R v Pellegrino

[2023] NSWDC 85

District Court

New South Wales

Medium Neutral Citation:

R v PELLEGRINO [2023] NSWDC 85

Hearing dates:

6 April 2023

Decision date:

06 April 2023

Jurisdiction:

Criminal

Before:

NOMAN SC DCJ

Decision:

Convicted of both offences; For the offence of possess prohibited drug: s10A; For the offence of wound with intent: Sentenced to a term of imprisonment of 6 years with a non-parole period of 3 years to date from 1 July 2022. Eligibility for release to parole arises on 30 June 2025.

Catchwords:

SENTENCING — Penalties — Imprisonment - Violent offences — Wound with intent to cause grievous bodily harm – possess prohibited drug.

Legislation Cited:

Crimes Act (NSW) 1900

Drug Misuse and Trafficking Act (NSW) 1985

Evidence Act (NSW) 1995

Category:

Sentence

Parties:

R;
Sebastian PELLEGRINO

Representation:

Counsel:
Crown: Ms I Maxwell-Williams
Defence: Mr T Hughes

Solicitors:
Crown: Mr H Woods
Defence: Mr A Sahinovic

File Number(s):

2021/58053

JUDGMENT

1. Sebastian Pellegrino, the offender, appears for sentence after a jury found him guilty of an offence of wounding with intent to cause grievous bodily harm contrary to s.33(1)(a) Crimes Act. This offence provides a maximum penalty of 25 years imprisonment and there is a standard non-parole period of 7 years.

2. Both the maximum penalty and the standard non-parole period operate as legislative guideposts and represent the legislature’s assessment of the seriousness of the offence.

3. The offender was arraigned before a jury on 6 October 2022. Verdict was returned on 24 October 2022.

4. There is a further related offence before the court on a s.166 certificate. At the time police searched the offender’s home on 18 February 2021 they located a bag containing 7.8g of ketamine, a prohibited drug. This supports the charge of possess a prohibited drug contrary to s.10(1) Drug Misuse and Trafficking Act. The maximum penalty provided is 2 years imprisonment. The offender accepts his guilt on this count. He told police he purchased the ketamine for about $1000.

5. As this is a sentence after trial for the principal offence, I am required to determine the facts. I acknowledge the different onus that applies to aggravating or mitigating factors.

6. I am choosing not to name the victim or his flatmates. It is not necessary.

7. The issue in the trial was identification. As this was the issue there was limited challenge to circumstances of the offence. There were agreed facts. This approach of limiting the issues and the manner of placing evidence before the jury was of utilitarian value and will serve to ameliorate sentence. There was challenge to aspects of why the offender had previously been in the apartment. It was not in issue that the victim had met the offender prior to the offence on two occasions in the victim’s home.

8. The offender attended the apartment from December 2020 to purchase cannabis from one of the victim’s flatmates. He attended on occasions additional to the two that he encountered the victim. At trial there was a challenge to the amount of cannabis purchased. The flatmate indicated it was for 4 pounds on each occasion at a value of $14,000. He said that the night before the offence the offender had attended to return 2 pounds and he received $7,000 refund. This amount was located in the apartment when the police searched. The flatmate said he conducted this exchange in his bedroom. He said the following day he could not locate his house keys. It was the Crown case that the offender took the keys to secure entry. The offender denied this in his evidence.

9. Another flatmate said the offender asked questions about their work rosters which would indicate they were not home during the afternoon. The offender denied he asked these questions.

10. The offender gave evidence that he purchased small amounts of cannabis, all under an ounce. He said he was prepared to travel as far as he did for the small quantities he purchased based on quality and price.

11. I accept that neither flatmate initially disclosed their involvement in supplying drugs. Both were prepared to give this evidence once they received the protection of a s.128 Evidence Act certificate. They both initially denied to police in statements that they supplied drugs. Both were dealt with in the Local Court with respect to drugs located in the apartment. Neither was charged with the 2 pounds of cannabis based on issues with possession. Despite this impact to their credibility, I considered both witnesses to be endeavouring in their evidence to give truthful evidence. Both presented favourably.

12. Although not necessarily required, I do accept the evidence that the offender was involved in the large scale purchasing of drugs and that he did return 2 pounds the night before and receive $7000. This involvement provided the basis for his knowledge of the likely quantity of drugs or money he could hope to steal.

