Director of Public Prosecutions v Vitale

[2017] VCC 471

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-02211

DIRECTOR OF PUBLIC PROSECUTIONS

v

WAYNE VITALE

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	24 April 2017
CASE MAY BE CITED AS:	DPP v Vitale
MEDIUM NEUTRAL CITATION:	[2017] VCC 471

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D. Piekusis
For the Accused	Mr W, Toohey

HER HONOUR:

1Wayne Vitale, you have pleaded guilty before me to one charge of armed robbery and one charge of handling stolen goods, that is, assisting in the retention of stolen goods.

2The facts underlying this offending are as follows.  The actual offence occurred on the evening of 1 October 2011.  You were approached by your older brother, Craig, who told you he needed money and was going to a liquor store to get some and he asked you to be the getaway driver and you agreed to take this role.

3You drove your mother's white Saab sedan to a warehouse behind the Do bottle shop in Kingsville, up to this point you believing that your brother would go in by himself.  However, once you arrived your brother asked you to go into the shop before and create a diversion by stealing alcohol.  He gave you a jacket to wear and a bag to carry, and he showed you a sawn-off double barrel shotgun.

4You knew that your brother was in possession of this firearm for about a week before although you had not seen it and part of you did not believe he actually had it.  However, on this evening he showed you the double barrel shotgun and I infer from that, and I think I am entitled to infer from that, you did know that it would be used in whatever was going to take place in that store that night.

5You drove the car closer to the bottle shop, parked in a service lane and then you and your brother got out and hid behind some trees for a while before going in.  At about 7.48 pm you went into the bottle shop with your face covered and carrying a bag to put alcohol in.  At this time the victim, who was Ms T. Kim Luong,  who worked in the bottle shop with her son, was stocking shelves and her son was out the back in the residence at the rear. 

6She greeted you but you did not respond.  I had the benefit of watching CCTV footage and it was shown from three angles.  From my observation what you did was you went in, you went to a wall at the back of the shop, removed some alcohol, which was apparently two slabs of Jim Beam and hastily made an exit.

7Whilst you were doing that your brother came in, at which time Ms Luong was making her way to the service counter.  Your brother's face was covered, he was brandishing his shotgun and carrying a sports bag.  He pointed the gun at Ms Luong and forced her to walk behind the service counter.  At this stage you were making your way out of the shop.  Your brother then aimed his shotgun in the direction of the cash register and discharged a single shot, which caused items on the counter to be strewn around.  Ms Luong heard your brother say, "Money, money", after he discharged the gun and she said there was none.  Your brother tried to open the register but was unable to.

8Ms Luong managed to activate the store's emergency alarm and her son, Quoc Do entered the store from the rear residence, at which point your brother pointed a gun at Mr Do and told him not to do anything stupid.  He then left, from my observations, walking backwards if you like, with the gun still covering those in the store.

9You had in fact taken three slabs of Jim Beam.  Your counsel informed me that you dropped one of those on the way out.  The other two you loaded into the car although you never saw them once you had arrived back at your destination after leaving the scene.

10On 16 October 2011 police attended your family home in relation to an unrelated family violence incident and members of your family confirmed to police that your brother, Craig, did have a double barrel shotgun matching the firearm used in the armed robbery in his possession.

11On 19 October police executed search warrants at two other properties and the vehicle used by you was found with the shotgun, a sawn off shotgun barrel, shorn off butt stock and ammunition, the latter having been stolen from Aussie Disposals Warehouse on 10 September.

12Your actions in entering the shop with your brother underlie Charge 1, armed robbery.  Charge 2 relates to the stolen ammunition used by your brother in the gun.

13Your brother was interviewed on 19 October 2011, at which stage he denied having being involved.  You were not at that stage, I understand, considered to be one of those involved in this armed robbery.  The matter essentially ceased insofar as investigation is concerned until about 2014.  You had gone on to commit subsequent offences, which I will refer to later in these sentencing remarks, and your fingerprints in the course of that were obtained.  It was then discovered that your fingerprint matched a fingerprint on a piece of paper found with the shotgun and other items back in 2011.

14The case was then reopened and footage, that being the CCTV footage, was then replayed on public television.  Police then contacted you after this and advised you that they were looking for your mother in relation to the car that she had previously owned and its connection to the armed robbery.  You then initiated contact with your brother, Craig, to tell him about what was going on, and the two of you met later that day in Lynbrook.  Police in the meantime had obtained warrants for telephone intercepts and listening devices and the conversations between you and your brother were monitored.

