Director of Public Prosecutions v Santilli
[2023] VCC 613
•14 April 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication |
AT Melbourne
CRIMINAL JURISDICTION
CR 21-02590
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANNY SANTILLI |
---
JUDGE: | His Honour Judge Meredith | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 14 April 2023 | |
CASE MAY BE CITED AS: | DPP v Santilli | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 613 | |
REASONS FOR SENTENCE
---
Subject:
Catchwords: Convicted by jury verdict of persistent IVO breach, assault and false imprisonment; TEFS 12 months imprisonment.
Legislation Cited:
Cases Cited:
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms S. Thomas | Office of Public Prosecutions |
| For the Accused | Mr H. Roberts | Giorgianni and Liang Lawyers |
HIS HONOUR:
1 Mr Santilli, you stood your trial on five charges. Namely Charge 1, persistent contravention of a family violence order. Charges 2 and 3 of common assault. Charge 4 of attempting to pervert the course of justice. And Charge 5 of false imprisonment. You did not call or give any evidence.
2 A record of interview was played to the jury and this was consistent with a denial by you, maintained by your counsel, of all the charges except for having sent text messages and made phone calls in breach of the intervention order.
3
The jury convicted you on 5 April of this year, of Charges 1, 3 and 5. Namely persistent contravention of the family violence order, common assault, on the basis of you grabbing your former partner by the throat and pinning her up against the wall of her house. And Charge 5 of false imprisonment involving your conduct on entering your former partner's residence, in the early hours of the morning, up until a point in time, when she sent an email to the
Frankston Magistrates' Court, claiming that she wanted an intervention order revoked wherein you were the respondent to that order.
4 In order to understand the jury's verdict, it is necessary to say something about the factual basis of the charges which you faced.
5 Before I do that, I note that in sentencing you, I must sentence consistently with the jury's verdict. If I make findings of fact that are not apparent from the jury verdict, any findings of fact adverse to you, must be arrived at beyond a reasonable doubt. There is no general requirements that I must sentence you upon the basis of the view of the facts consistent with the verdict, that is most favourable to you. Because however, I am required to resolved any reasonable doubt in your favour, the practical effect of this maybe that I would be obliged for that reason, to sentence you on a view of the facts, which is most favourable.
6
Briefly put then, the circumstances of your offending regarding Charge 1, was set forth in the particulars to that charge. The particulars refer to telephone calls and text messages sent to the complainant, your former partner. As well as in Particular 8 of that charge of an assault of the complainant, which formed the subject matter of Charge 2. This alleged that you threw a glass and struck her in the rib area. Later uncharged acts of violence were also said to have occurred during the day of this event. Whilst time is not a material particular, the trial was run on the basis that you committed the assault, the subject of Charge 2, on
the 18 or 19 June.
7 The complainant gave evidence regarding the assault and in doing so arguably gave an inconsistent account of where the glass struck. She further said that it caused bruising, however in her police statement made no mention of bruising. When she was re-examined on the content of her statement, she mis-stated what her statement contained regarding the incident. Text messages were also in evidence wherein the complainant expressed her gratitude to you for a lovely weekend shortly after the time at which the alleged assault was said to have occurred.
8 This is the broad context in which your acquittal occurred on Charge 2. Given that you have been acquitted of Charge 2, I will not be having regard to that assault when I sentence you on Charge 1.
9
Charge 1 also contained another particular of assault, namely Particular 25, which corresponds to Charge 3, of which the jury convicted you. In order to avoid doubly punishing you, I will moderate the sentence I impose on
Charge 1, bearing in mind that there is an overlap between Particular 25 of it, and Charge 3.
10 Charge 3 of assault and Charge 5 of false imprisonment also overlap. Briefly put, the complainant gave evidence that on 6 July of 2021, having exited her premises to leave for work at approximately 5.15 in the morning, you confronted her outside the premises. She said you were angry and grabbed her around the throat and pushed her back inside her house. That you pushed her up against the wall of her house and had her pinned against the wall by holding her throat with one of your hands. She said she broke your hold on her throat and then you then used your other hand gripping her more tightly. She said you let go of her when she felt she was about to pass out.
11 You then directed her to email the court while she was in the lounge room of her premises. She further describes you standing in front of her front door blocking her exit until she had sent the email, which you had requested. She further said that at a point in time she had the keys to a loan car in her house on a coffee table in the lounge room, and that you picked these up, saying, 'I'd like to see you drive to work now.'
12 She gave evidence that she did not see the keys again that day. She gave evidence that you wanted her to email the court, asking for the intervention order in which you were a respondent to be revoked, so no orders would be in place. She said she did not want this order removed completely, however she felt she had no choice other than to do what you wanted her to. She duly emailed the court using her telephone, saying that you were standing right next to her, after she had sent the email, and that she had showed you the contents of what she had written. She described you watching her send it and write it. She then described you calming down a little, that you were no longer screaming at her and that you then became tired and lay down asking her to lie down with you. Once you fell asleep she duly made her escape from the premises.
