Director of Public Prosecutions v Spiteri
[2021] VCC 205
•19 February 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No CR-20-00822
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAKE SPITERI |
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JUDGE: | HIS HONOUR JUDGE WRAIGHT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 February 2021 | |
DATE OF SENTENCE: | 19 February 2021 | |
CASE MAY BE CITED AS: | DPP v Spiteri | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 205 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – Sentence.
Catchwords: Plea of guilty – Firearms offences – Possess drugs of dependence – Organised thefts of four motor vehicles – Offender acquired and attempted to acquire firearm and firearm related items whilst subject to Firearm Prohibition Order – Relevant criminal history – Positive prospects of rehabilitation – Circumstances of COVID-19 taken into account – Parity.
Legislation Cited: Crimes Act 1958 ss 74(1), 321M; Firearms Act 1996 s 112B; Drugs, Poisons and Controlled Substances Act 1981 s 73(1); Bail Act 1977 s 30A(1); Control of Weapons Act 1990 s 6(1); Sentencing Act 1991 ss 6AAA, 16(3C), 18, 89(4)(a)(i).
Cases Cited:DPP (Cth) v Munro [2019] VSCA 89; Avis v The Queen [1997] EWCA 3423.
Sentence: Imprisonment for a period of 3 years and 2 months, with a non-parole period of 1 year and 10 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms D Caruso | Office of Public Prosecutions |
| For the Accused | Mr D Sala | Giorgianni & Liang Lawyers |
Introduction
Jake Spiteri, you have pleaded guilty to the following offences:
· One charge of attempt to acquire a firearm contrary to a prohibition order contrary to s 321M of the Crimes Act 1958 and s 112B of the Firearms Act 1996, which carries a maximum penalty of 5 years imprisonment (Charge 1);
· Four charges of theft, contrary to s 74(1) of the Crimes Act 1958, which carries a maximum penalty of 10 years imprisonment on each charge (Charges 2, 3, 11 and 12);
· One charge of acquisition of a firearm related item contrary to a prohibition order contrary to s 112B of the Firearms Act 1996, which carries a maximum penalty of 10 years imprisonment (Charge 4);
· One charge of attempt to acquire a firearm related item contrary to a prohibition order contrary to s 321M of the Crimes Act 1958 and s 112B of the Firearms Act 1996, which carries a maximum penalty of 5 years imprisonment (Charge 5);
· One charge of possession of a firearm contrary to a prohibition order, contrary to s 112B of the Firearms Act 1996, which carries a maximum penalty of 10 years imprisonment (Charge 6);
· One charge of possession of a firearm related item contrary to a prohibition order contrary to s 112B of the Firearms Act 1996, which carries a maximum penalty of 10 years imprisonment (Charge 7); and
· Three charges of possession of a drug of dependence contrary to s 73(1) of the Drugs, Poisons and Controlled Substances Act 1981, which carries a maximum penalty of 1 year imprisonment and/or 30 penalty units on each charge if the court is satisfied on balance of probabilities that the offence was not committed for any purpose relating to trafficking, or 5 years imprisonment in any other case (Charges 8, 9 and 10).
You have also pleaded guilty to the following summary offences:
· One charge of contravene conduct condition of bail contrary to s 30A(1) of the Bail Act 1977 which carries a maximum penalty of 3 months imprisonment or 30 penalty units (Summary Charge 14); and
· One charge of possess a controlled weapon contrary to s 6(1) of the Control of Weapons Act 1990 which carries a maximum penalty of 1 year imprisonment or 120 penalty units (Summary Charge 15).
You have admitted your prior criminal history.
Summary of offending
At the time of the offending you were 28 years of age and your friend Richard Portelli, the co-offender in relation to Charges 2 and 3, was 31 years of age. On 20 February 2020 you were arrested and charged with a number of offences arising from an investigation into the thefts of vehicles.
