Director of Public Prosecutions v Rossi
[2020] VCC 1293
•21 August 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No CR-19-01434
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| OSVALDO ANTHONY ROSSI |
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JUDGE: | HIS HONOUR JUDGE WRAIGHT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 August 2020 | |
DATE OF SENTENCE: | 21 August 2020 | |
CASE MAY BE CITED AS: | DPP v Rossi | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1293 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Plea of guilty – One charge of common law assault – One charge of carjacking – One charge of false imprisonment – One charge of theft – One charge of handle stolen goods – Offender on bail at time of offending – Extensive prior criminal and driving history – Prospects of rehabilitation assessed with caution – No evidence of remorse – Circumstances surrounding COVID-19 pandemic taken into account – Combination sentence pursuant to s 44 of the Sentencing Act 1991 not appropriate.
Legislation Cited: Crimes Act 1958; Road Safety Act 1986; Bail Act 1977; Sentencing Act 1991.
Sentence: Imprisonment for a period of 3 years, with a non-parole period of 2 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms F Livingstone Clark | Office of Public Prosecutions |
| For the Accused | Mr C Nikakis | Haines & Polites |
HIS HONOUR:
Introduction
Osvaldo Anthony Rossi, you have pleaded guilty to the following offences:
· One charge of common law assault, contrary to the common law, which carries a maximum penalty of five years imprisonment (Charge 1, which is a rolled up charge);
· One charge of carjacking, contrary to s 79 of the Crimes Act 1958, which carries a maximum penalty of 15 years imprisonment (Charge 2);
· One charge of false imprisonment contrary to the common law, which carries a maximum penalty of 10 years imprisonment (Charge 3);
· One charge of theft contrary to s 74 of the Crimes Act 1958, which carries a maximum penalty of 10 years imprisonment (Charge 4); and
· One charge of handle stolen goods contrary to s 88 of the Crimes Act 1958 which carries a maximum penalty of 15 years imprisonment (Charge 5).
You have also pleaded guilty to the following related summary charges:
· One charge of unlicensed driving, contrary to s 18(1)(a) of the Road Safety Act 1986 which carries a maximum penalty of 60 penalty units or six months imprisonment (Summary Charge 8); and
· One charge of commit indictable offence whilst on bail, contrary to s 30B of the Bail Act 1977 which carries a maximum penalty of 30 penalty units or three months imprisonment (Summary Charge 10).
You have admitted your prior criminal history.
Circumstances of the Offending
At the time of the offending you were aged 43 and living at an address in Newton Street, Thomastown with your son Sebastian Rossi and the victim in this matter, Kyle Blencowe. Mr Blencowe had been living at your address for approximately one month at the time of the offending.
You and Mr Blencowe had known each other for some time, and he was friends with your son.
On 16 December 2018, in addition to you, your son and Mr Blencowe, Chantelle Stanbury, Jasmine Maver, Matthew Andrews, Emmanuel Fraser, Melanie Johnson and Jake Duncan also stayed at your address.
On 17 December 2018, sometime between 9 am and 9.30 am, Mr Blencowe, Ms Johnson and Mr Andrews left your address. After dropping Ms Johnson at her home, Mr Blencowe and Mr Andrews travelled into the city.
At around 10.30 am, Mr Blencowe received calls on his phone via Facebook from Mr Fraser and Sebastian Rossi asking if he knew the whereabouts of
Ms Stanbury’s mobile phone. Mr Blencowe told them that he did not know.
Shortly after, you called Mr Blencowe’s phone at which time Mr Blencowe was driving and so Mr Andrews answered the call. You asked Mr Andrews if he knew where Ms Stanbury’s phone was. Mr Andrews said that he did not.
Later that afternoon, Mr Blencowe and Mr Andrews met up with Sebastian Rossi in Northcote and they all returned to your address sometime between 3.30 pm and 4 pm.
Mr Andrews arrived back at your address and went inside. Mr Blencowe and Sebastian Rossi stayed in the car listening to music. Mr Fraser and Mr Duncan came out to the car and asked Mr Blencowe again about Ms Stanbury’s phone. Mr Blencowe told them he did not know, and Mr Fraser and Mr Duncan went back inside.
Approximately 10 minutes later, you came outside and knocked on the car window and Mr Blencowe wound down the window. You said words like ‘turn the fucking ignition off, get out the fucking car and give me the key.’ As
Mr Blencowe went to get out of the car, you grabbed him and pulled him out of the car.
