdrawal symptoms, including sleep deprivation and exaggerated irritability that impacted his judgment and ultimately his offending behaviour more so than his depression. It does not appear that his depression has worsened as a consequence of his incarceration, being in prison and on this basis, I do not believe that his depression is likely to worsen, unless he received a significantly longer sentence, which may cause him to worry about the future prospects.'
33I turn now to the submissions of your counsel. Mr Sawyer submitted in reliance upon Ms Ferrari's report, in general terms, that the principles 1 to 4 of Verdins were engaged. In the course of the plea, I understood Mr Sawyer not to maintain that submission. He accepted there was no sufficient connection established between your depression and the offending, but relied upon your chronic depression and a sense of being overwhelmed by events, as reducing, to some extent, your moral culpability.
34Mr Sawyer urged upon me your plea, which I accept was entered at the first opportunity possible. This plea, he submitted, should be regarded not only as an expression of your willingness to facilitate the course of justice but brings with it the utilitarian benefit of saving the community the time and the expense of a trial and saving the witnesses from the trauma of giving evidence. It is also an indication of your remorse. I accept that submission.
35Mr Sawyer pointed to your prior good character, your antecedents. He pointed to your general remorse, which you have demonstrated during your period on remand and your complete acceptance of responsibility for your actions. He submitted there were good prospects for your rehabilitation, having regard in particular to the continued family support that you enjoy, the opportunity for employment upon release and your prior history. His ultimate submission was that all of the above enabled a sentencing disposition combining a term of imprisonment with a Community Correction Order, with suitably punitive conditions. Now, I find myself unable to accept that submission.
36Ms Duckett for the prosecution accepted that this was your first time offending, but submitted that nonetheless, your offending was serious. Your driving placed other road users at a serious risk of injury and the attempted carjacking was an offence all too prevalent in our community, which calls for condign punishment. She submitted that the relevant sentencing principles in your case were general and specific deterrence and protection of the community and that the only appropriate disposition was a sentence of imprisonment with a non-parole period. She further submitted there should be some degree of cumulation, suitably moderated, having regard to the principle of totality.
37Mr Rigoli, it seemed to me that your need for an outward appearance of success, even though you were being overwhelmed by financial pressures, placed perhaps an intolerable pressure upon you. Unfortunately, you chose to hide all of this from your family. Your sister, who trained in the field of psychology and, it seems, a lifelong confidante of yours, urged you time and time again to get help. Your response was denial and to isolate further from your family, turning to drug use as a form of self-medication. In the process, you ran up further debts, which in turn only contributed to the pressure which you felt. It is this downward spiral that, it seems to me, is the background to your offending, but it cannot excuse it, as you well know.
38I give such weight as I can to your ongoing depression and your sense of failure, but I do not accept that there was a requisite direct causal connection between your depression and your offending. This offending, I recognise, encompassed a period of some 26 minutes. It remains unclear as to precisely why you determined to burgle the premises of your former employer, whether from resentment, or a misguided sense of having been wronged. I accept that you made a call to your sister, perhaps at that time, in a confused state of mind, not quite sure what it was that you intended. The burglary and theft was, as your counsel described, relatively unsophisticated, as you are only too well aware now. If only matters had stopped there.
39However, once you had attracted the attention of the police and were faced with the prospect of arrest, your actions were, I find, driven by a desire to avoid that arrest and in that sense, they were completely and self-evidently rational. In so reacting, you committed offences far more serious than the burglary and theft that you had just committed, which if they had stood alone, would have been dealt with in the Magistrates' Court.
40You left police officers in your wake as you drove at alarming speed through streets and red traffic signals, placing other road users at risk of serious injury. Being pursued by police, you refused to stop, driving through another red light and colliding with a stationary vehicle. Fortunately, the injuries to the five year old occupant of that vehicle were not serious and she was discharged from hospital the following day, with future pain management to be done at home.
