R v Fornaciari

[2024] NSWDC 198

District Court

New South Wales

Medium Neutral Citation:

R v Fornaciari [2024] NSWDC 198

Hearing dates:

26 March 2024

Date of orders:

26 March 2024

Decision date:

26 March 2024

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Aggregate imprisonment sentence of 4 years 6 months with a non-parole period of 3 years 1 month

Catchwords:

CRIME — Drug offences — Supply prohibited drug — Commercial quantity

CRIME — Violent offences — Reckless wounding

CRIME — Violent offences — Intimidation

SENTENCING — Aggravating factors — Record of previous convictions

SENTENCING — Mitigating factors — Plea of guilty — 5% reduction

SENTENCING — Penalties — Imprisonment

SENTENCING — Sentencing procedure — Instinctive synthesis

SENTENCING — Subjective considerations on sentence — Drug addiction — Mental health disorder — Post-traumatic stress disorder — Deprived childhood ­ — Trauma during childhood

SENTENCING — Relevant factors on sentence — Objective seriousness — Deterrence — Specific deterrence — Purposes of sentencing — Protective custody

Legislation Cited:

Crimes Act 1900 (NSW)

Domestic and Personal Violence Act 2007 (NSW)

Drug Misuse and Trafficking Act 1985 (NSW)

Texts Cited:

B Dylan, “Absolutely Sweet Marie” Blonde on Blonde (1966)

Category:

Sentence

Parties:

Troy Fornaciari (the offender)
Public Prosecutions (NSW) (Crown)

Representation:

Counsel:
S Fraser (for the offender)
C Todd (for the Crown)

Solicitors:
Justine Hall Lawyer (for the offender)
Public Prosecutions (NSW) (Crown)

File Number(s):

2022/142631

JUDGMENT – Ex tempore revised

Introduction

1. Troy Fornaciari, born in 1983, has a long history in the criminal justice system. He has committed many crimes. He has not been honest. He has operated outside the law. He has, to date, failed to learn a fundamental fact; that if you want “to live outside the law you must be honest”: B Dylan, “Absolutely Sweet Marie” (1966) Blonde on Blonde.

2. Fornaciari is now for sentence again for three serious offences. In the Local Court and on arraignment he said he was not guilty, but on the morning of his trial, after discussion between the parties, he pleaded guilty to three matters:

1. Supply Prohibited Drug Commercial Quantity: Drug Misuse and Trafficking Act 1985 (NSW), s 25(2).

2. Reckless Wounding: Crimes Act 1900 (NSW), s 35(4).

3. Intimidate Intending to Cause Fear of Physical or Mental Harm, a personal violence offence: Domestic and Personal Violence Act 2007 (NSW), s 13(1).

3. His guilty pleas meant that the trial did not proceed. They had utilitarian value. I will reduce the otherwise appropriate indicated sentences by 5% to take into account that plea. That reduction cannot be strictly arithmetical, so I will round to his advantage. I will also take care in making those reductions that the aggregate sentence I impose does not dilute their impact.

Standard non-parole period and maximum penalties

4. Section 25(2) carries a maximum penalty of 20 years imprisonment. There is a standard non parole period of 10 years. Reckless wounding has a maximum penalty of 7 years imprisonment and a standard non parole period of 3 years.

5. Stalk or intimidate has a maximum penalty of 5 years. Had it stood alone I suspect this count would have been dealt with in the Local Court, as most intimidation matters are dealt with by that Court. Although given Fornaciari’s history, that discretion is for the Director of Public Prosecutions. I proceed on the basis the maximum penalty available is 5 years.

6. The maximums, and where they apply standard non-parole periods, are important guides to the exercise of my sentencing discretion. Content should be given to the standard non-parole period fixed by Parliament. But I do not start with the maximum or the standard non-parole period and make proportional deductions from it.

