R v Dimichele
[2003] VSCA 132
•20 August 2003
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 71 of 2003
| THE QUEEN |
| v. |
| JESSE ANTHONY DIMICHELE |
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JUDGES: | WINNEKE, P., CHARLES and CHERNOV, JJ.A. | |
WHERE HELD: | SALE | |
DATE OF HEARING: | 20 August 2003 | |
DATE OF JUDGMENT: | 20 August 2003 | |
MEDIUM NEUTRAL CITATION: | [2003] VSCA 132 | |
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CRIMINAL LAW – Sentence – Aggravated burglary and multiple burglaries – Young offender with lengthy criminal record – Mental illness – Plea of guilty – Prospects of rehabilitation – Sentence of three years' imprisonment and non-parole period of 18 months not manifestly excessive.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms S.E. Pullen | K. Robertson, Solicitor for Public Prosecutions |
| For the Appellant | Mr G.J. Thomas | Victoria Legal Aid |
WINNEKE, P.:
Charles, J.A. will deliver the first judgment in this appeal.
CHARLES, J.A.:
The appellant, Jesse Anthony Dimichele, who was born on 28 September 1981, pleaded guilty in the County Court at Melbourne to a presentment alleging eight counts of burglary with intent to steal, nine counts of theft, one count of aggravated burglary, one of causing an explosion, one of attempted burglary and one of obtaining property by deception. The maximum penalty for burglary, theft, and obtaining property by deception was in each case 10 years' imprisonment, whereas for attempted burglary, it was five years, for causing an explosion, 15 years, and for aggravated burglary, 25 years' imprisonment respectively. The appellant admitted 33 previous convictions from three court appearances between September 1999 and 21 September 2001, including 19 counts of theft and four counts of burglary. After a plea, the judge sentenced the appellant to a total effective sentence of three years' imprisonment and fixed a non-parole period of 18 months. On the count of aggravated burglary, a sentence of 2½ years' imprisonment was imposed; on that of causing an explosion, a sentence of 20 months was imposed; and on all but two of the other counts, the judge imposed a sentence of 12 months' imprisonment. On six counts the judge made orders for cumulation of one month upon the base sentence of 2½ years.
The appellant was granted leave to appeal pursuant to s.582 of the Crimes Act 1958 on 29 May 2003. The grounds of appeal, four in number, are that the judge imposed a sentence that was manifestly excessive in all the circumstances and failed to take sufficient account of (a) the appellant’s youth, (b) his mental illness, and (c) his prospects of rehabilitation.
The facts giving rise to these offences were as follows. The appellant had been an employee of John Cester Poultry & Game, a business operating in the Prahran market. His employment with this business was terminated after he committed a burglary on the premises in June 2001. The modus operandi of the crimes committed by the appellant, all of which took place between 1 and 7 October 2002, was substantially the same. There is a cavity above the ceiling over all the burgled stores within the arcade at the Prahran market, all of which had been built within the structure of the old Prahran market. That cavity contains vents and ducts that blow fresh air from the outside into the shops, and the space is also used for storage. Access to this cavity could be obtained through a metal stairway in the rear delivery area of the market. On 1, 3 and 7 October the appellant entered the market through the Food Court, when the market was closed. Entering the ceiling space he committed the various burglaries, the aggravated burglary, the attempted burglary and nine separate thefts. He obtained access to the shops by disconnecting the duct from the air vents, removing the grille and jumping down into the shops. The items stolen included cash from the tills in the shops, knives, sharpening steels, and Telstra answering machines. On 3 October the aggravated burglary was committed when the appellant and an associate known only as Peter entered the premises of John Cester Poultry & Game with an explosive in the form of six homemade soda bombs, which had been manufactured at the appellant’s premises, and which were to be used to blow open a safe which the appellant had seen in these premises. The attempt was unsuccessful but caused minor damage, of the order of $200, to the safe which was blackened and burnt.
On Sunday 6 October 2002 the appellant went to the premises of Collingwood Cash Converters in Smith Street, Collingwood. There he pawned two stolen Telstra digital answering machines and one of the knife steels he had obtained from John Cester Poultry & Game. He told staff that he was the lawful owner of these items and signed documents making this assertion. On 8 October police officers, alerted by having seen the appellant on the tape of an internal security surveillance camera, executed a search warrant at the appellant’s room in premises in Arden Street, North Melbourne. Searching his room, the police found $170 in loose coins, a quantity of blue plastic carry bags and some of the stolen knives. They also found items of clothing worn by the appellant during the commission of the offences and some of the equipment and materials necessary for manufacturing the soda bombs which the appellant had used in the aggravated burglary. A tape-recorded interview was conducted by police with the appellant, and he was co-operative and made full admissions to the offences. He said that he spent most of the stolen money on playing poker machines and on food.
When sentencing the appellant, the judge noted a number of disturbing facts in relation to the appellant’s activities. First, he had returned several times to the premises of his former employer, John Cester Poultry & Game. Secondly, the judge noted that on the second occasion he returned to his former employer’s premises, he had taken the soda bombs with him and caused the explosion. Thirdly, her Honour pointed to the fact that the appellant had been released from a sentence of nine months' imprisonment imposed for multiple theft and burglary charges only a short time before he committed these offences. Both this sentence and indeed another had been ordered to be served consequent upon his failure to comply with the conditions imposed by an earlier suspended sentence and community-based order.