41However, the gravity of reckless conduct lies in the risk, not in the outcome. Once having crashed your vehicle into the SUV, you did not offer any assistance at all, or enquire as to whether anyone in that vehicle had been injured. Instead, you fled. Indeed, still driven by your desire to avoid arrest, you attempted to take a vehicle of another road user, Ms Caley.
42Although she saw you coming, her panic was such that she was unable to lock the vehicle in time. You held open the door, demanding repeatedly that she get out of the car and Ms Caley, as you now know, was 31 weeks pregnant at the time. Now, such offending strikes at the heart of our community's sense of wellbeing and safety. People must feel safe in their vehicles, as they go about their daily business. Such offending was, in my view, utterly lawless and must be denounced. A firm message must go from this Court, to deter anyone contemplating such behaviour.
43As the Court of Appeal recently stated in the case of Butler v The Queen [2019] VSCA 132, at paragraph 42:
'Driving … putting the public in danger, so as to avoid facing the consequences of other criminal activity, is to be strongly condemned and severely punished. Furthermore, general deterrence is of prime importance in a case such as this. People tempted to drive recklessly and endanger the public in order to evade police, must know that when they are caught, they will receive stern punishment.'
44Those sentencing remarks clearly have direct application to your offending. In sentencing you, Mr Rigoli, I must have regard to a range of different factors. I must give effect to the principles of both general and specific deterrence. That is, I must deter others from behaving as you did and I must deter you from repeating such behaviour. I must express the community's denunciation of your conduct, to say we will not tolerate this, as a community, but I must also promote, if possible, your rehabilitation.
45I take into account the effect your crime has had upon your victims and I must have regard to current sentencing practices and to maximum penalties. In short, I must try and balance your personal circumstances with the circumstances of your offending. I am required to impose no longer sentence than is necessary in all of the circumstances of the case.
46Clearly, principles of general deterrence and specific deterrence, denunciation and protection of the community are the primary sentencing considerations in this case. I give full effect to all of the factors which have been urged upon me in your case so ably and persistently, if I may say so, in credit to him, by Mr Sawyer.
47I have had regard to your relative youth, age 27. Your plea of guilty, I accept, was entered at the earliest opportunity. I accept that you are remorseful for your actions. I accept your prior good character. I accept the ongoing depression and overwhelming sense of helplessness that you were experiencing at the time. I accept that and in my view, I am able to reduce, to some extent, your moral culpability for this offending. I have regard to the ongoing support of your family and your positive prospects for rehabilitation, if you are prepared to do work on it.
48I also have regard to the principle of totality, to your low risk of reoffending and that this is your first time in custody. Nonetheless, the objective gravity of your offending is such as to require a term of imprisonment with a non-parole period. Can I make it clear, Mr Rigoli, that I have significantly moderated orders for cumulation that I would otherwise have passed and I have fixed a far shorter non-parole period than I would otherwise have done, so that should you get parole, you will be able to work on your rehabilitation within a supported framework.
49Could you stand up please, Mr Rigoli?
50On Charge 1, theft, you are sentenced to a term of imprisonment of three (3) months, with your licence cancelled and disqualified for two (2) years. That is, you are disqualified from applying for another one.
51On Charge 2, burglary, you are sentenced to a term of imprisonment of nine (9) months.
52On Charge 3, theft, you are sentenced to a term of imprisonment of nine (9) months.
53On Charge 4, dangerous driving whilst under police pursuit, you are sentenced to a term of imprisonment of sixteen (16) months and your licence is cancelled and you are disqualified for a period of two (2) years from obtaining another.
54On Charge 5, reckless conduct endangering serious injury, you are sentenced to a term of imprisonment of two (2) years and two (2) months.
55On Charge 6, attempted carjacking, you are sentenced to a term of imprisonment of twenty-one (21) months.
56On Summary Charge 4, failing to stop a motor vehicle on request, you are convicted and discharged. Summary Charge 9, failing to render assistance after an accident, you are sentenced to a term of imprisonment of three (3) months.