Theft of the Range Rover (Charge 2)
On 19 October 2019 between 1.20am and 7.20am a black Range Rover wagon with registration 1MG9NG owned by Reinna Sevilla, was stolen from her address by unknown persons.
On 20 February 2020 a search warrant was executed at your premises at 8 Shebler Place, Melton. CCTV was seized which depicted movements at Shebler Place and revealed that on 11 November 2019 at 1.05pm, Mr Portelli was driving the stolen Range Rover and you were in the front passenger seat. Neither of you had permission from the owner to be driving and in possession of the vehicle. It is these facts that relate to Charge 2, theft.
Text messages between you and Mr Portelli reveal that on 8 November 2019 Mr Portelli sent you an MMS of a picture of a black Range Rover and you replied with the SMS ‘that’s Mikky’.
The prosecution summary reproduces further text message examples between you and a contact called ‘Sam’ in relation to the theft which I will not reproduce here.
Theft of the Hilux (Charge 3)
On 10 November 2019 a black 2016 Toyota Hilux belonging to Rohulla Rizaee was stolen from a Dandenong address.
On 24 November 2019 at approximately 5.40am police member Armstrong observed you and Mr Portelli in the Toyota Hilux at the Mac’s Hotel in Melton displaying false plates. CCTV footage from the hotel depicted Mr Portelli as the driver and you as the passenger when you arrived at the hotel. It is these facts that relate to Charge 3, theft.
On 26 November 2019 the vehicle was involved in a collision and burnt by unknown offenders. Forensic examination established that the vehicle was owned by Rohullah Rizaee.
The prosecution summary reproduces text message examples between you, Mr Portelli and others in relation to the theft which again I will not reproduce here.
Theft of the Suzuki motorcycle (Charge 11)
Between 28 December 2019 and 2 January 2020, a blue 2016 Suzuki GSXR10 motorcycle with registration 2G2SI belonging to Joshua Parker and valued at approximately $10,000, was stolen from the victim’s address by unknown offenders.
During a search warrant executed at your property on 20 February 2020, police located the Suzuki motorcycle in your garage. It is these facts that relate to Charge 11, theft. The motorcycle was fitted with the number plates of the Honda motorcycle subject to Charge 12. Police located the correct registration in a gym bag within the garage.
The contents of the SD card of a GoPro seized at your property depicted you riding the motorcycle at high speed. CCTV from Mr Portelli’s residence depicted you arriving at his residence on the motorcycle on 16 February 2020 at 5.08pm and again at 9.33pm.
Theft of the Honda motorcycle (Charge 12)
On 6 December 2019 between 6.30am and 8am a red 2011 Honda CBR250 motorcycle with registration 1D6KI belonging to Craig Shone and valued at approximately $4,000 was stolen from the victim by unknown offenders.
During the search warrant executed at your property police located the Honda motorcycle in your backyard without number plates. It is these facts that relate to Charge 12, theft.
An image was located on your mobile phone depicting the Honda motorcycle on your driveway with a steam cleaning unit on 7 December 2019. During your interview with police you stated that the motorcycle had been left at your residence when you moved in. The real estate agent stated that in photographs taken of the premises prior to you moving in there was no motorcycle and no one at the property reported that a motorcycle had been left at the property.
Firearms Offences
I turn now to the firearms offences.
On 4 September 2018, you were issued with a Firearm Prohibition Order, expiring on 4 September 2028 which prohibits you from acquiring, possessing, carrying or using any firearm or firearms related item. It also prohibits you from entering a number of firearms related premises. The schedule of the order outlines the penalties for contravention. The prohibition order allows police to search premises occupied by a person subject to an order without warrant.
During the search warrant police located firearms and firearm related parts at your home. Analysis of your Galaxy note mobile phone seized by police revealed that you had acquired and attempted to acquire firearms and firearm related items in contravention of the prohibition order.
