Director of Public Prosecutions v Saraceno
[2021] VCC 2119
•17 December 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-01480
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| VINCE SARACENO |
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JUDGE: | HIS HONOUR JUDGE WRAIGHT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21, 22, 25-29 October 2021 (trial) | |
DATE OF SENTENCE: | 17 December 2021 | |
CASE MAY BE CITED AS: | DPP v Saraceno | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 2119 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing.
Catchwords: Found guilty at trial – False imprisonment – Threat to kill – Threat to inflict serious injury – Causing injury recklessly and intentionally – Conduct endangering persons – Family violence offending – Relevant criminal history – Delay – Prospects of rehabilitation assessed positively – COVID-19 pandemic – Offender sentenced as serious violent offender (Charges 3, 4).
Legislation Cited: Crimes Act 1958 ss 18, 20, 21, 23; Road Safety Act 1986 s 30(1); Sentencing Act 1991 ss 6B, 6F, 18, 44.
Cases Cited:Cheung v The Queen (2001) 209 CLR 1.
Sentence: Imprisonment for a period of 1 year together with a community correction order with conditions for a period of 2 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms P Thorp (trial, plea) Mr P Ironside (sentence) | Office of Public Prosecutions |
| For the Accused | Mr M Page | Leanne Warren & Associates |
HIS HONOUR:
Introduction
1Vince Saraceno, you have been found guilty by a jury of the following offences:
· one charge of false imprisonment contrary to the common law which carries a maximum penalty of 10 years imprisonment (Charge 1);
· three charges of make threat to kill contrary to s 20 of the Crimes Act 1958 which carries a maximum penalty of 10 years imprisonment (that is Charges 2, 3 and 4);
· one charge of threat to inflict serious injury contrary to s 21 of the Crimes Act 1958 which carries a maximum penalty of five years imprisonment (Charge 5);
· one charge of causing injury intentionally contrary to s 18 of the Crimes Act 1958 which carries a maximum penalty of 10 years imprisonment (Charge 6);
· one charge of causing injury recklessly contrary to s 18 of the Crimes Act 1958 which carries a maximum penalty of five years imprisonment (Charge 7); and
· one charge of conduct endangering persons contrary to s 23 of the Crimes Act 1958 which carries a maximum penalty of five years imprisonment (Charge 8).
2You have also pleaded guilty to the related summary charge of driving whilst suspended, contrary to s 30(1) of the Road Safety Act 1986 which carries a maximum penalty of 240 penalty units or two years imprisonment in this case as it is a subsequent offence (Summary Charge 9).
3You have also admitted your prior Criminal Record.
Circumstances of the offending
4In sentencing you I am bound by the principles in the case of Cheung v The Queen.[1] As such, I must interpret the facts in a way that is consistent with the jury's verdict.
[1] (2001) 209 CLR 1.
5You were born on 19 April 1989 and were aged 29 at the time of the offending. You were residing in Waurn Ponds.
6The victim, Abigail Dutton[2], was 18 years of age at the time of the offending and was residing with her grandparents, Lincoln[3] and Rose[4] Dutton. Also living at that address was her uncle, Toby Dutton[5], and her two year old daughter Ella[6].
[2] A pseudonym
[3] A pseudonym
[4] A pseudonym
[5] A pseudonym
[6] A pseudonym
7You and Ms Dutton had been in a relationship in the month leading up to the offending. Ms Dutton had decided to end the relationship by 30 March 2018.
8On 31 March 2018 Ms Dutton arranged to meet you at the Reading Cinema in Waurn Ponds. Toby Dutton drove Ms Dutton from her home to the cinema complex.
9Ms Dutton received a call from a private number. An unknown female caller told Ms Dutton to meet you in a car outside the cinema. The phone records show your phone number called Ms Dutton’s number at 8.14 pm that night.
10Ms Dutton approached your car, a blue Toyota Corolla, outside the cinema. She opened the passenger door and you pointed a kitchen knife at her, demanding she get in the car. You threatened to kill her daughter and her grandparents if she did not comply. Ms Dutton was scared about what you might do, so she got into the car. It is these facts that relate to Charge 1, false imprisonment, and Charge 2, threat to kill.