13 Charge 3 of common assault, involves your conduct in placing your hands against her throat, as you pinned her up against the wall as I have described.
14 Charge 5 of false imprisonment, involves your conduct until the time when the complainant had sent the email. I note that you were acquitted of Charge 4 of attempting to pervert the course of justice. This charge was based on the complainant sending the email I have referred to. A live issue in the trial was whether in the circumstances of the complainant's conduct in sending the email, this was sufficient to amount to a tendency to have perverted the course of justice.
15 Your counsel argued that many other steps were required before the order could be revoked and that her conduct was not sufficiently proximate to the intervention order court proceedings to constitute an attempt to pervert the course of justice. Given that the jury found you guilty of Charge 3 of common assault, which was left to them on the basis of you throttling the complainant as described. The jury have clearly accepted her evidence in this regard.
16 Given that the jury have found you guilty of Charge 5 of false imprisonment which was left to them on the basis that it involved your conduct until the time she had sent the email. Their verdict of guilty is consistent with them accepting the complainant's evidence regarding what you did inside the premises.
17 Having seen and heard the complainant give evidence in the trial. In the circumstances of this case, I am satisfied beyond reasonable doubt that you did improperly influence her to send the email to the court in question and that this was a motivating factor in your conduct in committing Charges 3 and 5.
18 Your acquittal of Charge 4 of attempt to pervert the course of justice, is in the circumstances of your case, explained by the jury accepting the complainant's account of what happened, however not being satisfied that it exhibited the requisite tendency to pervert.
19 Whilst I cannot and will not punish you for attempting to pervert the course of justice, an offence on which the jury have acquitted you. Nonetheless, I will have regard to the fact that your motivation in acting as you did was in order to have the intervention order removed. In having regard to it in this way it explains and aggravates your conduct. However, this is a long way from sentencing you for an offence of which the jury have acquitted you.
20 In order to avoid doubly punishing you, in sentencing you for the charge of false imprisonment, I will moderate the sentence I impose, in light of the fact that Charge 3 represents an aspect of your conduct which is relied upon in regard to the proof of Charge 5. The relevant maximum penalties of the offences of which you have been convicted are as follows.
21 Charge 1, of persistent breach of intervention order, five years' imprisonment.
22 Charge 3, of common assault, five year's imprisonment.
23 And Charge 5, of false imprisonment, ten years' imprisonment.
24 In her victim impact statement your former intimate partner speaks of the impact of your offending. Amongst other things she states, 'I had to change my whole life. The places I enjoyed going with the kids, my friends, where I shop. My favourite thing in the whole world to do, was the beach. I haven't been to the beach or picked up a shell since the day you hurt me.' She goes on to say, 'I can no longer work nightshift, I'm too scared to be out at night alone. I constantly look behind me when I'm walking. And I kept everyone at arms-length so no one would notice and ask questions.'
25 She references her and anxiety and feelings of insecurity. She goes on to conclude the statement by saying finally I want to say I forgive you. Not your actions. For me to move on completely, I have to let go of the fear and forgive myself for the shame and filth that had become my life. In fixing an appropriate sentence of you, I will have regard to the relevant and admissible portions of her victim impact statement.
26 The seriousness of your offending is underpinned by the fact that your persistent breach of intervention order was flagrant. It commenced very shortly after you were served with it. It was protracted and at times you were prolific in your communications in breach of it. You have relevant prior convictions in regard to breaching these orders and whilst the complainant may have accommodated your communications and also your presence at her residence, you essentially treated the terms of the order as essentially of no application to you
27 Your choking of the complainant is very troubling. This conduct has a significant capacity for harm, which thankfully in this case did not eventuate. Your false imprisonment represents an endeavour by you to control her and it was an adjunct to your endeavours to remove the order. This is also a troubling example of offending. As I understand it you continue to deny Charges 3 an 5 and you appear to show little insight into the seriousness of your offending.
28 Turning next to your personal circumstances.
29 You are now 39 and have admitted prior convictions. These include for offences of making a threat to kill, possessing methylamphetamine, breaching bail, contravention of family violence intervention orders, multiple breaches of Community Correction Orders and intentionally causing injury. You exhibit a disturbing history of failing to comply with court orders and sanctions.
30
In an earlier report of Dr Aaron Cunningham of August of 2018, much of your background is canvassed and this has been supplemented by your counsel,
Mr Roberts.
31 You were initially raised by your mother with one younger sister. You have two younger half-brothers and one older half-brother. You describe you mother as having been emotionally abusive. You told Mr Cunningham that she abused drugs and alcohol, and had several relationships with violent men who abused the children.
32 At age 14 you went to live with your father. You describe him as being hard but good. You refer to your step-mother as being a good lady who was very loving. You left that family home at around the age of 16 or 17, when you began an apprenticeship in carpentry.
33 You have a daughter who would now be aged approximately 16 and a son who would now be aged approximately nine. You completed your carpentry apprenticeship and worked in that field until about 2014. At around this time you suffered what's described as a severe back injury.
