Director of Public Prosecutions v Trifilo

[2024] VCC 1352

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

 Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-24-00255

DIRECTOR OF PUBLIC PROSECUTIONS

v

GUISEPPE TRIFILO

---

JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARINGS:	21 August, 29 August 2024
DATE OF SENTENCE:	29 August 2024
CASE MAY BE CITED AS:	DPP v Trifilo
MEDIUM NEUTRAL CITATION:	[2024] VCC 1352

REASONS FOR SENTENCE

---

Subject:                   Criminal law - sentence

Catchwords: Pleaded guilty to one charge of theft of a car - two charges of aggravated reckless exposure of an emergency worker to risk by driving- six charges of possession of a drug of dependence - four summary charges: driving in a manner dangerous - driving whilst impaired by a drug - driving whilst disqualified - driving a car displaying registration plates other than those issued in accordance with the regulations – sentence indication accepted – extensive criminal history – no exception under s 5(2H) of Sentencing Act – psychological disorders – leniency

Legislation Cited:     Sentencing Act 1991 (Vic)

Sentence:18 months imprisonment – 12 months non parole period – 334 days pre-sentence detention

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr N. Barron	Office of Public Prosecutions
For the Offender	Mr I. Polak	Anne Valos

HER HONOUR: 

1Guiseppe Trifilo, you have pleaded guilty to one charge of theft of a car, two charges of aggravated reckless exposure of an emergency worker to risk by driving and six charges of possession of a drug of dependence.

2You have also pleaded guilty to four summary charges: driving in a manner dangerous, driving whilst impaired by a drug, driving whilst disqualified and driving a car displaying registration plates other than those issued in accordance with the regulations.

3An application for a sentence indication was heard on 21 August 2024.  I indicated that I would sentence you to a total effective sentence of 18 months with a non-parole period of 12 months. 

4You accepted that indication and today you were arraigned and pleaded guilty to the charges I have just described.

The Offending

5On 30 September 2023, Senior Constable Humphries and Senior Constable Afaneh were conducting patrol duties in Maribyrnong.  They were wearing standard issue Victorian police uniforms including high visibility vests with police markings and were driving a white Victoria Police Ford Ranger equipped with police markings, lights and sirens.

6At around 5.55 am the officers investigated a silver sedan bearing Western Australian registration plates driving fast in Chifley Drive, which is a dead-end road ending in parkland at the Maribyrnong River.  On arriving at the end of Chifley Drive the officers saw the silver sedan bearing the West Australian registration plates ICMF 530, a Toyota Corolla, parked next to a silver Hyundai sedan.

7Senior Constable Humphries parked behind the Corolla intending to perform a traffic stop and speaking to the driver.  He made eye contact with you, the driver of the Corolla, and from behind the closed car window you yelled at him to 'Fuck off.'  You then reversed the Corolla at speed, contacting and damaging the front of the police car while the two officers were seated in it.

8Senior Constable Humphries got out of the car, yelling at you to get out of the car, as Senior Constable Afaneh in the passenger seat yelled at Senior Constable Humphries to return to the car.  Senior Constable Humphries approached the driver's side of the Corolla and directed you to get out.  He then used OC spray to attempt to subdue you.  You then drove the Corolla forwards and backwards, colliding with the police car again, hitting the open driver's side door causing the car to shake.  Senior Constable Humphries backed away from the Corolla but deployed his expandable baton.  You drove forward at speed and collided with a bollard before reversing into the police car a final time.

9These incidents are Charges 2 and 3 on the indictment: aggravated reckless exposure of emergency workers to risk by driving.

10You then reversed further, performing a U-turn, and causing the wheels of the Corolla to spin and a piece of the Corolla to fall off.  You  left the carpark and drove along Chifley Drive, reaching a speed of 66 kilometres per hour in a 40 kilometre per hour zone.  As you drove away a civilian was inside the Hyundai sedan which had been parked next to your car.