15On 23 June 2016 Craig, your brother, telephoned you, said he had seen the media coverage the previous night and not to worry, and you told him that people were ringing you and saying that Craig had done it.  The two of you then discussed that police were looking for your mother's car and the two of you arranged to discuss this further.  Later that day Craig picked you up in his car and the two of you discussed the media coverage and how a friend had identified Craig in the footage.  There was a conversation about whether or not  there was a clear vision of Craig.  You asserted that police had nothing and the two of you then discussed how you would create an alibi.  There was a further conversation in which Craig said that he had discharged the shotgun because Ms Luong had been, "pissing me off".  You had already left before her son entered the store.  Craig told you that if anyone asked you if he had owned a gun you were to say, no, and the two of you discussed speaking to your parents about the prospective evidence that they should give.  Later that day you rang your brother and the two of you discussed the car and agreed to stick to the same story, that is that they never touched the car.

16You were arrested on 24 June 2016, as was your brother.  You were arrested at Tullamarine Airport where you (indistinct) your parents you were taken to the Spencer Street complex and participated in a fairly lengthy record of interview where you denied any involvement in the armed robbery.  However, once the record of interview was finished you asked to be re-interviewed, at which time you provided a statement, which I have read.  It is a fairly lengthy and detailed statement and it outlined your involvement in the offences.

17There was some discussion between prosecution and defence after you were charged but essentially you entered a plea of guilty in late 2016.  You have remained in custody since 24 June 2016.  The maximum penalty for armed robbery is 25 years' imprisonment and the maximum penalty for handling stolen goods is 15 years' imprisonment.

18I now turn to your personal circumstances.  You are now 26 and were 21 at the time of this offending.  At the time of this offending you had no prior convictions.  However, as I have already stated, you have gone on to commit further offences, though not by any means offending approaching the level of the matter that has brought you here before the County Court today.

19You are of Samoan descent.  You are the second oldest of your family.  Your brother, Craig, is the eldest of the family.  You and Craig appear to be, from what I have seen in the summary of your brothers and sisters' occupation, to be the only ones out of the six children to have been in trouble with police.  Your father is employed in the building industry and your mother is a nurse.  You came to Australia after being born in New Zealand when you were eight.  You obtained your VCE.  You appeared to have been fairly trouble free and did not get a particularly high mark in VCE but you went on to enrol in an electrical diploma course at Holmsglen Institute but stopped this after six months, but have been pretty much employed, gainfully, ever since.

20I note in the report of psychologist, Tim Watson Munro, dated 28 March 2017, that a major reason for discontinuing your course was that you and your girlfriend became pregnant.  You left to go to work to support them.  You worked in logistics and transport.  You worked in concreting and at one stage the two of you, you and your partner and your small daughter, went to New Zealand where she had family.  This was not successful for you.  You had some difficulty finding employment, you missed your family a great deal and eventually the two of you returned to Australia.

21That return occurred shortly before this offending and was apparently a time of some difficulty for you.  The relationship with you and your partner was strained.  You were in fact living with your brother, who unbeknownst to you, it appears, was engaged by that stage in fairly heavy ice use.  He had always been an influential person in your life.  You yourself had developed some difficulties with alcohol and it was in this context, when you were living with your brother, that the suggestion was made to you by him to participate in this appalling violent offending and you agreed to go along.

22It seems that you made a number of very foolish decisions on that night,
Mr Vitale, the first being to go along in the first place, the second being to go in and go along with your brother's plans, even though you thought you were just going to be the driver at the time, even though you knew your brother was going to go in with a sawn off shotgun.

23Now, the presence of a sawn off shotgun does create some difficulty.  A person who is in possession of a sawn off shotgun, and there seems to be some evidence to show that your brother may have done this himself, I am not sure, but people who go around engaging in criminal activity involving, if I can use a colloquial, sawn off shotties, are at a different level of criminality and a different level of involvement with serious criminals than would otherwise be the case, and it seems to me, from what I have heard and what I have seen from the CCTV footage and from the way that the prosecution opening fell, that your brother was engaged in criminal activity to a serious degree, and I do regard this as a serious armed robbery.