7. Every sentencing exercise has to start with an appropriate review of the facts for sentence and their objective circumstances. That then has to be considered in the light of the subjective case made for the offender. Every offence is different, and every offender is different. Accordingly, a judge must synthesise a number of competing factors before coming to an appropriate sentence. That sentence must adequately punish the offender and take into account the protection of the community from him, but it should also be designed, so far as practicable, to promote the rehabilitation of the offender.

Agreed Facts

8. There are agreed facts before the Court. They include text messages.

Count 1

9. A New South Wales Police strike force was established to investigate drug supply in the local area. Police became aware that Ms Piana, who is presently before the courts, was supplying methylamphetamine. She had trouble with her supply chain and was introduced to the offender. He had contacts from his time in gaol and other activities that enabled him to source methylamphetamine. He approached an upline supplier who lived in Sydney.

10. Police were able to gain access to text messages between the offender and the upline supplier. During the course of the text messages and other communications they discussed; obtaining methylamphetamine, the quality of the methylamphetamine obtained, monies owed to the offender, and money owed by the offender to his upline supplier.

11. It is important to note that drug supply operations rarely come with an organisational chart. They are by their very nature haphazard and clandestine.

12. The material before me indicates that between 5 April 2022 and 8 April 2022 the offender and his upline supplier supplied Ms Piana with in total 10 ounces using the imperial measure, or 283.5 grams, of methylamphetamine.

13. The conversations indicated that the going rate to the offender for 28 grams or an ounce was $5,600. Therefore, in total the purchase price from the upline supplier would have been $56,000. Mention is made in the text of “60” being owed. I do not know, and have not been supplied with, the anticipated profit; that is what Ms Piana was owed, or paid for, the drugs supplied. What is clear is that not all of the money was transacted and that Fornaciari was in debt to his upline supplier.

14. Part of the reason Ms Piana did not pay up was because at least some of the drug supplied was of very poor quality and meetings were arranged to return and replace the drug. At one point Fornaciari told his upline supplier “… plz bro I have start making money”.

15. While I accept that Fornaciari was using his product, it is clear that he was supplying the drug to give himself some form of income. It is also clear that he was not particularly successful.

16. I cannot, on the material before me, work out how much he made or exactly what he was doing with the money he did make. The varying quality of the drugs supplied interfered with his business. One delivery of drugs was rejected by Ms Piana. At another time Ms Piana implied to another colleague that it was “Premo”, which I take it to mean the drug was of a high quality.

17. In April 2022 Fornaciari was in debt to his upline supplier. He approached an acquaintance, the complainant, to ask if he could give him money. The complainant, from the photographs provided, appears to be older than the offender.

18. On 13 May 2022 the offender entered at his erstwhile friend’s home. He was initially calm, and they had a normal conversation. But when it turned to the question of money, the offender became upset and started pushing the complainant around. He pushed him onto the lounge face-down. He pushed his face into the cushion. He then struck him on the back of the head with sufficient force to break the skin, causing a 3-centimetre “full thickness” laceration. Staples were used to close the wound. The complainant also suffered concussion and spent a night in hospital for observation.

19. After the incident Fornaciari spoke to the complainant’s brother. He was upset about the fact that a police report may have been made. He did however, through the brother, offer an apology; promising it would not happen again. It is hard to know whether that apology was genuine, or an attempt to prevent what had already occurred; police involvement.

20. In mid-May the complainant’s brother sent some texts asking Fornaciari to “back off his brother plz”. He was told to “kindly … mind [his] own bizness”. Later, “You two fucks think U can fuck with me”.

21. Then on the day in question there is the text that makes out Count 3:

“Brother IV already ur address if it was any think more people would of seen you already, but I will say this it looks very guilty a grown man hiding like a schoolgirl if he wants to hide wen I do find him wen ever else is in the house will cop it if that happens to be females kids gran parents etc Iv got no code.”