11You started driving with Ms Dutton in the vehicle. You drove around the streets in the area for about 15 minutes. Ms Dutton was screaming, then you put your hand over her mouth and said ‘if you keep screaming I’ll put a knife through your head’. For the rest of the journey you held onto Ms Dutton’s jacket so she could not get out of the car. During the trip you threatened to kill Ms Dutton, saying you would leave her tied to a tree in the bush to die. It is these facts that relate to Charge 1, false imprisonment and Charge 3, threat to kill.
12At about 8.30 pm you arrived at your house. You saw Ms Dutton looking at her phone, so you took it off her. You drove into the garage and told Ms Dutton to get out of the car. You held the knife to her back and walked her into the house.
13When Ms Dutton went into the house, she saw a woman, Lizzie Amos[7], sitting on one of the couches. She did not know who this woman was. Ms Dutton was told to sit on the doorstep initially while you closed the shutters.
[7] A pseudonym
14Ms Dutton was then told to sit on the other couch, at right angles to the couch Ms Amos was sitting. You went to the kitchen and put a number of knives and scissors on the bench.
15You asked Ms Amos to get some drugs from your bedroom. When she returned, Ms Amos and you started smoking the drugs. Ms Dutton told you to stop. You grabbed a bag of the drugs, held Ms Dutton’s head back, opened her jaw and poured the contents of the bag into her mouth. She tried to bite your hand. You told her to swallow it or you would kill her. You then turned and walked towards the kitchen. Ms Dutton tried to spit out the drugs. You approached her with a knife and threatened to put it through her neck if she tried to spit it out. It is these facts that relate to Charge 4, threat to kill.
16You sat down with Ms Amos and smoked some more of the drugs. You got angry with Ms Dutton again. You got up off the couch, grabbed a pair of black handled scissors and said you would throw them at her chest. It is these facts that relate to Charge 5, threat to inflict serious injury. You then threw the scissors at Ms Dutton. She put up her right leg to protect herself and the scissors went into her knee, through her jeans. This was painful and Ms Dutton pulled the scissors out of her leg. Her leg started bleeding onto the couch. It is these facts that relate to Charge 6, intentionally cause injury. You grabbed Ms Dutton and held a knife to her head and told her you would kill her because she had bled on the couch.
17At some point Ms Dutton was in the corner and you had your left hand around her neck. You had a knife in your right hand. Ms Dutton grabbed your right wrist and then tried to get the knife out of your hand. She grabbed the blade of the knife causing a cut to one of her fingers, which started bleeding. She told you to stop and asked for a Bandaid because it was bleeding a lot. You did stop and got a Bandaid to put on Ms Dutton’s finger.
18You took Ms Dutton back to the couch and put some music on. Sometime later you grabbed Ms Dutton off the couch and started throwing her around the floor. You kicked and punched her to the head, stomach and back. This caused a lot of pain to Ms Dutton. It is these facts that relate to Charge 7, recklessly cause injury.
19You then dragged Ms Dutton to your bedroom. She was in there for about 15 minutes. You then told her to get out. She walked into the corridor and you grabbed her and dragged her into the bathroom. You ran the bath for about three minutes. Ms Dutton was on the floor. You grabbed the back of her neck and pushed her head into the bath for about 30 seconds. She was trying to pull back. Ms Amos then came into the room and told you to stop. You did stop and walked out of the bathroom. It is these facts that relate to Charge 8, reckless conduct endangering serious injury.
20Ms Amos stayed in the bathroom with Ms Dutton and dried her hair. You were standing in the doorway to the bathroom cutting your stomach with a knife. Ms Amos then took Ms Dutton to the couch.
21Ms Amos told you that you should call an ambulance, as Ms Dutton was still bleeding. She was dizzy and not walking straight.
22Ms Amos said to you that you and Ms Amos could tell the ambulance that Ms Dutton had overdosed so that they would not know what had actually happened. Ms Amos repeated this a number of times and you eventually agreed.
23When your back was turned, Ms Amos whispered to Ms Dutton that she should lay on the couch and pretend like she had overdosed so you would go along with her and call an ambulance. A call was then made to emergency services.
24You told Ms Dutton that if she were to say anything to the police or ambulance about what had happened, you would go over to her house and shoot her grandparents, daughter and uncle, and burn their house down while they were in it.
