R v Filipetti

[2019] NSWDC 214

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Filipetti [2019] NSWDC 214
Hearing dates:	17 May 2019
Decision date:	17 May 2019
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Sentenced to a term of imprisonment of three years four months. Non parole period of two years two months.
Catchwords:	SENTENCING – Sentencing factors – robbery – spontaneous offence – elderly victim – small amount taken – threats made – struggle - young offender – disadvantaged background – most of adult life in gaol – no experience of normal community life – need to learn how to live a normal community life – special circumstances conditional on State Parole Authority.
Legislation Cited:	Crimes Act 1900 Crimes (Administration of Sentences) Act 1999
Cases Cited:	Bugmy v The Queen (2013) 249 CLR 571 Filippetti (1984) 13 A Crim R 335 R v Henry (1999) 46 NSWLR 346, 106 A Crim R 149
Texts Cited:	"Does Imprisonment Deter? A Review of the Evidence" Sentencing Advisory Council, Victoria, 2011
Category:	Sentence
Parties:	Justin Aaron Filipetti (the offender) Director of Public Prosecutions
Representation:	Counsel: Mr R Steward (for the offender)   Solicitors: Ms A Kerr (For the Director of Public Prosecutions)
File Number(s):	2017/00273580

Judgment – ex tempore revised

1. At 8.24am on 27 June 2018, Mr Hill, aged 72, was driving with his wife as a passenger through a quiet suburban area of Lake Heights, south of Wollongong. Mr Hill saw a man standing beside the road. The man was indicating as if asking what the time was. Mr Hill pulled over and said to the man “It’s 8.24”.

2. The man walked to the driver’s side of the car, reached in the open window and tried to remove the keys from the ignition. Mr Hill tried to raise his window, but the ignition had been switched off and he could not. The door was opened. The man said “Get out of the car or I’ll stab ya”. Mr Hill tried to pull the door closed.

3. A short struggle then occurred about the door and the keys. Eventually, both gave up the struggle at the same time. The man walked away taking part of the key and an attached multi-tool. A local resident saw what occurred and called the police who were soon on the scene.

4. CCTV from the local area led the police to Justin Filipetti, who was well known to them. Filipetti was arrested on 28 August 2018. He has been in custody since that date. Filipetti had been released to parole on 19 April 2018. Such had been his negative response to parole supervision that an urgent breach report had been prepared and a breach warrant issued on 20 June 2018.

5. On 6 September 2018 police went to Silverwater gaol. Filipetti was formally arrested in relation to this matter. When the matter was in the Local Court he indicated that he would plead guilty. That plea was confirmed today. His assistance in resolving this matter, the utilitarian value of the plea, requires that I reduce the otherwise appropriate sentence by 25%.

6. Here, an older citizen driving his wife down the street, a man doing someone a favour; was threatened, assaulted and an attempt was made to take his car. That attempt was thwarted by his resistance and it appears a mutual decision that enough was enough.

7. Such crimes can have a terrible impact on those who are robbed. The offender is a younger man; he is a large man. He tells me and I am prepared to accept he was drug affected. That does not mitigate the offence, to a degree that fact makes it more serious because he did not know what he was doing and Mr Hill could not have known what he was doing or frankly, why.

8. Mr Hill was confronted, in the presence of his wife, by a large disturbed young man. When offences such as this occur, people can lose confidence in others. They lose confidence in their neighbours. They learn to fear others. They lose trust in others. When people in the community are fearful, the entire community suffers. That is one of the reasons why we have such heavy penalties for offences such as this. It needs repeating, robbery is not just a crime against property, it is a crime against people.

9. When criminals are caught committing such offences the community can lose trust in the Courts if they do not punish such crimes and punish them severely. The need for consistency in sentencing and a fear that there was excessive leniency shown by judges of this Court, led the highest court in New South Wales to publish a judgment designed to guide sentencing discretion of judges: R v Henry (1999) 46 NSWLR 346. The guidance offered by that case was directed at a more serious offence, but it has some relevance to the proceedings presently before me. That said, while I accept the guidance offered by the maximum penalty of 14 years and decisions of the CCA and other sentencing decisions, every offence and every offender is an individual.

10. Filipetti was born 23 April 1991. He turned 18 on 23 April 2009. He went to adult gaol for the first time on 22 June 2009. Since August 2011 he has spent about 14 months in the community. That is, nearly 80% of his adult life has been spent in gaol.

