Director of Public Prosecutions v Spizzica
[2013] VCC 1472
•4 October 2013
| IN THE COUNTY COURT OF VICTORIA AT BALLARAT CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-13-00891
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SALVATORE SPIZZICA |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | 29 August and 4 October 2013 | |
DATE OF SENTENCE: | 4 October 2013 | |
CASE MAY BE CITED AS: | DPP v Spizzica | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1472 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr J. Lewis and Mr K. Doyle | Office of Public Prosecutions |
| For the Accused | Mr S. Howe | Jeremy Harper & Associates |
HER HONOUR:
1 Salvatore Spizzica, you have pleaded guilty to one charge of aggravated burglary. The maximum penalty applicable to that charge is 25 years' imprisonment. You have also pleaded guilty to two charges of assault police pursuant to the Summary Offences Act 1966 and have agreed they could be dealt with by this Court pursuant to s.145 Criminal Procedure Act 2009. The maximum penalty applicable to both of those charges is 6 months imprisonment or 25 penalty units (each unit valued at $140.85).
2 These offences arise out of events which took place between yourself, the victim of your offending, Peter Fox, and attending police on 13 February 2013.
3 It is not necessary for me to recount in great detail the facts of this matter as they are on transcript, the matter having been opened in some detail by the learned prosecutor (Exhibit A). I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of the plea hearing. It is sufficient for present purposes to simply say the facts in this case are most serious and disturbing and you do have an extensive criminal history, albeit not for offences of aggravated burglary. However, as I discussed with your counsel, there are a number of other concerning aspects of your history which are relevant when assessing the gravity of your offending on this occasion.
4 I turn to a brief summary of your offending. At the time of sentence and your offending, you were 41 years of age. On Wednesday, 13 February 2013, at approximately 5.15am, you in the company of an unknown male went to an address in Redan. You took with you a metal tyre lever with the intention of assaulting one of the occupants of the property, Peter Fox.
5 Once you reached the unit, you stood out the front abusing Mr Fox and telling him to come outside. Mr Fox told police he was too scared to leave the unit.
6 Mr Fox saw you grab a large rock from the street and walk towards the front door. You passed that rock to the second male and you then kicked and banged on the door. You finally forced your way into Mr Fox’s home by kicking the front door open.
7 At that time Mr Fox was on the phone to “000” and had also armed himself with a metal bar for protection.
8 Once inside, you realised Mr Fox was on the phone to police and after you waved the tyre lever you said you would be back later. You then ran from the house with the other male. (This is the subject of Charge 1, the charge of aggravated burglary.)
9 The police, after this incident, attended Mr Fox’s home and then went to your house which was also in Redan where they spoke to you and your then-partner. Your partner became upset. Police subsequently arrested you. As they did so, you assaulted the two police members by kicking out and throwing punches at them (relevant to the two summary charges of assault).
10 You were taken to Ballarat Police Station and interviewed. You made full admissions to the aggravated burglary and also to assaulting police, stating the reason for the aggravated burglary was that Mr Fox was dealing drugs to kids.
11 You were charged and bailed to appear at Ballarat Magistrates’ Court on 15 February 2013.
12 Mr Fox did not receive any injuries as a result of this incident, but at the time of the incident was at home with his partner and her young son. Neither police officer was injured as a result of your assault upon them.
13 Aggravating aspects of your offending involve an element of preplanning in that you took the iron tyre lever to the property, specifically for the purpose of confronting Mr Fox (record of interview q.86-92).
14 Another aggravating feature of your offending involves your reason for attending at Mr Fox’s home in the first place. Your behaviour was similar to that of vigilante-type conduct in that you believed Mr Fox was dealing drugs to children, including your own children, and you determined to go and see him to mete out what you thought was justice. I shall return to this later.
15 There were no victim impact statements before me. However, I can take into account, in the statements Mr Fox and his partner made to police at the time of your offending, they were in fear because of your behaviour and were also concerned for the young child that was home at the time you entered the property.
16 You have pleaded guilty to these three charges and are entitled to have that fact taken into account in your favour and I do so.
17 By your plea of guilty, witnesses have been spared the need to give evidence upon your trial. I also take into account that you intimated early your intention to plead guilty to these charges and also prior to that you made admissions in the record of interview to your offending behaviour. You are entitled to a sentencing discount by reason of the fact you have pleaded guilty and at the early stage at which it was entered. You were quickly apprehended for your offending and readily admitted what you had done. In the circumstances, I am prepared to accept your plea of guilty indicates remorse for your offending. However, I am concerned whether this is true remorse, given the circumstances of your offending behaviour.