Mr Blencowe recovered his wallet from the door pocket and as he was putting it into his rear pants pocket, you grabbed it from his hand and threw it across the driveway, the contents spilling out of the wallet in the process.
You went back into the house and Mr Andrews then came outside.
Mr Blencowe and Mr Andrews got into an argument about the phone which resulted in them scuffling on the ground in the front yard.
At some point during the scuffle, Mr Blencowe and Mr Andrews were pulled apart by you. Mr Blencowe saw you holding two knives, approximately 20 cm in length with black handles approximately 10 cm in length. They looked like kitchen knives or machetes. Sebastian Rossi and Mr Fraser were also outside. You held Mr Blencowe in a headlock. It is these facts that form part of Charge 1, common law assault which is a rolled up charge.
As Mr Blencowe and Mr Andrews were being separated, you said words like ‘Both youse stop’ and ‘get the fuck off him.’ You then said ‘Kyle, get the fuck in the car’, and you were holding onto the two knives.
Mr Blencowe, Mr Andrews and you then got into Mr Blencowe’s car.
Mr Blencowe sat in the back, Mr Andrews sat in the front passenger seat and you sat in the driver’s seat. Mr Fraser also got into the car, sitting in the rear next to Mr Blencowe. You then reversed the car out of the driveway and drove away from your address.
Whilst travelling, you kept asking Mr Blencowe where the phone was, saying things like ‘where the fuck’s the phone’ and ‘there’s only one person telling the truth, and only one person lying. And the person lying is going to be in a lot of pain tonight.’ Mr Andrews directed you to an area in Coburg encompassing the 7-Eleven on Bell Street and an area of Murray Road. Mr Andrews told you that Mr Blencowe had ‘dumped’ Ms Stanbury’s phone there.
Somewhere along Murray Road a smashed phone was located on the ground. You then continued driving to the swimming pool on Murray Road Coburg and stopped in the car park. You then got out of the car, opened the back door and shouted words like ‘if you keep going, you are going to get cut.’ Mr Blencowe denied he had anything to do with Ms Stanbury’s phone.
You then produced a metallic cutthroat razor which belonged to Mr Blencowe and told Mr Blencowe to cut himself. You handed it to Mr Blencowe and again told him to cut himself with it. Mr Blencowe refused, closing the razor. You then grabbed Mr Blencowe, dragging him from the car and ripping his top. These facts also form part of Charge 1, common law assault and Charge 3, false imprisonment.
You told Mr Blencowe to change his ripped top and asked him if he had any drugs on him. Mr Blencowe told you he did not. Mr Blencowe emptied his pockets and you took $3 in coins. Mr Blencowe asked you to pop the boot of the car so he could get a new top. You popped the boot allowing Mr Blencowe to get a top, which he then put on.
You then said to Mr Blencowe words like ‘you have an hour and forty minutes to walk home’ and ‘I want to see you sweat motherfucker’ and ‘it would be silly to go to the police because I have your wallet and I will find out your mum and dad’s address and I will slaughter them.’ You then got back into the car and drove off. It is these facts that relate to Charge 2, carjacking and Charge 4, theft.
Mr Blencowe walked into the parklands nearby and asked several people if he could use their phone to call the police including witnesses Michelle Nisi and Santo Canci. Ms Nisi called police for Mr Blencowe and she and Mr Canci waited with him until police arrived. Whilst waiting for police to arrive,
Mr Blencowe told Ms Nisi and Mr Canci what had occurred.
After police arrived, Mr Blencowe was transported to Fawkner Police Station. Photographs were taken by police of Mr Blencowe and of the bruises and scratches on his back and shoulder.
On 20 December 2018 shortly before 2pm, First Constable Julian and Senior Constable Pert were conducting routine duties in the Thomastown area. First Constable Julian saw a grey/green Holden Commodore at the intersection of Huskisson Avenue and Kingsway Drive. The front of the car was bearing number plates that were identified as false. First Constable Julian saw two men in the front seat of the Holden Commodore. The driver was later identified as you. The passenger was later identified as your son Sebastian Rossi. It is these facts that relate to Summary Charge 8, unlicensed driving.
