Director of Public Prosecutions v Santo
[2022] VCC 1171
•21 July 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-00243
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CESARIO SANTO |
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JUDGE: | HIS HONOUR JUDGE WRAIGHT |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 21 July 2022 |
DATE OF SENTENCE: | 21 July 2022 |
CASE MAY BE CITED AS: | DPP v Santo |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1171 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – Sentencing.
Catchwords: Plea of guilty – Aggravated burglary – Attempted armed robbery – Stalking - Verdins Principles 1, 2, 5 and 6 – Advanced age - Declining mental and physical health – COVID-19 pandemic.
Legislation Cited: Crimes Act 1958 ss 21A, 75A, 77, 321M; Sentencing Act1991 ss 6AAA, 18, 44.
Cases Cited:Worboyes v The Queen [2021] VSCA 169; Williams v The Queen [2018] VSCA 171.
Sentence:Imprisonment for a period of 54 days in combination with concurrent community correction orders for a period of 2 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms J. Warren | Office of Public Prosecutions |
For the Accused | Mr M. Murphy | Victoria Legal Aid |
HIS HONOUR:
Introduction
1Cesario Santo, you have pleaded guilty to:
a)one charge of aggravated burglary, contrary to s 77 of the Crimes Act 1958, which carries a maximum penalty of 25 years imprisonment;
b)one charge of attempted armed robbery, contrary to s 321M and s 75A of the Crimes Act, which carries a maximum penalty of 20 years imprisonment; and
c)one charge of stalking, contrary to s 21A of the Crimes Act, which carries a maximum penalty of 10 years imprisonment.
2You have also admitted your criminal record.
Circumstances of the Offending
3A prosecution opening was tendered on the plea and may be summarised as follows:
4You are 81 years old and you reside in Epping.
5Cassandra Paul, the victim, is aged 40 years and, at the time of this incident, lived alone in a unit located within the Australiana Caravan Park in Wandong.
6You and victim were known to one another. You were both regular patrons of the Epping Hotel and over time developed a friendship. You would sometimes give the victim a lift in your car.
7Shortly prior to the offences you formed the view that the victim owed you $300. The victim denied owing you money. As a result a dispute arose between you both.
8You began sending the victim text messages which the victim described as, ‘abusive’, and, ‘dirty’. The victim deleted these messages, however recalled that the substance of one message included a threat to inflict injury. This is uncharged conduct.
9On 7 November 2020 the victim contacted police and spoke to a police member at Epping police station about your behaviour. The victim declined to apply for a Personal Safety Intervention Order against you. She was advised to keep a record of any further communication sent to her by you.
10
Following the advice from police, the victim kept all further text messages sent to her by you. The records show that, between 7 November 2020 and
15 November 2020, you sent the victim a barrage of text messages. Many of the text messages were physically or sexually abusive and threatening. You demanded payment of the money you believed she owed you and said that if she failed to pay, you would take her gold jewellery to Cash Converters.
11In total, between 7 November 2020 and 15 November 2020, you sent the victim approximately 249 text messages, most of which were threatening or abusive. It is these text messages that form the basis of Charge 3, stalking.
12The prosecution opening provides a number of examples of the texts sent by you, which I will not repeat in these reasons. However, some examples are as follows:
·'You dog you don't have my hundred tomorrow I'll find you and throttle you I promise you fucking crook';
·'Fucking bitch I want my two hundred today don't treat me I don't care a fuck I'll throttle you';
·'I'll stick a hammer handle up you dirty ass';
·'Cass I'll smash you head with a hammer';
·'I don't need police I will deal with y myself this little man is going to push is eight inch cock in you ass one night and you are going to duck me off also I'll give you a hundred';
·'No body can help you I'll split you sick head open'; and
·'Get my money or I'll come down and buried you'.
13
On 15 November 2020 the victim was at home, alone. At approximately
8.55 am you arrived in your car at the Australiana Caravan Park. You approached the victim’s unit and gained entry via the glass sliding door. At the plea there was a dispute as to whether you forced entry. The victim states that she locked the door and the police observed some scratch marks near the door lock. On the other hand, you denied any forced entry. There is no evidence that the victim heard any noises at the time you entered and further, the only implement you had with you was a hammer. No further evidence was called on this point and in the circumstances, I am not satisfied on the current evidence that the door was locked at the time you entered.
14At the time of entry, you were carrying a wooden handled hammer. Further, at the time of entry, you had an intent to assault the victim. It is these facts that relate to Charge 1 – Aggravated Burglary.
15The victim was on the toilet when you entered. You confronted her with the hammer raised above your head. As the victim tried to pull her pants up, you were trying to push her off the toilet. The victim managed to get her pants up and pushed past you to exit the toilet.
16The victim went and sat on her couch in the lounge room and used her mobile phone to secretly call 000. When the 000 call connected, the victim spoke in coded language to request assistance.
17Throughout the intrusion, you threatened to hit the victim with the hammer and made several demands for money or for her ‘gold’, which the victim took to mean her jewellery. You said to her, “I’ll make certain you don’t fucking get up”. Despite the threats made by you, the victim refused to give you anything. It is these facts that relate to Charge 2 – Attempted Armed Robbery.