18 You have admitted an extensive prior criminal history which commenced in 1990 with the most recent prior matter on 19 June 2012. Your prior criminal history has involved charges of violence, drugs relating to cannabis and heroin, dishonesty offences, possession of weapons, reckless conduct endangering life, unlawfully on premises and driving offences. In the past, you have received various dispositions including Community-Based Orders, suspended sentences, fines with conviction, an Intensive Corrections Order and terms of imprisonment. There have been breaches of Community-Based Orders and breaches of suspended sentence You do not have any prior history of aggravated burglary. There are a number of other concerning and relevant charges in your criminal history, however, when sentencing you for this current offending.
19 Mr Howe only briefly commenced your plea on 29 August 2013 advising the Court, based on an earlier mention of this matter, that he intended to obtain a report from Dr Cidoni regarding your psychiatric history. I was then advised an appointment had been made for 5 September, and as such your further plea hearing in this matter was adjourned to 19 September and subsequently adjourned again.
20 I did, however, discuss with Mr Howe at the initial hearing issues that may become relevant, in particular should he ultimately seek to make any submissions based on the principles in R vVerdins& Ors[1]. I discussed with him the Report tendered from your general practitioner, Dr Wayne McDonald, dated 7 May 2013, in which he stated you had in the past been diagnosed with schizophrenia, paranoid disorder and Bipolar Affective Disorder. You also suffered from relapses of severe depression and were apparently on medication for a number of those issues. In Dr McDonald’s brief report he stated he had been your treating general practitioner for the past four years. He had prescribed Methadone for you on Opiate Substitute Therapy for the past three years for your previous heroin addiction, although you continued to use marijuana daily. You had done well on the program, he said, focusing on your goals.
[1](2006) 16 VR 269
21 You also suffered with relapses of severe depression and were on a high dose of Mitrazipine, an antidepressant and also Seroquel, a mood stabiliser.
22 According to him, you had last been admitted to Mental Health Services many years ago and stayed for two days although I note the report of Dr Cidoni is slightly different in that regard.
23 Dr McDonald requested you strived to maintain your life balance. You have recently broken up with your long-term partner and required counselling support at that time.
24 In his opinion, remaining on the Methadone program and being in a therapeutic relationship with a general practitioner would assist you. Further imprisonment, in his opinion, would be detrimental to your psychological health as it may increase your aggressive tendencies.
25 I expressed some concern that on this particular evening when you offended you told police you had smoked two bongs on the advice of Dr McDonald (see record of interview Question 17). Should that be the case, such would be relevant when considering any application of the Verdins[2] principles. If such was not his advice then there was an acknowledgment by you in that interview that with your knowledge of your medical conditions and medication, you decided to smoke cannabis on the day of this offending. This would likely reduce any applicability of Verdins. All of this, however, was to be further canvassed at the hearing on 19 September and the matter was adjourned until that date. Due to my unavailability because of a trial I was in at that stage, the further plea hearing was adjourned to today, being 4 October 2013.
[2]Ibid
26 There was a report before me from Dr Anthony Cidoni, Consultant Psychiatrist, dated 13 September 2013, he having seen you on 12 September 2013 for the purpose of preparing a report for this hearing.
27 At interview, there was no evidence shown by you of agitation and your affect appeared mildly anxious. You described some ongoing delusions about being followed and watched but denied any current delusions of reference. You described auditory and visual hallucinations in the past. Your attention and concentration, he said, were mildly impaired but your insight relatively good.
28 By way of your background and history, he said you were 41 years of age, having most recently been in a relationship of six months. You had been on a disability support pension for a number of years. Your last period involving incarceration was approximately five years ago.
29 You were born in Australia and both of your parents are deceased. As I understand it, you have two sisters, one who died recently of a brain tumour. You do not have contact now, as I understand it, with your other sister.
30 You have two brothers with whom you do not have any contact either. You described a background of your father being violent towards your mother and that your father had problems with alcohol. You were in a boys’ home from the age of 11 and displaying significant behavioural and learning problems when you were at school. You said you had been assessed as having an IQ of 56, which would place you in the mild intellectual disability range. You left school during Year 7.
31 Your work history was, perhaps not surprisingly, somewhat limited. You have in the past worked in bricklaying and also completed a hospitality certificate. But you have not worked over the last eight years.
32 From a previous marriage there are three children, 18, 21 and 22 years of age. You were then in a subsequent five year relationship which ended about a year ago. As I understand it, you have been with your current partner for approximately five months.
33 Regarding your use of illicit substances, you described a history of cocaine use from 10 years of age and a history of cannabis use from the same age, reducing to several grams per day in recent years.
34 You referred to a history of heroin use from the age of 12, most recently using every few months. Although you told Dr Cidoni you had not used any for several months, it would appear you did on the day of this offending. You had been on Methadone for about two years and your current dose was 70 milligrams. You have previously also been prescribed Suboxone.
