R v Dibitetto

[2020] NSWDC 290

District Court

New South Wales

Medium Neutral Citation:	R v Dibitetto [2020] NSWDC 290
Hearing dates:	30/4/20, 8/5/20
Date of orders:	08 May 2020
Decision date:	08 May 2020
Jurisdiction:	Criminal
Before:	Bourke SC DCJ
Decision:	Sentenced to an aggregate term of imprisonment of 5 years 6 months with a NPP of 3 years 8 months.
Catchwords:	Crime – Sentence - Aggravated Robbery and inflict ABH – Break Enter and Steal – Larceny – Dispose of Stolen Property
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Pawnbrokers and Second-hand Dealers Act 1996
Cases Cited:	R v Black [2001] NSWCCA 41 R v Henry [1999] 46 NSWLR 346
Category:	Sentence
Parties:	Director of Public Prosecutions – Crown Daniel Dibitetto - Offender
Representation:	Mr A Brown for the Crown Mr T Hughes for the Offender
File Number(s):	18/374950, 19/16011, 19/33032, 19/86635, 19/95361, 19/151752
Publication restriction:	None

sentence

1. Mr Dibitetto is before the Court for sentence in relation to eight offences, with another five matters to be dealt with on Form 1 documents. The offences, which were committed between September and December 2018, are as follows.

2. The first offence is an offence of aggravated robbery with the infliction of actual bodily harm, which was committed on 1 September 2018. The victim of this offence was a Mr Zhou, a Chinese national studying in Australia. At about 8pm on 1 September 2018 Mr Zhou boarded a train in Sydney. He was carrying a Gucci brand shoulder bag which contained some personal items. The offender was also on the train. Mr Zhou got off at Green Square Station, as did the offender. Mr Zhou commenced to walk towards his home, which was about 1 kilometre away. As he was walking he noticed he was being followed and commenced walking faster. When he arrived at his unit block at Lachlan Street, Waterloo, the offender walked up to him and said, “Hi bro, what is this address?” When the victim replied, “6 Lachlan Street”, the offender attacked the victim, punching him four or five times in the face.

3. The victim tried to escape by jumping from the front steps of his unit block but fell, cut his left knee and dropped his bags. He then ran to an intersection where he caught the attention of another person. Upon returning to the unit block he saw that some of the items he had dropped were missing, including his Gucci bag containing his wallet and portable charger, as well as a bag containing four bottles of perfume and a number of other items.

4. Police attended the scene and saw that the victim was bleeding from his mouth and had a cut to his knee. Police found a cigarette packet on the steps of the unit block which contained the offender’s DNA. Police later obtained CCTV footage from a nearby restaurant, which showed the offender carrying a number of bags shortly after the incident.

5. In sentencing for that offence I am asked to take into account on a Form 1 document a further offence which is admitted by the offender, being an offence of obtain financial benefit by deception. That offence arose from police obtaining information from a pawn shop in George Street, Sydney, which indicated that on 2 September, that is, the day after the robbery, the offender pawned Mr Zhou’s Gucci bag.

6. The second offence which is before the Court for sentence is one of break, enter and steal committed on 23 October 2018. The victim in that matter was a Mr Ponticello, who lived in premises at Marion Street at Leichhardt until February 2018 when he moved out, but retained a lockup garage in the basement. At about 7.30pm on 23 October 2018, when Mr Ponticello attended the garage to retrieve some items, he noticed that the communal garage door was open and was not working, and two days later, on 25 October 2018, he returned and saw that his own garage door had been bent and damaged. Upon inspection he noticed that a number of items were missing, including a Giant brand bicycle, valued at $2,800, a gas heater, valued at $1,200 and a number of electrical tools, a telescope, some sporting equipment and a number of CDs and DVDs.

7. On 26 October police crime scene officers examined the garage and found a water bottle on which there was DNA matching the offender. The offender was charged with this offence on 4 March 2019, when he declined to be interviewed.

8. The third offence before the Court is one of break, enter and steal committed on 21 November 2018. The victim in this matter is a Mr Wycherley, who lived in a unit complex at Federal Parade, Brookvale. Those units contained an underground car park where the victim kept three bicycles which were hung on wall brackets and a storage box which contained numerous items.

