R v Mangino
[2019] VCC 532
•12 April 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
CR 18-02547
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JADE MANGINO |
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| JUDGE: | HIS HONOUR JUDGE MURPHY |
| WHERE HELD: | Bendigo |
| DATE OF HEARING: | 8 April 2019 (Plea) |
| DATE OF SENTENCE: | 12 April 2019 |
| CASE MAY BE CITED AS: | R v Mangino |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 532 |
REASONS FOR SENTENCE
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CRIMINAL LAW – SENTENCE – Plea – Aggravated burglary – Recklessly cause injury – Five charges of theft – Burglary – Two charges of intentionally damage property – Serious offending – Youthful offender – Relevant prior convictions – Some evidence of remorse – Deprive upbringing – Bugmy considerations – History of alcohol abuse – Issues of totality and delay – Effect of institutionalisation – Recidivist offence – Specific deterrence – General deterrence – Denunciation – R v Verdins (2007) 16 VR 269 distinguished – Bugmy v The Queen (2013) 249 CLR 571 – R v Horst Hans Friedeman [1998] VSCA 9 – Morgan v The Queen [2013] VSCA 33 applied.
CRIMINAL LAW – SENTENCE – Current sentencing practices – DPP v Harwood [2018] VCC 312 – DPP v Hunia [2017] VCC 1452 – DPP v Roberts [2017] VCC 1252 – Crimes Act 1958 – Sentencing Act 1991 – Total Effective Sentence (State) 4 years with a 2 year Non-Parole Period – Compensation Order – Forensic Sample.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D. Cordy | Office of Public Prosecutions |
| For the Accused | Mr G. Bucchorn | Slink & Keating |
HIS HONOUR:
1Jade Mangino, you have pleaded guilty to one count of aggravated burglary, one count of recklessly causing injury, five counts of theft, one count of burglary, and two counts of intentionally damaging property. The relevant maximum penalties are set out in the prosecution opening which I incorporate by reference.
Circumstances of the offences
2The circumstances of the offences were set out in the prosecution opening which was read in open court on the plea.[1] The offending involved two separate incidents on the night of 23 April 2016. In brief outline, the offending occurred at around 1:45 am at a residential premises in Echuca.
[1] Exhibit A.
3The complainant's were a married couple in their early 60s. They owned a Mercedes vehicle which was parked in their garage. On 23 April, in the early hours of the morning, you attended at the rear of the property and entered the garage and searched the vehicle, looking for the keys. You took a Stanley knife from the bench nearby and then went to the rear of the house.
4At the time Mr Yates was seated in the lounge room while his wife was asleep in bed. Through a closed sliding door, you sought to use the toilet which he declined. Mr Yates, believing the rear door to be locked turned away to get his phone to contact the police. He heard the sliding door open and when he turned around you had entered the room and had a Stanley knife in your raised right hand. He recognised it as one from his toolbox.
5While holding the knife in a threatening manner, you made a demand for the keys to the vehicle. He told you to wait in the lounge room and he would get the keys, which were in the bedroom. He kept asking you to remain where you were as he wanted to protect his wife who was asleep in the bedroom. As he moved down the hallway you followed him and became extremely agitated, swearing and continually demanding the keys.
6As he reach the doorway of the bedroom, he stopped and turned towards you. You struck out at him with the knife and dragged it down across his chest, cutting his singlet and causing a superficial cut to his chest. He was resisting you in an order to protect his wife. He told you he would not get the car keys unless you went back into the lounge room. At this point, you struck out again with the knife and slashed out at the right side of his neck, causing injury. You kept asking him for the keys. You then began grabbing framed pictures from the hallway walls and smashing them on the floor and one of which landed on his left foot, causing a large laceration.
7The entry into the house is the offence of aggravated burglary, where you had the intention to steal and were carrying an offensive weapon, Count 1. The offence of recklessly causing injury is Count 2, constituted by the injuries to Mr Yates including to his foot.
8At this stage, the victim's wife came into the hallway and started yelling at you. You then left the scene but as you did so you took a laptop owned by Mr Yates from the lounge room. You subsequently disposed of it under a bush nearby. This is count 3.