Objective seriousness

22. Anyone who involves themselves in the supply of drugs, anyone who plays a part in the distribution chain, risks gaol as a consequence. Not just because of the maximum penalties, but because of the potential harm drug supply causes. It needs to be stated and restated that the supply of illicit drugs causes harm to the community, not just to the individual users but to the general community. The community is harmed by crimes committed by drug users or crimes that result because of the amount of money that can be made from their illicit supply.

23. Here the drug quantities were rolled-up to an amount that fell just within the commercial range. The commercial range fixes the maximum penalty and standard non-parole period available. Quantity is one measure of the seriousness, but a court also looks at the commercial nature of the operation.

24. Fornaciari acted as a middleman. Whether he wanted drugs, money, or both, he expected to make a profit. The fact that he was haphazard and disorganised and did not in fact profit from his crimes is not a mitigatory factor. The fact that he was using drugs is not a mitigatory factor. It can, at best, explain why he got involved. He had his criminal contacts. I suspect they were made in gaol. He was able to provide Piana with the drugs that she needed for her own criminal operation.

25. Without middlemen like Fornaciari, illicit drug supply operations could not survive; the upline suppliers, who make the big profits, would not be able to operate their business. While there are many more serious examples of commercial supply than this one, given his history and given his background, it is accepted that a custodial sentence of some length must be imposed.

26. The wounding occurred in the victim’s home of a person who, it would appear, was either a friend or a close acquaintance. It was an impulsive, spontaneous and violent act. It was another example of Fornaciari using violence as, if not the first, the second resort. The blow that caused the wound was inflicted with considerable force.

27. Heavily muscled and tattooed, Fornaciari has, by design or chance, an intimidating aspect. He knows how to use his fists, as is obvious from the result of this one blow; a blow, that was directed at the head.

28. As Mr Fraser, who appears for Fornaciari, notes, when assessing this matter, I must focus on the degree of harm caused. There is no evidence Fornaciari intended to cause a wound, but he intended a heavy blow to the complainant’s head when he was vulnerable, having been pushed down on the lounge. The wound was recklessly inflicted. The wound and the related concussion were obviously serious, but this Court has to deal with much more serious woundings than this one. Nevertheless, this crime also calls for a custodial sentence of some length.

29. The seriousness of the intimidation cannot be assessed simply by looking to the words of the text. The intimidation has to be viewed in context, that the complainant’s brother had been hospitalised after a violent attack by Fornaciari. The threat made was a real one, and one that the victim believed Fornaciari was capable of carrying out. The intimidation was a serious example of its type and again requires a custodial sentence of some length.

Criminal history

30. Fornaciari is no stranger to the courts. He first appeared before a court when he was 18 years old. He has been to gaol on many occasions; in 2003, 2005, 2008, 2010, 2011, 2013, 2015, and from 2018 to 2020. There have been times when he has spent time on remand and later been acquitted, but the law does not allow for discounts because of time served in those circumstances. At times he has admitted his offending, at other times he has been found guilty after trial. His record includes many matters involving violence but also drug and traffic offences. He is not entitled to the leniency often given to first offenders. In fact, such is his record that greater weight must be given to community protection and deterrence, particularly specific deterrence.

31. He has been in custody since the date of his arrest on 17 May 2022. For the last two years he has been held in strict protection; non-association. Non-association is the strictest form of protection available in the Corrective Services system. He has less access to programs, work, and support. But he is in non-association for a reason; his background and his history. Even in non-association he has gaol infringements on his custodial record. Judges do not ignore the lived experience of gaol, particularly someone on strict protection. The harshness of the custodial environment will be taken into account.

Subjective case

32. I have the benefit of a report from Ms Durkin, a respected clinical and forensic psychologist. Sometimes judges receive reports which simply parrot what an offender says. Mr Durkin’s report does not fall into that category. She has applied her professional expertise to the material provided to her and her interviews with Fornaciari. What she says is not controversial. In fact, in their comprehensive written submissions both the prosecution and Mr Fraser ask me to draw particular conclusions from matters revealed in that report.