25Police and paramedics arrived at the Waurn Ponds address. Present were you, Ms Amos and Ms Dutton.
26Ambulance officers observed Ms Dutton sitting on a couch in the lounge room, with you present and Ms Amos walking in and out of the room. You pointed at Ms Dutton a number of times telling the paramedics that she was mentally unwell. You kept telling Ms Dutton that she needed to tell the paramedics she had taken your Valium tablets that night.
27Paramedics questioned Ms Dutton in your presence. She kept saying ‘I don’t know, ask him’.
28Once Ms Dutton was away from you she asked to speak to police about the incident. While she was getting in the ambulance Ms Dutton told police that she had been held against her will and she had been forced to take drugs.
29Paramedics observed Ms Dutton was in possession of a piece of paper. She told them you had made her write down that she had mental health issues and the reason for the ambulance being called was self-harm. She told the paramedics she had been assaulted by you in the house and held there against her will.
30Paramedics observed a puncture wound on the side of Ms Dutton’s right knee. There was a corresponding hole in her jeans.
31You and Ms Amos were spoken to by police and statements were taken from you both. Ms Dutton was conveyed to hospital by ambulance.
32Earlier in the evening Lincold Dutton was becoming concerned about Ms Dutton’s whereabouts. He sent her a text at 11.25 pm asking what time she would be home.
33At 11.53 pm you, using Ms Dutton’s phone, sent a message back to Lincoln Dutton which read ‘I’m ok granddad just at Vince's place he will drop me off at home love you good night’.
34The language used in this text message was out of character, as Ms Dutton always signed off her messages to her grandparents with ‘Good night sleep tight god bless love you’. Lincoln became more concerned as a result.
35At 12.29 am Lincoln Dutton received another message which read ‘I’m staying at Vince's tonight to go to the doctors in the morning because I think I’m pregnant see you tomorrow don’t worry about anything I’m ok'. This message was sent by you using Ms Dutton’s phone.
36Lincoln Dutton thought something was not right so got his son, Toby Dutton, to call Ms Dutton. When the call was answered Ms Dutton said 'Hi Uncle Toby'. This concerned Toby Dutton as Ms Dutton never called him ‘Uncle Toby’, just ‘Toby’. He asked her some questions about whether she was alright, but did not get a sensible answer.
37Toby Dutton passed the phone to Rose Dutton and she asked Ms Dutton where she was, and whether she was okay. There was a brief delay before Ms Dutton answered her questions. On the other end of the line you were telling Ms Dutton what to say by muting the call after each question. Ms Dutton was instructed to tell her grandmother that she was okay and was staying at your house so they could go to the doctors in the morning.
38Lincoln Dutton was concerned and called emergency services at 12.45 am.
39At 2.57 am Ms Dutton sent a message to Lincoln and Toby Dutton which read ‘Get out of the house everyone get out of there now Ella and all please and get to the hospital'. Two minutes later Ms Dutton sent a message to Lincoln Dutton which read ‘I mean everyone don’t stay there it’s not safe'.
40Ms Dutton was admitted to the University Hospital Geelong and the following injuries were observed:
· cervical spine tenderness;
· chest tenderness, particularly over sternum and left side of the chest;
· pain in the right knee;
· generalised abdominal tenderness in both flanks;
· tender throughout the whole spine; and
· penetrating 5mm wound to posterolateral right knee.
41These facts also form part of Charge 6, intentionally cause injury and Charge 7, recklessly cause injury.
42Intravenous fluids were provided and the right knee wound was cleaned and closed. Ms Dutton remained in hospital for observation until 7 April 2018.
43Photographs of her injuries depict a cut to her finger, wound to her knee and bruising on her body.
44On 26 April 2018 police executed a search warrant at your address.
45A silver handled kitchen knife was located and identified by Ms Dutton as the knife that was used to threaten her.
46A blue Toyota Corolla was located at the house, matching the description of the vehicle you used to pick up Ms Dutton on the night of 31 March 2018.
47A pair of black handled scissors was located in the shed and identified by Ms Dutton as the scissors used to cause the injury to her leg.
48On 31 March 2018 at the time of the offending your driver licence was suspended which gives rise to Summary Charge 9, drive whilst suspended.
