Director of Public Prosecutions v Spadaro, Phillip

[2012] VCC 2061

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

AT MELBOURNE

CRIMINAL DIVISION

Case No.   CR-12-02193

DIRECTOR OF PUBLIC PROSECUTIONS

v

PHILLIP SPADARO

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	13 December  2012
DATE OF SENTENCE:	14 December 2012
CASE MAY BE CITED AS:	DPP v Spadaro, Phillip
MEDIUM NEUTRAL CITATION:	[2012] VCC 2061

REASONS FOR SENTENCE
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Subject:         Firearm and assault charges against householder.

Catchwords:  Defendant heavily drug-affected at the time; prior convictions involving violence and possession of firearms; youthful offender (aged 20); reasonable prospects of rehabilitation; remorseful

Sentence:     2 years imprisonment with non parole period of 9 months.     

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms A. Ellis
For the Accused	Ms M. Mahady

HER HONOUR:

1       Phillip Spadaro, you have pleaded guilty to one charge of altering a firearm, two charges of being a prohibited person in possession of a firearm and one charge of criminal intent while being armed.  You have also pleaded guilty to a number of associated summary charges: possessing cartridge ammunition without a licence or permit, assault with a weapon, possessing a prohibited weapon and dealing in the proceeds of crime.

2       On 27 April 2012, at about 5 pm, you went to the home of Soula Patkas, the mother of Jason Brockdroff, who lived with her.  You had learned that your girlfriend had been seeing Mr Brockdroff and that he was harassing her.  This distressed you and in your words you "snapped."  You went there armed with a stolen single barrel shotgun, which you had sawn off to resemble a handgun.  At the time you were a prohibited person in respect of possession of a firearm.  You attempted to open the door of the house and Ms Patkas heard this.  She opened the door and saw you holding the gun.  You showed her the gun, which you had pointed towards the ground, and you threatened her by shouting, "Where the fuck is Jason?"  Ms Patkas was frightened and asked what was going on and you said, "I'll be back and I'll fix you all up."  You then used your T-shirt to wipe the door handle and got into the passenger seat of a car and the car was driven off.

3       At about 8 pm, you were seen by police driving in a nearby suburb and were then seen parking the car near your home and hiding something under the seat as you got out of the car.  Police gained entry to the car and located a sawn-off shotgun wrapped in a towel, with evidence that it had recently been discharged.  It was found to be loaded.  You then left your house on foot and were arrested.  In your house, police found a firearm barrel believed to be from the sawn-off shotgun, that had been located in the car, and a hacksaw.  The gun was later ascertained as having been stolen several months earlier.

4       Ms Patkas has provided a victim impact statement, in which she describes being very frightened by your behaviour, which she described as very loud and aggressive, and she says she has remained anxious because of it.  Her anxiety has caused her to lead a restricted life.

5       Returning to the events of the night in question, under the bed the police found an air rifle in a case, which was registered to another person, and a flick knife was found on the kitchen bench.  You were arrested and taken to the police station, but you were too much affected by drugs to be interviewed.  You were remanded in custody and granted bail on 3 August, but your bail was revoked on 16 August because you contacted your ex girlfriend in contravention of your bail conditions, and I take note of the fact that your parents have indicated that it was their suggestion, out of concern for you, that this bail condition be imposed at the time.

6       The maximum penalties for the offences charged are as follows:

CHARGES	MAXIMUM PENALTIES
Altering Firearm	4 years imprisonment
Prohibited Person Possessing Registered Firearm	10 years imprisonment
Armed with Criminal Intent	5 years imprisonment
Possess Cartridge Ammunition without a License or Permit	40 penalty units
Assault with a Weapon	2 years imprisonment
Possess Prohibited Weapon	2 years imprisonment
Dealing with Proceeds of Crime	2 years imprisonment

7       Your circumstances are that you are a 20 year old single man, who until your arrest was living with your parents and siblings.  You have been a heavy user of drugs, specifically methylamphetamine in the form of ice, using daily with your girlfriend, who was four years older than you and had introduced you to the habit.  As a result you reported that you experienced feelings of energy but also of aggression, and the relationship was extremely turbulent.

8       Since being in custody and drug free, your health has improved and you have developed insight into the effect of drugs upon you and the dangers of continued use.  You also fear that the drugs have done you some harm and you consider that you will need help upon your release to avoid regressing into use again.

9       You had an unhappy time at school, as you were bullied for being overweight and because of your behaviour you were eventually asked to leave school in Year 11.  You completed some certificate courses at TAFE and have had a series of casual jobs since then.

10      At the age of 18, you were placed on probation for assaulting and causing injury to another boy who had bullied you. In two court appearances, in 2011, you were dealt with for a series of theft and burglary charges, some of which were prompted by your family's difficult financial circumstances and your desire to help them, those charges included possession of a handgun.  I understand that you were given that gun to look after and that it was kept in a safe at the time.  You were placed on a community-based order for one set of charges, which was breached by re-offending, and then you were given a nine month sentence of youth detention.  Clearly your offending has escalated because of the involvement of firearms and the use of a gun to frighten people.

