Director of Public Prosecutions v Villella, Anthony
[2017] VCC 120
•14 February 2017
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
Case No: CR-16-00265
Indictment No: F13120548.1
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANTHONY VILLELLA |
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| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 17 October 2016 and 3 February 2017 |
| DATE OF SENTENCE: | 14 February 2017 |
| CASE MAY BE CITED AS: | DPP v Villella, Anthony |
| MEDIUM NEUTRAL CITATION: | [2017] VCC 120 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – robbery – assault – aggravated burglary – reckless conduct engendering serious injury – prohibited person possess firearm – possessing a drug of dependence – handling stolen goods – plea of guilty
Legislation Cited: Crimes Act 1958 (Vic); Firearms Act 1996 (Vic); Drugs, Poisons and Controlled Substances Act 1981 (Vic); Sentencing Act 1991
Cases Cited:R v Verdins & Ors (2007) 16 VR 269
Sentence:Total effective sentence of 8 years and 8 months’ imprisonment with a non-parole period of 6 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P D’Arcy | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr L Barker | Emma Turnbull & Associates |
HIS HONOUR:
1Anthony Villella, you have pleaded guilty to the following offences:
·On 29 July 2015, you robbed “JS” of a Ford FPV motor vehicle, contrary to s75 of the Crimes Act 1958 (Vic), carrying a maximum penalty of 15 years’ imprisonment.
·On the same day, you assaulted “JS” contrary to common law, carrying a maximum penalty of five years’ imprisonment.
·On 27 August 2015, you went to the building with the intent to steal and you had with you a firearm, and at the time you entered, a person was present in the building and you either knew that or were reckless as to whether a person was present, contrary to s77(1) of the Crimes Act 1958 (Vic), carrying a maximum penalty of 25 years’ imprisonment.
·On the same day, you discharged a firearm in the direction of ““CM””, placing him in danger of serious injury, contrary to s23 of the Crimes Act 1958 (Vic), carrying a maximum penalty of five years’ imprisonment.
·On 4 September 2015, being a prohibited person, you possessed a firearm, contrary to s5(1) under the Firearms Act 1996 (Vic), carrying a maximum penalty of ten years’ imprisonment.
·On the same day, you had in your possession a drug of dependence, namely cannabis L and amphetamine, contrary to s73 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic), carrying a maximum penalty of one year’s imprisonment.
·On the same day, you dishonestly handled stolen goods, being a Volkswagen Golf Cabriolet, knowing or believing it to be stolen, contrary to s88 of the Crimes Act 1958 (Vic), carrying a maximum penalty of 15 years’ imprisonment.
2I now propose to summarise sufficient of the evidence for my sentencing remarks to be properly understood.
The events of 29 July 2015
3Let me first turn to the events of 29 July 2015. You were in company with four co-offenders in a motor vehicle. Whoever was driving the motor vehicle occupied by you drove it in such a way that “JS” had to take evasive action to avoid a collision. He was driving a Ford FPV motor vehicle. Both vehicles stopped about 20 metres apart.
4“JS” got out of his motor vehicle. Three males got out of the motor vehicle occupied by you. A confrontation occurred. One of the males who got out of the motor vehicle occupied by you struck “JS” a blow to his head, causing him to fall to the ground and lose consciousness. As he recovered from the blow, he saw his motor vehicle being driven away.
5“JS” was able to telephone a friend who arrived. He was then conveyed to a hospital where he received medical treatment for a large cut to his head which required eight stitches.
6A listening device planted at premises which you frequented recorded you saying that you had blood on your jumper and that you had obtained an FPV type II motor vehicle. You were caught on film driving “JS”’s motor vehicle through the western suburbs the following day. The motor vehicle was eventually recovered.
The events of 27 August 2015
7You believed that there was a hydroponic cannabis crop located at the house occupied by ““CM””. You and a co-offender decided to burgle that house and take the cannabis crop.
8You and your co-offender forced entry into that house by kicking in a door. You were wearing a hooded top and mask and your co-offender was wearing a skull mask covering the lower half of his face. You were armed with a .22 Beretta handgun. Your co-offender was armed with a crow bar.
