DPP v Alampi

[2013] VCC 446

IN THE COUNTY COURT OF VICTORIA

Revised

Unrestricted

Suitable for Publication

AT Melbourne

CRIMINAL DIVISION

CR-12-01467

DIRECTOR OF PUBLIC PROSECUTIONS

v

VINCENZO ALAMPI

---

JUDGE:

HER HONOUR JUDGE HAMPEL

WHERE HELD:

Melbourne

DATE OF HEARING:

8 October 2012 and 9 April 2013

DATE OF SENTENCE:

9 April 2013

CASE MAY BE CITED AS:

DPP v Alampi

MEDIUM NEUTRAL CITATION:

[2019] VCC 446

REASONS FOR SENTENCE

APPEARANCES:

Counsel

Solicitors

For the Crown

Mr J. Jassar

Office of Public Prosecutions

For the Accused

Mr R. Galbally

Galbally Rolfe

HER HONOUR:

Mr Alampi, I am about to sentence you.  You can remain seated whilst I read my reasons.  I will ask you to stand at the end when I formally pass sentence on you.

Vincenzo Alampi, on 19 May last year, you, your housemate, James Fountain, and a neighbour, Gary Priest, were at your home having a barbeque and drinking.

Mr Fountain's former partner lived across the road with her children and her new partner.  There were tensions between Mr Fountain, his former partner and her new partner and he, and it would appear, you and Mr Priest believed that they were using and possibly dealing in drugs.

You were all unhappy about this and felt that their behaviour had changed the happy sense of community that had existed in your street.

You had bought your house ten years earlier and had lived in the street ever since.

Mr Fountain reported to you that he had been threatened by some people in his former partner's house.  You and Mr Priest became enraged and went to the house intending to confront the occupants. 

The two children were home and told you that the mother and her partner were not in, but that there were two adults with them.  You told the children to get them and you and Mr Priest followed the children into the house and began yelling and swearing, initially, at one of the men, a Mr Storer.

You kept yelling at Mr Storer, while Mr Priest ushered the children out of the house.  The other adult occupant, a Mr Taylor, then approached Mr Priest with his arm raised, as if to strike him.  Mr Priest grabbed his arms and head butted him and then pushed Mr Storer out of the door and continued to push him out into the street, all the while telling him to leave and not come back to the street.  The two of you then left the house.

The following day, you were arrested and questioned.  On legal advice, you gave a "no comment" interview.  As a result of this, you have been charged and pleaded guilty to one charge of aggravated burglary.  That is, entering the house as a trespasser, without permission to enter, in the circumstances in which you went in, with intention to assault by intimidation, that is, to confront the occupants. 

The charge is not put on the basis that you went there with an intent to physically assault, rather that you went there intending to confront and intimidate.

Although this can properly be regarded as a low end of the scale aggravated burglary, nonetheless, it is a serious offence.  It is a vigilante offence.  You took it upon yourself to remonstrate with people in your neighbour's house.  You did not know yourself whether what you had been told was correct and it was none of your business, in any event. 

You were so intoxicated that you could not exercise the judgment or control that somebody who is sober can.  You were so drunk, you could not even remember when you were questioned the next day, what you were told or exactly what it was that motivated you to go to the house or to remember what you did once you got there. All of this occurred in the presence of young children.  Children you knew, neighbours. 

It is clear, therefore, that denunciation, deterrence and punishment must all play their role in sentencing. 

You are a 41 year old man, for whom this can properly be described or characterised as out of character behaviour.  You have two minor previous court appearances dating back 14 or 15 years.  The first for possession of cannabis in 1997, the other for summary charges of criminal damage and resist police in 1998.  On neither occasion was a conviction recorded.  On the first occasion, you were placed on an adjourned undertaking.  On the second, on a 12 month Community Based-Order with 100 hours of unpaid community work and a condition to undergo alcohol assessment and treatment.  It would appear that you saw each order out without breach.

The fact that no conviction was recorded in each case is, clearly, an indication of the view that the sentencing courts took of where the seriousness of those offences sat on the range.