You looked at the police vehicle and then the car turned left bearing east on Kingsway Drive. First Constable Julian performed a U-turn and the Holden Commodore took off at a fast speed. Police followed as the Holden Commodore overtook four to five cars on the wrong side of the road but lost sight of it. Police drove around the vicinity of Avondale road and found the Holden Commodore parked, empty, outside a house on Teal Crescent, Lalor.
Police conducted a search on the VIN of the Holden Commodore and discovered it was reported as stolen. Senior Constable Corrigan and Constable Learmouth were searching the area around Teal Crescent and saw you and your son sitting on the brick fence outside 18 Columbia Drive. You were both arrested and transported to Mill Park Police Station.
Police searched you and located the car key belonging to Mr Blencowe and a wallet containing bank cards belonging to Ibrahim Zeneli. Enquiries showed that the bank cards were reported as stolen from a Thomastown address on
18 December 2018. Located inside Mr Blencowe’s stolen vehicle were a set of registration plates QYA216 which were also reported as stolen. It is these facts that relate to Charge 5, handle stolen goods.
You were interviewed by police and amongst other things, admitted to kicking Mr Blencowe when he was on the ground and telling him to get in the car. You stated that Mr Fraser was in the back of the car in case Mr Blencowe tried to jump out. You stated that you picked up Mr Blencowe’s phone from the backseat of the car and that his wallet was given to you by one of the young girls who picked it up from the ground out the front of your place. You stated that Mr Blencowe’s phone and wallet were on a desk in your room. In relation to the Holden Commodore, you stated that you bought it but that it was registered in Mr Blencowe’s name because you did not have a driver’s licence.
At around 5.30 pm police conducted a search of your Newton Street address and located in your bedroom a cutthroat razor matching the description given by Mr Blencowe.
At the time of the offending, you were on bail for an unrelated matter of possessing a prohibited weapon. It is these facts that relate to Summary Charge 10, commit indictable offence whilst on bail.
Nature and Gravity of the offending
In the circumstances, Charge 2, carjacking, represents the most serious charge on the indictment reflected by the maximum penalty of 15 years imprisonment and also because it has been classed as a category 2 offence reflecting Parliament’s intention that a sentence of imprisonment should ordinarily be imposed for offence of this type.
With the exception of Charge 5, the related charges on the indictment are also serious charges as they concern the same victim and represent a course of offending that would have been a terrifying experience for him. The seriousness of your offending is further elevated as at the time of the offending you were on bail.
Your offending was the consequence of you intervening in a dispute between the victim and other young people about a mobile phone. It was put on your behalf that this was an overreaction to this situation. That is clearly an understatement. You acted in an extreme, bizarre and frightening way. It was submitted on your behalf that your use of methylamphetamine at the time of the offending played a part in your violent behaviour. While this may provide an explanation, it does not excuse your conduct. Rather it is yet another example of the way the use of ice destroys lives and can lead to unpredictable, dangerous behaviour.
While no victim impact statement was tendered at the plea, as I have already observed, your conduct towards the victim would have instilled great fear in him. He was 20 years of age at the time, he was staying in your home and he was entitled to feel safe. While the prosecution summary outlines the relatively minor physical injuries suffered by the victim, there can be no doubt that he would have suffered some degree of psychological trauma as a result of the experience.
Personal Circumstances
You are currently 44 years of age. You have two brothers and one sister. You maintain a good relationship with your sister although you do not have regular contact with her.
You are the father of one son, Sebastian Rossi. Your son was initially in the care of his mother but when he was six years of age, his mother left him in your care, and you have taken care of Sebastian since that time. You maintain a positive relationship with your son and your parents, and they all currently live together.
In terms of your work history, you have completed a significant portion of an electrical apprenticeship however as you had taken on the role of raising your son, by 2012 you were unemployed and receiving government benefits. At the time of this offending in 2017, you were employed as a concreter and limited to working part time due to your commitments to caring for your son and maintaining contact with your elderly parents who have health issues.
You maintain a strong relationship with your son, and I was told on the plea that upon your release from custody you will live with your parents who clearly continue to support you.
You have an extensive criminal and driving history commencing in 1995, including drugs, firearms and driving offences for which you have received imprisonment and community based orders. Mr Nikakis who appeared on your behalf, submitted that your criminal history is linked to your long term battle with substances, initially cannabis and then methylamphetamine. I was told that you have remained drug free since being in custody.
