R v Lidonnici
[2007] VSC 3
•24 January 2007
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1532 of 2006
| THE QUEEN |
| v |
| DANIEL PAUL LIDONNICI |
---
JUDGE: | HOLLINGWORTH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 November 2006 | |
DATE OF SENTENCE: | 24 January 2007 | |
CASE MAY BE CITED AS: | R v Lidonnici | |
MEDIUM NEUTRAL CITATION: | [2007] VSC 3 | |
---
Criminal Law – Sentence – Unlawful imprisonment – Recklessly causing serious injury – Knowingly resisting police – Possession of drugs of dependence – Plea of guilty –Acute paranoid delusions caused by voluntary drug use – Youthful offender – No prior convictions – Genuine remorse – No long term injuries – Forgiveness by primary victim – Low risk of re-offending – Community-based order and fines
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D Brown | Solicitor for Public Prosecutions |
| For the Accused | Mr D Sheales | Clarebrough Pica |
HER HONOUR:
Daniel Paul Lidonnici, you have pleaded guilty to the following offences:
Count 1 possession of a drug of dependence, namely MDMA
Count 2 possession of a drug of dependence, namely ketamine
Count 3 possession of a drug of dependence, namely methylamphetamine
Count 4 possession of a drug of dependence, namely cannabis L
Count 5 unlawfully imprisoning Hayley Faye di Cecco and detaining her against her will
Count 6 unlawfully imprisoning Ayla Ramsay and detaining her against her will
Count 7 recklessly causing serious injury to Hayley Faye di Cecco
Count 8 knowingly resisting Mark Dekleyn, a member of the police force, in the execution of his duty
Count 9 knowingly resisting Alan Howden, a member of the police force, in the execution of his duty.
The offences were all committed between Friday 21 and Sunday 23 October 2005. At that time, you and the principal victim, Hayley di Cecco, had been in a relationship for a few months and were effectively living together. You spent a large part of that weekend together, including attending a number of dance clubs, along with a group of mutual friends. Over the course of the weekend, you went on what can only be described as a drug-taking binge, consuming substantial quantities of MDMA (“ecstasy”), ketamine, methylamphetamine (“ice”) and cannabis (counts 1 to 4). You had not slept since Friday.
Late Sunday afternoon, Hayley wanted to collect her bag from a friend’s flat in St Kilda, where she had left it earlier. You drove her there to collect it, having arranged to then meet up with the rest of the group at another friend’s house in Heidelberg. On the way to St Kilda, you picked up a mutual friend, Ayla Ramsay, to give her a lift to Heidelberg.
When you arrived at St Kilda, the three of you entered the flat, using your friend’s keys. Once inside, you became increasingly irrational and started to stare blankly at walls. Hayley became frustrated with your behaviour and told you to snap out of it. You then locked the door of the flat, preventing the two girls from leaving.
They tried to calm you down and talk you into giving them the keys, but your replies did not make any sense in the context of the conversation. Ayla grabbed your car keys and said she would give them back when you gave them the key to the flat. They told you they wanted to leave. Hayley was concerned about your condition, as she thought you were messed up on drugs. She had not seen you like that before.
Hayley used her mobile phone to call a friend of yours, Nathan. She was hoping he could talk sense into you. Whilst she was on the phone, you grabbed it and wrestled her to the floor. You then told Nathan that there were people in the flat who were trying to get you. You were becoming increasingly paranoid. Indeed, throughout the incident, you made calls to “000” and various friends, in which you indicated that you had been locked in the flat and that people were trying to get in to kill you.
You went and got a large knife from the kitchen. You threatened to kill yourself with it and held it to your throat. You told Hayley you weren’t going to hurt her. At some stage, whilst you were on the phone to the police, Hayley managed to get the knife from you. She then went to the kitchen, to try to hide the other knives. You followed her and grabbed a long knife. You pointed it at Hayley and told her not to move or you would stab her. You were on the phone at the time and demanded to know the address of the flat. You told Hayley you would kill her if she did not tell you. The girls did not know the address and were scared of you.