13. I am satisfied beyond reasonable that the offender did take the house keys and that he did make inquiries about work schedules. This denotes planning. He was aware of money and drugs in the apartment. I am satisfied the planning was to steal. Although he was armed, I do not determine he planned to assault anyone and that his expectation was that the apartment would be empty. For this reason he did not need to hide his identity. The weapons included an extendable baton and a knife. Each is capable of inflicting injury. The weapons reflect precaution in the event he did encounter resistance. Although he may have contemplated encountering someone and some resistance he did not plan to attack anyone. Although he was armed for this limited purpose, I am still required to take into account that he was armed and the nature of the weapons.

14. He caught an Uber and was deposited outside the apartment. He entered the apartment and encountered the victim. The victim was on holidays from work and was reading on his bed. He left his bedroom when he heard the front door open. He recognised the offender.

15. The offender commenced assaulting the victim. He could have withdrawn when he discovered someone was home. He approached the victim rather than retreat and he sought money. He used the extendable baton initially and then a knife. He first used the knife when placed in a headlock. He stabbed the victim in this position. His reason for resorting to the knife may have been only to extricate himself. He did not give this evidence. Whatever the reason it is accepted by virtue of the verdict it was done with the specific intent to cause grievous bodily harm. He stabbed the victim a number of times to the abdomen and to the arms. The victim only realised he had been stabbed when he commenced to bleed. The victim sustained serious wounds requiring an initial surgery and two follow up surgeries. There were agreed facts detailing the injuries and treatment. They were classed as life threatening and he remained in ICU without visitors and then hospital for a week. There is also a psychological impact from the event. I take into account that both weapons were used, with the knife being used more than once and causing more than one significant injury. The victim was considerably shorter than the offender. Both the victim and the offender were fit. The struggle was not overly long, with the offender being in the apartment for no more than about 3 minutes. The offence provision includes the intent to cause grievous bodily harm. Even after the infliction of knife wounds the offender still demanded money. He persisted with his initial intent despite the unexpected encountering of the victim and despite the struggle and use of weapons. Whilst acknowledging the perseverance I do not lose sight that it was a perseverance of intensity but brevity.

16. The offender fled from the apartment. He ordered an Uber from up the street and was picked up near that location. This presents as about 100m or so from the apartment.

17. He left the victim injured and bleeding. Although he exacted serious harm in a short period of time whilst armed with two weapons, I determine the use of violence was not planned but reactionary. The use of weapons is an aggravating factor. I have taken into account the nature of each weapon.

18. The victim commenced to seek assistance from other residents in the building. He was bleeding profusely.

19. The offender caught an Uber to near his home and ended up an hour later at a supermarket near his home. That he could attend a shop and present as performing normal functions so soon after this confrontation and his action is somewhat unusual.

20. During the trial there was evidence of the offender’s financial position. He was gambling online. He was not consistently successful. He claimed he had other resources and did not need money. I am satisfied beyond reasonable doubt that he committed the offence for money. He lived at home with his family and was not destitute. Any need for money was not out of necessity.

21. The offending occurred within the victim’s home. It was a place where he should have enjoyed an expectation of safety. He was not targeted but had the misfortune to be at home.

22. The Crown submitted the offending fell above the mid-range for specified reasons including the conduct and the extent of the injuries.

23. It was submitted on behalf of the offender that the offending fell at or just below the mid-range.

24. I consider that this offence falls modestly above the mid-range of objective seriousness.

25. The offender is aged 21. He was 19 at the time of offending. His age means his brain is not fully developed. Rehabilitation has a more significant role to play given his young age both at the time of offending and sentence. This will ameliorate sentence. Although young, the offence does not reflect immaturity. I accept the offending reflects extremely poor judgement. Given a number of possible mental health issues it is uncertain that any informs this lapse of judgement.

26. He is a person of previous good character. This entitles him to leniency. He had the fortune to come from a stable background and supportive family. He left school in year 11 to further vocational training. He has been in employment. His mother has communicated with the court. As she states in her correspondence, she attended the trial to support the offender. She has always provided support and indicates she and her family continue of offer support to the offender. This provides the offender with stability and emotional support together with the comfort that he has accommodation upon release. He also has an offer of employment to work for his brother.