11. He was on parole at the time of the commission of these offences for an offence of armed robbery and an offence of aggravated robbery. Associated with the aggravated robbery was an assault on his mother. Both his father and his mother, now deceased, were well known to the Courts. His father has the dubious distinction of being a leading case on the question of drug possession: Filippetti (1984) 13 A Crim R 335.

12. He has never had any opportunity throughout his young life to lead a normal community life. When he has been in custody he has not responded well as his gaol record indicates. He is presently on protection limited association (PRLA). Corrective Services have fears that there are some in custody who may wish to harm him. Those fears may be real. They have, to date, restricted his access to programs and it is feared they might do so in the future.

13. His background is set out in a report of Luke Brabant; exhibit 1. Mr Brabant reports that he has expressed sound goals. That is he wants a life of stability and abstinence. Those goals reflect some growing maturity. Mr Brabant speaks of his having some insight into the impact of his background upon him; a childhood blighted by domestic violence, drug use and periods when both parents were in custody.

14. The report indicates that Filipetti himself recognises that his early engagement with other delinquents, the absence of stability in his life, the temptations to adopt a hedonistic gangster lifestyle, his words, appealed to a young immature boy and then man. He has had little schooling and he has never really worked. He has lived by crime when he has been in the community. He has used, and abused, illicit drugs since he was 13 years old.

15. He has, he says, a heart condition. If he continues to use drugs, that condition can only worsen, but it is not put forward as a matter in significant mitigation given that health facilities will be available to him in the gaol. The report notes that he has a number of deficiencies in coping with normal community life and he lacks emotional regulation skills.

16. The report concludes he requires significant support, but there is no one in the community to whom he can at present turn for support. He, simply, in his young life has never had any pro-social friends or pro-social supports. At the moment, he professes, in the community he cannot sleep without the use and abuse of illicit drugs. His capacity to engage in programs will be restricted by his classification status. His capacity to engage in programs will be restricted by the unavailability of comprehensive programs like the Compulsory Drug Treatment Program to those who commit crimes in this area.

17. I accept that the offence was committed while drug affected. As I said earlier it does not mitigate. It is no consolation to a victim of violence that their attacker was drug affected. I can however, take it into account when I come to assess how this offence came about and what is to be done.

18. Mr Steward, who appears for the offender, characterises the sentencing exercise here as a complex one; I agree. It would be very simple, too simple, to look at the maximum available penalty, make due allowance for the plea of guilty and lock Filipetti away for as long as possible. That would certainly protect the community from him while he was in custody, but a court while it can take into account the offender’s criminal record and find that greater weight must be given to deterrence and community protection, must not increase the sentence beyond that which is called for by the objective circumstances of the offence. Filipetti must be released into the community. If he is released without support and without a capacity to engage with pro‑social elements in the community, the community will suffer.

19. He has some mental health conditions, but they are primarily situational. It is not at all surprising that someone who has spent as long in gaol as he has would feel anxious and paranoid. Gaols are nasty, violent places. The Courts do not and should not underestimate the lived experience of a prison.

20. Mr Brabant recommends individual psychological intervention. He recommends that on release Filipetti be placed on a Mental Health Care Plan. That while in custody he does as many EQUIPS programs as can be made available to him. That he engage in SMART recovery groups and that his release to community be via the Initial Transitional Support Service linked to other Community Corrections programs. All are sound recommendations.

21. A submission was made, by Mr Steward, that there be a finding of special circumstances. I am reluctant to make such a finding, given the history before me but it is clear that he needs a staged approach to release. It is also clear that his release must be subject to the State Parole Authority being satisfied that the community can be protected if he is released to parole.

22. Filipetti needs to learn how to live a normal life in the community before he can adapt to normal life. If he is not to grow old in gaol, he will require considerable assistance preparing him for release. But release to parole must be earned. The State Parole Authority cannot make a parole order directing release unless it is satisfied in the interest of the safety of the community to do so: s 135(1) Crimes (Administration of Sentences) Act 1999.

23. This sentence must be effectively accumulated on the other lengthy sentence. I propose to date the sentence from the date he was formally arrested. I could date it at a later date, up until today. I do not do so because I have increased the sentence to take into account the aggravating factor that it was committed on parole. There was also a significant breach of parole prior to the commission of this offence.