9You were confronted by “CM” in the kitchen of the house. He took some knives and began throwing them at you and your co-offender. As that was happening, your co-offender said to you, and I quote, “Shoot him, shoot him”. You did just that. You pointed the handgun at “CM” and fired a shot, which fortunately missed him. The bullet became lodged in a refrigerator.
10You and your co-offender then fled. “CM” chased you. The police were called. A cartridge case matching the handgun, which was later linked to you, was found at the house.
The events of 4 September 2015
11On 4 September 2015, a search warrant was executed at a house frequented by you. Investigating police found:
·the handgun with ammunition, gloves, masks and other items. An examination of the handgun revealed that the shot fired at “CM” was fired from that handgun.
·47.8 grams of cannabis and .04 grams of methyl amphetamine.
·a stolen Volkswagen Golf Cabriolet.
12On 4 September 2015, you were arrested and taken to the Sunshine police station, where you were interviewed. You refused to make any answers to questions asked of you.
The Victim Impact Statements
13“CM” made a Victim Impact Statement. He is a married man with three children. At least one of his children was at home when you and your co-offender entered it.
14“CM” has described how the confrontation with you and your co-offender has changed his outlook on the world. He no longer feels safe, and is anxious. He no longer regards his home as being a safe place and the sanctuary he thought it was. He describes how his wife and children have been adversely affected by this experience. He senses that they are anxious and have a fear of opening the door of their home, presumably when someone comes to the door.
15“CM”’s wife, “JM”, also made a Victim Impact Statement. She has expressed very similar feelings of that of her husband. She and her family had to wait some months, with the front door barricaded, until her insurance company met their insurance claim. They had to chase the insurer, which, I have no doubt, just added to the troubles which you caused them.
16“CM” is a man with a deep Christian faith. He has forgiven you for what you did, and he has expressed the hope that you will have faith as he and his wife do and be saved.
17I have not read a Victim Impact Statement of the kind composed by “CM”. I suspect it is very rare for a victim of such a serious crime to forgive the perpetrator. It led you to write to him, expressing your profound sorrow for what you put he and his family through.
Your background
18Your counsel provided me with a lengthy, well-structured and very helpful outline of plea submissions. In addition, he provided me with the following documents, which I propose to identify, because it is from his plea submissions, his oral submissions and a body of written materials that he submitted, that I should consider what must be weighed in your favour against the sentencing principles which must apply in the construction of a just sentence.
19I will list the material I have just referred to in the order in which it was tendered:
·Your handwritten letter to “CM” and his family: Exhibit 2
·A comprehensive prison history: Exhibit 3
·The report of Dr Stuart, neuropsychologist, dated 28 December 2004: Exhibit 4
·The report of Dr Campbell, psychologist of Forensicare, dated 30 November 2005: Exhibit 5
·The report of Dr Deakin, psychiatrist, dated 10 March 2010: Exhibit 6
·The report of Dr Borg, neuropsychologist, dated 20 January 2014: Exhibit 7
·The report of Mr Brewer, neuropsychologist, dated 24 January 2017: Exhibit 8
·The report of Mr Quigley, counsellor, dated 19 February 2016: Exhibit 9
·The report of Mr Mitchell, chaplain of Catholic Prison Ministry of Catholic Care, dated 1 February 2017: Exhibit 10
·The report of Ms Abadee, drug and alcohol counsellor, dated 24 January 2017: Exhibit 11
·A certificate of the Box Hill Institute relevant to your completion of two units and Certificate II course in cleaning operations: Exhibit 12
·A bundle of drug assay results relevant to your time in remand: Exhibit 13.
20There are reports about you dating back as far as 2004. This is because you are by no means a stranger to criminal activity and prosecution in our courts. Your criminal history discloses that you were first convicted and sentenced in an adult court on 30 July 2003. I will return to your criminal history, and the time you have spent in custody over the years, later.
21The submissions of your counsel and the materials which I have just referred to enables me to set out some of your background, which is relevant to the construction of a just sentence.
22You are 31 years of age. You have two brothers who are 26 and 23 years of age. Both of them have experienced intellectual developmental problems, requiring medical attention and the prescription of medication.