The police arrived. You yelled out: “If you come in, I will kill her.” Hayley was screaming for help. Police used OC spray through a hole in the window and were eventually able to gain access to the flat. One of the policemen grabbed Hayley and dragged her outside. As he was doing so, you had hold of her legs and used the knife in a stabbing motion at her legs, wounding her. Hayley also suffered a serious stab wound to her upper body, but is unable to say at what stage of the incident that occurred. Ayla was also dragged out of the flat by the police; she was uninjured.
After removing the girls, the police tried to disarm you. You had a knife in your hand and were threatening to kill yourself. Police discharged a taser at you; as its cycle finished, you plunged the knife into your chest. You dropped that knife, then grabbed another one. You aggressively resisted police attempts to restrain you and ignored their requests to drop the knife. You continued to threaten to kill yourself. After the police sprayed OC foam at you, you dropped that knife. You got away from them and grabbed yet another knife and again threatened to kill yourself. The police had to use the taser several more times before you were ultimately subdued.
You and Hayley were both taken to hospital, with serious injuries. Hayley had a serious stab wound to the right hand side of her chest, which required surgery. She also had a stab wound to her right leg which required stitches, as well as several scratches and grazes to her body. She remained in hospital for 11 days.
You had several stab wounds to your chest and abdominal areas which were of a life-threatening nature and were in hospital for 8 days; your gallbladder had to be removed during emergency surgery. You also had stab wounds to your right thigh and left hand.
Ayla was treated at the scene for the effects of the OC spray. Four police officers received minor injuries, such as cuts.
A few days later, the police interviewed you in the hospital. You made partial admissions, but your memory was sketchy. You did not recall stabbing Hayley or yourself. You said you thought the girls were conspiring against you and became very paranoid. You believed someone was going to get you, which is why you locked the flat door and were scared. You did not believe that the people who came to the flat were the police. You said you loved Hayley and did not want to hurt her or Ayla, who is a good friend.
The maximum penalty for each of the offences is:
· possession of a drug of dependence - 30 penalty units and 1 year’s imprisonment
· unlawful imprisonment - 10 years’ imprisonment
· recklessly causing serious injury - 15 years’ imprisonment
· knowingly resisting a member of the police force, in the execution of his duty - 5 years’ imprisonment
The most serious offence is that of recklessly causing serious injury. I accept that you did not intend to harm anybody but, given the circumstances of the offending, it is only by chance and good fortune that nobody was killed or permanently injured. Thankfully, Hayley is suffering from no long-term physical or psychological effects of the incident. The only person suffering ongoing physical pain is you.
As far as the counts of unlawful imprisonment are concerned, I have no doubt that being detained by you in the flat, in your paranoid, knife-wielding state, must have been a frightening experience for both young women. Fortunately, it seems they have both managed to put the incident behind them.
As far as the counts of resisting the police are concerned, it is unacceptable that police officers should be subjected to such aggressive resistance when they are simply carrying out their duties protecting the community.
As I will discuss shortly, this was by no means the first time you had used or possessed illegal drugs, and it is clear that your drug consumption over the weekend in question had been sustained and heavy. However, it is not possible on the evidence to say precisely what quantities you had consumed that weekend. I am satisfied that you were not in possession of any of the drugs for trafficking purposes.
The Crown effectively conceded that, but for the count of recklessly causing serious injury, your offending would not require a term of immediate imprisonment. But the Crown argued that the serious injury count took the seriousness of your offending to another level, one which required imprisonment.
Notwithstanding the severity of her injuries, Hayley has completely forgiven you and you are still together as a couple. As part of your bail conditions, you returned to live with your mother and stepfather; Hayley moved into your family home for some of that time. In her evidence at your plea, she said that she sees herself having a permanent future with you. She does not wish to see you imprisoned and just wants to get on with your lives together. Although a judge must be careful not to allow a victim’s attitude to unbalance the sentencing process, I accept that it may nevertheless be a relevant factor in sentencing[1]. In particular, where, as here, a victim has forgiven the offender and argues for a more lenient sentence, that may be a mitigating factor.