The previous court appearances indicate a history of substance abuse, which is relevant, too, to the circumstances in which this offence was committed.  Otherwise, there is nothing in the circumstances of those offences which is relevant for the purposes of assessing your prospects of re-offending.  Significantly, there is nothing in your criminal history to suggest that you were aware that you could act, as you did on this day, and yet continued to drink.

You have an excellent work history.  You completed your secondary schooling and, after that, worked for ten years in administrative and managerial positions with banks, telcos and private businesses. 

Despite this, your real love had always been carpentry and building.  As a boy, you used to assist your father who worked in the building industry and you had kept up your interest in carpentry whilst working in these other white collar jobs.

For some years after your first ten years of post-schooling employment, you then worked as a self-employed carpenter, although you had no formal qualifications.

More recently, you returned to administrative and managerial work to the Commonwealth Bank and then the Australian Taxation Office and, more recently, again, you have been undertaking a Building Certificate IV at Holmesglen Tafe.  When completed, that will qualify you for full builders licence and that is where you see your future.

Alcohol, it would appear, had always played a role in your life, although, you had never seen it as a problem until the commission of this offence. 

On the material before you, you reported that you would drink at least four days a week and binge drink every few months or with escalating frequency in the years leading up to the commission of this offence.

I was told, and I have no reason to disbelieve this, that you had no recollection of what you had done, but that you had accepted, when questioned, without demur, the truthfulness of what you were told had been reported by the children and by Mr Taylor and Mr Storer.  I will call them, in a broader sense, the victims of the offence.

Your conduct from the time that you were questioned demonstrates that you immediately accepted that you and you alone were responsible for your conduct.  You immediately took yourself off to your doctor and obtained a referral for treatment for alcohol abuse and you started going to AA meetings.

On the initial hearing of the plea in October last year, reports were provided by your general practitioner, Dr Henry Major, and by Mr Jason Thomas, a clinician psychologist who you have been consulting at the Stepping Up Consortium.  They confirmed your self-referral immediately after charge and your continued engagement with each of them between May, the time of the commission of the offence, and October, the time of the hearing of the plea.

You gave evidence on your plea and I was impressed by your frankness in describing your shame and shock at your conduct and your commitment to addressing your alcohol use, because of the problems it had clearly caused on that day and, retrospectively, you recognised, had been causing more broadly.

You said that with your counsellor, you had worked on a plan of one year abstaining and you had set your birthday in May as the expiry of that year of abstaining and that was the first step in your program.  You said that you will then review and set further goals.

In my view, you have done everything that you could have done to acknowledge that what you did was wrong, both legally and morally, and to show that you were shocked and ashamed by what you were told that you had done.

In addition to referring yourself to treatment and engaging in consistently from the time you were questioned, you indicated at the earliest possible stage that you intended to plead guilty and, as a result of that, your plea was entered at committal mention and you were fast tracked then to this court for your plea to be heard. 

I am told and I accept that you indicated you wished to apologise to the victims, but because of the conditions attached to your bail, when you were charged, of course, you have been unable to have contact with them. 

All of this indicates, in my view, that you are generally remorseful for what you have done.  Your actions demonstrate that your conduct is out of character, that you are ashamed and that you have taken steps, yourself, to address the problem and to ensure that you do not act in such a way again.  This is clear evidence of genuine remorse.  That is, remorse aimed at addressing your behaviour and not simply feeling sorry for yourself for having been charged with committing a serious offence.

Mr Galbally submitted, correctly, that this was an unusual case of aggravated burglary at the very lowest end of seriousness.  Mr Jassar, for the prosecution, agreed that this was a low-end of the scale aggravated burglary.

It was common ground and, in my view, correctly so, that in your circumstances and in the circumstances of the offending, it was not necessary to impose a term of imprisonment in order to properly or adequately address the sentencing needs of punishment, deterrence and denunciation that I have identified.

Coming to my own independent view, I am not satisfied that no sentence other than imprisonment is appropriate in all of the circumstances.