9As a result of your offending, the victim was transported to the local hospital, suffering from an abrasions to his head, to the left side of his neck, chest and right hand as well as to his right arm, chest, and foot. He was subsequently transferred to Melbourne to undergo plastic surgery in relation to the injuries to the tendons and nerves in his foot as well as the laceration on his right hand.
10The second incident that relates to the balance of the charges commenced around 3:45 am that morning at a local spray painting business. You entered the office area of the premises by breaking a toilet window and took two sets of keys into the yard where the cars were stored. You used the keys to drive a Camry vehicle through the front cyclone gates, forcing them open. This constitutes the offences of burglary, Charge 4, and theft of the vehicle, Charge 5, and damaging property, being the Camry, Charge 6, and also the cyclone fence, being Charge 7
11You then removed New South Wales number plates from a BMW vehicle stored in the yard and placed them on a Holden Commodore vehicle also in the yard. It belonged to the local Mazda dealership. These events constitute theft of the number plates, Charge 8, and theft of the Commodore, Charge 9. You drove that vehicle to a local service station, filled it with petrol and left without paying. This offending constitutes Charge 10 of theft.
The events thereafter
12You were arrested in Queensland on 15 May 2016. While in custody, you were interviewed by Victorian detectives on 24 August 2016, when you made admissions as to your offending. You remained in Queensland custody until 13 July 2018 when you were extradited to Victoria. You were charged on 2 October 2018 and entered a plea of guilty to the charges on 12 December 2018 at the Magistrates' Court.
Assessing the seriousness of the offences.
13The offence of aggravated burglary is inherently a serious offence, particularly having regard to its 25 year maximum penalty. As submitted by the learned Crown prosecutor, this was a serious example. The offending occurred in the early hours of the morning, in residential premises, the victims were in their 60s, and you were armed with a nasty weapon.
14When the male complainant would not comply with your demand for the keys, you behaved in a threatening and agitated manner. You then attacked him using your weapon. Although the injuries inflicted were relatively serious, as submitted by the learned Crown prosecutor, the injuries could have been much worse and you could have been facing a much more serious charge.
15Although no victim impact statements have been filed by the complainants, as submitted by the learned Crown prosecutor, this offending was serious and must have been the worst nightmare of the property owners. It occurred in the middle of the night when they were at home and you were uninvited, came uninvited into their house and proceeded to assault Mr Yates. You are wearing a hoodie at the time and, according to the Mr Yates, smelled of alcohol.
16The one matter slightly lessening your culpability is that in relation to the possession of the offensive weapon at the time of the burglary, this was opportunistic, notwithstanding that you had intentionally entered the property in order to steal a vehicle if you could obtain the keys.
17In relation to the counts in the second incident, this was a determined course of conduct to break into a commercial property in order to steal a vehicle, which itself necessitated damage to another vehicle and the property itself. Then there was the affixing of false number plates to the stolen vehicle, and then the theft of the petrol. You admitted that you may have sought to conceal your face when you were stealing the petrol. Overall, this second incident was a serious spate of property related offending.
Explanation for the offending.
18The explanation you provided for this offending in the record of interview was that you had been drinking extensively that day and felt like going for a drive. You explained that driving "clears my head". You told a psychologist that you often clear your mind by stealing cars and driving. This is confirmed by your criminal record, to which I now turn.
Prior convictions.
19These are relevant to your culpability for this offending, as you have prior convictions in Queensland and South Australia.
20You were born on 2 April 1995. You are now aged just 24. Your criminal record commences when you were aged 18 and a half, where in a Queensland Magistrates' Court, on 6 November 2012, when you were placed on probation for three charges of unlawful use of a motor vehicle, one charge of entering premises and committing an indictable offence by breaking, and one charge of burglary and committing an indictable offence. On all charges, you were placed on probation without conviction and ordered to undertake community service. Later, on 6 February 2014, you breach the probation. The orders were revoked and you were sentenced to three months' imprisonment.
21Your next appearance in the chronology of your offending was on 27 November 2013 when, on offences of possessing explosives, possessing tainted property, three counts, stealing, two counts of unlawful use of a vehicle and one count of possession of a weapon in public, you were sentenced to a number of terms of imprisonment, including a 12-month term for the firearms offence. Your counsel stated that upon your release, you then sought to move from Queensland and were on your way to Western Australia.