11That gives rise to the summary charge of driving in a manner dangerous.

12You stopped your car about 350 metres away, when other police members arrived.  You were arrested and searched.  Found in your possession were an oxycodone tablet, which is Charge 4, an alprazolam tablet, which is Charge 5, a zip-lock pack containing a small quantity of MDMA, which is Charge 8, and a zip-lock bag containing 0.3 grams of methylamphetamine, which is Charge 9.

13In the Corolla police found a zip-lock bag containing 4.6 grams of cannabis, which is Charge 7, and two bottles containing a total of 117.5 grams of 1,4 butanediol in a backpack, which is Charge 6.

14When you were arrested a preliminary breath test and a preliminary oral fluid test were conducted on you.  The oral fluid test was positive and a later blood sample indicated the presence of methylamphetamine and other drugs.

15This gives rise to the summary charge of driving whilst impaired by drugs[1].

[1] dimethylamphetamine, nordiazepam and sildenafil.

16You were found to have been driving whilst disqualified and driving with incorrect number plates, both the summary charges to which I have referred.

17The Corolla was owned by a car rental company and had been reported stolen by a customer six weeks earlier.

18That is Charge 1, theft of the car.

19It is not said that you stole it but that you knew it was stolen and that you had no authority to drive it and were charged accordingly.

20At the time of the incidents in the carpark a civilian witness standing nearby filmed the incident on her mobile phone and was also captured on the body-worn camera footage of Senior Constable Humphries.

21The offending concerning the emergency workers, who were police officers  is particularly serious offending by its nature and this example of it is also serious, although falling below the mid-range of seriousness.  The short duration of the incident of a few minutes only reduces its seriousness in that the exposure of the police to risk was brief.  You were quickly apprehended and taken into custody, preventing further risk to the police or to others.

22Your instructions to your counsel and explanation to the assessing psychologist, Ms Cidoni, were that you had been under the influence of drugs and had not slept for several days, that when police approached you in the car and sprayed you with Mace, you thought you were being robbed and the collision occurred.  You said you regretted it and said it should not have happened.

Sentencing Issues

23These offences attract the provisions of s 5(2H) of the Sentencing Act which exclude a combined sentence of imprisonment and a Corrections order unless exceptions apply.

24The maximum penalty for car theft and for aggravated reckless exposure of an emergency worker to risk by driving is 10 years' imprisonment.  For possession of a drug, driving in a manner dangerous and driving while impaired by drugs it is 12 months.  For driving while disqualified it is two years and for driving with incorrect number plates a fine of 10 penalty units.

25You have a very extensive criminal history dating from 1992 when you were aged 19, which is a matter relevant to this sentencing exercise.  You have many convictions for car theft, for various forms of dangerous driving or driving at speed, and counting conservatively, approximately 20 previous convictions for various forms of driving without a licence.  It is one of the worst driving records I have ever seen.  The history is littered with convictions for drug-related offending, mostly for possessing drugs of the same sort as those you possessed on this occasion.  The other previous convictions are of a type consistent with drug use for the whole of your adult life.

26You told Ms Cidoni recently that having spent close to a year in custody you are no longer interested in drugs, and you feel guilty at being unavailable to help look after your elderly father who has advanced cancer, and to assist your brother who has Cerebral Palsy and has two young children to look after.

27You have served prison sentences in the past, the longest being four years for armed robbery and have been the subject of 16 Community Correction Orders, 11 of which you have breached, even though particular care would seem to have been taken by the learned magistrate in carefully crafting the orders to take account of your difficulties, such as the order imposed in 2015 at Sunshine Magistrates Court.

28You had been placed on a Community Correction Order on 5 June 2023, a few months before this offending, for two charges of possessing a drug and trespass.  It was a short CCO of only eight months, providing for drug treatment only.  You had recently been released from prison.  You had engaged with Corrections and were attending appointments, although with several unacceptable absences, and I believe that following your remand on
30 September contravention proceedings were initiated.