Relevant sentencing considerations
You pleaded guilty to these offences prior to a final directions hearing listed on 12 May 2020. While it is not a plea at the earliest opportunity, your plea still represents your willingness to accept responsibility and facilitate the course of justice, saving court time and sparing the victim the trauma of giving evidence.
While a plea of guilty may be indictive of remorse, in this instance in my view there is no evidence of remorse over and above the plea of guilty. Indeed, when you were assessed by a community correction officer, you stated to her in relation to the offending that ‘it is what it is, it is a fabricated story, not exactly what happened, but I’ve pleaded guilty and that’s all there is’. In relation to the impact on the victim you stated, ‘I don’t think it impacted them, they were the ones that stole, they had it all planned from the beginning’. As such the writer of the report was of the view that you presented with minimal insight into your offending behaviour.
Your attitude towards the offending in my view is also relevant to your prospects of rehabilitation. You have a significant prior criminal history and while you do not have any prior matters of serious violent offending, relevantly, you have convictions for a number of weapons related charges, drug related offending and driving offences. In the circumstances your prospects of rehabilitation can only be assessed with caution.
General deterrence must be prominent in the sentencing equation together with denunciation of your conduct. Given your criminal history, your attitude towards this offending and the fact that you were on bail at the time, in my view specific deterrence must also be given weight.
Finally, I take into account the current circumstances surrounding the COVID‑19 pandemic. From information provided by Corrections Victoria, it is clear that personal visits to prison have been suspended, there has been a reduction of services and programs, and some prisoners are experiencing increased lockdown periods. Those circumstances cause additional stress for prisoners and their families and also affect the programs and supports in prison designed to assist in rehabilitation and transition into the community. In your specific circumstances, I accept that this is a matter to be taken into account in your favour given that the onset of the pandemic early this year has affected the conditions of your incarceration. I was told on the plea that you recently suffered an ear infection and as a consequence of the strict protocols that are now implemented, you were in quarantine for six days.
You have been in custody since 20 December 2018 and it was submitted on your behalf that the 596 days of pre-sentence detention already served would meet the relevant sentencing considerations in relation to Charge 2, carjacking, and that a community correction order could be imposed in relation to the balance of the charges. The prosecution submit that the objective gravity of the offending places a community correction order outside the range and that the only appropriate disposition is a head sentence with a non-parole period. As noted above, I had you assessed for a community correction order however, in the all the circumstances I have formed the view that the suggested sentence is not appropriate in any combination.
I should also acknowledge that I received a supplementary submission from the prosecution addressing the structure of the sentence sought by the defence. The prosecution is of the view that in the circumstances presented, s 5(2H) of the Sentencing Act 1991 not only excludes Charge 2 being part of a s 44 combination sentence, but that the section also prevents the type of ‘combination’ of sentences sought by the defence. As I have decided that the type of sentence sought by defence is not appropriate to meet the relevant sentencing considerations and that a head sentence with a non-parole period is the only available sentence, I do not need to resolve this issue.
Sentence
Osvaldo Anthony Rossi, in relation to Charge 1, common law assault, you will be convicted and sentenced to 6 months imprisonment.
In relation to Charge 2, carjacking, you will be convicted and sentenced to 2 years and 10 months imprisonment. This will be the base charge.
In relation to Charge 3, false imprisonment, you will be convicted and sentenced to 12 months imprisonment.
In relation to Charge 4, theft, you will be convicted and sentenced to 12 months imprisonment.
In relation to Charge 5, handle stolen goods, you will be convicted and sentenced to 3 months imprisonment.
In relation to Summary Charge 8, unlicensed driving, you will be convicted and sentenced to 1 month imprisonment.
In relation to Summary Charge 10, commit an indictable offence whilst on bail, you will be convicted and sentenced to 1 month imprisonment.
I direct that 2 months of the sentence on Charge 1 be served cumulatively on the sentence imposed on Charge 2. That makes for a total effective sentence of 3 years imprisonment. I direct that you serve a period of 2 years imprisonment before becoming eligible for parole.
Pursuant to s 18 of the Sentencing Act 1991, I declare that 603 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.
Pursuant to s 6AAA of the Sentencing Act 1991, I indicate that had you not pleaded guilty, I would have sentenced you to a period of 4 years imprisonment with a non-parole period of 3 years.
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