22Your next appearance was on 1 October 2015 in the District Court in South Australia when, on charges of driving dangerously to escape police, two charges, driving a vehicle without consent, taking property without consent and driving under disqualification, you were sentenced to 18 months' and two weeks' imprisonment, with a non-parole period of eight months and one week. The sentence was suspended for two years. You may still have outstanding parole owed to the South Australian authorities.
23On 3 December 2015, you were back in Queensland and before the Queensland Magistrates' Court again where, on charges of breach of bail, dangerous operation of a vehicle, wilful damage, assaulting police (two charges), unlawful use of a vehicle (four charges), failing to appear on bail, and wilful damage, you were sentenced to an effective term of 14 months' imprisonment. You were also sentenced on one of the counts to two months' imprisonment suspended for a period of two years.
24Your prior convictions make it clear that at the date of this offending you had a significant criminal record that included convictions for theft, unlawful use of vehicles, assault, burglary, and breach of bail.
Your record of imprisonment.
25It is appropriate to provide here a brief chronology that indicates your recent history in relation to imprisonment. It appears that you celebrated your 19th birthday in prison after breaching the probation order that I referred to.
26On 9 October 2015, you were arrested in South Australia and then dealt with on the first of October 2015, where you were sentenced to a minimum term of eight months' and one weeks' imprisonment. You were released on parole from South Australia on 14 February 2016. Just over two months later on 23 April 2016 this offending occurred.
27As I have indicated, on 15 May, you were arrested in Queensland. At that point, you had been in the community for three months. After your arrest on 15 May 2016, you served two years' and two months' imprisonment before extradition to Victoria in July 2018. You had been unsuccessful in seeking an earlier transfer.
28About ten months of the period of imprisonment in Queensland before transfer was attributable to your earlier parole sentence and at least 13 months to other offending. The pre-sentence detention for this offending is approximately nine months.
29As an overview, in the period since November 2013, when you were aged 18 and a half, to date, you have been in custody for that entire period, save for a period of ten months. I will return to that in a moment.
Matters in mitigation.
30In a comprehensive plea that elaborated on two written submissions that are on file[2], your counsel put a number of matters in mitigation. First, he emphasised your relative youth. You are being sentenced as a 24-year-old. When the offending occurred you were just over 21. You, thus, must be sentenced as a young offender. This applies, notwithstanding the seriousness of the offending. To the greatest extent, the court must emphasise your rehabilitation.
[2] Exhibit 1.
31Next, he referred to your pleas of guilty. You are entitled to full benefit of the pleas. They were entered at the earliest opportunity. They have obviated the need for a committal and trial and spared the complainants further involvement in the criminal justice system. They illustrate that you are taking responsibility for your conduct. The pleas are also some evidence of remorse and there are expressions of remorse in the report of Dr Cunningham. You are entitled to the full benefit of that.
Your personal background.
32Your personal background was elaborated on the plea. You come from Queensland and have an older brother, two younger brothers and two younger sisters. You are estranged from your family. You have little contact with your siblings or stepsiblings and have had no contact with your father for 15 years. You were brought up by your mother and your mother abused drugs. You had several violent stepfathers.
33According to Dr Cunningham, you lacked safety, emotional security, structure and routine in the family home. You left the family home when aged 14. You had been to 4 primary schools and two high schools in Queensland. You did not attend school regularly and left during Year 8. Your main employment has been a period of about two years when you worked on a cattle station, commencing at about 2011. You have been unemployed since 2012.
34So you have no contact with your family members; you really are alone in the world. You did try to reengage with your mother in about 2016 but that went nowhere. So, as I have said, you really are alone in the world, with the only significant person in your life, a young woman in Echuca, who you were visiting at the time of this offending when you first arrived in Victoria.
35The main focus of the plea was that your mother introduced you to alcohol when you were aged 12, and by 16 you were drinking a few cartons of alcohol a day. Use of alcohol was the underlying cause of the offending. Since you arrived in Victoria on remand, you have sought to engage in counselling for this problem.
Prospects of rehabilitation.