9. On the evening of 20 November 2018 Mr Wycherley parked and locked his car in his car space and went to his unit. Early the next morning, 21 November 2018, when he returned to his car, he noticed that the storage box had been moved and several items taken from it, and that the three bicycles were also missing. The items stolen from Mr Wycherley were as follows: a Giant Trance mountain bike purchased for $3,700; a Scott brand mountain bike purchased for $799; a Specialized XC mountain bike purchased for $4,000; a grey full face helmet purchased for $290; a grey open-face helmet purchased for $150; three knee pads; an elbow pad; two sets of biking shorts valued at $240; a mountain biking shirt valued at $120, and an Alpine Stars brand shirt valued at $50.

10. In sentencing for that offence I am asked to take into account another offence on a Form 1 document which has been admitted to by the offender. The circumstances of that offence are as follows. Another of the residents of that same unit complex at Federal Parade, Brookvale was Mr Sultana. On the evening of 20 November 2018 Mr Sultana parked his car in the car park. Inside was a leather bag which contained a laptop computer and an electronic cigarette was also left in the car. Mr Sultana did not lock the vehicle because there was some problem with the lock. When he returned to his vehicle the next morning the bag containing his laptop and the E-cigarette were missing. As I have said, this is a matter which I have taken into account on a Form 1 document.

11. In relation to the offences at Federal Parade, Brookvale to which I have just referred, I note that CCTV from the underground car park of those units showed the offender entering that car park at about 2.30am on 21 November 2018. It showed that over a couple of hours the offender was in the car park area moving items around and using spray paint to cover the lens of five of the CCTV cameras.

12. Police who attended located a cigarette butt which contained the offender’s DNA. He was charged in relation to this matter on 4 March 2019 and declined to be interviewed.

13. The fourth offence before the Court is an offence of larceny. The facts of that matter are as follows. On the afternoon of 22 November 2018, Mr Hussain parked his Ford Ranger utility in the underground car park at 420 Macquarie Street, Liverpool. The rear of the utility contained work tools which were under a hard lockable cover. Later that evening, CCTV footage recorded the offender, in company with another male, removing appliances from the garage at the premises and taking them with a trolley to a white four-wheel drive vehicle.

14. At about 6.30am the next morning, Mr Hussain returned to his vehicle to find that the lock on the hard cover had been broken and that a number of tools were missing. These included a TA scope and accessories valued at $5,000, DeWalt brand cordless drill valued at $250 and a tool bag containing assorted hand tools valued at about $300.

15. In sentencing for that larceny offence I will also, as requested, take into account on a Form 1 document a further admitted offence of intentionally damaging property which was committed by the offender in breaking the lock on the rear on Mr Hussein’s utility.

16. The fifth offence before the Court is one of disposing of property knowing it to have been stolen. The circumstances of that offence are as follows. On 23 November 2018, the offender attended Rockdale Cash Converters where, after producing photo identification, he sold the TA scope for which he received $850, and the DeWalt drill for which he received $60.

17. After reporting the thefts to police, the owner of the property, Mr Hussain, monitored the Gumtree website, and on 16 December 2018 he found a TA scope being advertised by Rockdale Cash Converters. When he attended there, he inspected the scope and confirmed that it was his. This item and the DeWalt drill were later returned to him by Rockdale Cash Converters. The offender was charged in relation to these matters on 19 March 2019, when he refused to participate in an interview.

18. In sentencing for that offence I will also take into account an offence under s 15(4) of the Pawnbrokers and Second-hand Dealers Act 1996, which was committed by the offender in knowingly making a false statement to the licensee of Rockdale Cash Converters to the effect that the property was his.

19. The sixth offence before the Court is a further offence of break, entering and stealing. On Saturday, 24 November 2018, the owner of a bicycle shop called Brown Jersey, located at Ultimo, secured a roller door to a storage area at the back of the store. At about 10.53pm that evening CCTV recorded the offender near the building. Shortly thereafter the garage door opened, when a car exited and at that time the offender entered the garage area. He was then recorded opening an unlocked storage cupboard in the garage, but when another vehicle entered the car park he quickly moved to another part of the garage where the storage room for the Brown Jersey cycle shop was located.