33. Ms Durkin notes that Fornaciari impressed her as “a psychologically minded individual and, overall … appeared to be of adequate cognitive ability for daily functioning.”

34. She set out his family history. That family history was tragic. When aged about seven Fornaciari witnessed his father’s death from what appears to have been a heart attack. The children who were with the father in the home called triple-0. I am told that the triple-0 operator thought it was a hoax call and did not send an ambulance. Fornaciari has been affected by that event. He lost trust in the system.

35. Ms Durkin also notes that his mother struggled to cope with her husband’s death and that her subsequent boyfriends were physically abusive to Fornaciari. His behaviour deteriorated during the course of his childhood in the context of; unresolved trauma, hardship, instability, and abuse. He was placed in the care of the Minister when he was 12 years old. Although he absconded, he was able to achieve some schooling goals. He was placed in foster care for a period which appears to have been the only positive support that he has received in his short life. From the age of 16 he has lived independently. He has never worked in a regular job; he lived outside the law.

36. He has some social supports. He has been “reunited with his mother” who he has had some contact with. He has had little schooling. He did participate in basic training in the army and has done short TAFE courses. He has a number of children but at the moment he is not able to provide for them; and at least one of them is in State care.

37. He has been abusing illicit drugs since before he was old enough to make rational choices. His associates have generally been antisocial people. He has looked up to those people as role models; as people with money and influence. He has been involved with Outlaw Motorcycle Gangs and still endorses such clubs because such clubs provide him with “structure and direction”.

38. He told Ms Durkin, he “prides himself on being a respectful person.” Well, he may be capable of showing respect to some, but he has shown considerable disrespect to many people in the community in the course of his life.

39. She notes that he expresses a motivation to change, but she qualifies that by saying he “does not appear to be fully aware of, or willing to acknowledge, how dominant and potentially intimidating his conduct may be at times.” He endorses specific “difficulties regulating his use of anger and aggression”. She notes at par [42] that he:

“… seemed to lack insight into what and how his conduct constitutes a problem. However, it seems that Mr Fornaciari has been developing his insight into his aggression for some years and he is motivated to manage his reactivity and his instrumental use of aggression. This will [require] an ongoing treatment target that will need to be considered in the light of his trauma but also in terms of Mr Fornaciari’s offending risk.”

40. He has Type 2 diabetes but is otherwise healthy.

41. I accept that since he was very young, he has been using drugs to manage symptoms of trauma. He has at times had problems with methylamphetamine and other drugs. His record and history and these matters indicate he has a propensity towards violence.

42. While I accept that his history and possible Post-Traumatic Stress Disorder and response to it, has helped create that situation, he has sought and received positive reinforcement for that propensity from the people he has ‘hung out’ with, and he cannot now blame them as a ‘bad element’ because, to be frank, his record shows he is the ‘bad element’.

43. He completed the Violent Offenders Treatment Program during a previous time in custody. He says he has learnt something from it, but Counts 2 and 3, as the prosecution point out, indicate that – what he has learned he failed to put into action.

44. He did however complete his last parole successfully. It would appear, sadly and not uncommonly, that he was unable to cope during the COVID-19 pandemic and reverted to drug use. Once using again, his contacts led him to take the easy way and involve himself in the distribution of drugs.

45. Fornaciari is smart enough to realise, as he told Ms Durkin at par 38, that “his thinking was distorted”, and that those thoughts and his background have “constantly undermined him throughout his life.” He told her “I knew better” and that he has “made a mess” of his life.

46. She recommends that he engage with a psychologist and obtain a Mental Health Care Plan. She recommends that on release, he be supervised and monitored for as long as possible, and that his associations with antisocial and negative others be discouraged. She notes “he has shown some capacity to adjust his behaviour and that he is motivated to [do so].”