23Your parents separated when you were about five years of age. Your father was a heavy user of cannabis. He was violent towards your mother. He was also violent towards you. Your father was not the only member of your family who was drug dependant. Your paternal grandfather is an alcoholic; your maternal grandmother is also an alcoholic; your mother has resorted to the use of alcohol, cannabis and ice.
24Your mother entered into a relationship with a man who sexually abused you when you were nine or ten years of age. It would appear that it was an event which has traumatised you, and which interfered with your schooling. You attended many schools. You were a poor student. You suffered the unfortunate consequence of being bullied because you were a new boy in those schools, you were overweight and you were a poor student.
25When your mother entered into a further relationship with another man, you were introduced to offending conduct. Your counsel described him as a “Fagan” because he paid you to steal for him. To add to the misery encountered by your mother, this man was also violent towards her.
26Paragraphs 13 - 17 of your counsel’s outline of plea submissions recount your litany of offending conduct, mental impairment issues and abuse of illicit substances. You commenced using illicit drugs when you were in Year 8. You became addicted to heroin between the ages of 17 and 25. You were admitted to the Sunshine Hospital and the Royal Melbourne Hospital on three occasions because of psychiatric difficulties between the ages of 16 and 18 years of age. You also suffered a number of head injuries through accident.
27Your employment history is very poor. After you finally left school in Year 8, you worked with an uncle as a roofer and you did some work as a cleaner, but otherwise it would appear you have not worked since your early teenage years.
28You entered into a relationship with a woman with whom you have a child who is 10 years of age. The mother of your child has also had an unhappy relationship with illicit drugs. The position of your child came to the attention of the Department of Human Services. She has now been placed in the care of your uncle. You have a relationship with your daughter which continues.
29I do not propose to set out much of the detail on the earlier reports which were obtained for the purposes of pleas made on your behalf when you were prosecuted in the past. The report of Mr Brewer is the most recent neuropsychological assessment of you and it appears to me that the history he took of your background, offending conduct and psychiatric problems is consistent with what I have read in the other reports.
30Mr Brewer commenced his assessment of you by reference to the report of
Dr Borg, the prosecution opening, the indictment and your prior criminal history. He undertook assessment testing of you set out in paragraph 11 of his report and then at paragraphs 12-17, described the results of that assessment testing and then at paragraphs 18-28, he engaged in an extensive and very detailed analysis of you. I do not propose to set out much of his opinion except a quote in full from one paragraph, which I think summarises your position from the perspective of Mr Brewer’s assessment of you:
“Functionally, Mr Villella has experienced significant compromise of his mental and intellectual health, personality, emotional independence, his relationships and financial independence. From the available evidence, this is primarily a result of his early highly disorganised and abusive attachments and the impact of his subsequent substance abuse. Notwithstanding the above difficulties, it never the less appears from the available evidence that Mr. Villella was able sufficiently to continue his engagement in crime-related activities to an extent that reflects some functional degree of cognitive organisation and function. It is likely here that, over the significant number of years of substance abuse, his associated behaviour is in part well-learned, and as such has become entrenched in his personality. Finally, a further compelling feature of his history is Mr. Villella’s apparent lack of ability to learn from his past legal sanctions. (He reported to Dr Borg at the time of her assessment of him 2014, that ‘this time will kill me, I’m physically over it, I’ve had enough”).
His lack of ability to demonstrate independent initiation of appropriate support when released from prison in the past, his repeated offending despite well-learned knowledge of the likely sanctions, his impulsivity, and his current anxiety are all consistent with the objective findings from Mr Villella’s personality screen suggesting that he has significant socio-emotional developmental compromise, including disorganised and dysregulated personality development. The latter includes the more obvious pattern of antisocial traits, however the high likelihood of borderline personality features along with emotional dependence should not be underestimated in this clinician’s opinion. It should be reiterated here that Mr. Villella impressed as an emotionally frozen child in a man’s body in several respects at this assessment, where he has very limited tools to regulate his subsequent healthy anger and its sequelae. He does not impress as having a fundamentally maliciously violent intent, where it is more likely that he has internalised dysfunctional violent scripts from an early age.”