Nature and gravity of the offending
49The victim in this matter stated that she had been in a relationship with you which she decided to end on 31 March 2018, the day the offending commenced. Upon meeting you to talk further about the relationship, you threatened the victim with a knife demanding that she get in the car. You then drove her to your house where the remainder of the offending occurred as outlined above.
50What occurred at the house can only be described as serious offending constituted by further threats and physical violence. It was a sustained attack over a period of some six hours which undoubtedly would have been terrifying for the victim who was only 18 at the time. In my view, your conduct represents a serious example of domestic violence against a vulnerable young woman.
Victim impact statement
51The victim prepared a victim impact statement which was tendered on the plea. Ms Dutton writes of the ongoing effects of your offending on her daily life and mental health. Ms Dutton states that she experiences panic attacks and flashbacks of your offending and lives in fear that you will carry out the threats you made. As a result, she struggles to be out alone and feels that her relationships with family and friends have been compromised. She is also unable to work as a result of her panic attacks. As to her physical injuries Ms Dutton reports that the injuries she sustained to her knee and to her hand have continued to cause her pain.
Personal circumstances
52You are now 32 years of age.
53You were born in Melbourne and your parents separated when you were very young. Your father has struggled with gambling and substance use and you lived with your mother as a child. He was emotionally abusive towards you. Your mother re-partnered a number of times and you moved around between your mother and father’s house during your upbringing. Some of these partners were physically abusive. These difficulties as a child led to you suffering from depression. You experienced learning difficulties and behavioural deregulation during primary school. You were involved in fights and failed to attend school on occasions. You left secondary school during Year 11 and began using cannabis and other substances.
54You began a cabinet making apprenticeship and ultimately completed a roof tiling apprenticeship. At around the age of 20, you began using methamphetamines, committing offences and subsequently serving periods of imprisonment. Drugs have been a long term issue for you and you have experienced drug induced psychosis at times. You have managed to live drug free at some periods. Since moving out of home you have had unstable housing and have lived between shared accommodation, rental properties and couch surfing.
55You have a strong work history, working as a carpenter at the Royal Children’s Hospital, as a telemarketer and at Melbourne Facades for around three years.
56You have had a number of workplace accidents and have been through the Workcover system in respect of those accidents. You also had a serious motorcycle accident due to oil being on the road and have been in receipt of TAC payments in respect of that accident. Further you have been in a number of physical fights and BMX bicycle accidents during which you experienced periods of loss of consciousness. These matters have all affected your ability to work and your cognitive functioning which I will refer to further below.
57Since the offending you have obtained work, and leading up to your remand this week you were living in Reservoir and self-employed doing labouring, bricklaying and scaffolding work.
58You have a relevant criminal history and are currently on a community correction order which was imposed in the Magistrates’ Court for an unrelated matter. An email as to your progress on the order from Jeff Thompson, Advanced Case Manager at Sunshine Community Corrections, was tendered on the plea. Mr Thompson states that despite having accrued some unacceptable absences, you have been engaging well in supervision to address your offending behaviours, substance misuse and risk factors to reoffending. In particular he writes positively of your compliance with the mental health condition. He states that you are booked for treatment with an Alcohol and Other Drug counsellor and are also to be assessed in relation to the Forensic Intervention Service upon the conclusion of this matter.
59A letter from General Practitioner Dr Theo Hajicosta was tendered on the plea. You have had a number of consultations with Dr Hajicosta in relation to your mental health since November this year. Dr Hajicosta confirms that you are currently prescribed Latuda, an antipsychotic medication, and Mirtazepine, an antidepressant medication which have helped managed your anxiety and auditory hallucinations.
60A report was prepared by Jane Lofthouse, clinical neuropsychologist and tendered on the plea. Ms Lofthouse provide a detailed history and conducted a number of psychometric tests. The report is dated 24 April 2021 and was prepared in relation to a separate criminal hearing, however the report is relied on as to the findings in relation to your intellectual functioning. Ms Lofthouse found that you present as emotionally immature with symptoms of trauma and anxiety related to traumatic events and neglect as a child and that your intellectual functioning fell in the low average and average ranges. I have taken the contents of this report into account.