24. There will be some finding of special circumstances here, not because the offender has shown prospects of rehabilitation, but to allow the State Parole Authority, if he proves himself, to structure his release into the community. If that cannot be done, then he could not, given the strictures in s 135 Crimes (Administration of Sentences) Act be granted parole. He must however be tested in the community at some stage before his sentence expires.

25. I want to return briefly to his background. That background meant that he had none of the advantages that most in the community expect. It is a matter that I must take into account. Social deprivation may impact on the purposes of sentencing in different ways. It may explain the offender’s recourse to violence and explain an inability to control violent responses to frustration. That, in turn, may increase the importance of protecting the community from the offender, as the High Court made clear in Bugmy v The Queen (2013) 249 CLR 571.

26. The High Court also made clear that a background like that experienced by this offender can leave a mark and compromise their capacity to mature and learn from experience. It may mitigate the sentence, because their moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in way that Filipetti’s were. It remains relevant even where there has been a long history of offending.

27. His family background is relevant. His mother had long term drug abuse problems and was regularly before this Court and was regularly returned to custody. His father, whose reputation as the local criminal was frankly well deserved, but who has appears demonstrated at least in his old age, some capacity to lead a law abiding life.

28. History as a child exposed to drug use and domestic violence requiring FACS or DoCS intervention, disrupted schooling, no real work history, no willingness and no real opportunity of engagement in programs while in custody made his return to gaol almost certain.

29. In 2011, the Victorian Sentencing Advisory Council published a study “Does Imprisonment Deter? A Review of the Evidence”. Amongst its conclusion was the higher rate of recidivism among young offenders suggests that, particularly for vulnerable groups, imprisonment does not create a specific deterrent effect. Incarcerated young people are placed with others who have anti‑social attitudes. After their release, youths may be more likely to associate with other adolescents whom they have met in custody and may therefore be likely to join or engage with gangs. Being in custody also appears to have a negative effect on a young person’s long term stability and hence may contribute to reoffending.

30. Filipetti first came to gaol when he was 18. Since 2011, he has been almost constantly in custody. When released in the past he has had no pro‑social family support or friends. When released to parole the only supported housing available to him was in an area where his old associates lived. If more evidence was needed to support the Victorian Sentencing Advisory Council’s conclusions, this case provides it.

31. I will give him so far as I can the benefit of those mitigating factors discussed by the High Court in Bugmy, but I can have no confidence that he will not reoffend in the future. The only thing I can say in his favour is that as he gets older he will mature. He has an opportunity to think again about his prospects and to plan for his future release with the cooperation of Community Corrections.

32. He has to make a choice. Do I spend the rest of my life in gaol or do I make an effort to change? The offence was committed on parole. It justifies harsher punishment. While there is no clear rule, because I have increased the sentence because of that aggravating factor I propose to date the sentence from when he was arrested. I have given Mr Filipetti the benefit of as much mitigation as I believe he deserves, but any sentencing judge, particularly in a robbery case has to go back to what was done.

33. Mitigating factors must be given appropriate weight, but they can never be allowed to lead to the imposition of a penalty which is disproportionate to the gravity of the crime committed. Sentencing courts have an obligation to vindicate the dignity of each victim of violence. Here, while the specific victim was Mr Hill, his wife was also present.

34. Courts have to express the community’s disapproval of that offending and by the severity of the sentences imposed, attempt to protect the vulnerable against its repetition. Courts also have to recognise that there is some need to structure a sentence to give the offender an opportunity. If he does not take opportunities in custody the full weight of the law must fall upon him. Courts also have to ensure that the minimum term spent in custody reflects all the purposes of sentencing.

35. Having regard to the matters outlined and the maximum penalty available, had it not been for the early plea of guilty there would have been a sentence of four years and six months in this matter.

ORDERS

36. The sentence will be one of three years and four months which will date from 6 September 2018.

37. The formal orders are there will be a non-parole period of two years and two months to date from 6 September 2018. You will be eligible for consideration for release to parole on 5 November 2020. There will be a parole period of one year and two months from that date. Total sentence should expire on 5 January 2022.

38. Release to parole will be conditional on upon satisfying the State Parole Authority that it is in the interest of the safety of the community that he be released. I cannot with any optimism that parole will be granted when the non‑parole period expires.

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Amendments

31 May 2019 - Factual correction in [11]

Decision last updated: 31 May 2019