24This is not a case of some desperate junkie wandering into a milk bar and waving a knife around and saying, give me some cigarettes and what you have got in the till.  This was particularly violent.  The weapon was extremely violent.  It involved the menacing of an older, and from what I saw, very small woman.  It involved the completely unnecessary and reckless letting off of the firearm.  It involved some violence. Although neither Ms Luong nor her son have made victim impact statements, it is common for this court to receive statements from those who are the victims of armed robberies, particularly violent armed robberies, where they detail the following:  a feeling of complete lack of safety in their lives, fear in their workplace, they develop anxiety, they develop depression, they do not like to go out of the house because they feel unsafe, they have great difficulties in communicating with other people. it goes on and on.  They usually require a great deal if psychological assistance and it can be many, many years before the psychological damage by that sort of activity is overcome.

25You can only imagine how your own mother or one of your sisters might have felt, Mr Vitale, if they had been in a shop and kneeling on the ground and had a sawn off shottie directed at their face and then saw their son come out and then see the person swing around and aim a gun at them.  You can only imagine, if you have got some imagination, have a bit of a think about your own family in that situation.  That is what your brother, Craig, did, and that is what you very foolishly got yourself involved in.  So it has been submitted to me by the prosecution that this is a serious armed robbery and I certainly accept that, notwithstanding it was brief.

26In any event, I was informed by your counsel that as a result of this armed robbery you and your brother became estranged.  You told police in your statement that from the time that you went inside you were frightened, you felt you had to go on with it, you had no idea that the gun was loaded and you also, in the immediate aftermath, became involved in a fairly large argument with your brother in relation both to the armed robbery and as to how he was treating your partner at the time.

27Soon after this you and your partner separated and that has been the cause of some angst in your life, as it appears there has been an amount of animosity between you, which resulted in you having very little contact with your daughter.  I mention that because, in my view, that has some relevance to your subsequent offending.  That offending has resulted in you twice being placed on a community corrections order, which you have successfully completed, which is to your credit, although it appears that some of that further offending may have occurred whilst you were on those community corrections orders.

28So on 14 April 2015 you were placed on a 12 month community corrections order for recklessly causing injury, which your counsel informed me arose from a fight outside a nightclub and also involving a large number of people, and then on 24 June 2015 you were involved in an incident at a petrol station where because you had overpaid for the amount of petrol you got you lost your temper and damaged the bowser.

29You have also got three outstanding matters, one of them being an alleged fight outside a hotel on 28 November 2015, which I understand has been hotly contested.  Then on 4 January 2016 you were charged with making a threat to kill, which is apparently against your former partner, and you pleaded guilty to this charge, and on 11 March 2016 you were charged with unlawful assault, again involving a road rage incident after a minor accident where you and the driver of the other car presumably became involved in an argument.  That matter is also going to be contested.

30You have been, as I have said, in gaol since your arrest on 24 June last year.  There have been some difficulties.  You have been dealt with once for fighting.  You were held in the cells, you were sent to Port Phillip where you remained for about four months before being sent to Barwon after that incident where you now remain.

31You have been unable to do much in the way of study there, although you have undertaken, I understand, one certificate in cleaning operations, but you have worked.  You have worked in the kitchen and worked in manufacturing and packing.

32A number of references were tendered on the plea, including certificates, in particular, a certificate showing that you have completed a Certificate III in logistics, which was completed in 2013.  I received a very positive reference from the pastor and I received a reference from one, Cameron Zirak, who is a director of Hixxa Construction, which states that in the full knowledge of your charges he's prepared to offer you a full time position as a construction worker, which he says, "will include carpentry, plastering and some labouring when needed for our company, Hixxa Construction Pty Ltd.  These duties are similar to what he was doing before his arrest".

33It is a particular pity, Mr Vitale, that just before your involvement in this offending you were planning to take on further study which would have led to you perhaps having an even more positive employment path.  Anyway, these things come back to bite you I suppose, Mr Vitale, is all I can say.

34I do accept that you have been overall a hard working young man, that you have been in employment more often than out of it.  You have held several jobs upwards of two years and a former employer is prepared to offer you work.  The family remain supportive.  Unfortunately there is a divide because there was some talk about you giving evidence against your brother, Craig, which you have declined to do.  There have been two spinoffs from that.  The first is that I understand Craig, who is being held at the MRC, has sent a rumour around that you are a dog and that you have made a statement against him and are going to give evidence against him.  Secondly, your family still loves your elder brother, Craig, but I hope those members of the family have been listening today about what I have been saying about the level of criminality that older brother's offending is, and I hope you have been listening to me about sawn-off shotguns.  People do not use sawn-off shotguns unless they are heavily involved in criminal activity.

35But in any event you do have a supportive family who came to court to support you and it appears that relations between yourself and your former partner have resolved and you have good contact with your daughter, who is now six or seven and was present in court and I note that you are also involved in a relationship with a law abiding young woman who is undertaking a law degree and who remains supportive of you despite the fact that you have been in gaol for the best part of ten months.

