Director of Public Prosecutions v Trifilo
[2019] VCC 1649
•11 October 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-02185
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GIUSEPPE TRIFILO |
---
JUDGE: | HIS HONOUR JUDGE C. RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 September 2019 | |
DATE OF SENTENCE: | 11 October 2019 | |
CASE MAY BE CITED AS: | DPP v Trifilo | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1649 | |
REASONS FOR SENTENCE
---
Subject: CRIIMINAL LAW
Catchwords: Sentence – Damage an emergency service vehicle – Theft – Drive in a manner dangerous – Retain stolen goods – Possess drug of dependence – Plea of guilty
Legislation Cited: Sentencing Act 1991; Road Safety Act 1986
Sentence: 2 years and 3 months imprisonment with a non-parole period of 18 months imprisonment; 507 days pre-sentence detention; Licence cancelled and disqualified for 12 months; Forfeiture order; 6AAA declaration: 4 years imprisonment with a non-parole period of 2 years and 6 months imprisonment.
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. Plummer Mr A. Foster (Sentence) | Solicitor for the Director of Public Prosecutions |
| For the Accused | Mr C. Morgan | Ann Valos Criminal Law Pty Ltd |
HIS HONOUR:
1 Giuseppe Trifilo, on Monday 23 September 2019, you came before me to stand your trial, on Indictment J11212001.2 containing five charges, being: aggravated offence of intentionally exposing an emergency worker to risk by driving; and, in the alternative, aggravated offence of recklessly exposing an emergency worker to risk by driving; and, as a further alternative, conduct endangering persons. In addition, there were the charges of damaging an emergency service vehicle and theft. Your matter was stood down for discussions and the Crown ultimately filed over a new Indictment J11212001.4 containing two charges, being: damaging an emergency service vehicle (Charge 1); and theft, (Charge 2).
2 On 24 September 2019, you pleaded guilty to the filed over indictment, together with a related summary offence of dangerous driving. In addition, you were arraigned and pleaded guilty to Indictment J1212001.6 which had always been your intention. This indictment contains six charges, being: retain stolen goods (Charge 1); and five charges of possession of a drug of dependence, (Charges 2 to 6). Accordingly, your pleas must be regarded as having been entered at the earliest opportunity and you are entitled to the benefits that flow to you from those pleas, being their utilitarian benefit and that they are some evidence of your remorse.
3 The maximum penalty for theft is 10 years’ imprisonment, while the maximum penalty for damaging an emergency services vehicle is five years’ imprisonment. The maximum penalty for dangerous driving is a fine of not more than 240 penalty units, or two years’ imprisonment or both and if the court finds you guilty of that offence, it must cancel any licence or permit to drive that you hold under the Road Safety Act 1986 and disqualify you from obtaining any such licence or permit, for a period of not less than six months. In respect to the offence of handling stolen goods, the maximum penalty is 15 years’ imprisonment. In respect to the possession of a drug of dependence, Charge 4 relates to a small amount of cannabis and accordingly, the maximum penalty is five penalty units. In respect to the balance of the charges of possessing a drug of dependence, in your circumstances, the maximum penalty is one year imprisonment or 30 penalty units, because the possession was not for any purpose relating to trafficking.
4 You admitted your criminal record which takes 75 pages to chronicle. For present purposes, you have 10 prior convictions for theft of a motor vehicle between August 1993 and April 2017, and nine prior convictions for driving in a manner or speed dangerous from June 1995 to April 2017. In addition, you have one prior conviction for negligently driving while pursued by police. You have a prior conviction for reckless conduct endangering serious injury. You have six prior convictions for handling stolen goods between September 2010 and April 2017, as well as a further 12 convictions for theft as part of your criminal history. Many of your prior convictions occurred prior to 6 January 2010, a date the significance of which will become apparent later in these reasons. You also have a prior conviction for being a prohibited person in possession of a firearm and a prior conviction for the possession of cartridge ammunition.
5 Tendered as Exhibit A and read aloud in court, was the summary of prosecution opening in respect to both indictments and the related summary offence. On 18 April 2018, at about 9.40 am, police attended in Biggs Street, St Albans, in respect to an investigation into burglaries. Police observed you sitting in the driver’s seat of a silver colour hatchback car, in the driveway of 216 Biggs Street, St Albans. Police further observed that you were talking to a person who was present in the driveway and known to them.