61Your parents remain supportive of you. Your father observed the trial and your mother observed the plea. Your father currently lives with some health conditions and has been hospitalised recently. A number of references were tendered on the plea which indicate that you have a supportive network of friends. They describe you as a caring friend who is willing to assist others and note that more recently you have demonstrated a motivation to pursue a more positive life trajectory.
Sentencing considerations
62You exercised your right to run a jury trial and as such you are not entitled to any discount that you would have otherwise received for a guilty plea. You continue to deny the offences and have not made any expressions of remorse.
63Mr Page who appeared on your behalf focused on the following matters in mitigation: custodial hardship as a result of the COVID-19 pandemic; delay; and, your prospects of rehabilitation.
64As you will be serving a term of imprisonment (in addition to the 14 days you spent on remand), that imprisonment will be served under onerous conditions in custody due to the COVID-19 pandemic. Personal visits, programs and work in prison continue to be restricted and lockdowns are in place in certain circumstances. I take these matters into account.
65It was submitted that delay is significant in this instance. The offences occurred in March 2018, more than three and a half years ago. Your matter was not reached for a number of reasons including delays as a result of the pandemic. None of the delay is attributable to you. While you have had this matter hanging over your head for a long period of time, it was submitted on your behalf that in recent months you have settled down, are doing well on a community correction order and therefore have demonstrated during the period of delay that you have made positive steps toward rehabilitation. In my view in the circumstances delay is a matter I take into account in mitigation.
66As noted, you are beginning to show signs of positive progress on the current community correction order imposed in May of this year. You have also been working regularly. You have secured stable accommodation, you have engaged with your general practitioner and you remain compliant on medications. In the circumstances, in my view while you still have some way to go, with assistance, your prospects of rehabilitation can be assessed positively.
67Ms Thorp who appeared on behalf of the Director of Public Prosecutions, submitted that your offending is a serious example of domestic violence, and as such, general deterrence and denunciation must be the primary sentencing considerations. I agree. A message must be conveyed that conduct such as yours cannot be tolerated. As you have relevant criminal history, specific deterrence must also feature in the sentencing equation and, given the nature of your offending, protection of the community must also play a part.
68As the offence of make threat to kill is a serious violent offence, pursuant to s 6B of the Sentencing Act 1991 you are to be sentenced as a serious violent offender in relation to Charges 3 and 4. In this instance however the prosecution do not seek a disproportionate sentence.
69While in my view your offending calls for a term of imprisonment, I had you assessed for a community correction in contemplation of a combined sentence pursuant to s 44 of the Sentence Act 1991 and you have been found suitable for such an order.
70In my view in all the circumstances, a combination sentence is able to meet the relevant sentencing considerations.
Sentence
71Vince Saraceno, on Charge 1, false imprisonment, you are convicted and sentenced to 9 months imprisonment. On Charges 2, 3 and 4, make threat to kill, you are convicted and sentenced to 3 months imprisonment on each charge. On Charge 5, threat to inflict serious injury, you are convicted and sentenced to one month imprisonment. On Charge 6, causing injury intentionally, you are convicted and sentenced to 6 months imprisonment. On Charge 7 recklessly causing injury, you are convicted and sentenced to 3 months imprisonment. On Charge 8, conduct endangering persons, you are convicted and sentenced to 3 months imprisonment. On Summary Charge 9, drive while suspended, you are convicted and sentenced to 1 month imprisonment.
72I direct that one month of the sentence on Charges 6, 7 and 8 be served cumulatively on each other and on Charge 1 making for a total of 12 months imprisonment as the prison component of the sentence pursuant to s 44 of the Sentencing Act 1991.
73Upon your release from custody, you will be placed on a community correction order with conviction for a period of two years. As noted, the focus of the order is therapeutic. You will be subject to treatment and rehabilitation conditions to address your mental health, your drug use and your offending behaviour, which in this case will be an anger management program or equivalent. You will also be subject to supervision for the period of the order.
74Pursuant to s 18 of the Sentencing Act 1991, I declare that 17 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.
75Pursuant to s 6F of the Sentencing Act 1991, as you were sentenced as a serious violent offender I cause that fact to be entered in the records of the court in respect of Charges 3 and 4.
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