Director of Public Prosecutions v Saraceno

[2016] VCC 521

IN THE COUNTY COURT OF VICTORIA  Revised
(Not) Restricted
 Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-00166

DIRECTOR OF PUBLIC PROSECUTIONS

v

VINCE SARACENO
NICOLE VAN SCOY

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:	25 February 2016
DATE OF SENTENCE:	25 February 2016
CASE MAY BE CITED AS:	DPP v Saraceno & Ors
MEDIUM NEUTRAL CITATION:	[2016] VCC 521

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms R. Harper
For Accused Saraceno	Mr M. Page
For Accused Van Scoy	Ms N. Karapanagiotidis

HER HONOUR:

1Nicole Van Scoy, who I note now goes by her maiden name of Nicole Rubito and Vince Saraceno, you have each pleaded guilty to one charge of recklessly causing injury to Lance Van Scoy.  You have both also pleaded to the summary charge of trespass which has been uplifted for hearing in this plea with your permission.

2The facts underlying your offending are as follows.  At about 1.20 am on Sunday 7 September 2014, you and a third co-accused Rhys Scaramella drove you, Rubito and Saraceno and unknown fourth person to a house in Hillington Drive which was lived in by the complainant, Lance Van Scoy.

3You, Ms Rubito had previously been married to him and lived at the address with him, but the two of you had separated in 2013.

4You, Ms Rubito, opened the door with a key believing you had the right to enter and your co-accused also believing they had that right, entered the house.  The belief however was unreasonable in all the circumstances, the property having been lived in solely by the complainant and all expenses in relation to it paid by him.  Your actions in entering the house in this fashion underlie the summary charge of trespass.

5On entering the house, you were confronted by the complainant and a physical fight broke out during which the complainant was punched in the face and his lip split.  They had the fight moved into the lounge room and then the kitchen where the complainant was further punched to the head and body.

6The complainant then grabbed a bottle of Wild Turkey from the bench and swung it to defend himself but the three men forced him outside and continued assaulting him out there.  The complainant then smashed the glass door with the bottle to get back into the house, a call for help and also call for this Rottweiler dog to help him.

7You, Saraceno and Scaramella went outside at which time, you Ms Rubito said, "You should have settled" which the complainant believed was a reference to a property settlement after your separation.

8Outside, the complainant was further punched and assaulted with a pool cue and a piece of wood taken from the house.

9You, Ms Rubito and you, Mr Saraceno screamed that the house was no longer yours, that the complainant did not belong there and several neighbours hearing the commotion and the complainant also calling for help called police.

10Eventually the complainant made his way back inside where he locked himself in his bedroom calling police on his mobile phone as he leaned against the door to stop the other men from breaking in.

11You, Rubito also apparently called police, telling the operator your ex-husband had come to the house and assaulted you and your boyfriend, locked himself in your main bedroom and tried to get you with a bottle.  Police attended and located you, Ms Rubito, you Mr Saraceno and Mr Scaramella outside the house.  The complainant was still in the bedroom.

12On receiving medical attention, the complainant was found to have a left upper lip laceration and a laceration to the left side of his chest, both of which required stitches.  Abrasions and bruises were also noted on his body including one to the forehead and tram track bruising to the upper back consistent with blunt trauma.

13Mr Van Scoy compiled a victim impact statement in which he said that as a result of this attack upon him, he had suffered a loss of confidence, he had to take time off work, he has been scared of being alone ever since.  He has felt paranoid of the incident happening again, has become far less sociable and has suffered flashbacks of the incident.  These are perfectly normal and common reactions by victims of violent assaults such as that unleashed upon him on that night.

14All three of you were arrested on the evening and you, Ms Rubito, made a no comment record of interview.  You, Mr Saraceno with Mr Scaramella made similar records of interview, claiming that you had driven to the house to collect Ms Rubito's dogs and let themselves in the front door with a key.

15The maximum penalty for trespass is 25 penalty units or six months' imprisonment and the maximum penalty of recklessly causing injury is five years' imprisonment.  I now turn to your personal circumstances of each of you, beginning with you, Mr Saraceno.

16You are 27 years of age and had a fairly unstable childhood, your parents separating when you were so young that you have no memory of them being together.  Your father apparently had drug and alcohol problems and although not abusive towards you, this has caused problems, understandably, along the way.

17Your mother re-partnered many times and when you lived with her, the family moved constantly around Victoria before settling in Geelong where you attended secondary school at St Joseph's College finishing about halfway through Year 11.

18At the age of 15 or 16 you went to live with your father.  When you left school, you began a cabinet making apprenticeship which you swapped after a few months for a roof tiling apprenticeship.  This you undertook for three years but ended in 2009 because your employer went out of business.

19From your mid-teens, you were a regular smoker of cannabis and a recreational user of ecstasy and amphetamines.  You were not apparently dependent upon these drugs, but they were a constant feature.

20You have some serious prior criminal history in that, in 2009 you were dealt with in the Melbourne County Court on two charges of armed robbery.  They were

two armed robberies; one at a service station and one at a milk bar, both committed in the company of co-accused.  In one of the armed robberies, a knife was used, in the other an imitation firearm.