47. He will however need support and stability. He would benefit from doing intensive Drug Alcohol Treatment Programs and the EQUIPS Addiction programs.

Submissions

48. I have sought in these remarks to address the comprehensive submissions by both parties. There were some slight differences of emphasis between them as to objective seriousness, which I have sought to resolve.

49. Mr Fraser submits that it is inevitable that the Court will have concerns for community safety because of the history of, and propensity for, violence replicated in Counts 2 and 3, and of, and engaging in, illicit activity to obtain funds (Count 1). He addressed me on issues relating to my assessment of the objective seriousness of those matters.

50. He notes the positives; that Fornaciari kept to his parole, and he has learnt something from Violent Offenders Treatment Program. He notes, as Ms Durkin said, Fornaciari has capacity to learn positive lessons and apply them. On his behalf, Mr Fraser submits the community should not lose hope.

51. In response, the prosecution say that I could, given the history and the matters revealed in Ms Durkin’s report, have little confidence that Fornaciari, on release, will change “one iota”. They submit that he had an opportunity on the last occasion to apply the lessons that he had learnt, and the absence of remorse and his acceptance that he has ingrained in him, antisocial beliefs, could leave the Court with no confidence as to what occurs in the future.

Synthesis

52. I have to synthesise a number of competing facts. They do not all point the same way, but that is the burden of a sentencing judge. The community will be protected from Fornaciari while he is in custody, but he must be released to the community, and if he is released in a better position than when he went in, the community will be protected. If he keeps to the promises he made to the Court, through Ms Durkin, he may turn his life around. He knows what he has to do, if he applies the lessons he has learnt.

53. He is too old and too experienced with the criminal justice system to be at the crossroads in his life, but a choice has to be made. If he continues the way he is going, he will as he has done throughout the last 20 years, spend most of that time in custody.

54. Sentences have to be proportional not just to the offence committed. I cannot keep him in gaol just to protect the community. He has to be released. I can have no confidence that he will apply the lessons learnt. But the only way he can be tested is to be released into the community. His release will be subject to an order by the State Parole Authority.

55. In my opinion the longer he is monitored and supervised the better. But the minimum he must spend in custody must also reflect the seriousness of his crimes and the purposes of sentencing. There will be a modest adjustment for subjective circumstances but only a modest one. He will only be released if the State Parole Authority are convinced community safety can be met by supervision and monitoring.

56. Fornaciari has support available in the community. He has a number of incentives to change. He knows what to do. If he makes the wrong choices when he is next released, he will have made a very bold statement that he intends to live outside the law in an unlawful way. If he does commit further crimes the community can only be protected by locking him up for longer and longer. My fear, the fear of every sentencing judge, is that not he will spend the rest of his life in gaol, but that he will hurt other people, as he has hurt so often in his life. My duty, so far as possible, is to protect potential future victims. But he must be released to the community. If he leaves gaol more motivated, better able and better supervised than before, if he is given the chance, he may take it.

57. As the prosecution say, I cannot be confident at all. Nevertheless, even in the face of entrenched recidivism, the effort should be made subject to of course, the decision of the parole authority.

Orders

58. I will impose an aggregate sentence. Noting the 5% reduction and my finding special circumstances, I indicate the following sentences for each matter:

• For the drug supply matter; there will be a sentence of 3 years and 4 months, non-parole period 2 years and 4 months.

• For the reckless wounding; there will be a sentence of 2 years and 4 months, non-parole period 1 year, 8 months.

• For the intimidation; I indicate a sentence of 1 year and 8 months.

59. There will be an aggregate sentence in this matter of 4 years and 6 months. The non-parole period is 3 years and 1 month. It will commence on 17 May 2022. Fornaciari will be eligible for consideration for release to parole on 6 June 2025. The parole period of 1 year, 5 months will commence on 17 June 2025 and expire on 16 November 2026.

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Decision last updated: 03 June 2024