Attempt to acquire Firearm and Acquisition of Firearms Contrary to Firearm Prohibition Order (Charges 1, 4 and 5)
On 22 September 2019, you ordered a Tokyo Marui US M9 gas blowback pistol (an airsoft pistol) from an eBay seller called jadigi-9039. You used the false name of Jake Digiglio (a version of your mother’s name) and directed the order to 52 Collage Street, Melbourne. Your mother’s name is Maria Digiglio and she resides at 52 Collage Street, Caroline Springs. This shipment was intercepted by Australian Border Force. It is these facts that relate to Charge 1, attempt to acquire a firearm contrary to a firearm prohibition order.
On 27 January 2020, you ordered a Hoppes cleaning kit for a .38 calibre pistol and a box of 100 Hornady brand .38 calibre 158 grain JHP projectiles (ammunition) from You ordered them to your own address using the name Jake Digiglio. The items were delivered on 12 February 2020, which gives rise to Charge 4, acquire firearm related item whilst subject to a prohibition order. The cleaning kit and ammunition have not been located by police.
On 18 February 2019, you ordered a crimson Trace Laser Piston Grip, S&W J-Frame Defender, model LG010 from You ordered it to your own address using the name Jake Digigilio. The item was delivered on 20 March 2020 after you were arrested, which gives rise to Charge 5, attempt to acquire a firearm related item whilst being subject to a firearm prohibition order.
Possession of firearm and firearm related item contrary to prohibition order (Charges 6 and 7)
Prior to the search commencing, you told police that there was ammunition and a loaded revolver in the garage.
During the search of your garage police located a Smith and Wesson .38 calibre revolver firearm loaded with five .38 calibre rounds in a grey Nike bag. It is these facts that relate to Charge 6, possession of a firearm contrary to a firearm prohibition order.
Also located in the Nike bag were two loose .38 calibre rounds and a black firearm ankle holster. In a separate bag in the garage police located two boxes of .38 calibre ammunition and a leather gun belt filled with .22 calibre rounds of ammunition. A separate box was found with one .38 calibre round of ammunition. In the master bedroom police located a brown leather firearm holster. It is these facts that relate to Charge 7, possession of firearm related items contrary to a prohibition order.
Analysis of your mobile phone revealed that you ordered two boxes of .38 calibre ammunition on 3 February 2020 from which were delivered to your address on 12 February 2020.
Possession of drugs of dependence (Charges 8, 9 and 10)
Police located in your garage a brown box which contained a zip lock bag later confirmed by forensic analysis to be 102.8 grams of heroin with a purity of approximately 20 per cent. It is these facts that relate to Charge 8, possession of a drug of dependence.
Police located in the master bedroom a plastic tub containing four glass vials. Forensic testing established that the substance in three of the glass vials was testosterone with a combined weight of 14.9 grams. The fourth vial was a mix of testosterone and trenbolone weighing 0.2 grams. It is these facts that relate to Charge 10, possession of a drug of dependence.
Police located in the master bedroom a plastic tub containing 19 loose white tablets, confirmed by forensic analysis to be methandienone weighing 5.2 grams in total. It is these facts that relate to Charge 9, possession of a drug of dependence.
Summary Charges 14 and 15
Police located in your bedroom a white and grey camouflage coloured baton, which gives rise to Summary Charge 15, possess controlled weapon.
Prior to this offending on 15 October 2019, you were granted bail and one of the conduct conditions was to report to police each Monday, Wednesday and Friday. You failed to report to police on 14 occasions between 15 January 2020 and 19 February 2020 which gives rise to Summary Charge 14, contravene conduct condition of bail.
Arrest and interview
You were arrested and interviewed by police on 20 February 2020. In relation to the theft of Range Rover, you denied knowledge that the vehicle was stolen however, when told your DNA linked you to it, you stated that you would not deny ever being in the vehicle. In relation to the theft of the Hilux, you admitted to driving the vehicle and denied knowledge that the vehicle was stolen, stating that it belonged to Mr Portelli.