29You are now aged 50, a single man with a long history of drug abuse and offending, as I have described. 

30You were assessed by the psychologist, Ms Cidoni, recently and in her report dated 19 July 2024 she explained her diagnosis of major depressive disorder, post-traumatic stress disorder and substance use disorders in the presence of traumatic brain injury.  She said these conditions, collectively, impair your cognitive functions, emotional regulation and judgment, which significantly contribute to your offending behaviour.

31The brain injury was caused by two traffic accidents with head injuries in both cases.  The second collision, when the motorcycle you were riding was cut off by a car, caused you to collide with a tram stop.  This caused a serious brain injury and numerous other injuries resulting in 28 operations.  This has significantly affected your mobility and a combination of deficits has contributed to your depression.

32Reports from other practitioners provided some years ago were also tendered, including a report of 2017 from neuropsychologist, Martin Jackson, whose assessment of you indicated impairment of some intellectual and executive skills and some other deficits.

33In order to reach a conclusion that the exception under s5(2H) of the Sentencing Act applies, the disentangling of your substance abuse disorder is required.  That is something that has been present for many years which you have not been able to overcome despite multiple interventions over those years. 

34You were still using drugs at the time of the CCO in June last year and at the time of this offending in September.  Indeed, the offending occurred only
10 days after your second appointment for mental health treatment and about three weeks after your fifth positive drug test.  Clearly, you were on notice about the risks of continuing drug use at the time.  It is often said that treatment of long-term drug use takes time and can involve frequent mis-steps.  However, you have had many chances and at the age of 49, as you were in September 2023, you were still unable or unwilling to grasp the opportunity you had been given.

35Ms Mynard's report shows that you had some insight into this in 2020, but clearly that has not helped you.

36At the time of the offending there had been family deaths, which perhaps contributed to your state of mind and made abstinence harder.  Your mother had died of Covid in 2022 or 2023 and a brother had died in a car accident around that same time.  Your younger brother suffering from Cerebral Palsy theoretically needed your help then as well as now.  You had an elderly father then and you could have anticipated that his health might deteriorate in the near future, as indeed it has. 

37Your nephew, Joseph Trifilo, has written a letter dated 2 March 2024 describing the deterioration in your father's health and the difficulties the family is having caring for him, which would be considerably alleviated by your presence in the home.  Your nephew referred to your close family links, and this emerges also in the details you gave to Ms Mynard, the psychologist who assessed you in 2020.

38Your parents worked very long hours and placed you in charge of your two younger brothers from when you were about 17 years old.  You had to get dinner ready and then stay at home looking after your brothers and were unable to go out with your friends.  You did this until you were about 20, and Ms Mynard sets out the details of that time.

39When you saw her four years ago you told her exactly what you told Ms Cidoni recently; that after a time of abstinence in prison you did not care about drugs anymore, saying you could not keep on using drugs and be a good family member.

40Ms Mynard diagnosed somewhat similarly to Ms Cidoni  – generalised anxiety disorder with panic attacks, major depressive disorder, post-traumatic stress disorder and traumatic brain injury.

41Taking into account these combined circumstances, I am not satisfied that any exception applies which would avoid a custodial sentence.  In any event, a sentence which would combine a term of imprisonment of 12 months or less, with a CCO, would not be adequate  or appropriate to reflect the seriousness of the offending in the context of your long criminal history and poor compliance with community orders.

42However, there are pressing reasons for leniency, and I take them into account.  You have pleaded guilty and have avoided a trial which had the potential for an acquittal in relation to certain of the charges, although this would probably be unlikely in relation to the two most serious charges.  You are entitled to a discount for that plea as it has utilitarian value in having saved the time and expense of a trial.

43Your family circumstances call for some compassion, and I take that into account.