[1]R v Skura [2004] VSCA 53.
A further relevant matter is that you offered to plead guilty to the current charges at the earliest possible opportunity and are also entitled to have that matter taken into account in mitigation.
I turn to consider your personal circumstances. Although you have had limited contact with your natural father, who separated from your mother when you were an infant, you appear to have had a relatively happy and normal childhood with your mother and stepfather. You are an only child.
After successfully and uneventfully completing year 12 at your local high school, you commenced a TAFE marketing course. You left after 6 months, as you were not enjoying the course. You then worked at various jobs until 2003, when you started working as an administrator and trainee accountant at your step-father’s business. Since then, you have worked as a practice manager and an administrative assistant at a couple of other accounting firms.
You have undertaken various accountancy studies, apparently whilst working. You have recently commenced studying for a Diploma of Business as an “off-campus” student at Monash University.
In addition to your full-time job and studies, you currently have two part-time jobs. On Wednesday evenings, you and Hayley work for a couple of hours at her father’s flower stall, and on Sundays you both work in the kitchen at the Seaford RSL.
By the time of the offences, you had been using illegal drugs for some years. You started using marijuana when you were 16 or 17, and used it every second day or so until you were 20. Around 2004, after the break up of a long-term relationship, you started using more dangerous drugs. By 2005, you had progressed to the regular weekend consumption of speed, ice, ecstasy and ketamine (a dissociative and potentially hallucinogenic anaesthetic agent). It seems that your drug usage accelerated as you became more and more involved with the nightclub and dance party scenes. You did not use these drugs during the week, so were able to work effectively. You also have a history of alcohol abuse, in the form of binge-drinking on weekends.
Several reports have been prepared on your behalf by Dr Nicholas Owens, a psychiatrist. His opinion is that your actions at the flat were caused by acute amphetamine intoxication, which resulted in your experiencing acute paranoid delusions of a persecutory nature (namely that you were going to be harmed by someone attempting to get into the flat), together with confusion and misidentification about the police and the phone calls you were making. Based on the speed with which your normal mental state returned without any anti-psychotic medication, he does not believe that your mental state at the time of offending should be characterised as a drug-induced psychosis.
On the other hand, Dr Morris Odell, a senior forensic physician at the Victorian Institute of Forensic Medicine, uses the term “drug-induced psychosis” to refer either to a psychotic state which may be present only while the drugs are in the body or one which persists for some time afterwards. He believes that you were most likely suffering from a drug-induced psychosis and were in an excited delirious state at the time of offending.
As neither doctor gave oral evidence, it is not possible for me to explore to what extent there is a real divergence in their opinions. But what is clear is that they both accept that you acted at the flat in some sort of paranoid delusional state, brought about by the consumption of drugs, and without your normal insight and rational thought.
Apart from this incident, you have no history of psychiatric illness, psychological disturbance or deliberate self-harm. You have no prior convictions and have not otherwise been in trouble with the police. You also have no history of violence or anger-management problems. What happened at the flat is very much an isolated incident.
I accept that your behaviour at the flat was totally out of character for you and would not have occurred but for your drug consumption. Nevertheless, your significant drug consumption over that weekend was entirely voluntary and was part of regular weekend drug usage at the time. Furthermore, although this was the first occasion on which you had personally experienced paranoid delusions from drug usage, it seems that you had some awareness that such drugs might potentially cause adverse psychological reactions.
I accept that you have not used any illegal drugs since the offences. You have been tested for illegal drugs on a frequent basis since the offences and have not returned any unsatisfactory results. You have also attended regular drug counselling, initially at the hospital and then at the Eastern Drug and Alcohol Service. A counsellor at EDAS says that you have made good progress and do not require further counselling. You have volunteered to speak to other young people in peer education programs about the dangers of illicit drug use. Hayley also gave evidence that you have both changed your social lives and ceased going to dance parties or socialising with people who use illegal drugs.