In relation to the theft of the Suzuki motorcycle, you stated that you had purchased it for around $5,500 or $7,700 about six weeks prior but refused to state from whom. In relation to the theft of the Honda motorcycle, you stated that the motorcycle was at your residence when you moved in and that you had reported this to the real estate agent.
In relation to possession of firearms and firearm parts, you stated the following:
· you agreed that you had been served with the prohibition order and understood the conditions;
· that you were an ex-bikey and your life was at risk every day;
· that the revolver had been in the garage but you had taken it to a farm about two weeks prior;
· you admitted to possessing the revolver and .38 calibre ammunition, stating that you had had it for a couple of months;
· you denied possession of the ammunition belt and .22 calibre ammunition; and
· you admitted that the ankle holster was yours.
In relation to the testosterone, you admitted it was yours and stated it was testosterone and not GHB. In relation to the methandienone, you admitted possession of it and stated it was some kind of steroid. You admitted to possessing the baton, the subject of Summary Charge 15.
Nature and gravity of the offending
The charges on the indictment relating to firearms, and in particular the possession of a loaded handgun, are clearly very serious charges, which was conceded by your counsel. The theft charges while of a less serious nature, are still in my view, serious examples of theft of motor vehicles.
On 4 September 2018, you were issued with a Firearm Prohibition Order. As noted in the summary, the order clearly states what is prohibited and further states the penalties for contravention. Despite your acceptance and understanding of this order, you chose to possess, or attempt to possess, weapons and firearm related items.
In DPP (Cth) v Munro,[1] a firearms importation case, under the heading 'The scourge of firearms', the Court of Appeal summarises the legislative history in relation to the importation of firearms, however the Court also referred to the United Kingdom decision of Avis v The Queen,[2] a case concerned with possession and use of firearms, citing with approval the comments of Lord Bingham CJ where he stated:
The unlawful possession and use of firearms is generally recognised as a grave source of danger to society. The reasons are obvious. Firearms may be used to take life or cause serious injury. They are used to further the commission of other serious crimes. Often the victims will be those charged with the enforcement of the law or the protection of persons or property. In the conflicts which occur between competing criminal gangs, often related to the supply of drugs, the use and possession of firearms provoke an escalating spiral of violence.
[1] [2019] VSCA 89.
[2] [1997] EWCA 3423.
I respectfully adopt the comments in Avis. On your own admission you possessed (or attempted to possess) firearms and other related items for the purposes of ‘self protection’ arising from your association with an outlaw motorcycle gang. Specifically, in relation to what might be considered the most serious firearm charge on the indictment, Charge 6, you were in possession of a loaded .38 calibre revolver. The only meaning of the phrase ‘self protection’ in his context is that you were prepared to use the weapon if necessary.
As to the theft charges, while they are not as serious as the firearms charges, they are organised motor vehicle thefts where the vehicles were to be on sold for profit. Theft of vehicles involve victims who are then faced with the stress of being without their vehicle and the inconvenience of having to make claims through insurance companies. They are not minor charges and in this instance, they were committed in the context of your criminality which also involved firearm and drugs charges.
Personal circumstances
You were born on 3 July 1991 in Sunshine. You grew up and attended primary school in Deer Park. You are the eldest of a sibship of two and you have one older half stepbrother on your father’s side. Your childhood and homelife was challenging as your father, who had a long history of drug and alcohol use, was emotionally, physically and sexually violent towards you. One episode of violence involved your father using an electric drill on your legs from which you bare permanent scars. Your mother, who worked long hours as a hairdresser, also bore the brunt of your father’s violence and you often witnessed this.
You did well academically at primary school, but you were isolated and targeted by other children because you had a stutter. You attended Caroline Springs College and when you were about 14, your parents separated, and you began being raised by your mother which was a positive change for you. You were dedicated to AFL football, playing with an AFL development squad. In your teen years you commenced a relationship with a woman who also had a fractured home life. This was generally a functional relationship before it eventually broke down.