6 Senior Constables Williams and Grayland, who were readily identifiable as police, because they were wearing both their police lanyards and ballistic vests, approached you. Senior Constable Williams motioned to you to stop the car. Senior Constable Williams approached the driver’s side to speak to you, and observed that the car’s engine was running and the keys were in the ignition. You were agitated and moving around in the driver’s seat. Senior Constable Williams asked you to turn the car off, to which you replied, 'I haven’t done anything boss'. Senior Constable Williams formed the belief that you were going to drive away, so he reached into the car and attempted to remove the keys from the ignition. At about this time, Senior Constable Grayland walked to the passenger side of the car and whilst Senior Constable Williams was struggling with you to gain control of the keys to the car, Grayland attempted to break the left hand passenger side window with her baton. At about this time, you accelerated away at a fast rate of speed down the driveway, you executed a left hand turn into Biggs Street losing control of your car in the process. You headed east towards the parked police vehicle. At the time, Detective Sergeant Prato was getting out of the police vehicle and the driver’s door of the vehicle was open. Detective Sergeant Prato was forced to push his back towards the driver’s side of the police vehicle, as he was trapped with your car approaching him. The side mirror of the car you were driving, struck Detective Sergeant Prato’s ballistic vest near the area of his abdomen, and hit the still partially open driver’s door of the unmarked police station wagon.
7 Subsequent investigations revealed that the silver coloured hatch driven by you had been stolen on 10 April 2018, (Charge 1, damaging an emergency service vehicle; Charge 2, theft of a motor vehicle; and the related summary offence of dangerous driving).
8 In respect to the second indictment, on 9 May 2018, police arrested you at 12 Walker Court, St Albans. Police found a small pouch in the living room at that address that contained diacetylmorphine (heroin) (Charge 2), methyl-amphetamine (Charge 3) and cannabis (Charge 4).
9 A car key belonging to a Holden Cruze motor vehicle parked in the front yard of the property was found in the living room. The Holden Cruze displayed false number plates made from laminated paper which were placed over the registration plates of the vehicle. The Holden Cruze had been stolen on 3 May 2018 from an address in St Albans, (Charge 1, handling stolen goods). During the course of search of the vehicle, police found Oxycodone (Charge 5) and Buprenorphine (Charge 6).
10 You were arrested and subsequently interviewed under caution. You denied being at the Biggs Street address on 18 April, stating that you would have been at your parents’ home in Werribee. You denied having ever seen the key to the Holden Cruze. However, in respect of the drugs found inside the house, you said that they were yours.
11 You were remanded in custody on the day of your arrest, being 9 May 2018, and accordingly as at the date of your plea, had spent 504 days by way of pre‑sentence detention.
12 Tendered on the plea as Exhibit 1 was a neuropsychological report from Mr Jackson dated 22 March 2017. On 6 January 2010, you sustained a significant traumatic brain injury following a motor vehicle collision. In addition, you have a significant history of substance abuse, including marijuana, amphetamine, heroin and Benzodiazepines. You developed significant mental health problems, in particular depression, following the collision of January 2010 and in particular, as a result of nerve damage to your spinal cord, you suffer from sexual dysfunction and are impotent and this has had a significant and adverse effect on your mental health.
13 You have no recollection of the motor vehicle collision, although Mr Jackson reports that you had been told that a taxi cut you off and you hit the back of the taxi at high speed, whilst you were being chased by police. As a result of the collision, you suffered a crushed pelvis; four fractured vertebrae in your back; a fractured vertebra in your neck, a fracture to the base of your skull; a fractured right eye socket; injury to the right ear drum; and a left ankle injury. You underwent surgery and, as part of the surgery, a titanium right eye socket was inserted into your skull. In addition, you suffered a fracture to your left fibula; a laceration to your pancreas; right vertebral and carotid artery dissections; a right extradural haemorrhage; pneumocephalus; right pulmonary contusion; and a small right haemothorax; fractured ribs; a torn colon and liver and spleen lacerations.
14 After being transferred from hospital, you spent 'a couple of months' at the Epworth Rehabilitation Hospital, where you had to learn to walk again. After being discharged as an inpatient, you still received physiotherapy, hydrotherapy and counselling up to the time you went into prison, some time in 2010.
15 In respect of your early background, you completed Year 10 at school and began an apprenticeship as a panel beater and spray painter. However, in the third year of your apprenticeship, you were retrenched and you were unsuccessful in seeking another apprenticeship, in order to gain your trade qualification. You ended up working as a metal worker. You have not worked over the last 10 years and you have been assessed as suitable for a disability support pension. However, you have not received that benefit because of the many terms of imprisonment imposed on you since the collision in 2010.
16 Your involvement with the abuse of drugs commenced at the age of 16, when you started to use marijuana and this continued until about 20 years ago, when you were involved a motor vehicle collision, which resulted in you needing a shoulder reconstruction. After the reconstruction, you commenced to use heroin and did so from approximately 1994 to 1998. In about 1998, you commenced to use amphetamine on a social basis and this continued for many years. You have also abused Rohypnol, Xanax, GBH and Ecstasy.
17 Mr Jackson in his report refers to the report of Associate Professor Richard Stark, neurologist, dated 21 June 2016, who reported at that time, that your problems were poor concentration; impotence; depression; impaired hearing; impaired smell; non-feeling in the right cheek; lower back pain; sore left ankle and trouble breathing. You were treated with Tramadol and Panadeine Forte. Associate Professor Stark opined that you clearly had a severe head injury as a result of the collision, with cognitive and personality changes.