You have co-operated fully with the various medical and counselling experts who have provided reports to the court and they believe that you now clearly understand the significant risks attached to the use of such drugs. I accept that it is your intention not to use them again and sincerely hope, for your sake and the sake of others, that you are not tempted to try illegal drugs again.
In addition to Hayley’s support, you are fortunate that your family and friends have been supportive of you.
I accept that you are shocked by your actions and genuinely remorseful about the entire episode.
For all of these reasons, I believe that there is little risk of your re-offending. It follows that specific deterrence is not a significant consideration in sentencing you.
I turn to consider the question of general deterrence. Unfortunately, violence arising from the use of so-called “party drugs”, particularly in the nightclub and dance party scenes, is an all-too-common problem. People need to understand the risks associated with such drug usage, particularly amphetamine usage, and be deterred from using them.
It is well-established that psychiatric illness not amounting to mental impairment may be relevant to sentencing in several ways, including by reducing the moral culpability of the offence and by reducing or eliminating general deterrence as an appropriate purpose of punishment. However, it is seldom that a self-induced condition will in itself result in a significant lowering of sentence or reduce the level of moral culpability[2]. In this case, I do not regard the moral culpability or need for general deterrence as significantly reduced only by reason of your having acted in some sort of drug-induced state.
[2]R v Sebalj [2006] VSCA 106 per Vincent JA with whom Maxwell P agreed; R v Piket [2006] VSC 238.
However, there is a further factor which is very relevant here, particularly to the issue of general deterrence, and that is your age. It is well-established that, in sentencing youthful offenders, the following general principles are relevant[3]:
[3]R v Mills [1998] 4 VR 235; see also R v Jones [2000] VSCA 204 and R v Connolly [2004] VSCA 24.
(1) The youth of an offender, particularly a first offender such as you, should be a primary consideration for a sentencing court where the matter properly arises;
(2) In the case of such an offender, rehabilitation is usually far more important than general deterrence. Rehabilitation benefits the community as well as the offender;
(3) A youthful offender should not be sent to an adult prison if such a disposition can be avoided, especially if he is beginning to appreciate the effect of the past criminality.
You are now 22 years old. You were 21 at the time of offending. There is no dispute that it is appropriate to treat you as “youthful” in terms of those principles, although how far they apply must vary from case to case.
The evidence before me supports a finding that you have greatly matured since the events in question and are and will continue to be a hard-working, contributing member of the community. No long term harm has been caused by your actions and the principal victim is fully supportive of you. You are remorseful, have co-operated with the police and pleaded guilty at the earliest opportunity. I am satisfied that there is little risk of you repeating your stupid and dangerous youthful drug-taking. In my opinion, the interests of the community will not be served by your being sent to an adult prison, even for a short time.
An element of mercy has always been regarded, and properly regarded, as running hand in hand with the sentencing discretion. A sentence may be both just and merciful. In this context, mercy must be moved not merely by sympathy, but by considerations supported by the evidence after careful consideration. In the circumstances of this case, were it otherwise thought appropriate to sentence you to immediate imprisonment in respect of any of the charges, I would be moved to exercise mercy and not to impose a custodial sentence.
I think you deserve to be given a chance. I will not send you to jail. Do not let the court or yourself down, Mr Lidonnici.
In respect of the first three counts, namely possession of MDMA, ketamine and methylamphetamine, I propose to order you to pay a fine of $500 on each count. In respect of count 4, possession of cannabis, I propose to order you to pay a fine of $100.
In respect of the remaining offences, I propose to sentence you to a community-based order for a period totalling 2 years. In particular, I propose to require you to perform 200 hours of unpaid community work on weekends. Whilst that may well cause inconvenience to you, given your work and study commitments, I agree with the Crown that there needs to be some element of punishment in your sentence for these offences.
It is necessary for a pre-sentence report to be provided to the court, in order to determine what specific conditions are appropriate for the community-based order. Accordingly, I will not formally pronounce sentence upon you until I have received such a report and heard any further submissions from counsel.
---
5
0