36I regard your prospects of rehabilitation, given your work history, given your family support, given your relationship support, as fairly positive.  At the same time I do note, however, that you seem to have a bit of a tendency to go off the deep end fairly quickly, Mr Vitale, so that makes me feel a little guarded about your capacity to remain completely crime free, but I do accept that this offending, committed when you were only 21, is in a completely different league to any other offending that you have been involved in and I do accept that you played much the minor role in this offending and were under the influence of your brother at the time.

37That being said, however, as I have already stated, this is extremely serious offending, it is a serious example of an armed robbery and so the issue of general deterrence, that is a sentence, sends out a message to other people in the community that if they offend in this way they will be punished by the courts, must be sent.  There was some submission about specific deterrence, but while you are a person who probably needs to watch his temper, I do not regard you as requiring specific deterrence insofar as this level of offending is concerned.

38The issue of punishment is also a live one before the court and these are matters that I take into account in rejecting your counsel's submission, after an extremely helpful and competent plea, that I should deal with you by way of a combination sentence of gaol and a community corrections order.  In my view, the objective gravity of this offending is too serious for a court to take this course.  However, in sentencing you I do take into account your youth at the time of this offending and the fact that you have never gone on to offends, as I have said, in any way remotely grave as this offending, that you have been a good worker, that you enjoy good support and that you are still a relatively young man.

39I also take into account, and I regard this as significant, your cooperation with police, and I accept that with that, and in making that statement, you bring with it a remorse above and beyond remorse accompanying the fact that you got caught and placed in gaol.

40I also take into account there has been a delay in this matter and that it meant that to some extent you were at a more progressive point of your life than you had been.  That is you had established a fairly good work history, you were seeking to undertake further education and this has been disrupted.

41Taking all those matters into account I therefore sentence you as follows.  Could you stand up, please, sir?

For the charge of armed robbery I am sentencing you to three years and six months' imprisonment;

on the charge of retaining - handling stolen goods I am sentencing you to two months' imprisonment, which will be concurrent.

42That gives a total effective sentence of three and a half years and I order that you serve a minimum term of 18 months before becoming eligible for parole.

43I declare that 304 days of this sentence have already been served by way of pre-sentence detention.

44Pursuant to s.6AAA I declare that had you  not pleaded guilty I would have sentenced you to a term of imprisonment of five years and order that you serve a minimum term of three years.  Thank you.

45MS PIEKUSIS:  I seek clarification, Your Honour.  Your Honour announced the sentence as being three years, ten months with respect to the - - -

46HER HONOUR:  Did I say ten months?  I meant six months.

47MR TOOHEY:  Yes, you said ten, yes.

48HER HONOUR:  I apologise.  Thank you for that.  Three years and six months and a minimum term of 18 months.

49MS PIEKUSIS:  As Your Honour pleases.

50HER HONOUR:  All right.  Is there anything else?

51COUNSEL:  No, Your Honour.

52HER HONOUR:  Thank you all for sitting through that but it does mean it is done.

53MR TOOHEY:  Thank you, Your Honour.

54HER HONOUR:  All right.  Do you understand all that, Mr Vitale?

55ACCUSED:  Yes, Your Honour.

56HER HONOUR:  Not great was it?  No.  How - sorry, I hope you do not mind, Mr Toohey.  How is he going in Barwon?  Are you working?

57ACCUSED:  No.

58HER HONOUR:  You are not?  Why not?

59ACCUSED:  Well, I am in the slot.

60HER HONOUR:  All right, we will not go there.  All right, just get out of the slot, get a job and get out of there, all right.

61ACCUSED:  Yes, Your Honour.

62HER HONOUR:  You should not be here.  It was a really, really stupid decision and how a look, watching the CCTV footage?

63ACCUSED:  Not good, Your Honour.

64HER HONOUR:  Did you see that little lady kneeling down?  Yes.  You have a think about what that - as I said, you need to have a think about your mum or your sister in that position, all right?  All right, thank you very much.

65ACCUSED:  Yes, Your Honour.

66HER HONOUR:  I thank counsel for their assistance.  Thank you.  Yes, we will adjourn to 9 o'clock Wednesday, that is right.  Look, I will hand back the references and the certificates.  I will hang on to the subsequents if that is all right, and I will give you back - that goes to Mr Toohey and that goes to
Ms Piekusis.  Thank you very much.  Yes, thank you.

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