18At approximately 9:15am, police arrived at the victim’s unit. Upon arrival, Acting Sergeant Taylor observed you standing inside the victim’s unit and standing over the victim with the hammer raised above your head.
19Upon police direction, you put the hammer down on a table and walked out of the unit. You were arrested at the scene and transported to Kilmore Police Station for interview.
20During the course of the interview with police, you:
·admitted attending the victim’s unit with the hammer and using it to threaten her and frighten her;
·claimed that you assisted the victim with moving house and storing items some weeks prior and that you believed she should compensate you for that – hence, you believed she owed you money;
·claimed also that you bought the victim cigarettes, for which, you said, she also owed you money; and
·admitted saying to the victim, “if you don’t give me some money, I’ll fuckin’ split your head open with a hammer”.
Nature and Gravity of the Offending
21While the offending is inherently serious given the maximum penalties imposed by Parliament, particularly in relation to Charges 1 and 2, the prosecution accept that the objective seriousness of the offending in all the circumstances falls towards the lower end of the range of seriousness.
22In the lead-up to the offending that gives rise to Charges 1 and 2, you sent text messages to the victim on approximately 249 occasions over an eight day period. The tone of the text messages from the examples provided, demonstrate that you were intimidating, threatening and offensive towards the victim in a relentless manner that ultimately culminated in you attending at the victims home.
23While your offending was confrontational, at no time did you physically harm the victim. You attended at the victim's home in daylight hours, undisguised, holding a genuine but misguided belief that she owed you money. Once the police arrived at the scene you immediately put down the hammer, left the unit and walked out. At interview you made full admissions to the offending.
24Mr Murphy, who appeared on your behalf, while conceding the seriousness of your offending, highlighted that the offending lacked some of the more common features of aggravation. For example, that you did not enter at night, you did not damage property or ransack the premises and, most importantly, you did not physically injure the victim in circumstances where you had made a number of threats beforehand.
25In the circumstances I do not disagree with the view of the prosecution, that the offending falls towards the lower end of the range of seriousness.
Victim Impact
26
The victim in this matter, Cassandra Paul, prepared a victim impact statement that was tendered on the plea. Ms Paul describes having problems sleeping, eating and using the bathroom since the offending. She is currently on medication for anxiety and finds herself becoming nervous when going out. Understandably,
Ms Paul now wishes to relocate to feel more comfortable in her own home.
27Ms Paul’s statement is testament to the ongoing impact of offending of this nature and I have taken the contents of her victim impact statement into account.
Personal Circumstances
28You are currently 81 years old and you were born in Italy before moving to Australia with your family when you were 12 or 13 years old. You grew up in the Gippsland region and you report you believe you left school when you were around 15 years old. You have spent your life working as a farmer, labourer, taxi driver and truck driver until your retirement in 2006. Since your retirement you have received a pension.
29You were married for 18 years before separating from your wife in 1992, and you have three sons from this marriage. Following the separation you became reclusive, having little to no emotional connection with others.
30You are of ill-health, suffering from a number of conditions, including heart disease, hypertension, benign prostatic hyperplasia, hyperlipidaemia and gastro-oesophageal reflux disease.
31You have described yourself as a longstanding heavy tobacco smoker of between 30 to 40 cigarettes per day but claim to have reduced this amount to around 20 per day. You also report that you suffer from a gambling addiction.
32You have a relatively limited criminal history, and have spent a total of 58 days in custody in relation to this offending, which was your first time in custody.
33
Dr Aaron Cunningham, psychologist, assessed you on 6 December 2020 while you were on remand. Dr Cunningham opined that you met the diagnostic criteria for a major depressive disorder and due to your advanced age and health concerns, he stated your condition would continue to deteriorate in prison.
Dr Cunningham also considered you were at a moderate risk of violent reoffending.
34
You were further assessed by Ms Alison Mynard, clinical psychologist, on
13 May 2021 whilst you were on bail. You expressed to Ms Mynard that you felt suicidal during your time in custody, and in her opinion, further time in custody would cause your mental health to decline rapidly. Ms Mynard is of the view that you appeared to have very little ability to put your own needs aside and have empathy and compassion for the victim and her circumstances and that you blamed the victim, and the law for your offending behaviour. Ms Mynard suggested multiple factors contributed to your offending, including immature moral development, lack of verbal expression skills, financial stress, lack of internal coping resources and nicotine withdrawal symptoms.
35On 25 January 2022 you were assessed by neuropsychologist, Dr Loretta Evans. Dr Evans was unable to determine an accurate indication of your current cognitive status because you refused to complete the assessment. Dr Evans concluded that whilst your refusal to complete formal psychometric testing necessarily limited her opinion, she suggested that your presentation was highly suspicious of a vascular related dementia that is relatively advanced. Dr Evans also noted:
'It is my opinion that Mr Santo presents with an underlying neurodegenerative process that is progressive and was likely present at the time of the offending. However, given the passage of time since he committed the offences (and likely poorly controlled vascular risk factors over the past 14 months), his current presentation may be more pronounced now than in November 2020.’