35 You had also used LSD and methamphetamine in the past. In the past, you attended Odyssey House and Moreland Hall but that was years ago. You had also had some counselling through the Outreach program of Uniting Church but were not currently receiving any counselling.
36 In relation to your medical history, you gave a history of having been stabbed in the past which caused a loss of part of your right lung and also having been in a motor car accident years ago. You also have a history of epileptic seizures which Dr Cidoni thought were withdrawal seizures relating to your substance use. You also have Ventolin for asthma and a history of Hepatitis C.
37 Turning to your psychiatric history, you described a longstanding history of schizophrenia, having been admitted to Ballarat Psychiatric Services about ten years ago for a number of days. You described chronic psychotic symptoms including paranoia, and hearing voices. You had previously been on anti-psychotic medication whilst in custody. In relation to medication prescribed at the time of this offending, you had been treated with Quetiapine at a relatively low dose twelve months prior to this offending and since this offending that had increased to 600 milligrams per day. You had also been on antidepressant medication for approximately 18 months.
38 You described longstanding problems with mood instability, impulsivity and anger. You had also been prescribed benzodiazepines.
39 Dr Cidoni noted, as do I, you have had multiples terms of imprisonment imposed in the past and previous drug charges. Your most recent period in custody ended approximately 5 years ago.
40 Regarding the offending before me, you described you were stressed at the time it occurred, as your relationship of five years had ended. You had also used heroin. You also had concerns about the victim’s behaviour including allegedly selling drugs to children. You said your ex-partner put pressure on you to get drugs for her and you went to the victim’s house.
41 Turning to his recommendations and opinions, Dr Cidoni described you as having had a very difficult background, substance abuse at a very young age and poor schooling.
42 You had a history of schizophrenia with some ongoing psychotic symptoms. There was no evidence of bipolar disorder.
43 You were also, in his opinion, suffering from a mild intellectual disability which he thought had worsened further due to your substance abuse.
44 You had features of an anti-social personality disorder and also suffered polysubstance abuse. In the opinion of Dr Cidoni, you would benefit from re-engaging with the Outreach program.
45 Turning to your offending behaviour, that occurred in the context of “significant psycho-social stressors, chronic psychotic symptoms (paranoia) and impulsivity.” Dr Cidoni noted that chronic or longterm schizophrenia is associated over time with frontal impairment including impaired judgment, impulsivity and anti-social behaviour.
46 In his opinion, there were four factors operating in concert that contributed to your offending, the effect of the schizophrenia on your behaviour, your substance use, your personality and your intellectual impairment.
47 At the time of your offending, the medication you were on then was a sub-optimal dose which has now been increased to 600 milligrams. In his opinion, however, your state of schizophrenia at the time and your medication would not have had a direct bearing on your ability to know right from wrong at the time of your offending or currently.
48 Dr Cidoni referred to some positive developments in recent months, which offered you some prospect for the future (paragraph 14).
49 In custody Dr Cidoni thought your psychotic symptoms would worsen and you would become more depressed.
50 Your counsel, Mr Howe, submitted the reports of Dr Cidoni and Dr McDonald, enlivened each of the six principles in Tsiaris as restated in R v Verdins & Ors. I discussed with Mr Howe the applicability of those principles based upon your use of cannabis and heroin, in particular on the day of this offending.
51 I sought submissions from Mr Doyle, who appeared at this hearing on behalf of the prosecution, regarding the prosecution attitude to the application of the Verdins principles. I accept the analysis by Mr Doyle regarding the applicability of the principles, being conscious of the link or connection between your mental health issues, substance abuse and your offending, specifically referred to in paragraph 12 of Dr Cidoni's report.
52 It is appropriate in your case, in my opinion, to accede to Mr Howe's submission that principles in Verdins apply when sentencing you. Sensible moderation in the circumstances of this case applies, in my opinion, to moderate your sentence to some degree although not to any great degree. Specifically, also whilst in custody you will require medication for your ongoing mental health issues and, consistent with the conclusion of Dr Cidoni at paragraph 15, I accept your time in custody is likely to be more burdensome for you than a prisoner without your mental health issues and/or intellectual impairment.
53 The Court of Appeal recently in Hogarth[3] referred to the seriousness of the offence of aggravated burglary often referred to as home invasions. Offences of this kind can be terrifying for victims, the court noted, and I note in particular there is a child involved in this case. It is clear also that the maximum penalty of 25 years for this offence reflects the intention of Parliament to "send a message" that home invasion-style offences will not be tolerated.