36You counsel emphasised that I must take into account your prospects of rehabilitation. Given your prior convictions and the period that you have been imprisoned within the last five years, on this basis alone, your prospects of rehabilitation appear little more than bleak.
37As you are a youthful offender at this point, you are not beyond rehabilitation but your prospects are, as submitted by the learned prosecutor, fast diminishing. Two medical reports before the court show what a challenge your rehabilitation into a law-abiding member of the community will be.
38Dr Cunningham recommends a number of therapeutic interventions to address your offending behaviour.[3] You would benefit from psychological intervention, drug and alcohol counselling, stable accommodation and reengagement with the workforce. Dr Yamin, a neuropsychologist, recommends engagement with intensive drug and alcohol rehabilitation services. He also notes you would benefit from engagement with a clinical psychologist. It is obviously in the community interest that in the light of your dysfunctional upbringing, the sentence of the court seeks to advance your prospects of rehabilitation along with other sentencing ends.[4]
[3] Exhibit 2.
[4] Exhibit 3.
Other plea submissions.
39On the plea, your counsel sought to invoke considerations of Verdins[5] in relation to your moral culpability. Counsel referred to your traumatic childhood and early exposure to alcohol, and this led to alcohol addiction and you were intoxicated at the time of the offending. While counsel conceded legal authority that the courts are reluctant to consider alcohol addiction in reducing moral culpability, he submitted that the wider circumstances that led to the addiction may be taken into account in appropriate case.
[5]R v Verdins (2007) 16 VR 269
40Further, relying on the case of Bugmy[6], a deprived background may have compromised a person's capacity to mature and learn from experience, and that was held to be relevant in the determination of sentence, notwithstanding a history of offending.
[6]Bugmy v The Queen (2013) 249 CLR 571
41In relation to the issue of Verdins, it is difficult on the material to find a serious mental or psychiatric condition that gives rise here to a reduction in your moral culpability for this offending.
42You conceded to Dr Cunningham that you were intoxicated throughout the offences and that your behaviour had been worsening when intoxicated over the last few years. He opines that your behaviour occurred in the context of your alcohol abuse. It aggravated your tendencies towards reckless, impulsive, and self-destructive behaviour. I do not accept that this provides a basis under the principles of Verdins to reduce your moral culpability. It provides an explanation for your offending but does not reduce your moral culpability.
43Also relevant is the assessment by the clinical neuropsychologist, that while your overall functioning is in the low-average range, your cognition is fundamentally intact, and you would not qualify for assistance from disability services.
44While the opinion was that you met the criteria for a major depressive disorder of mild severity, I am not satisfied that this meets the criteria for a reduction in moral culpability under Verdins. Your explanation for the offending was that stealing cars and driving clears your head. As the learned Crown prosecutor submitted, this is not a Verdins argument. Your repeated offending indicates that you understand the effects of drinking on your behaviour.
45In relation to reliance on the case of Bugmy, your deprived upbringing is a matter that cannot be ignored and is to be taken into account in a general way. Your counsel sought the exercise of leniency and, to some extent, mercy on your behalf. Consistent with overall sentencing principles, I will extend some leniency on the basis of your deprived upbringing.
46Your counsel emphasised the issue of totality and delay. Both are relevant. Had these matters been dealt with at a single hearing upon your arrest in Queensland in May 2016, then considerations of totality would have meant that significant concurrency would have been ordered on the sentences for this offending, and the sentence that you were then required to serve on the previous parole sentence in Queensland and the sentences for your other offending in Queensland.
47Allied to this is the issue of institutionalisation. A significant further sentence to be served will mean that at the end of this sentence you will face a significant risk of being institutionalised due to the substantial periods that you have served during your formative years. Such an outcome is not in the long-term interests of the community.
48Weighed against those considerations are the usual sentencing considerations of general deterrence, specific deterrence, protection of the community and rehabilitation. Given your prior dispositions and repeat offending, specific deterrence is a consideration. General deterrence and denunciation are also significant considerations. Protection of the community is also a consideration particularly as you continue to reoffend after release from period of imprisonment.
49The learned prosecutor referred to the court to the cases of Harwood[7], Hunia[8] and Roberts[9], where judges of this court have dealt with youthful offenders who had committed aggravated burglary offences. I have had some regard to those cases as yard sticks or providing some evidence of current sentencing practices.