You left secondary school midway through Year 11. You completed a carpentry apprenticeship, before then completing a plastering apprenticeship. You were employed during this period, working at carpentry businesses and a commercial building business. Up until this point, you had used drugs to a limited extent, using MDMA or speed occasionally at music festivals.
When you were around 21 or 22 you stopped working as a result of becoming involved in the Rebels Motorcycle Club. Unfortunately, this change was the genesis of your life trajectory towards serious drug use, crime and consequent involvement in the criminal justice system. Little information was provided about the years between ages 21 or 22 and the time of your arrest other than that you were, through that period, associated with the Rebels Motorcycle Club.
You have now left the Rebels Motorcycle Club, ceased drug use and are in a strong relationship with your partner of four years, Nikita. While you have been in custody your partner gave birth to twin boys and you have had one contact visit with them. You have also remained drug free in custody which was confirmed by urine screen results tendered at your plea.
You have a relatively limited prior criminal history which commenced in 2010 with minor drug matters. However in 2019 you were sentenced to a term of imprisonment resulting from a number of charges including a weapons charge, drug trafficking charge and theft of motor vehicle. Thus while your prior history is not extensive, it contains recent and relevant matters.
A report was prepared by Warren Simmons, psychologist and tendered on the plea. Mr Simmons provides a detailed personal history which confirms your difficult childhood including further information about the abuse you suffered at the hands of your father. You were frank with Mr Simmons and made further admissions in relation to your conduct, in that you volunteered that you were selling drugs for financial gain necessarily attracting the higher penalty in relation to Charge 8.
Mr Simmons also detailed your long term drug use and that you stated that throughout the offending period you were using methamphetamine and GHB, consequently impairing your judgement. While Mr Simmons did not conduct any formal psychometric testing, he is of the view that based on his clinical assessment, you suffer anxiety as a result of substance use and that there is evidence of a depressive disorder at the present time.
Four character references were tendered from your mother, Maria Digiglio; your partner, Nikita Vella; your aunt Christine Digiglio and a friend, Matthew Albano. Your mother confirms that you and your brother were subjected to significant physical and emotional abuse from your father, while your partner believes that it is these events that ultimately led you to drug use and crime. She is of the view that when you are not using drugs you are otherwise a family man with an excellent work ethic which is consistent with your early working life. All speak of the positive aspects of your character and are united in their view that the birth of your twin boys has had a profound and positive impact on you.
Relevant sentencing considerations
It is not in dispute that your pleas of guilty to the charges were entered early. Your pleas, in the context of the COVID-19 pandemic have significant utilitarian value. While the case against you was relatively strong, your admissions, pleas of guilty and co-operation have saved significant court time and you have thereby facilitated the course of justice. You are entitled to have this taken into account in your favour.
Mr Sala who appeared on your behalf submitted that there is evidence of remorse and insight. While your plea of guilty may be indicative of some remorse, there is little evidence of actual remorse in relation to the specific crimes to which you have pleaded guilty. That is, remorse as to the victims of the motor vehicle thefts or some acknowledgement of the harm and damage illegal firearms can potentially inflict on the community. As to insight, I accept that your frankness as reflected in the report of Mr Simmons does demonstrate your acceptance of responsibility and an understanding of the need to change your life.
Turning to your prospects of rehabilitation, Mr Sala submitted that your prospects are able to be assessed positively based on three propositions: first, your moderate criminal history; secondly, your positive work history; and thirdly, that you have demonstrated an ability to achieve despite your very difficult childhood. The fact that you are in a stable relationship with two children being born while you are in custody in my view also provides you with a strong motive to move on and become a responsible parent.