20. He then attempted to open a car door and another storage cupboard and attempted to force open another storage room, although none of these attempts were successful. The CCTV material then showed the offender walking back to the area where the Brown Jersey storage room was located.

21. On Monday, 26 November 2018, the owner of the cycle shop, after opening his storage room, noticed that almost everything inside had been stolen. According to his stock inventory, the items stolen were as follows: 56 bicycle tyres valued between $1,000 to $2,000, a Gerni pressure washer valued at $300, a Kinetic wind trainer valued at $400, an ice box containing beer and cider, and some sailing equipment valued at $2,000.

22. The offender was arrested by police on 5 December 2018 and on 16 January 2019 he was shown stills of the male in the footage to which I have just referred. However he denied that he was the person in the CCTV or that he had been in Ultimo at any time in November 2018.

23. The seventh offence before the Court is another offence of break, enter and steal. The facts are as follows. On the evening of 3 December 2018, Mr Christopher Parrey parked his car in the car park of his unit block in Milton Street, Ashfield, locked the car and garage door, and went to his apartment.

24. The next day at about 12.30pm, when Mr Parrey returned to the car park, he found the garage door wide open and the following items missing from the garage: an Apple iMac G3 computer with cinema display valued at $5,000, a red Epiphone brand electric guitar in a hard case valued at $1,600, a blue Caraya brand nylon string guitar in a soft case valued at $200, a light brown Ibanez steel string guitar in a soft case valued at $800, a yellow Ibanez Dreadnaught steel string guitar in a hard case valued at $900, a Billy Hyde brand steel string electric guitar in a soft case valued at $150, a suitcase containing about 90 to 110 PlayStation games of various sorts, a Fallout 4 Special Xbox One gaming console valued at $300, and a pair of Ray-Ban sunglasses valued at $200.

25. In sentencing for that offence I am asked to take into account on a Form 1 document a further offence of knowingly possess an identity plate not attached to its correct vehicle, that being an offence under s 154J(1) of the Crimes Act 1900.

26. That offence was detected when registration plates were found inside a Toyota HiAce van being driven by the offender when he was stopped on 5 December 2018, those numberplates having been stolen from a Toyota Corolla belonging to a Daniel Bowden, which had been parked in Rozelle on 4 December 2018.

27. The eighth offence which I am required to sentence the offender for is a further offence of break, enter and steal, the facts being as follows. On 5 December 2018, in the morning Ms Qun Fang Cai locked her garage in the underground car park of a unit block at Fifth Avenue, Campsie. However when she returned home in the evening she found the garage open and that a number of boxes inside had been opened and items stolen.

28. As I have already mentioned, the offender was stopped on 5 December 2018 while driving a Toyota HiAce van. A search of that van revealed the following items which had been stolen from Ms Cai’s garage: a storage box containing towels, a massage table, a stepladder, some perfume, a sealed box containing plastic bags, a box containing a light fixture, two packets of toilet paper, two oil paintings, four suitcases, a cardboard box containing clothes hangers, a handsaw, a power tool, a storage container with electrical cords inside, two pairs of reading glasses, a white bucket with assorted toiletries inside, a camera tripod, and two cardboard cylinders containing oil paintings.

29. After his arrest, the offender participated in an interview with police in which he said that he had borrowed the HiAce van from a friend. He agreed that the property found in the van did not belong to him, but denied owning the bag in which the stolen numberplates were found, stating that he did not know who these belonged to. He also claimed that before being stopped by police he had been at home and that the tools in the van belonged to his former employer and that he was returning them.

30. Those are the facts of the various offences for which I must sentence, including the facts of the matters that I am asked to take into account on Form 1 documents.

31. Going firstly to the offence of aggravated robbery involving the infliction of actual bodily harm. That offence carries a maximum penalty of 20 years’ imprisonment, which clearly marks it as an objectively serious offence. The maximum penalty for the offence is, of course, a guidepost to which I must have regard in the sentencing exercise, as is the case with the maximum penalties for all of the offences before the Court.