Mr Galbally submitted that this matter, and its unusual circumstances, could properly be dealt with by an adjourned undertaking or a fine.  He submitted that it was not necessary to move further up the sentencing hierarchy to a Community Corrections Order as you had already, of your own volition, undertaken the rehabilitative steps such an order could otherwise encourage and enforce.

As we discussed in the original hearing and as I have indicated again this morning, I thought there was merit in those submissions, but I was concerned that in October last year, it was early days and that your rehabilitative steps had, by then, only been in place for some months.

Ultimately, after some discussion, you agreed to a deferral of sentencing for a period of six months on the understanding that you would, at the end of that time, present the court with further evidence of your progress with stepping up, your attendance at Alcoholics Anonymous and your continued attendance on your general practitioner.  You have now presented those up to date reports and it is clear that you have managed to sustain your abstinence and your engagement with counselling and AA for that extra six month period. 

In those circumstances, I do not consider it necessary to impose a Community Corrections Order upon you for the purposes of encouraging, assisting or compelling you to continue to engage with those services.  You have shown yourself not only motivated to do so, but capable of doing so on your own.

Of course, punishment, deterrence and denunciation must still play their part in sentencing.  In my view, those needs can be served by the combination of the fact of charge and hearing and having to have a stain on your record for a charge of aggravated burglary at this stage of your mature adult life. 

However, I do not consider that, in the circumstances, it is necessary to impose a Community Corrections Order in order to satisfy the needs of punishment, deterrence and denunciation, nor do I consider an adjourned undertaking is sufficient.  In my view, this is a case where those other sentencing needs can properly be reflected by the imposition of a fine.

Although you have been studying and you are on New Start and so your ability to support yourself, during the time you have been studying has been reduced, I am satisfied that you have the means to pay a fine of a commensurate level to reflect the gravity of the offending and if you do not, as I have discussed with Mr Galbally, you have the option open to you to apply to convert that fine to unpaid community work.  You clearly have skills that could be usefully employed to benefit others, if you choose to take that path, but you will also have the means to accept your punishment by financial impost if that is what you wish to do.

Mr Galbally also submitted that no conviction should be recorded. He submitted that your prospects of obtaining full registration as a builder would be adversely affected were a conviction recorded against you. He informed me this morning that the Building Act requires a person to satisfy the registration body that they are of good character in order to obtain registration as a builder. There is no automatic disqualification from registration by reason of a criminal conviction, as there is, under the same Act, for plumbers. Nonetheless, Mr Galbally's submission that like reasoning would apply or would be likely to apply for building registration, clearly, has force.

That, of course, isn't the end of the matter because it would appear to me that if a person has to satisfy the Registration Authority they are of good character, then disclosure of a court appearance for aggravated burglary and the imposition of penalty is a matter that would have to be disclosed and, therefore, would be relevant for the Registration Authority to consider and the court penalty or the penalty imposed by the court, whether it is the recording of a conviction or not, and the penalty itself is, clearly, something that would be relevant to be taken into account by the Building Authority.

There is no conclusive material before me as to whether the recording of a conviction would automatically preclude you from registration, but I am satisfied that the recording of a conviction would certainly be an indicator of the court' sense of the gravity of the offending.

You had two chances in the past.  Not when you were a young person, but you were 27, already a young, mature adult, of having no conviction recorded against you in the 15 years between that time and the commission of this offence, you had shown that you were properly able to learn from that and that you had not committed any further offending when you were drinking or substance use and not you into trouble.

In the circumstances, particularly given the very powerful evidence of what you did yourself of your own volition, to acknowledge what you had done wrong and to take steps to remedy it and the concerted efforts by you to follow that through.  In my view, this is a proper case not to record a conviction against your name.

Could you now please stand:

Vincenzo Alampi, on the charge of aggravated burglary, you are fined the sum of $2500. 

No conviction will be recorded against your name.

An order has been sought for the taking of a forensic sample from you and I propose to make that order.  I note that it is consented to and, in my view, the circumstances of the offending, most particularly your inability to remember what you had done and the fact that alcohol so impaired your judgment, that you acted in the way you did, justify the making of that order.

