Director of Public Prosecutions v Sorleto
[2022] VCC 1553
•13 September 2022
| IN THE COUNTY COURT OF VICTORIA CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-22-00746
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ADRIANO SORLETO |
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JUDGE: | HIS HONOUR JUDGE MAIDMENT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 September 2022 | |
DATE OF SENTENCE: | 13 September 2022 | |
CASE MAY BE CITED AS: | DPP v Sorleto | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1553 | |
REASONS FOR SENTENCE
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Subject:Plea – sentencing
Catchwords: Common law assault - reckless conduct endangering life -
failing to render assistance to a person injuredLegislation Cited:
Cases Cited:
Sentence:4 years and 3 months' imprisonment, 2 years and 10 months non-parole
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms C. Paganis | Office of Public Prosecutions |
| For the Accused | Ms S. Gillahan | Emma Turnbull Lawyers |
HIS HONOUR:
1
Adriano Sorleto, you have pleaded guilty to Charge 1 of common law assault, for which the maximum penalty is imprisonment for five years, to Charge 2 of reckless conduct endangering life, for which the maximum penalty is imprisonment for
10 years, and to a related summary offence of failing to render assistance to a person injured by the motor vehicle you were driving, for which the maximum penalty is imprisonment for eight months or a fine of 80 penalty units.
2You have admitted a prior criminal record which includes sentences for an offence of reckless conduct endangering serious injury in 2002, for making a threat to kill in 2015, for offences including persistently contravening a Family Violence Intervention Order, using a carriage service to harass, possessing a controlled weapon, recklessly causing injury and drug offences in April 2021, less than four months before this offending. You also have a poor driving record.
3The prosecution tendered a written outline of relevant facts, together with an electronic storage device containing a copy of the CCTV recording, the audio only of the common law assault which took place inside the house and the visual and audio recording of the events the subject of the other two charges.
4The written outline and the recording are Exhibits A and B respectively. The facts as presented were not disputed by your counsel, save that there was some dispute raised by your counsel as to the inferences that may properly be drawn against you from a viewing of the driving as depicted in Exhibit B.
5
The relevant facts may be summarised as follows. At the time of the offending you were aged 38, your victim was aged 32. You and she had been in a relationship for approximately 12 months previously and had been living together at her mother's house since April 2021. On Sunday 15 August 2021, your victim and her mother were at home alone. You and your victim had left the house together the previous day but you did not return with her. During the evening of
14 August 2021, your victim's mother had received several messages from you in pursuit of your attempts to contact your victim.
6At approximately 9.30 am on 15 August 2021, you knocked on the roller shutter doors of your victim's mother's house. A check on the house CCTV camera showed you standing at the front door. Your victim told her mother not to let you in. Despite that request, her mother did let you in. You and your victim went directly to the bedroom that you and she had been occupying together. Approximately 25 minutes later, you and your victim were heard yelling and screaming at one another. The argument spilled over into the hallway.
7
You threw punches at your victim, who was trying to block punches from you and hit you back. Her mother tried to intervene by standing in the way so you pushed her a number of times. You then pushed your victim's head into a wall in the hallway, causing a hole in the plasterboard. That conduct is the foundation for
Charge 1 of common law assault.
8You and your victim then left the house and continued arguing outside. Her mother called ‘000’. The argument continued onto the front driveway where your Volkswagen Golf motor car was parked with its rear towards the road. CCTV footage shows you getting into the car. Your victim picked up a rubbish bin and threw it onto the car on more than one occasion. She also tried to remove a side mirror from your car.
9You started the car, and as your victim started walking back towards the house, you reversed your vehicle approximately two metres and braked suddenly. You then accelerated forward, turning the steering wheel as you did so towards your victim. A single tyre mark left on the driveway bears witness to that. The CCTV footage shows that you drove over a garden bed towards your victim. The victim is seen running onto the lawn at the front of the house. You drove directly at your victim and hit her. The car went over your victim, trapping her underneath the front of the car.