Your offending
31You have a prior criminal history which is staggeringly extensive for someone who is only 31 years of age. It commences on 30 July 2003 when you were about 18 years of age. It is limited to occasions when you were prosecuted in adult courts, not the Children’s Court.
32Your counsel informed me that I should not only consider the criminal history report, but also the comprehensive prison history, which he submitted demonstrated that you were first taken into custody on 9 June 2006 when you were 20 years of age. He submitted that of all of the appearances during which you had been in custody are compressed, that you have probably been in custody for up to 11 years, which, of itself, is also staggering.
33Your criminal history discloses that you have been dealt with by courts since 2003 for burglary, aggravated burglary, theft related offences, assault related offences, damage to property related offences, drug offences, possession of a weapon related offences, breach of bail and breach of CBO, ICO and IVO orders.
34The dominant sentencing principles in the construction of a sentence in your case are general deterrence and specific deterrence. The sentencing principles of denunciation and just punishment must also be weighed into account in the construction of the sentence.
35The gravity of your offending is extremely worrying and of very serious magnitude. You thought nothing of running “JS” off the road with your co-offenders, assaulting him seriously and stealing his car, or as it is now called, engaging in a carjacking. It must have been a terrifying experience for him. Although, he has not submitted a victim impact statement, it would come as no surprise to anyone if he was not terrified. What is so very worrying is you did that because you were attracted to his motor vehicle, and you simply wanted it for your use.
36Similarly with the aggravated burglary, when you and your co-offender went armed and into the house occupied by “CM”, his wife and his three children. You went armed because you were thought you were entering a “drug house” where cannabis was cultivated, with the intention of having the occupants of the “drug house” submit to your demand to turn over the drugs to you. When you discovered that the house that you invaded was not a drug house, you nonetheless brandished the handgun and fired a shot at “CM”. It was fortuitous that either the handgun did not function well, or you are a bad shot, because the bullet discharged from the handgun missed him. One can only shudder when thinking what the result might have been had the bullet hit him.
37When the warrant was executed to search the premises where you were living, items were found which were consistent with you equipping yourself to engage in criminal activity, and also drugs and a stolen motor vehicle.
38Your criminal history, together with the offending conduct with which I am dealing, demonstrates that you are a person who is deeply entrenched in a life of crime. Why else would you be equipped with the items that were found in your home, and, most importantly, one of the most dangerous items found in the position of a career criminal – a concealable handgun and ammunition?
39What I have just said demonstrates why general deterrence is the dominant sentencing principle, with specific deterrence not far behind in its importance.
40Your conduct must be denounced emphatically, because the community is entitled to feel utterly outraged that someone like you has committed yourself to a life of crime, which has so obviously been demonstrated by your criminal history and this offending conduct, and for all of these reasons, just punishment is called for.
41Your prospects of rehabilitation are negligible. Your counsel conceded as much, but submitted that, rather than expressing it negatively, I should conclude that, at your age, you are not irredeemable. I think there is something in what your counsel says that perhaps your letter to “CM” has some sincerity and reality about it, that you have reflected on the fact that he has forgiven you and asked you to embrace the faith which he has. Maybe that has actually had an impact on you and maybe you are not irredeemable.
42I do note that you have remained drug free while in prison and you have undertaken a course as part of your attempt to rehabilitate yourself. The chaplain of CatholicCare speaks positively about statements of your remorse made by you, his perception of your changed attitude to offending conduct, and your participation in chapel services. Whilst they are positives, I had weighed them up against all of the rest of what is known of you in making a judgment about your prospects of rehabilitation.
43Despite not making any admissions early on, you have nonetheless accepted your guilt and your moral responsibility for your offending conduct by pleading guilty. This has an utilitarian effect of saving the victims of your offending conduct from having to go through the trauma of a trial and you have saved the State the cost of a trial.
44I am not sure whether you are really remorseful but I am prepared to conclude that your letter to “CM” is an expression of remorse, as are the statements you made to the chaplain of CatholicCare.