44I sentence you to the following terms of imprisonment:

45For each of Charges 1,2 and 3, 12 months' imprisonment.

46For each of Charges 4,5,6,8 and 9, three months' imprisonment.

47Charge 7 is found proved and dismissed.

48As to the summary charges, I sentence you to six months' imprisonment for dangerous driving; six months for driving while disqualified; nine months for driving while drug impaired and a fine of $300 for driving with incorrect number plats.

49The sentence for Charge 3 on the indictment is the base sentence for purposes of cumulation and the orders for cumulation are as follows:

50Three months of each of the sentences for Charge 2 and the sentence for dangerous driving are to be served in cumulation upon the base sentence.

51This results in a total effective sentence of 18 months.

52I order that you serve 12 months before being eligible for parole.

53I order that any driving licence or permit that you hold is cancelled and you are disqualified from applying for any further licence or permit for 24 months in respect of Charges 2 and 3, three months in respect of driving while disqualified and nine months for the charge of dangerous driving.  

54Those orders apply from today.

55You have been in custody for 334 days which is to be reckoned as already served, and I shall note that on the court record.

56If you had pleaded not guilty to these charges I would have sentenced you to three years' imprisonment with a non-parole period of two years.

57The prosecution seeks an order for disposal of drugs and a portion of car panel from the Corolla.  I take it there is no objection to that, Mr Polak.

58MR POLAK:  No, Your Honour.

59HER HONOUR:  Thank you.  And I make that order.  Are there any other matters that I have omitted or neglected.

60MR BARRON:  No, I don't believe so, Your Honour, thank you.

61HER HONOUR:  Anything further, Mr Polak.

62MR POLAK:  No, Your Honour.  It's not possible for his disqualification to date from his date of imprisonment, is it, rather than today's date.

63HER HONOUR:  Just let me do some arithmetic ‑ ‑ ‑ 

64MR BARRON:  I don't believe that it is, Your Honour.

65HER HONOUR:  Do you want to comment on that Mr Barron.

66MR BARRON:  I'll need to look up the exact section, Your Honour, but I believe that there's no ability to back-date disqualification periods.  I might need to consult the Road Safety Act and the Sentencing Act to be doubly sure of that.

67HER HONOUR:  Yes.  Look, I will give you the opportunity to have a look at that Mr Barron.  I think I can back-date them but I'm not certain.

68MR BARRON:  I'll double-check, Your Honour.

69HER HONOUR:  Do you want a short adjournment to do that.

70MR BARRON:  Yes, I'd rather deal with it now, if possible.

71HER HONOUR:  Alright, let's do that.  I'll take five – ten minutes or so.

72MR BARRON:  Thank you, Your Honour. 

73(Short adjournment.)

74HER HONOUR:  What did you come up with, Mr Barron.

75MR BARRON: I'm grateful for the time, Your Honour. I can indicate that in accordance with s89B of the Sentencing Act, in relation to cancellations or disqualifications imposed under that Act they commence either on the date on which they're made or on a later date as specified by the court.  There doesn't appear to be any power in that section to in effect back-date disqualification periods.  So certainly the period of disqualification imposed in respect of Charges 2 and 3 could not commence any earlier than today.  I have been unable to determine a final position in relation to the Road Safety Act but certainly I haven't found anything in that legislation which ‑ ‑ ‑ 

76HER HONOUR:  I see, well they will ‑ ‑ ‑ 

77MR BARRON:  Yes, they're the shorter periods anyway and there's a presumption in favour of concurrency ‑ ‑ ‑ 

78HER HONOUR:  Yes, that's right.  Thanks Mr Barron.

79MR BARRON:  Thank you, Your Honour. 

80HER HONOUR:  Mr Polak, nothing to add presumably.

81MR POLAK:  No, they're the important ones, the Sentencing Act matters or the Crimes Act matters.

82HER HONOUR:  Alright, so I think that's everything completed now.  Thank you.

‑ ‑ ‑