10You got out of the car and were apparently trying to lift it off her. You were unsuccessful. You got back into the car and tried, unsuccessfully, to reverse the car off your victim. You then placed the car in neutral and were able to push it backwards off your victim. In doing so, the vehicle struck the house, causing damage costing about $24,000 to repair. Your victim was conscious but in pain. She told her mother she could not move her leg. Neighbours came to assist. You took some belongings from your vehicle and left the scene without attempting further to assist your obviously injured victim.
11Police, Fire Rescue Victoria and Ambulance Victoria personnel arrived a short time later. Your victim was transported to the Royal Melbourne Hospital for admission and treatment. She was found to have sustained dislocations of the right shoulder and right hip which required reduction under sedation in the Emergency Department. She has had ongoing medical treatment to assist her rehabilitation.
12You were arrested and interviewed on 17 August 2021. During the interview you admitted leaving the scene because you were scared but otherwise denied the offending conduct the subject of Charges 1 and 2.
13Having viewed Exhibit B several times, both during the plea hearing and subsequently, I am satisfied beyond reasonable doubt that, having reversed a short distance to allow room to turn the front wheels of your car in your victim's direction, you deliberately drove your vehicle forwards over a garden bed and onto the lawn in front of the house in pursuit of your victim with the intention of knocking her over and driving over part or all of her body. Your vehicle did not stop moving forward until you had achieved that objective.
14By driving over your victim in that manner, you clearly placed her life in serious jeopardy. Your plea of guilty reflects an acceptance by you that you foresaw that risk as a probable consequence of your driving and that you continued intentionally in that conduct with that state of mind. Your primary victim did not present a Victim Impact Statement; however, her mother read out her own Victim Impact Statement, which became Exhibit C. In it she eloquently described the anguish of witnessing her daughter being run over and the ongoing emotional impact of that event. It is also reasonable to conclude that the physical and mental trauma suffered by her daughter would have had ongoing adverse consequences for her also.
15Turning to matters personal to you: your counsel provided me with a written outline of submissions on your behalf which is Exhibit 1, a letter from Lorna Crawford of The Bridge Centre (Exhibit 2), a letter from Amy Livingstone of the same organisation (Exhibit 3), a letter from Dr Yacoub of Northend Medical Centre (Exhibit 4), and a report from Diandra Peters (Exhibit 5). The exhibits provide some evidence of your efforts, since being released on bail on 10 May 2022, in relation to your intended continuing abstinence from illicit drugs and your further efforts towards rehabilitation.
16Your counsel conceded that the offending is inherently serious and aggravated by the family violence context in which it occurred. She submitted that the common law assault falls at the mid-range of seriousness and that it occurred in a context of an argument between you and your victim whilst you were attempting to leave. Those submissions seem to be consistent with the sounds heard on the CCTV recording and I accept them, although I note the element of domestic violence and the apparently gratuitous nature of the offending act.
17In relation to the charge of recklessly endangering life, your counsel submitted that the offending was not premeditated and was of very short duration. It was submitted that this puts the offending in a different category to that which involves, for example, the obtaining and use of a firearm or protracted dangerous driving. It was submitted that the objective gravity of the offence falls in the mid to upper range of seriousness. That submission is consistent with the prosecution characterisation and I accept it.
18As to the related summary charge of failing to render assistance, your counsel submitted that the charge falls at the lower range of seriousness. As I indicated during the plea hearing, I agree with that submission. It seems to me that others in attendance were able to render assistance and were already doing so when you fled the scene. Although your decision to leave may have been motivated by self-interest, it may, incidentally, have served to reduce the risk of further confrontation.
19You are now 39 years of age. You are the second oldest of three brothers. You left school in Year 11 but returned to TAFE and completed a Year 11/12 equivalent of school. You obtained an Advanced Diploma in Conveyancing and also completed training to become a chef. Throughout your adulthood you largely worked as a manager at Origin Energy. You also, for a period of time, ran a firewood business which was brought to an end by the COVID pandemic.
20You were in a relationship with an ex-partner for 14 years before that relationship ended in 2015. There are two children of that relationship aged 13 and 11. Prior to your remand in custody and as a consequence of your drug use and homelessness, you were having limited contact with your children and their mother. After your release from custody in May 2022, you had been having weekly contact with your children and had resumed a good parenting relationship with their mother.