36Dr Evans notes that as a result of the enduring presence of significant vascular risk factors, advancing age, as well as the likely underlying neurodegenerative processes, she considers you do not present with any realistic prospects for rehabilitation and further, that you are at significantly high risk of re-offending in the future.
37Dr Evans is also of the view that given your rigid and inflexible thinking and tendency for aggressive reactions you are likely to attract negative attention from other prisoners. As such, Dr Evans considers that a further period of incarceration is potentially likely to be more onerous for you.
38Your son, Luke Santo, wrote a letter of support on your behalf. Since your arrest in November 2020 your son and his wife have become more involved in your life. He, together with one of your other sons, are financially providing for you. Part of their assistance involves buying your property and paying off your various debts in order to ensure that you are only left with the cost of paying for food and utility use.
Sentencing Considerations
39Mr Murphy relied on a number of matters in mitigation.
40First and foremost is your plea of guilty. Your plea of guilty has saved significant time and expense by avoiding the running of a trial and, importantly, has avoided the need for the victim and others have to give evidence. As such, your plea has utilitarian value and has facilitated the course of justice, for which you should be given credit. While I have some reservations in relation to your insight into the impact of your offending, I accept that you have also acknowledged that you frighted the victim by your conduct and, to some degree you accept that what you did was wrong.
41The plea carries additional weight which must be reflected in a further amelioration in sentence, as the plea was entered in circumstances where the pandemic has caused a substantial backlog of cases in the criminal justice system.[1]
[1] Worboyes v The Queen [2021] VSCA 169 at [39].
42Mr Murphy submitted that Verdins limbs 2, 5 and 6 are enlivened in this instance. The prosecution accepts that these principles have application and, further, that as a result of the view of Dr Evans, the first limb of Verdins should also be given some weight. Having taken into account the psychological and neuropsychological evidence, I accept that Verdins Principles 1, 2, 5 and 6 should be given weight in the sentencing calculus.
43It was also submitted that your advanced age is relevant. While you suffer from a number physical ailments consistent with your age, I accept in the circumstances that a further term of imprisonment would be more burdensome for you and that there is a risk that imprisonment would have an adverse effect on your health.
44Assessing your prospects of rehabilitation is difficult based on the evidence. On the one hand, the view of Dr Evans is of the view that as a result of your cognitive and behavioural decline, your prospects are poor. On the other hand, you now have strong family support and you have complied with your bail conditions for some 17 months without incident. In my view, if you are provided with appropriate supports and supervision in the community, your prospects will improve.
45Ms Warren, who appeared on behalf of the Director of Public Prosecutions, did not take issue with the matters put in mitigation, however, submitted that given the seriousness of the offences, deterrence, both general and specific, denunciation and community protection remain relevant sentencing considerations. I agree. That said, Ms Warren also summitted that given the unique personal circumstances including your advanced age and declining mental and physical health, a degree of mercy is warranted. Ultimately the prosecution submitted that in the circumstances a combination sentence comprising the prison sentence you have already served, together with a community correction order is within range.
46I had you assessed for a community correction order and you have been found suitable. A report was also prepared by the Mental Health Advice and Response Service, who recommended that you would not benefit from ongoing assessment or treatment of your mental health as a condition of any order, noting that you are aware that you are able to seek assistance from your general practitioner should your mental state deteriorate in the future.
47While your offending remains serious, in my view, in all the circumstances a community correction order in combination with the time you have served in custody is able to meet the relevant sentencing considerations. As noted by
Priest and Hargraves JJA in Williams v The Queen:[2]'As was made clear in Boulton, in an appropriate case a CCO provides a flexible sentencing option, enabling punitive and rehabilitative purposes to be served simultaneously. A CCO can be fashioned to address the particular circumstances of the offender and the causes of the offending, and to minimise the risk of re-offending by promoting the offender's rehabilitation. And although as the order of seriousness of offending conduct increases, the likelihood that such a disposition will be appropriate diminishes, a CCO may remain open, even in cases of very serious offending'.[3]
[2] [2018] VSCA 171.
[3] At [47].
Sentence
48Mr Santo, would you please stand.
49Cesario Santo, on Charge 1, aggravated burglary, and Charge 2, attempted armed robbery, you convicted and sentenced to an aggregate sentence of 58 days imprisonment as the prison component of the sentence, pursuant to s 44 of the Sentencing Act 1991.
50
In addition to the prison component of the sentence, in relation to Charges 1
and 2, you are convicted and will be placed on a community correction order for a period of two years. In relation to Charge 3, stalking, you will be placed on a community correction order for a period of 2 years. Those orders are in the same terms and will be concurrent.
51In addition to the standard conditions that apply to all community correction orders you will be required to undertake treatment and rehabilitation in order to reduce reoffending and you will be subject to supervision for the period of the order.
52Pursuant to s 18 of the Sentencing Act 1991, I declare that 58 days be reckoned as the period of imprisonment already served under the sentence I have imposed.
53Pursuant to s 6AAA of the Sentencing Act1991, if not for your plea of guilty I would have sentenced you to a period of imprisonment of 18 months with a non-parole period of 12 months.
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