32. The objective seriousness of this particular robbery is marked also by the fact that it was not a spur of the moment crime, but one where the offender targeted the victim while on the train, followed him for some distance to his home, and then punched him in the face, not just once but multiple times, resulting in injuries to the victim’s face and to his knee when he attempted to escape. Clearly it was a serious example of this type of robbery.

33. As to the objective seriousness of the various break, enter and steal offences, I note, firstly, that each of these offences carries a maximum penalty of 14 years’ imprisonment, which again marks them as being objectively serious. Offences of breaking, entering and stealing have been regarded as serious for many years in part because of their prevalence and also because of the harm they cause. Victims lose property, sometimes of considerable value, sometimes property which has sentimental value exceeding its monetary value. Also significant is the psychological harm which such offences may cause the victims by the loss of feeling of security in the sanctity of the home and the invasion of privacy which the offending involves.

34. It is offences of this kind which have led to the prevalence of bars on windows, burglar alarms, CCTV cameras, and increasing insurance premiums. It is primarily for these reasons that offences of this kind must be dealt with in a manner which gives substantial weight to the need for both general and personal deterrence.

35. The break, enter and steal offences which this offender committed are, however, not the most serious examples of this type of offence. Each of them involved a similar modus operandi, namely breaking and entering garage units or storage units and stealing property found inside. The offences therefore did not involve entering the actual living quarters of the victims and there was, for this reason, a lesser likelihood that the victims would suffer the shock and sense of invasion involved in being confronted physically by the offender.

36. The offences involved a degree of planning, although perhaps not a large degree, by the selection of locations to carry out the offences, having access to tools to carry out the break-in, and having a vehicle with capacity to carry away sometimes bulky items. While each of these offences are relatively serious, I regard them as being towards the lower end of the objective scale.

37. The larceny offence committed on 22 November 2018 which involved the taking of tools from the Ford Ranger utility carries a lower maximum penalty of five years’ imprisonment. This offence was committed, as I have said, when the offender broke into the locked rear storage compartment of Mr Hussain’s Ford Ranger utility which was parked in an underground car space. This offence involved a similar modus operandi to the break, enter and steal offences in that the offence clearly was one targeting property stored in an area proximate to residential premises, although it did not involve breaking and entering premises. This, however, was a relatively serious example of this type of offence, especially given the value of the items taken.

38. The associated offence of disposing of the stolen property at Rockdale Cash Converters carries a maximum of ten years’ imprisonment, which marks it objectively as a serious offence. Offences of this kind must also be treated as serious because the disposal of property which is known to have been stolen, is the very activity which motivates offences involving theft.

39. In sentencing for the aggravated robbery offence, I have had regard to the guideline judgment of the New South Wales Court of Criminal Appeal in R v Henry [1999] 46 NSWLR 346. That case sets out important considerations to be taken into account in sentencing for an armed robbery offence. While the robbery of Mr Zhou did not involve a weapon, that is, it was not an armed robbery, the guideline in Henry is relevant and of some assistance in determining the sentence in relation to this matter. However, while I have had regard to the guideline judgment of Henry, I must not and I do not treat the suggested range of four to five years referred to in that case as a starting point; see R v Black [2001] NSWCCA 41.

40. As to the Henry factors, the offender cannot be described as young and, as already noted, no weapon was involved. There was some degree of planning, although limited, and the offence involved the infliction of actual violence which would have caused significant pain and fear in the victim. I am conscious, however, of the fact that the infliction of actual bodily harm is an element of the offence and I have therefore taken care not to double count the use of actual violence.

41. While the victim was vulnerable in that he was alone, he was not the type of vulnerable person such as a shopkeeper or taxi driver contemplated in the Henry decision. The amount of property taken from him was small, and the plea of guilty in relation to this matter is of somewhat reduced significance given the strong prosecution case, which included a DNA match and CCTV footage showing the offender carrying a number of bags shortly after the robbery.

42. It seems to me that a number of the Henry factors are present in this case although, as I have noted, I do not treat the range of four to five years as a starting point, but as providing some guidance in the instinctive process that I must perform. It was argued that the robbery is mitigated because the harm to Mr Zhou was not substantial. However, given that Mr Zhou was punched four or five times to the face, suffering bleeding from his mouth, and that he fell and cut his knee while trying to escape, I am unable to accept this submission.