21I was told that you have a history of methamphetamine use which commenced in a social context at around 18 years of age and later turned into a daily habit. I was told that when your relationship with your ex-partner ended in 2015, your drug use escalated and became more problematic. It was pointed out that the escalation coincided with an escalation of your offending in 2015.
22Your counsel told me that you experience symptoms of depression and anxiety. Consistent with Exhibit 4, you sought a mental healthcare plan from your GP and have been referred to a psychologist for treatment. It was not submitted that the Verdins principles were enlivened but those facts are to be considered in the court's instinctive synthesis of matters relevant to sentence.
23I was told that at the time of the offending you were homeless and further that your relationship with your victim had broken down. I was told that it was volatile and characterised by mutual drug use. You were unemployed and were not having contact with your parents or your children.
24I was told that after being granted bail in May 2022 you resided with your parents, and your father experienced serious blood clots and was hospitalised for a number of months. As a consequence, he had parts of his leg amputated. He was released from hospital in the days prior to your being granted bail.
25After your release, you had taken on a caring role for your elderly parents. You assisted them around the house and took your father to frequent medical appointments. It was conceded by your counsel that your prior criminal history is of relevance to the exercise of sentencing discretion in this case. However, between 31 July 2018 and this offending, you were offence free.
26It was submitted that you pleaded guilty at an early opportunity and that the matter having resolved at committal prior to any witnesses giving evidence, you ought to receive the full benefit of your plea of guilty. I accept that submission.
27It was submitted that your pleas also demonstrate a willingness to facilitate the course of justice and an acceptance of responsibility. Again, I accept that submission.
28From very early on you indicated your intention to plead guilty to the charge of reckless conduct endangering life. The utilitarian value of the plea is of greater significance in the context of the present COVID pandemic. I accept your counsel's submission based on Court of Appeal authority that encouragement to plead guilty in these COVID times must come from the sentencing court making an actual and palpable amelioration of sentence.
29It was also submitted that your pleas of guilty should persuade me that you are remorseful. I accept that your pleas are consistent with remorse but beyond the steps you have taken towards rehabilitation, I cannot find any other evidence of genuine remorse for your offending.
30It was submitted that you have good prospects of rehabilitation, that your offending is intimately connected to your use of methamphetamines, and that there is cause to believe that if you are not using illicit drugs you will be able to remain drug free.
31Whilst in custody you availed yourself of the programs offered to you and completed the following: Ice and Me, Health Balance, Keeping Your Cool and Healthy Coping. Since being granted bail on 10 May 2022, you actively and voluntarily pursued your own rehabilitation. You engaged with post-release case workers at the Bridge Centre and continue to engage with a Ravenhall Correctional Centre clinician in relation to your mental health and substance abuse. You self-referred to a Men's Behaviour Change Program where you were, at the time that you were taken into custody last week, on the waiting list. You engaged with an employment agency and you obtained a mental health care plan with a referral to a psychologist.
32It was submitted that you have remained abstinent from illicit drugs since your release from custody in May of this year. It is to be hoped that is true.
33The impact of COVID-19 has made your time in custody more burdensome than it otherwise would be. You were the subject of a number of lockdowns and periods in isolation, and during your time in custody you were unable to have any in-person visits during the COVID restrictions. When video calls were available, you were unable to have them with your parents due to technological barriers. You were only able to communicate with your family over the phone and this could not occur when in lockdown. Communication with your family was made even more difficult when your father was hospitalised.
34Dealing with the purposes of sentence, your counsel properly conceded that general deterrence, denunciation and just punishment would have some significance in the formulation of an appropriate sentence. These principles are relevant in that the sentence imposed must convey to others that offending of this nature will not be tolerated by the courts. It was also conceded that specific deterrence would be a relevant consideration in this case.
35It was submitted that you would benefit from support and supervision so that you may continue to abstain from illicit substances and continue with your rehabilitation. I was reminded that the sentence must not be more severe than is necessary to achieve the purpose(s) for which it was imposed.