11      The principle of general deterrence is of great importance in such a case, so that others will understand that the use of weapons in this way will not be tolerated and will be dealt with severely by the courts.  It is also significant that the gun was loaded and that it was discharged some time after you left the house and before you returned home. 

12      There are several matters which allow me to exercise some leniency.  The first is that you pleaded guilty before the committal hearing and that no-one has had to give evidence in court and the expense and inconvenience of a trial has been avoided.  You are entitled to a discount on your sentence because of that and I also accept it as an indication of remorse.

13      Your troubled teenage years led you to attend counsellors, from the age of 15, for assistance with your tendency to become angry.  It seems that that difficulty has not been resolved and that your history of depression and anxiety has played a part in your propensity to offend.  Abuse of alcohol and drugs has also contributed and it would seem that only recently you have developed some insight into these problems, particularly in relation to the danger associated with the use of drugs.  You have overcome the problem of serious obesity, which was one of the causes of bullying at school.  You lost a lot of weight through boxing and playing football, but this has left residual skin folds which require surgical removal.  You have been on a long waiting list for this procedure and have an appointment with the clinic at Sunshine Hospital on 28 February next year.  Clearly this is an important procedure and, indeed, your parents who have been in court supporting you regard this as a means of giving you a fresh start.

14      Dr Danny Sullivan, a forensic psychiatrist, has provided reports following two interviews with you, which throw light on your current attitudes to these matters.  He notes that you have ceased alcohol use and you believe, as I said before, that the use of methylamphetamine has had a detrimental effect on your mental state and contributed to a degree of social anxiety.  You told him that you think your mental health state has improved, but you understand that you will need treatment to overcome the risk of relapse into drug use and you also feel the need for continued treatment for coping with stress and anger. 

15      Dr Sullivan also noted that you reported to him poor impulse control, manifesting itself in an easy propensity to anger, as well as impulsive non suicidal deliberate self harm.  Indeed, earlier in this period of incarceration, you deliberately cut yourself.  Dr Sullivan went on to say that he expects these issues to attenuate with maturity and that you do not appear to have any significant anti-social personality, qualified however, in his words, by your mixing with anti-social peers and a concerning propensity to accessing firearms.  Dr Sullivan concluded that you have reasonably good prospects for rehabilitation, but only if you avoid anti-social peers and substance abuse. 

16      You are still, at the age of 20, classified as a youthful offender for whom rehabilitation is of great importance.  You acted in an impulsive way, exercising very poor judgment, whilst you were heavily affected by drugs.  You have shown signs of wanting to change and adopting the means of doing so, and you must be given credit for that, and an opportunity to change your ways as soon as you have paid the price of your offending.  Your letter to the court is persuasive as to your remorse and that you did not intend to hurt anyone and that you appreciate how reckless you were.

17      I have considered whether a community corrections order would be appropriate, as submitted by Ms Mahady, who appeared on your behalf, but I have concluded that the seriousness of the offending calls for a longer term of imprisonment than the time that you have already served and that a disposition to be served in the community is not adequate.  However, I am satisfied that a shorter minimum period than that submitted by the prosecution is appropriate given all the factors that I have considered.

18      I sentence you as follows:

CHARGES	MAXIMUM PENALTIES	SENTENCE
1.  Altering Firearm	4 years imprisonment	9 months
2.Prohibited Person      Possessing Registered Firearm	10 years	9 months
3. Armed with Criminal Intent	5 years	9 months
4. Prohibited Person      Possessing Registered Firearm	10 years	9 months
14.Possess Cartridge Ammunition without a License or Permit	40 penalty units	$200
15.Assault with a Weapon	2 years	6 months
16.Possess Prohibited Weapon	2 years	6 months
18.Dealing with Proceeds of Crime	2 years	4 months

The sentence for Charge 1 is the base sentence for purposes of cumulation.  I order that three months of each of the sentences for Charges 2, 3 and 4, and four months of the sentence for the summary Charge 15, and one month each for the sentences for summary Charges 16 and 18, be served in cumulation upon the base sentence.  I impose a fine of $200 for summary Charge 14.  This results in a total effective sentence of 24 months. 

19      I fix a minimum period which you must serve, before being eligible for parole, of nine months.  Upon your release you will have a long period of parole during which to address the problems that I have outlined.  Apparently you only barely completed your last parole period.  Hopefully you will be in a better position this time to ensure that you keep your obligations and do not offend again even after your completion of parole.

20      You have been in custody for 218 days, which is about seven and a half months.  That time will be reckoned as already served and I shall note that on the court record.

21      The prosecution seeks an order for the disposal of the weapons and related items and that is consented to and I make that order.

22      (Disposal order signed and acknowledged.)

23      If you had pleaded not guilty to these charges, I would have sentenced you to three years' imprisonment with a non parole period of 18 months.

24      Ms Mahady, by my calculation, that should see Mr Spadaro, subject to the Parole Board, being released some time in February.

25      MS MAHADY:  Thank you, Your Honour. 

26      HER HONOUR:  Have I omitted anything, Ms Ellis?

27      MS ELLIS:  I do not believe so, Your Honour.

28      HER HONOUR:  No, all right, thank you.  I will leave the Bench now.

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