21In any event, probably because of your youth at the time, you were sentenced to a term of two years' which was wholly suspended for a period of three years.  You breached that in 2010 when you were convicted for driving whilst your authorisation was suspended.  The order was restored but you were paroled after three months.

22In 2014 you were fined for possession of amphetamines.  Following the demise of your roof tiling apprenticeship, you managed to keep up fairly regular employment.  You worked for some years as a carpenter and I was informed by counsel at the time of committing these armed robberies your employment - your apprenticeship had come to an end and a relationship had ended and the offending occurred in that context.  You were also living in Preston on the dole. 

23In about 2011 you began work for an organisation called Melbourne Facades for whom you worked for a number of years, specifically until August 2014 when you suffered a serious injury to your collarbone.  That has failed to resolve.  You were due to have surgery.  It was then decided to allow the injury to heal but this has not been successful.  You are still awaiting surgery and are still, if you like, on the books of Melbourne Facades who propose to reemploy you once your injury has resolved.

24You became involved with Ms Rubito and the two of you were living together at the time of this offending.  About three days before this offence you became involved in an argument with a taxi driver and ended up assaulting him for which matter you were charged and dealt with in March of this year and placed on a community corrections order.  It appears that you have done reasonably well on that.  You have dealt with your drug problems.  You also attended upon a psychologist but she left the organisation and it appears your attendance on that order has dropped off somewhat since around Christmas of last year.  You and Ms Rubito ended your relationship but it has resumed since New Year and it is your intention to live together in private rental in Deer Park. 

25I will now turn to your prior history, Ms Rubito.  You were aged 25 at the time of the offending and you are now 27.  You also had a difficult family history.  Your parents separated when you were about 12 because of your father's abuse of alcohol and the problems associated with that.  You have had no contact with him for more than ten years.  You have three older brothers and left home with them to live together when your mother formed a relationship with the friend of one of your brothers.  This caused a family split and in your mid-teens you moved out of home, as I said, to live with your elder brothers in rented premises in Lalor and for some years you did not have any contact with your mother.  Your mother has, however, remained in the relationship and there are two children who have been born of it aged 13 and 11, the 13 year old suffering serious disabilities, often requiring hospitalisation. 

26You attended St Monica's until the beginning of Year 10 when you left school.  Essentially since then you have been employed on a more or less regular basis in the hospitality industry, primarily as a waitress, and you are present now working as a barista in a café in Whittlesea.  You met the complainant, your former husband, when you were aged 20 in 2008 and the two of you lived with his parents before marrying in 2009 and purchasing the house which was, however, purchased in the name of your former husband.  You, whilst you were married and living with him, worked and contributed to the mortgage.  There were two dogs at the house that night and they apparently are your dogs.  The relationship ended around March of 2013 despite later attempts to reconcile.  Your former husband apparently had alcohol problems and associated aggression.

27When you separated, you took on sole responsibility for a joint debt for loans essentially taken out for renovations on the house and you left the dogs with your former husband.  It would appear that that was the reason for going into the premises that night, that is, to retrieve the dogs.  After the relationship ended you had a period of extreme instability where you slept in your car for a couple of nights and then slept at various friends' homes on a temporary basis for several moments.  You then began a relationship with your co-accused and lived with him. 

28Following your release on bail for this offending you undertook a CISP program.  I had a look at the report from the manager of that.  You yourself had had some difficulties with drugs, in particular, at one stage in the aftermath of your relationship breakup, smoking ice at the rate of about half a gram a day but in fact had recognised you had a problem and sought to detoxify through a Salvation Army program prior to your becoming involved in this offending. 

29You have two prior convictions for theft in 2013 and 2014 which your counsel told me occurred in the context of your unstable living situation when you separated from your former husband.  On one occasion you stole a hairdryer for which you were placed on an undertaking to be of good behaviour and on the second occasion an iPad for which you were convicted and fined. 

30You resumed your relationship with Mr Saraceno after you were bailed.  This broke up and you then returned home to live with your mother.  You have apparently lived there for a longer period of time, comprising a number of months, than you ever have since you left home with your brothers.  This appears to have brought about some sort of reconciliation and a letter was received from your stepfather attesting to the assistance you have been to your younger siblings and to the disability of your 13 year old stepsibling whose hospitalisation for surgery prevented your mother being present in court on this occasion.  You have taken up employment.  There has been no subsequent offending and as I have said, you have reconciled in your relationship with
Mr Saraceno and the two of you intend very shortly to take up residence together in a rental property in Deer Park.

31It was conceded by the prosecution in all the circumstances that a community corrections order would be appropriate in this case.  I accept that each of you essentially made an early plea of guilty.  You were both originally charged with aggravated burglary which was a sticking point as to a plea of guilty being entered, but ultimately the indictment that you have pleaded guilty to replicated early plea offers made on your behalf by your legal representatives.  I accept that you are both remorseful for the offending.