36It was submitted that the protection of the community is linked to your rehabilitation and particularly your ability to remain abstinent from illicit substances. It was submitted that such an end could be facilitated by the formulation of a sentence which would promote your rehabilitation.
37It was submitted that the relevant sentencing purposes could be addressed by a combination sentence involving a period of imprisonment equal to the time you have already served, coupled with a substantial community correction order. It was pointed out that you have never received such an order.
38The prosecution provided assistance with identification of an appropriate sentence by reference to sentencing statistics. The prosecution contended, I think rightly, that the serious nature of this particular offence of recklessly endangering life rendered a term of imprisonment combined with a community correction order below the range of available sentences. It was further submitted that I should consider your criminal history, although this offending represented a significant elevation in the seriousness of your offending.
39A viewing of the CCTV video footage on Exhibit B reveals a sickening spectacle of a callous, despicable and cowardly attack on your victim who was completely defenceless against your motor car being driven directly at her. It must have been a terrifying experience for her, knowing that she could not avoid your rapidly approaching vehicle directed, as it was, at running her down from behind. Likewise, it must have been horrifying for those who saw it and were powerless to prevent it.
40You are fortunate that you did not kill her. She is fortunate to have escaped with her life and without more serious injuries. The offending is aggravated by the fact that it occurred in the context of a domestic relationship against a former partner. No amount of provocation arising from her role in the heated exchange which preceded the offence can come close to excusing such a violent and dangerous response. Your offending conduct was the last act of that heated exchange. It was gratuitous and spiteful, it bespoke of a sense of entitlement to conclude the confrontation on your own terms, whatever the consequences.
41The offending may have been a spontaneous decision made in the heat of the moment and the offending was of short duration, but you had more than adequate opportunity to desist before you got to the point of running your victim over. The court is bound to denounce such wanton, reckless and inexcusable conduct in strong terms, to punish you adequately and to impose a sentence that may deter others from behaving in a similar manner.
42I accept that the offence of common law assault was committed shortly beforehand during an angry confrontation between you and your victim, the origins and merits of which are unclear. But it is also an example of domestic violence by a male on his female partner, or former partner, which aggravates the offence.
43You have prior convictions from your court appearance in April 2021 which are obviously relevant, although I understand the family violence aspect of that series of offences did not involve the same victim. You clearly did not learn from those convictions that family violence is not to be tolerated. Your record indicates there is a need to pay proper regard to deterring you from further such offending and to consider the needs for community protection.
44I accept the latter sentencing principle may be advanced by encouraging your further rehabilitation, but your offending on this occasion is too serious to permit such an approach to undermine the need to satisfy the other principles of sentencing to which I have referred.
45I note that you have taken steps towards rehabilitation. I regard those steps as encouraging but at the age of 39 years you have had many previous opportunities to reflect on the need to bring your drug abuse under control and upon the means of doing so. I cannot yet regard your prospects of rehabilitation as good. However, I do not regard them as hopeless.
46I give you full credit for your pleas of guilty in these COVID times and I propose to reduce your sentence on account of the harsh conditions you have already experienced in custody and will continue to experience in the foreseeable future while serving sentence.
47I am conscious of the need to impose no greater sentence that is necessary to achieve the purposes of sentencing and the need to pay proper regard to the principle of totality.
48I now pass sentence upon you as follows.
49Adriano Sorleto, on Charge 1 of common law assault, you are convicted and sentenced to imprisonment for 12 months.
50On Charge 2 of reckless conduct endangering life, you are convicted and sentenced to imprisonment for four years. You are disqualified from obtaining or holding a driver's license for four years from today.
51On the related summary offence of failing to render assistance, you are convicted and discharged.
52
The sentence on Charge 2 is the base. I order that three months of the sentence on Charge 1 be served cumulatively on the sentence on Charge 2. The total effective sentence is imprisonment for four years and three months. I fix a
non-parole period of two years and 10 months.
53I declare 272 days pre-sentence detention as time to be reckoned as served upon the sentence I have imposed and I order that those facts be noted in the records of the court.
54
But for your pleas of guilty, I would have sentenced you to imprisonment for
six years with a non-parole period of four years.
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