34 Also, you were the victim of a significant assault in January of 2017. And you believe that this has impaired your cognitive facilities. You report that you spent two weeks in hospital after this assault.
35 You report a history of commencing to use methylamphetamine from around the age of 15. You told Dr Cunningham in his report that you could not recall a day when you didn't use this drug. It is apparent that the use of methylamphetamine has been a significant long-term problem for you. You were using the drug during the period of your offending, however the precise amount of your use remains somewhat unclear.
36
Dr Cunningham performed a number of psychometric tests on you. He determined that you had a full-scale IQ of 86, where you perform better than
18 per cent of your age related peers and where 82 per cent of your peers would do better. He describes your overall thinking and reasoning skills as being in the low average range, and I will have regard to your cognitive challenges.
37 In 2018, Dr Cunningham assessed you as meeting the criteria for a major depressive disorder. At that time you presented with a depressed mood, loss of interest in pleasurable activities, fatigue, feelings of worthlessness, having difficulty concentrating and thoughts of death.
38 In summary, you have had a background of disadvantage at a number of levels. You were exposed to physical violence and emotional neglect from your mother and her partners. You reported to Dr Cunningham distressing recollections of your childhood. You have had a struggle to maintain your degree of stability in the community. You have been unsuccessful in maintaining stable relationships. You have had difficulties working since suffering your back injury. You have a significant history of methylamphetamine abuse. You were the victim of a significant assault as I have reported in January of 2017, and you report memory difficulties since that time.
39 In light of these factors I will sensibly reduce your moral culpability, having regard to your background of disadvantage and associated difficulties. Significantly however, since your release on bail for these matters, you have not further offended and you have obtained some work in the building industry. You have had stable accommodation with your father and your relationship with your mother, who I am told lives in Thornbury, is adequate.
40 You believe you have work opportunities available to you, through your contacts in the building industry, and you state through your counsel that you have dried out during your period of remand and that you have not abused stimulant drugs since your release on bail.
41 In light of these matters, I have some cautious optimism regarding your rehabilitative prospects. Your offending is now sometime in the past, and your matter was set down for trial in this court in November of 2022, however not reached. This was through no fault of yours. I accept that having had this matter hanging over your head for the period which it has, has resulted in you experiencing anxiety, and the uncertainty of not knowing your ultimate fate, and I will take this into account in your favour.
42 Your counsel set forth in a document what he claims are periods of time that had been spent on remand on various occasions and that these had either not been declared pursuant to s18 of the Act or were not raised on your behalf, or properly taken into account at various hearings. He clarified this by stating that these matters had been brought to the attention of a sentencing magistrate and a County Court judge in earlier proceedings. It follows from that, that these matters have been raised at earlier times with judicial officers who have imposed sentence on you.
43
If at the time they were raised, there was dissatisfaction with their treatment by these officers, of the formal pre-sentence declaration that was made, action should have been taken then. It is no part of my role to adjudicate on the decisions of other judicial officers, now many years in the past and I will not be having any regard to any claimed periods of dead time or inaccurate
pre-sentence declarations in my sentencing of you.
44 Your counsel further asserts that you have lost property which was left at the residence of your victim, including your dog to which you were attached. I cannot mediate in what appears to be a civil dispute. Nor can I make any findings adverse to your victim, or in regard to the police involved in the investigation of this matter. While I do take into account in a general way, your feelings of grievance at the loss of some property, including particularly your dog. In the wash up it is of little mitigatory value.
45 Regarding the sentencing of you, the prosecutor submits that nothing other than a term of imprisonment is warranted in your case. She indicates that the time which you have already served may amount to a sufficient sentence subject to the court's discretion. Defence counsel submits that your period of remand, a total of 301 days, is a sufficient punishment of you, or in the alternative that I ought impose a combined term of imprisonment and release on a correction order.
46 I should state that I make full allowance for the increased burden of your time on remand, given that the bulk of it has occurred during the COVID pandemic. And I also make full allowance for the period of time for which this matter has been hanging over your head. Paying due regard to the competing sentencing factors in this case, I will sentence you to a total effective sentence of 12 months' imprisonment. In my view, any less than this, would not adequately reflect the need for deterrence and the court's denunciation of your conduct.
47
The individual sentences which will achieve a total effective sentence of
12 months are as follows.
48 On the persistent intervention order breach, I will sentence you to nine months' imprisonment.
49 On Charge 3 of common assault, 12 months' imprisonment.
50 And on Charge 5, the false imprisonment, 12 months' imprisonment.
51 All of these sentences are to run concurrently. I will make a pre-sentence declaration of 301 days and I will direct that your counsel or his instructing solicitors communicate with and provide details as appropriate concerning any custody management or medication issues that relate to you. That is to be done to what was formerly known as central records, but is now known by the acronym, SCWA, being the sentence, calculation and warrant authority. The details of which I note were provided to your counsel on the previous occasion he appeared before me.
52 Are there any further orders required?
53 MS THOMAS: No, Your Honour.
54 HIS HONOUR: All right, thank you, if you could remove him, thank you.
- - -
0
0
0