[7]DPP v Harwood [2018] VCC 312
[8]DPP v Hunia [2017] VCC 1452
[9]DPP v Roberts [2017] VCC 1252
50Of assistance and relevant in this case is the case of Harwood, where a youthful offending with a very deprived background, not unlike yours, was given a much longer than usual period of parole eligibility in order to allow the best opportunity for supervision, structure and therapy in his life in order to break the cycle of drug abuse and offending. There are significant parallels here.
51Here, the sentence of the court must denounce your conduct and send a signal to both you and the community that it is utterly unacceptable to break into residential premises armed and demanding a vehicle. Similarly, it is unacceptable to break into commercial premises for the purposes of stealing a vehicle and driving it to clear your mind.
52Against this, the community has an interest in giving you the opportunity to become a law-abiding member. It is also in the community's interest to avoid you, as a young man, becoming institutionalised by long periods of imprisonment. In this context, considerations of totality and cases such as Friedmann[10] and Morgan[11] do require that I have regard to the sentences that you have undergone in Queensland, when due to our federal system, you could not be dealt with for this offending at the same time in May 2016.
[10]The Queen v Horst Hans Friedeman [1998] VSCA 9
[11]Morgan v R [2013] VSCA 33
53Having regard to the delay of issues of totality, I have moderated both the head sentences and the non-parole period to take into account this lost opportunity. I have also specified a lengthy period during which you will be eligible for parole so that with appropriate supervision and structure, some of the longstanding issues arising from your difficult upbringing can be addressed.
Sentence
54On the charge of aggravated burglary, you are sentenced to three years' imprisonment that is the base sentence. On the charge of recklessly causing injury, you are sentenced to 18 months' imprisonment. On Charge 3, the theft of the laptop, one months' imprisonment. Charge 4, burglary, six months' imprisonment. On Charge 5, theft of the Camry, three months' imprisonment.
55On Charge 6, criminal damage to the Camry, six months' imprisonment. On Charge 7, criminal damage to the fence, one months' imprisonment. On Charge 8, theft of the number plates, 14 days' imprisonment. On Charge 9, theft of the Commodore, three months' imprisonment. On Charge 10, the theft of the petrol, seven days' imprisonment.
56I order the following cumulation on the base sentence and cumulation on each other, six months of the sentence on Charge 2, recklessly causing injury, two months of the sentence on Charge 4, burglary, one month of Charge 5, theft of the Camry, two months of Charge 6, criminal damage to the car, and one month of the theft of the car, Charge 9, served cumulatively on the base sentence and on each other, making a total effective sentence of four years imprisonment.
57I order that you serve a period of two years imprisonment before being eligible for parole.
58HIS HONOUR: I declare pre-sentence detention of 274 days. Pursuant to s.6AAA of the Sentencing Act, if you had not pleaded guilty, I would have imposed a total effective sentence of five years and six months, with a non-parole period of three years and nine months. On Charges 5 and 9, theft of the vehicles, all licences you hold are cancelled and you are disqualified from driving for a period of three years.
59The prosecution sought a compensation order for the damage to the cyclone fence. I will make that order of $300 to Echuca Spray Painting. They have also sought a compensation order for the cost of the petrol to, United Echuca East, of $65, I make that order.
60The prosecution have sought that you provide a forensic sample, being a mouth swab.[12] Having regard to the seriousness of the offending, I order that you do that. I must advise you that the authorities have the right to use reasonable force to obtain that sample. Any matters I have not addressed, Mr Cordy?
[12] Pursuant to Crimes Act 1958 s464ZF
61MR CORDY: No, Your Honour, that is all.
62HIS HONOUR: Yes. All right, I want to thank you for your assistance, Mr Bucchorn, and Mr Cordy, in this matter, and the circuit.
63MR CORDY: Thank you, Your Honour.
64HIS HONOUR: And your instructing solicitors. I think you've had a couple of them. We've done a fair bit of business. Also the other legal practitioners, apart from you, Mr Bucchorn. I want to thank the security officers too, you can pass it through to the officer in charge, there has been no delays, and also the Registrar of the Court. It is my first circuit in the beautiful City of Bendigo. We will adjourn sine die.
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