18 Mr Jackson also referred to the report of Dr Nicholas Ingram, psychiatrist, dated 22 February 2016, who reported that you became depressed as a result of your limitations and impotence and that you had stated to have frequent panic attacks. Your depression was severe enough to be treated with anti-depressants and it was Dr Ingram’s opinion that psychotherapy may not be helpful to you, due to your cognitive impairment and that your prognosis was poor.
19
A further report referred to by Mr Jackson was that of Dr Andrew Gibbs, clinical neuropsychologist, dated 30 November 2014. When you were assessed by
Dr Andrew Gibbs, you performed extremely poorly.
20 Mr Jackson opines that your premorbid intelligence would be described as average. However, without going into each of the tests conducted on you, it is plain that you now have a full scale IQ of 66, which is within the extremely low range and that you performed poorly in each of the tests conducted on you by Mr Jackson. Of note, however, is that there is no evidence of a significant disorder of impulse control. Further, Mr Jackson opined that your cognitive, behavioural and emotional impairments would have no impact on your ability to understand the wrongfulness of your actions. In assessments with Mr Jackson, you expressed regret and wanted to change the nature of your ways.
21 Mr Jackson opined that there was absolutely no doubt that your mental health was deteriorating as at the date of his March 2017 report and as a consequence, there had been a further deterioration in your cognitive abilities.
22 Mr Morgan of counsel, who appeared on your behalf, noted that in the last nine years, you have spent the best part of eight years in custody. The consequence of this lengthy period in custody, which has been constituted by a number of separate sentences, is that if you are not already institutionalised, you are very nearly so.
23 Further, it was submitted on your behalf, based on Mr Jackson’s report, that you continue to offend so that you can go back to prison and avoid having to meet women. However, you are resistant to any surgical assistance by way of prostheses that might reduce the extent of your nerve damage and overcome to some extent, your impotence.
24 Plainly, the application of general deterrence must be sensibly moderated in your case because of your brain injury and its consequences on you, as well as your reaction to your sexual dysfunction and its effect on your mental health. Further, specific deterrence would seem to be inutile for similar reasons. However, protection of the community looms large in the exercise of my sentencing discretion, because of your unusual personal circumstances, despite the real risk that you will become institutionalised.
25 By this sentence, I must punish you, publicly denounce your conduct, and deter you and others from committing these kinds of crimes. Taking into account the circumstances of your offending and their effects, your personal circumstances and antecedents, endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you and your offending, I sentence you as follows.
26 On Indictment J11212001.4, on Charge 1, twelve months imprisonment. On Charge 3, three months imprisonment. This results in a total effective sentence of twelve months imprisonment. In respect to the related summary offence, I sentence you to eighteen months imprisonment. I order that nine months of the sentence imposed on the related summary offence be served cumulatively, upon the sentence imposed on Indict J11212001.4.
27 On Indictment J1212001.6, on Charge 1, twelve months imprisonment. One Charge 2, one week's imprisonment. On Charge 3, one week's imprisonment. On Charge 4, I convict and fine you $250. On Charge 5, one week's imprisonment. On Charge 6, one week's imprisonment. This results in a total effective sentence, on this indictment, of twelve months imprisonment, together with a fine of $250.
28 I order that six months of the sentence imposed on Indictment J1212001.6 be served cumulatively upon the sentence imposed upon Indictment J11212001.4, together with that portion of the sentence on the related summary offence ordered to be served cumulatively upon Indictment J11212001.4. This results in a total effective sentence of two years and three months imprisonment and I fix a period of eighteen months imprisonment before you will become eligible for parole. I calculate pre-sentence detention at 522 days. Does counsel agree?
29 MR FOSTER: Your Honour, I think there was a - there were fourteen days that were used as - on another sentence.
30 HIS HONOUR: Tell me what you say the pre-sentence detention is.
31 MR FOSTER: Five hundred and seven days, Your Honour.
32 HIS HONOUR: Five hundred and seven.
33 MR FOSTER: I think that's right, Your Honour.
34 HIS HONOUR: Thank you. I declare that you have spent 507 days by way of pre-sentence detention, not including day. I cancel any licence or permit to drive held by you under the Road Safety Act and I disqualify you from obtaining any such licence or permit for a period of twelve months. Pursuant to s.6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty, I would have sentenced you to four years imprisonment, with a non-parole period of two and a half years imprisonment. You may be seated.
35 The Crown have made an application for a forfeiture order in respect to a number of items, the subject of this prosecution and I have signed that order and hand it down.
36 MR FOSTER: The court pleases.
37 MR MORGAN: As the court pleases.
38 HIS HONOUR: Are there any other matters outstanding?
39 MR MORGAN: No, Your Honour.
40 MR FOSTER: No, Your Honour.
41 HIS HONOUR: You may remove the prisoner.
- - -
0
0
0