45I accept your counsel’s submission that there should be moderation of the sentence by the application of the sentencing reasoning in the
R v Verdins & Ors (2007) 16 VR 269. The submission relied upon the opinion of Mr Brewer and also the other assessments conducted of you over the years since 2010, which demonstrate that you have impaired mental functioning, which appears to me to be permanent and, in all probabilities, played a role in your offending conduct in the past and is relevant to the offending conduct for which you are before the Court on this occasion.46The submission is that your moral culpability is reduced, that general deterrence and specific deterrence should be moderated, and that serving a sentence of imprisonment will weigh more heavily on you. The prosecutor did not submit otherwise, and the analysis of the evidence against the medical evidence demonstrates that there is a sound basis for that submission.
47I will moderate the application of those relevant sentencing principles, but in your case, the moderation must be applied very much by having regard to the seriousness of your offending conduct and by having proper regard to your appalling criminal history. You have appeared before courts on many occasions, and I have little doubt that you have been warned that if you continue to engage in offending conduct, that you would be the recipient of increasing sentences. You have ignored what can only be described as an extensive experience in the system which must have demonstrated to you that you would eventually be sentenced to sterner sentence of imprisonment if you continue to engage in offending conduct.
48Allied to your counsel’s submission that serving the sentence of imprisonment will weigh more heavily on you, he also submitted that you have already experienced very burdensome aspect of your time on remand. You have been locked down for up to 23 hours per day at various times. I do not doubt that being in lockdown for so long is an additional hardship which would ordinarily not accompany incarceration, whether on remand or on the service of a sentence of imprisonment. I have taken this into account in the construction of your sentence.
49The sentence I now impose is proportionate to the gravity of your overall offending conduct in the light of the objective circumstance of that offending conduct, and addresses the principle of totality.
50I now ask you to stand please.
51On the count of robbery, you are sentenced to two (2) years’ imprisonment, with twelve (12) months to be served cumulatively with the head sentence, which will be the aggravated burglary.
52On the count of unlawful assault of “JS”, you are sentenced to imprisonment for nine (9) months, with three (3) months to be served cumulatively with the head sentence.
53On the count of aggravated burglary, you are sentenced to four and a half (4½) years’ imprisonment. This is the head sentence.
54On the count of reckless conduct endangering serious injury, you are sentenced to three (3) years’ imprisonment, with two (2) years to be served cumulatively with the head sentence.
55On the count of being a prohibited person in possession of firearm, you are sentenced to twelve (12) months’ imprisonment, with six (6) months to be served cumulatively with the head sentence.
56On the count of possession of a drug of dependence, you are sentenced to three (3) months’ imprisonment, with two (2) months to be served cumulatively with the head sentence.
57On the count of handle stolen goods, you are sentenced to six (6) months’ imprisonment, with three (3) months to be served cumulatively with the head sentence.
58You are therefore sentenced to eight (8) years and eight (8) months’ imprisonment. I will set a minimum before you are eligible for parole at six (6) years.
59I order that the time you have been held in custody of 529 days is to be reckoned as time served. I will have that noted in the records of the Court.
60If it had not been for your pleas of guilty to these charges, I would have sentenced you to eleven (11) years’ imprisonment, with a minimum of eight years to be served before you would become eligible for parole. You can now resume your seat.
61HIS HONOUR: Now, Mr D’Arcy, you have some orders that you want me to sign, do you?
62MR D’ARCY: I don’t have them present, Your Honour. I don’t know what’s happened to my instructor, he was to bring them. Would it be sufficient to have them faxed through later today, Your Honour?
63HIS HONOUR: Mr Barker, what do you say about that?
64MR BARKER: Your Honour, there were discussions last week. An agreement was reached that required some editing of those prospective orders. The orders, if they have been edited in the way that was agreed, there is consent to them.
65HIS HONOUR: All right. Well, Mr D’Arcy, may I ask you to convey to your instructing solicitor that the orders ought to be transmitted to Mr Barker for his inspection.
66MR D’ARCY: Yes.
67HIS HONOUR: If they accord with the agreement the two of you have reached, then they can be transmitted to me, and given what Mr Barker has said, I will then sign them and have them delivered to your instructing solicitor.
68MR D’ARCY: I’m much obliged, thank you, Your Honour.
69HIS HONOUR: Now, is there anything from you?
70COUNSEL: No, Your Honour.
71HIS HONOUR: Yes. You can remove Mr Villella, thank you. I’ll not adjourn the court until 10:30.
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