32It is extremely serious to break into someone else's house of course.  In your case, Ms Rubito, I do understand that you felt that you had the right to enter your former home where your dogs were being kept but thereafter the violence that erupted and the way that those around you then dealt with the complainant was completely unacceptable and it is for that reason that I am not prepared to consider perhaps less serious dispositions.  I note that this is the sort of offending in which a specific deterrence and general deterrence have a role to play and I am satisfied pursuant to the dictates of the Court of Appeal in Boulton's case that a community corrections order in this instance would satisfactorily deal with those aspects of the sentencing exercise before me.

33Now before I can place you on a community corrections order I must obtain the consent of each of you.  So could you stand up please.  Whilst you are on the order, you must not commit another offence punishable by imprisonment either inside or outside Victoria.  That does not mean you have to commit whereby you are gaoled, but if you commit an offence where theoretically you could be gaoled like knocking off a box of matches from Woolworths, that would breach the order and bring you back before me for breach and I would deal with you in relation to these sentences all over again.  So do you understand how important it is not to breach this?  Good.

34Secondly, whilst you are on the order, you must not leave Victoria without the permission of the Community Corrections Office.  You must report to the Community Corrections Centre, your local one, details of which will be given to you, within two working days of the making of this order.  That is by Monday of next week.  Whilst on the order you must accept visits from and attend upon the Community Corrections Office.  You must advise the Community Corrections Office of any change of address or employment within 48 hours of that change and you must obey all lawful directions of the Community Corrections Office whilst you are on the order.

35I am satisfied that neither of you really requires extensive special conditions.  In your case, Mr Saraceno, it is recommended that you be assessed for treatment and rehabilitation for drug use and also treatment and rehabilitation for alcohol use and to undertake programs to reduce reoffending.  I do impose those special conditions.  I also order that you undertake 150 hours of unpaid community work.  The orders in each case will last for 12 months.

36In your case, Ms Rubito, I am also going to order that you undertake 150 hours of unpaid community work, that you undertake programs designed to reduce reoffending.  It is recommended that you undertake treatment and rehabilitation for alcohol use.  It does not seem to me that alcohol has really been a great problem for you and I do not intend to impose that condition.  It has always been recommended that supervision be imposed, I am not inclined to do that either, it does not seem to - the Office of Corrections is overburdened as it is, it does not seem to me that you - you two know perfectly well how to run your lives and behave properly, you have both got reasonable work histories, you have both lived independently. 

37I understand that this offending occurred obviously in the wake of some late night drinking and bravado and complaining by you perhaps, Ms Rubito, but I am satisfied that the pair of you understand how very serious these actions were and that it has brought you in a very serious way before the courts and that neither of you have any desire to go end up in gaol. 

38I am also satisfied that the pair of you have good rehabilitative prospects.  So I am only going to order community work and programs for reducing reoffending in your case, Ms Rubito.  In your case, Mr Saraceno, because I know you have done fairly well, but you did fall off the wagon a bit with the last community corrections order and I think it would probably be a good idea for you to pick up your drug rehab for both drugs and alcohol and in relation to programs to reduce reoffending.  All right.  Have a seat while we prepare the orders.

39Because I have imposed a community corrections order, I am not obliged to make a s.6AAA declaration, which I regard as one of the most attractive features of that order.  Now for the s.464ZF applications?

40MR PAGE:  No objections from this end.

41HER HONOUR:  They have got enough priors and the offending was sufficiently concerning.

42MS KARAPANAGIOTIDIS:  Sorry, Your Honour, I would make the submission though that in Ms Rubito's case, she has, as I have already put to Your Honour a very limited prior history, two theft matters, no violence and no subsequent offending.  In my submission there is good reason there why the order should not be made.  She does not present with future risk issues and again the offending is just so limited in her past.

43HER HONOUR:  All right.  What do you say, Ms Harper?

44MS HARPER:  There's no history of violence, Your Honour, but this involved violence, this offending of recklessly cause injury.  The injuries, as I submitted before, aren't insignificant.

45HER HONOUR:  Yes, that is true actually, look I think the seriousness of the offending does warrant it but I am only going to order a scraping from the mouth.  Now I need to say that each of you, I have ordered that you attend the police station within a particular period of time and provide a saliva sample.  I need to say that police are entitled to use reasonable force if you resist them taking that sample, all right? 

46All right.  Now there are disposal orders?  You said the Rottweilers are not included in the disposal orders?

47MS HARPER:  No, they're alive and well, Your Honour, and as I understand it residing with Mr Van Scoy.  There's a nice photo in book A I understand.

48HER HONOUR:  Thanks, Ms Harper, I will have a look at them in chambers.  All right.  Do you want an appeals cost certificate for Monday?

49MR PAGE:  Yes, I was just about to make the application, Your Honour.

50HER HONOUR:  Do you?

51MR PAGE:  Yes.

52HER HONOUR:  All right.  I will grant it.

53MR PAGE:  I'm grateful, Your Honour.

54MS KARAPANAGIOTIDIS:  And my client's, Your Honour.  Thank you.

55HER HONOUR:  All right.  My ever efficient associate had them all.  It will be - obviously the CCOs are convictions.  All right.  Thank you, we will get each of you to sign that, thank you.  Thank you very much.  Good luck to you both, all right, again I thank counsel for their assistance in this matter.  Thank you.  Yes, thank you we will adjourn.

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