57I order that two (2) months of the sentence on Charge 2, two (2) months of the sentence on Charge 3, three (3) months of the sentence on Charge 4 and three (3) months of the sentence on Charge 6, run cumulative to each other and to the sentence on Charge 5.
58This makes a total effective sentence of three (3) years and I am directing that you must serve a period of eighteen (18) months before you are eligible for parole.
59Pursuant to section 6AAA Sentencing Act 1991 (Vic), had you pleaded not guilty, you would have been sentenced to a total effective sentence of five (5) years, with a non-parole period of three (3) years and nine (9) months. Pursuant to s18(4) Sentencing Act 1991 (Vic), I declare that you have served 289 days of the sentence I have passed upon you and I direct that this be entered into the records of the court. Mr Sawyer, can I ask again, are there any custody management issues?
60MR SAWYER: No Your Honour.
61HIS HONOUR: No. You're content? Mr Rigoli, are you receiving any medication at the moment?
62OFFENDER: No.
63MR SAWYER: No.
64HIS HONOUR: None at all?
65MR SAWYER: No.
66HIS HONOUR: All right. Now, Mr Rigoli, I emphasise again that I have fixed a low non-parole period, 50 per cent of - just under 50 per cent. Parole is not a matter for me, but should you get parole, that will enable you to work on the areas that clearly you need to do so, but within a supported environment, all right? You should also note, however, that by my calculations, should you get parole, you will come out and not be able to drive. Should you drive your vehicle unlicensed that will be breaching your parole and the parole board would take, I am sure, a very dim view of it. So, it will be an opportunity for you to come to get to know the wonders of public transport.
67MS DUCKETT: The only order that was sought was that of ‑ ‑ ‑
68HIS HONOUR: Now, 464ZF, I'm going to make that order.
69MS DUCKETT: Thank you.
70HIS HONOUR: I'll just print one off. I'm also making an order permitting police to take a forensic sample from you. Now, that's effectively just a buccal swab, Mr Rigoli. So when officers attend to take the swab, should you not provide it and I'm sure there's not going to - there won't be any issue in that regard, they are entitled to use such force as is reasonably necessary to take it from you, all right? One last observation. Mr Rigoli, you may not know it, but you are fortunate. You are loved and your family is here. This court deals with - please listen to me. This court deals ‑ ‑ ‑
71OFFENDER: I'd like to appeal anyway the sentence.
72HIS HONOUR: All right. Well, of course, that's probably not the time to be saying this. That's probably not the time to be saying this, but let me just say this. Let me just say this to you, Mr Rigoli. In fact, sit down.
73Now, I'm just, I'm going to ignore that observation. Perhaps not the most sensible one, because in olden days, the Judge might have thought: 'Oh, in that case, I'll increase the sentence that I've given.' Fortunately, these aren't the olden days and I've effectively passed it. What I was telling you, Mr Rigoli, it is entirely a matter for you, young man, whether you accept this or not, but you are fortunate, because you are loved and your family has been here throughout and they are still supporting you. Many young men that I have to deal with are abandoned. Their drug use has meant that their family has let them go and they are on their own, all right? So, hopefully, later, that message might get through to you and instead of thinking 'poor me', you'll be able to have an understanding of the riches that you have, all right? You can take him down. Now Ms Duckett, Mr Sawyer, thank you very much for your assistance.
74MR SAWYER: Your Honour pleases.
75HIS HONOUR: Anything else that I can do?
76MS DUCKETT: No, they're all the matters for this hearing.
77HIS HONOUR: All right. Both of you have a good day and to
Mr Rigoli's family, I thank you for the dignity that you have - with which you have conducted yourself. This is not easy. Clearly it's been a very devasting impact upon you. The Court's not blind to such things and so, have as good a day as you can and counsel, have a good day. I stand down.78MR SAWYER: As Your Honour pleases.
‑ ‑ ‑
2
2
0