1. The offender, Mr Dibitetto, is 41 years old and he was 40 at the time of the offences. He gave evidence during the sentencing hearing and confirmed the contents of a report by a psychologist, Mr Sam Albassit. The offender is a married man with two children aged 12 and ten, although he and his wife are currently separated.

2. He left school in year 9 and worked in his father’s restaurant and completed a chef’s course. He started smoking cannabis at age 16 and went on to use cocaine on a regular basis and also Ice. However, he nonetheless continued to engage in gainful employment and worked in bricklaying also for a while. In about 2002 he and his wife purchased a restaurant on the Central Coast, which they ran apparently successfully for 13 years before selling it and moving back to Sydney.

3. It was after this move that, according to the history given to the psychologist, Mr Dibitetto’s life began to spiral out of control and he developed a dependence on drugs and gambling. The psychologist describes the offender as suffering from substance dependence over a period of about five years and suggests this to have been a catalyst to his financial hardship, his marital breakdown and long term infidelity.

4. The psychologist’s suggestion that the offender’s life began to spiral out of control at that time is supported by his criminal history, which shows that apart from some driving related matters in 2003 and 2004, the offender had never been before a criminal court until early 2016 when he was aged about 36. However, since that time he has been dealt with for multiple offences involving drugs, prohibited weapons, larceny, counterfeit money, driving while drug affected and driving while suspended, amongst other things.

5. In October 2017 he was sentenced by a judge of this court for a variety of offences to imprisonment for three years four months, with a non parole period of one year three months. Although he was released to parole on 18 January 2018, he was still subject to that sentence when he committed the various offences before the Court today.

6. Furthermore, on 23 January 2020 he was sentenced in the Local Court to a fixed term of six months for driving whilst disqualified, and that sentence is one he will be serving until 22 July this year.

7. In his evidence and in a letter to the Court the offender expressed remorse for his offences and the harm he has caused his victims. He said that when he committed these offences he was living in hotels and committing crimes so as to fund his gambling and drug habits. He said he is deeply disgusted with himself and in particular would like to say sorry to the man who he robbed and assaulted, and that he did not deserve to be treated that way.

8. While the evidence suggests that the offending arose largely by reason of the offender’s drug and gambling problems, those problems must be treated as a choice. While I have had regard to this factor as providing context and some explanation for the offending, it does not amount to an excuse or reduce the seriousness of any of the offences, nor does it in my view reduce the offender’s moral culpability.

9. The offender said in evidence that he intends to try to get back with his wife and children, and open another restaurant and that this will be his last time in prison. He also says that he intends to seek psychological treatment for drug and gambling problems.

10. It is, of course, common for courts to be told by an offender facing sentence that he or she is remorseful, intends to seek treatment and will not reoffend. Regrettably, judges are constantly faced with offenders, especially persons with drug problems, who go on to commit more and more offences despite claims of having turned a corner or reached a crossroads and despite being treated with leniency. Nonetheless, having observed the offender give evidence, I accept that he has expressed some genuine remorse and that he genuinely wishes not to offend in the future.

11. An unusual feature in this case is that despite having a history of ADHD and drug use from an early age, the offender managed apparently to lead a largely law abiding life until he was in his mid 30s. His criminal history, which seems to have developed at that relatively late age, tends to confirm the psychologist’s comment that the offender’s life “spiralled out of control” at about that time.

12. The offender comes from an apparently stable family background and says he still has the support of his wife and family. He has qualifications and significant experience in the hospitality industry, and says he is still passionate about opening another restaurant and getting back with his wife and children.

13. Given his pro-social background and his vocational skills, there is in this case some basis to be optimistic that the last five or so years of this offender’s life are an aberration and that he will be able to resume his previously successful work and family life. Whether he will be successful in carrying out his intention to avoid drugs and other problems will depend on whether he follows through on getting back to his previous good work and family life and obtaining therapy as suggested by the psychologist.

14. I have had regard to the offender’s expressions of remorse, and his stated wishes to treat his addictions and get back with his family and start a restaurant. I have also had regard to the fact that his custody records since arrest involve a number of offences against prison discipline. Overall I would assess his prospects of rehabilitation as being fair to moderate.