It is clear that you have ability and have demonstrated a period of being a contributing member of the community before you began associating with an outlaw motorcycle gang. That period of your life covered a number of years and self evidently your criminal associations remained extant during the offending period. In my view, you have an opportunity now to return to stability and in the circumstances with some reservation, I accept that your prospects of rehabilitation can be assessed positively.
Ms Caruso who appeared on behalf of the Director of Public Prosecutions, submitted that general and specific deterrence together with protection of the community are relevant considerations. Mr Sala did not take issue with that submission. You have relevant prior criminal history and you were subject to a Firearm Prohibition Order at the time of possession of the firearms and related items. Thus specific deterrence is a prominent consideration. I otherwise accept the submissions of the prosecution.
Pursuant to s 16(3C) of the Sentencing Act 1991, I must also take into account that from Charge 2 onwards, you were on bail when the other offences were committed. Section 16(3C) displaces the general principle of concurrency, however the other relevant sentencing considerations including totality, are not displaced. I also note that you were on a community correction order when the offences were committed.
I take into account that most of your time on remand has been during the period of restrictions placed on prisoners as a result of the pandemic. Physical visits have been limited and programs designed to assist in education and rehabilitation have also been reduced. These conditions have made prison more burdensome for prisoners and their families and I accept that in your specific circumstances, having your twins born while in custody, has been very difficult for you.
Finally, I take in to account the sentence of the co-accused in this matter, Richard Portelli, noting that he is a co accused only in relation to Charges 2 and 3, the theft of the Range Rover and Hilux respectively. I have read and taken into account the sentencing remarks of Judge Tinney who sentenced Mr Portelli on 5 October 2020. Mr Portelli was also sentenced for firearms charges in relation to a loaded pistol found together with some rounds of ammunition. He too was subject to a Firearm Prohibition Order. Mr Portelli has a more extensive criminal history than you, while you face more charges of theft and additional firearms charges. It was also submitted that your prospects of rehabilitation may be viewed as better than those of Mr Portelli. As part of the sentencing discretion I take into account parity to the extent that it is relevant.
Sentence
Mr Spiteri please stand.
Jake Spiteri, on Charges 2, 3, 11 and 12, the theft charges, you are convicted and sentenced to 8 months imprisonment on each charge.
On Charge 6, possession of a firearm contrary to a prohibition order, you are convicted and sentenced to 2 years imprisonment. This will be the base sentence.
On Charge 7, possession of firearm related items while subject to a prohibition order, you are convicted and sentenced to 12 months imprisonment.
On Charge 1, attempt to acquire a firearm contrary to a prohibition order, you are convicted and sentenced to 12 months imprisonment.
On Charge 4, acquisition of a firearm related item, you are convicted and sentenced to 12 months imprisonment.
On charge 5, attempt to acquire a firearm related item you are convicted and sentenced to 8 months imprisonment.
On Charge 8, possession of heroin for the purposes of trafficking, you are convicted and sentenced to 6 months imprisonment.
On Charges 9 and 10, possession of a drug of dependence, you are convicted and fined $500 on each charge.
On Summary Charge 14, contravene conduct condition of bail, you are convicted and sentenced to 14 days imprisonment.
On Summary Charge 15, possess controlled weapon, you are convicted and sentenced to 1 month imprisonment.
I direct that 2 months of the sentence imposed on Charges 1, 2, 3, 4, 5, 11 and 12 be cumulative on each other and on Charge 6. That makes for a total effective sentence of 38 months or 3 years and 2 months imprisonment. I direct that you serve 22 months imprisonment before becoming eligible for parole.
Pursuant to s 18 of the Sentencing Act 1991, I declare that 365 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.
Pursuant 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 4 years and 3 months with a non parole period of 3 years.
In relation to Charges 2, 3, 11 and 12 as they relate to theft of motor vehicles, pursuant to s 89(4)(a)(i) of the Sentencing Act 1991, your driver licence is suspended for a period of 12 months from today.
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