R v Di Battista
[2013] VCC 2210
•18 February 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-12-01497
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAMES DI BATTISTA |
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JUDGE: | His Honour Judge Dean | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 October 2012, 18 October 2012 and 14 February 2013 | |
DATE OF SENTENCE: | 18 February 2013 | |
CASE MAY BE CITED AS: | R v. Di Battista | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 2210 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J. Ayres | Office of Public Prosecutions |
| For the Accused | Mr P. Atkinson | David Barrese & Associates |
HIS HONOUR:
1 James Di Battista, you have pleaded guilty to four counts of armed robbery contrary to s.75A(1) of the Crimes Act 1958. The maximum penalty for that offence is 25 years' imprisonment.
2 You pleaded guilty at a committal mention on 16 August 2012 and I have taken your early plea of guilty into account in your favour in mitigation of sentence.
3 The Prosecution Opening was read to the court and tendered in evidence and your offending may be summarised as follows –
4 On Thursday 5 April 2012 at approximately 4.40 pm you entered the Emborio Homewares and Gift Store at 295 Broadway, Reservoir. You were wearing a dark blue cap and sunglasses and carrying a large yellow bag. You approached the female shop attendant and demanded that she provide you with money. At the time you were holding a large, black-handled serrated kitchen knife. She opened the cash register, removed approximately $600 cash and gave it to you. During the course of this incident you said to her, "I'm not fucking kidding. Put the money in the bag and hurry up." This conduct is relied upon by the prosecution in support of Charge 1 on the Indictment.
5 On Monday 16 April 2012, at approximately 2 pm, you entered the Tropical Sun Tanning Salon located at unit 740 Burgundy Street in Heidelberg. Again, you were wearing a cap and sunglasses. You entered the store and produced a large, serrated-edge kitchen knife and demanded money from the shop attendant. You said to her, "Open the till or I'll fucking kill you. Don't open your mouth or I'll fucking kill you." The store attendant handed you $400 and after threatening her you then left the store. This conduct is relied upon by the prosecution in support of Charge 2 on the Indictment.
6 On Tuesday 17 April 2012 at 1.45 pm you entered the A Quirk of Fate giftware store at 289 High Street in Northcote. Again, you were wearing a hat and sunglasses. You approached the front counter of the store and the female attendant and said to her, "Open the till and take all the money out." At the time you were armed with a black-handled screwdriver. You then said to her, "Hurry the fuck up," and she handed you $500 in cash. After threatening her you then left the store. This conduct is relied upon by the prosecution in support of the Charge 3 on the Indictment.
7 Finally, on Wednesday 18 April 2012 at 4.40 pm you entered Muskrats Vintage Clothing Store, located at 355 St Georges Road in Fitzroy North. Again, you were wearing a hat and sunglasses. You entered the store and approached the shop attendant and at the time were armed with a claw hammer which you produced to her and said, "Open the till and give me everything you've got, even the coins." The shop attendant handed you $150 in cash and you said to her, "Is that all you've got? That's pathetic." You then removed eight brass rings from a display cabinet located in the store. The rings were valued at approximately $500. After threatening the shop attendant you then left the store. This conduct is relied upon by the prosecution in support of the Charge 4 on the Indictment.
8 On Saturday 21 April 2012 at approximately 7 pm you were arrested by investigating police in Lalor. In your vehicle the police located a yellow‑handled screwdriver, a knife and a pair of sunglasses. You were interviewed in relation to the armed robberies, the subject of the charges before the court, and made full admissions to investigating police.
9 In each instance the victim of your offending was a lone female shop attendant and on each occasion you behaved in a threatening and aggressive manner. In my opinion these are serious examples of the offence of armed robbery and the sentence that I impose must be calculated to deter other persons from offending in the way that you did. You must also be punished for your offending and your cowardly conduct must be denounced by this court.
10 You have admitted an extensive criminal history which, by my reckoning comprises 127 convictions or findings of guilt from 13 court appearances since 1994. Your criminal history includes numerous offences of dishonesty, driving offences and possession of illegal drugs of dependence. On 6 November 2000 you were sentenced by the County Court of Melbourne to a total of three years and four months' imprisonment with a non-parole period of two years imprisonment in relation to seven charges of Armed Robbery and one charge of Attempted Armed Robbery.
11 The offences concerned armed robberies carried out by you in circumstances very similar to those before this court. Clearly this prior conviction is of significance to the formulation of the sentence that I must impose. Furthermore, you have been the subject of a number of Community Based Orders or Intensive Correction orders which were intended to facilitate your rehabilitation. It is plain that such orders have failed in that objective. Clearly enough, specific deterrence is an important sentencing consideration in this case. I accept that your offending behaviour has moderated since your release from prison in 2002 but nevertheless you did reoffend in this extremely serious manner.
12 I now turn to your personal circumstances. You were born on 14 August 1971 and you are now aged 41 years. You are a mature man, well aware of the seriousness of your offending. I have received in a report of Ms Carla Lechner, a consulting forensic psychologist, in relation to your background, developmental history and psychological profile. I have also received in evidence a report of Mr Bob Ives, a consulting and forensic psychologist, which was prepared for your hearing in the County Court of Victoria in 2000.
13 Whilst your parents separated when you were young, you had a relatively stable childhood and teenage years. You have suffered from a polysubstance disorder since the age of 22 and your offending is obviously closely linked to this. I accept, however, that you suffer from depression, although abstinence from drugs and alcohol, whilst you are in prison, will no doubt assist in the management of this.
14 I have also received in evidence a report of Dr Jack Deady, your treating General Practitioner. I accept that you have a long history of heroin addiction requiring methadone treatment and you also suffer from back pain associated with disc degeneration.
15 You also submitted to the court a personal letter of apology which evidences your remorse for your offending and I accept that you are indeed remorseful. However, any assessment of your prospects for rehabilitation must be guarded, although it is to be hoped that as you grow older you will improve your efforts to lead a drug-free and law-abiding life.
16 Nevertheless, any sentence that I impose must also be calculated to deter you from reoffending. I accept that you will benefit from supervision whilst on parole and you will have the support of your family in the future. In the result the sentence of the court is as follows –
17 In relation to Charge 1, the charge of Armed Robbery, you are convicted and sentenced to be imprisoned for three years and six months.
18 Charge 1 is the base sentence.
19 In relation to Charge 2, you are convicted and sentenced to be in prison for three years and six months.
20 In relation to Charge 3, you are convicted and sentenced to be imprisoned for three years and six months.
21 In relation to Charge 4, you are convicted and sentenced to be imprisoned for three years and six months.
22 I order that 12 months of the sentence on Charge 2, 12 months of the sentence on Charge 3 and 12 months of the sentence on Charge 4 be served cumulatively on each other and cumulatively on the base sentence.
23 This makes for a total term of imprisonment of six years and six months.
24 I order that you be eligible for release on parole after serving four years imprisonment.
25 But for your plea of guilty, I would have sentenced you to a total effective term of imprisonment of eight years and I would have fixed a nonparole period of five years and six months.
26 I declare that you have served 117 days pre‑sentence detention, not including today.
27 I have made the ancillary orders sought by the prosecution.
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