The judge had before her a report from Dr Ruth Vine, a consultant psychiatrist, dated 18 March 2003, dealing with the appellant. Dr Vine gave as her opinion the following –
“Mr Jesse Di Michele is a 21-year-old single man, who is currently facing a number of charges of burglary and theft. Although Mr Di Michele describes heavy marijuana use, it is not clear that this had significantly impacted upon his behaviour, although it is clear that the offences largely related to him seeking funds in order to purchase marijuana. In addition, although Mr Di Michele describes having experienced a sense of being able to see and hear spirits, and a perhaps delusional belief that he is a son of God and that something significant will happen on 16 March, it was not clear that there had been any significant change in his behaviour or deterioration in his level of psychosocial functioning. Although Mr Di Michele describes that his belief in the spirits makes him feel powerful and unassailable, it is not clear that the behaviour which led to the current charges was significantly different from behaviour which had occurred long before such symptoms were experienced. However, it is likely that both consumption of marijuana and the symptoms he describes affected his judgment and full awareness of the consequences of his actions.
I note that Mr Di Michele is currently receiving antipsychotic treatment. I also note that he spent a considerable time in the Atherton Unit at Thomas Embling Hospital. Since Mr Di Michele says that he only commenced experiencing these problems while in Beechworth Prison in April 2002, it is possible that he is still in the early phases of a schizophrenic illness. However, it would appear that he has not yet experienced an acute relapse of Schizophrenia nor clear that his recent behaviour has been influenced by his symptoms. Nonetheless, it would be my opinion that it is likely that he does suffer from a schizophrenic illness, and that it would be appropriate that his current treatment and access to ongoing assessment be available.
While there is no psychiatric contraindication to a custodial disposition, should Mr Di Michele be considered for a non-custodial disposition or should he be released in the near future, it would certainly be appropriate that he be encouraged to seek ongoing psychiatric assessment and treatment.”
Mr Thomas for the appellant in this Court accepted that complaint could not be made about the individual sentences imposed, and that his real argument was directed to the orders for cumulation, which led to what was submitted to be an excessive total effective sentence, and the non-parole period. He submitted that, because of the appellant’s youth, rehabilitation was the principal purpose for which sentence was to be imposed. General deterrence should have been moderated somewhat because of the manifestation of mental illness. Mr Thomas submitted that the judge had not given any or sufficient weight to the purpose of rehabilitation and relied on the well-known decision of R. v. Mills[1], where Batt, J.A. observed that “Rehabilitation of a youthful offender is usually far more important than general deterrence, because punishment may in fact lead to further offending.” The submission was that the present sentence showed that rather than preferring rehabilitation to general deterrence, the judge had simply moderated somewhat general deterrence because of the manifestation of the mental illness. It was submitted that the sentence in the present case did not have as a principal purpose youthful rehabilitation.
[1](1998) 4 V.R. 235 at 241.
Next reliance was placed on the report of Dr Vine, which was important in providing an explanation for the appellant’s “fairly extraordinary behaviour” between 1 and 7 October 2002. On the basis of the report the judge had found that both the consumption of marijuana and the symptoms of the illness affected the appellant’s judgment and he did not have full awareness of the consequences of his actions in respect of the offences for which he was sentenced. It was submitted that general deterrence as a factor in sentencing should have been moderated because of the manifestation of the appellant’s mental illness. The judge had accepted that the appellant’s mental illness was relevant to sentencing, thus bringing into operation the principles enunciated in cases such as R. v. Tsiaras[2]. Accordingly the sentence should have reflected the appellant’s reduced moral culpability and less weight should have been placed on general and specific deterrence. It was submitted that these matters had not been reflected at all or sufficiently in the sentences imposed.
[2][1996] 1 V.R. 398.
The judge’s sentencing reasons demonstrate clearly enough that her Honour had been informed of, and was well aware of, each of the considerations relied upon by appellant’s counsel. The judge mentioned the appellant’s youth, his full and frank admissions, his early plea of guilty, his good rehabilitation prospects providing he abstained from the use of cannabis and continued to take prescribed anti-psychotic medication, his good employment history, his co-operation with the police, and the nature of his “schizophrenic-type illness” which her Honour accepted provided some explanation for the extraordinary nature of the appellant’s behaviour between 1 and 7 October 2002. Her Honour noted Dr Vine’s assessment that the appellant required treatment for his illness and recognised the importance of youth and therefore of his rehabilitation. Her Honour expressly noted the need sensibly to moderate general deterrence because of the possibility that he may have been suffering from mental illness in October 2002.
The judge referred on several occasions during the plea and in sentencing to the appellant’s youth and to the importance of his rehabilitation. But this young
man unfortunately was not a first offender or someone not previously incarcerated, indeed he had already spent at least nine months in adult prisons. He had twice been brought before the court for a breach of a community-based order and these offences, as her Honour said, were committed shortly after his release from custody. Dr Vine’s report suggested that the behaviour which led to the current charges was not significantly different from the appellant’s behaviour long before his present symptoms were experienced. Dr Vine had also said that it was “appropriate that his current treatment and access to ongoing assessment be available” and continued that “there is no psychiatric contraindication to a custodial disposition”. The appellant in his interview with Dr Vine had denied any significant problems during his imprisonment. One gains the impression from reading the report that the appellant, whilst in custody, was receiving anti-psychotic treatment and assessment which it could not be guaranteed he would continue to receive after his release.
The second, third and fourth grounds of the appeal are, it seems to me, really particulars of a claim of manifest excess. It is plain that the judge was well aware, and certainly took account, of the appellant’s youth, mental illness and prospects of rehabilitation. The sentence is, I think, plainly within range.
The case demonstrates, once again, the harm that can be produced by the consumption of marijuana upon those with a tendency to schizophrenia.
The appeal should be dismissed.
WINNEKE, P.:
For the reasons given by Charles, J.A., I agree that the appeal should be dismissed.
CHERNOV, J.A.:
I also agree.
WINNEKE, P.:
The formal order of the Court is that the appeal is dismissed.
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