[3][2012] VSCA 302
54 The Court of Appeal expressed concerns about the previously lenient sentences often imposed for this offending. I am conscious of the criticism by the Court of Appeal in that regard. I am also conscious, however, that factual circumstances involved in offending case to case can vary enormously, as do all matters personal to offenders. When sentencing, therefore, there are degrees of severity of the offence of aggravated burglary.
55 Regarding your rehabilitation prospects I have ongoing concerns, however, find some comfort in you not having any prior criminal history for aggravated burglary and that it has been five years approximately since you were last in custody undergoing sentence. You also have a new partner and hopefully that relationship, which appears to be a positive one, can withstand the sentence I am about to impose. In fixing an appropriate sentence I must seek to maximise the chances of your rehabilitation as they may be.
56 As well as matters personal to you to which I have referred, including your prospects of rehabilitation, I must also take into account matters such as deterrence, especially general deterrence, which is of considerable importance in a case such as this. I have moderated this as previously stated consistent with my conclusion regarding the degree of application of Verdins. There is also the need for specific deterrence sensibly moderated according to Verdins as you have an extensive criminal history, although I note again it is now some time since you were last in custody and no offending for aggravated burglary.
57 I must also consider the question of protection of members of the community from you and bear in mind the likelihood of your re-offending. This will no doubt be determined by your continued compliance with prescription medication and you abstaining from illicit/illegal substances. This is at this stage an unknown. I am called upon by the Sentencing Act to manifest the community's denunciation of your conduct and generally to impose a just punishment.
58 I sentence you as follows.
59 On Charge 1 you are convicted and sentenced to 2 years and 6 months' imprisonment.
60 On Summary Charge 2 you are convicted and sentenced to 1 month's imprisonment.
61 On Summary Charge 3 you are convicted and sentenced to 1 month's imprisonment.
62 I direct that the sentences imposed on Summary Charges 2 and 3 be served concurrently with each other and concurrently with the sentence imposed on the charge of aggravated burglary.
63 That results in a total effective sentence of 2 years and 6 months' imprisonment and I direct that you serve a period of 18 months before you are eligible for parole.
64 Pursuant to s.6AAA Sentencing Act 1991 had you been found guilty of these three offences by jury verdict I would have sentenced you to 5 years' imprisonment and ordered a non-parole period of 3 years and 6 months.
65 Pursuant to s.18(4) Sentencing Act 1991 I declare you have spent zero days in custody by way of pre-sentence detention and I direct that that be noted in the records of the court, that is, that there are zero days of pre-sentence detention.
66 Apparently the prosecution wanted a s.464ZF?.
67 Did you get any instructions in that regard?
68 MR LOWE: No - could I take further instructions, Your Honour?
69 HER HONOUR: Yes.
70 MR LOWE: It is by consent, Your Honour.
71 HER HONOUR: Yes, thank you. I do not believe there are any other orders sought, that is my note but I just - - -
72 MR DOYLE: No that is consistent with what I've been told, Your Honour.
73 HER HONOUR: Very well. Just in relation to this, I have made the order in the terms sought, it will be for a saliva sample, not blood. I do that on the basis of the seriousness of this offending, your prior convictions and I note that it is by consent. I have to tell you the authorities may use reasonable force in order to obtain that sample.
74 No other orders? No? What about medication? Ms Jackson, are you able to run off a quick copy of the two reports now so that they can go with the prison officer. Did you actually prepare a written document?
75 MR LOWE: I've given the list to the custody officer.
76 HER HONOUR: Good, excellent.
77 HER HONOUR: Very well, you should have two reports, McDonald and Dr Cidoni. Were you given those just then? You have got two reports, because that has got a lot of his medical history. Was that - have you given it to him? Can you check, please? Yes, those two, that is good and also there is a list you were given apparently which has his current medication summarised on it. Very well, can I simply ask you, sir, to make sure that that goes with him to the prison. All right, I think that is it. Is there anything further in this matter?
78 COUNSEL: No, Your Honour.
79 HER HONOUR: Thank you both very much. Very well, Mr Spizzica, sorry you have got to go.
80 MR HOWE: Sorry, Your Honour, there was one more thing. The adjourned hearing on 19 September I think that was mentioned and a certificate - - -
81 HER HONOUR: Yes, we were told you were on your way, were we not? Was that not what happened, Ms Jackson? Was not this barrister on his way to court when we had to change because of the trial?
82 ASSOCIATE: Yes he was.
83 HER HONOUR: On the same day of the plea? That is fair enough. Prepare your documents and send them in.
84 MR HOWE: Yes, Your Honour.
85 HER HONOUR: I originally had thought about half a day, had I not? I take it you did not get anything for the rest of the day?
86 MR HOWE: No, Your Honour.
87 HER HONOUR: No? Very well, we will make it a day. Yes?
88 MR HOWE: Thank you, Your Honour.
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