I am going to make the order for the provision of a buccal sample, that is a swab taken from the mouth.  I must warn you that if you do not cooperate with the taking of that sample or with the provision of that sample, then the police are authorised to take the sample by the more invasive means available, namely the taking of a blood sample.  Do you understand that?

PRISONER:  Yes, Your Honour.

HER HONOUR:  Now, there is a complicated timeframe for the time in at which you must provide the sample.  You must first let 28 days from today expire, that is to allow the time for appeal to expire.  You are unlikely, I would have thought, Mr Alampi, to appeal this disposition but if the prosecution seeks to appeal, you must know that and you are not obliged to provide a sample if they appeal, until the appeal is disposed of and the matter is reconsidered.

Once the appeal time has expired and if the prosecution does not appeal the sentence then, within a month of that, you must attend at the closest 24 hour Police Station to you, which is Cranbourne, for the provision of that sample.  I am sorry, it is such a complicated way of describing it but, Mr Galbally, I am sure - - -

MR GALBALLY:  I will, Your Honour.

HER HONOUR:  - - - will explain it to you and make sure you understand your obligations and comply, so that you are not putting yourself in breach by failing to do that.

So far as the fine is concerned, as I indicated to Mr Galbally, I will grant a stay of three months in respect of that.  Again, he will explain that to you but, I should warn you, this court is assiduous in chasing up unpaid fines.  If you are unable to pay the fine within the three months, it is in your interests to contact the registry of the court to make arrangements either for an extension of time, an instalment program or a conversion of the fine to unpaid community work.  If you do wish to apply for an extension of time or conversion to instalments, then it is also obviously important that when you attend at the registry, that you bring evidence with you of the efforts you have made to date to save the money or how realistic your promise of an instalment program is.

I have signed the orders for the taking of the forensic sample.  You are free to leave the dock now, Mr Alampi, and when a copy of that has been provided to you, you will be free to leave with Mr Galbally.

MR GALBALLY:  Your Honour, I have had the reports delivered to the court.  These are the original reports, as I received them, one by fax and one by email.  So they will look exactly just - they will look exactly the same but I am happy to get the actual originals from each of the authors and provide those to the court.

HER HONOUR:  Yes, thank you, if you could do that.

MR GALBALLY:  I will.  Yes, I will.  Thank you, Your Honour.

HER HONOUR:  Electronic communication is very helpful, but it means we are left without real originals and I think we should always get them.

MR GALBALLY:  I will undertake to do that, Your Honour.

HER HONOUR:  Thank you, yes, I will excuse you, Mr Galbally.

MR GALBALLY:  If I may be excused from the Bar table, thank you, Your Honour.

HER HONOUR:  Yes.

MR JASSAR:  As the court pleases.

HER HONOUR:  I know if I give a Community Corrections Order, I do not have to make a 6AAA declaration, do I need to do it for a fine?

MR JASSAR: I think, given the nature of the offence, Your Honour, I think Your Honour might have to do. I have not got the Act here with me. I can look it up online. I was looking up the Building Act just a moment ago.

HER HONOUR:  Sorry, we better call Mr Galbally back. 

MR JASSAR:  Pardon me for a moment, Your Honour, while I look it up as well.

HER HONOUR:  I am sorry, Mr Galbally, I am just wondering - - -

MR GALBALLY:  6AAA.

HER HONOUR:  I know I do not have to do it for a CCO, but I think I do have to for a fine as well as imprisonment, don't I?

MR GALBALLY:  I can check the legislation.

HER HONOUR:  Thanks.

MR JASSAR:  The fine exceeding ten penalty units.

HER HONOUR:  Well, it is not that, thank you.

MR GALBALLY:  Yes, we are, we are in excess of ten penalty units.

MR JASSAR:  Yes.

HER HONOUR:  So if the fine is actually imposed.  All right, I declare, pursuant to s.6AAA that but for your plea of guilty, I would have sentenced you to a more serious disposition.  It would have been either a Community Corrections Order or a term of imprisonment.

MR GALBALLY:  Thank you, Your Honour.

MR JASSAR:  Yes, if the court pleases.

HER HONOUR:  And if that does not completely comply with 6AAA, well, it is too late, thank you. 

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