15. I have also had regard to the fact that the offences before the Court are aggravated because they were committed while the offender was subject to conditional liberty, having been released to parole on 18 January 2018 in relation to a sentence for drug and other offences imposed on 12 October 2017, which did not expire until 16 January 2020. The offender’s parole was revoked on 13 February 2019, the revocation commencing effectively on 5 December 2018, being the date on which the offender was arrested in relation to some of the current offences.

16. The offender entered pleas of guilty at the earliest opportunity and I allow a 25% discount by reason of the utilitarian value of those pleas.

17. I have had regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999. Of particular significance, of course, is the factor of personal and general deterrence. There is no dispute in this case that a penalty of full-time imprisonment is required. That must be so given the number and seriousness of the offences and the importance of both personal and general deterrence.

18. The current sentencing exercise that I must perform requires application of the principle of totality, given that I am sentencing for a number of offences and given that the offender’s custody from 5 December 2018 until 16 January 2020 was due to his serving the balance of parole for his previous offending. I also need to take into account the six months sentence imposed on 23 January 2020 in the Local Court, which the offender will be serving until 22 July this year.

19. I have taken totality into account, both in determining the overall sentence and in determining the extent to which that sentence should be backdated, having regard to the revocation of parole and the Local Court sentence.

20. I intend to impose an aggregate sentence which will commence on 5 June 2019. I am required to set out the indicative sentences that I would have imposed if I was not imposing an aggregate sentence. Mr Dibitetto, the sentences I am about to refer to are not the actual sentence that you will serve, they are what are called indicative sentences. I will announce the actual sentence at the end.

21. The indicative sentences are as follows. For the offence of aggravated robbery of Mr Zhou and taking into account the matter on the Form 1, a period of imprisonment of three years, eight months. For the break, enter and steal on 23 October 2018, namely the garage of Marion Street, Leichhardt, imprisonment for two years, eight months. For the break, enter and steal on 21 November 2018, being the storage unit at Federal Parade, Brookvale, and taking into account the matter on the Form 1, imprisonment of two years, 11 months. For the offence of larceny on 22 November 2018, involving the stealing of tools from the utility at Liverpool and taking into account the matter on the Form 1, imprisonment for one year and six months.

22. For the offence of disposal of stolen property on 23 November 2018, that being the pawning of the tools and taking into account the Form 1 matter under the Pawnbrokers Act, imprisonment for one year. For the offence of break, enter and steal on 24 November 2018, that being at the Brown Jersey cycle shop storage unit, imprisonment for a period of two years, ten months. For the break, enter and steal on 3 to 4 December 2018 at Milton Street, Ashfield and taking into account the matter on the Form 1, imprisonment for a period of two years, nine months. For the break, enter and steal offence committed on 5 December 2018 at Fifth Avenue, Campsie, a period of imprisonment of two years, eight months.

23. I find special circumstances for varying the ordinary ratio between head sentence and non-parole period based on the importance of the offender being subject to a lengthy period of supervision on parole, given his previous drug and gambling problems, and the fact that his time in custody has been, at least for the past two months, and will continue to be for some time more onerous by reason of the restrictions on visits from family due to the current Coronavirus pandemic.

24. I am conscious that the aggregate sentence that I will impose represents only a relatively small percentage of the sum of the various indicative sentences that I have announced. However the aggregate sentence is one that I consider to be appropriate having regard to principles of totality and the importance of not imposing a sentence which might be described as crushing. I note also that the non-parole period which I will impose represents the minimum period that in my view the offender must serve in actual custody.

25. I impose an aggregate sentence of five years, six months, that being the head sentence. I impose a non-parole period of three years, eight months. Each of those will date from 5 June 2019. The head sentence will expire on 4 December 2024 and the non-parole period on 4 February 2023.

26. I note that given the convictions that I record in relation to the eight offences, that the Crown withdraws the following charges: sequence 5 and 6 of matter H68450660, sequence 5 of matter H70203544 and sequences 4, 5, 6, 7 and 9 of matter H295470195.

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Decision last updated: 10 June 2020