27. I was satisfied that he was involved in large scale drug purchases which equates with him being involved in supplying drugs. This would be for profit. This reflects that by the end of 2020 and early 2021 he was acting out of character. However, it sits well with a need for money. He was also a user of drugs, including on his statements in reports to both cannabis and ketamine. He has dabbled with other drugs. Although not led in the trial, there was evidence that ketamine was located in his home. This is the matter on the s.166 certificate.

28. His preparedness to plan to commit a theft from a private home, and to take weapons reflects that he acted out of character. It was for money. His preparedness to do so is of considerable concern. This informs an assessment of his risk of reoffending, rehabilitation prospects and personal deterrence. I am satisfied that his arrest, the court process and his detention will act as a salutary lesson.

29. The offender’s mother wrote of the shame and humiliation experienced by the offender after his image was shown on TV to identify him. This resulted in the loss of friends. The shame and humiliation were evidently from the process of a public accusation. He denied and continues to deny his involvement so there is no component of shame or humiliation for his conduct. He became less disposed to leave the home whilst on bail, even as permitted under restrictive bail. He effectively chose a reclusive life and embarked upon a commitment to share trading. It does however reconcile with some personality traits noted in reports.

30. Consistent with the plea of not guilty there is no expressed remorse. His maintenance of innocence has been conveyed to report authors. He indicated he considered himself to be the victim.

31. The offender was self-employed as a self-taught day trader at the time of offending and whilst on bail. He intends to return to this work upon release. It is stated he enjoys being self- employed. His conviction and sentence would not prevent this employment.

32. I am assisted by a sentencing assessment report. The offender is assessed therein as falling in the low risk of reoffending.

33. The offender also relies upon both a psychological report of Alison Cullen and a psychiatric report of Dr Allnutt.

34. As the offender maintains a denial of the offending there is no explanation advanced for the occurrence. He told Dr Allnutt he did not recall if he used substances on the day. Dr Allnutt opined as a possibility he was intoxicated at the time to explain the absence of recall. I note there is no evidence of intoxication and he acted with some precision not consistent with intoxication from any substance - planning events the previous night, booking the Uber, arriving with weapons, assaulting the victim, leaving and organising an Uber around the corner.

35. Ms Cullen assessed the offender on 24 November 2022, soon after re-entering custody. The offender described his background. He said there was childhood violence although he provided no details as to the perpetrator or timing. His mother said he had recently told her the perpetrator was her husband although she challenged the opportunity for its occurrence. He declined to discuss it with Dr Allnutt. He advanced he had an alright relationship with his parents but a better one with his brother. He described personal relationships that were problematic. He is described as socially isolated. His study and work history reflects a good work ethic whilst demonstrating a level of dissatisfaction. It is suggested he is better suited to self-employment or autonomous employment. He secured employment in custody. He worked when initially on remand and since returning to custody and the reports are favourable. The particular work in the hygiene area demonstrates a preparedness to work in a sometimes unpleasant job and to work co-operatively with others. Whilst trial was pending, he sought to engage in courses to aid rehabilitation. Although denying his offending such courses could prove beneficial.

36. The offender documented his drug and alcohol use both of which commenced at 18. He used various substances to inhibit his thoughts. He claimed to have stopped drug use after his arrest. He succumbed to gambling behaviours also from the age of 18. It is stated he thrived on the thrill of it. I observe his drug and gambling exploits align with his current interest in day trading, a form of informed financial gambling. His mother confirmed his excessive betting and losses in the days prior to the offending. The offender told Dr Allnutt there had not been gambling losses leading up to the day.

37. It is stated he exhibited extremely severe levels of depression and severe levels of anxiety and stress. This testing was conducted after verdict whilst sentence was pending and upon re-entering custody. The offender provided a history, including to Dr Allnutt, of depression and anxiety commencing in high school. It is stated he presented with grandiosity, hostility and suspiciousness and that he portrayed himself in a consistently negative or pathological manner. A number of possible diagnoses were considered. A possible current psychotic episode was considered with a background of alleged hearing of voices.

38. The offender described a number of problematic personality traits, and it was opined he was likely to be emotionally labile with episodes of poorly controlled anger and quite impulsive. A number of anti-social character features were suggested with other concerns that increased the potential for violence.

39. It was opined he could fall on the autism spectrum; with an opinion offered this diagnosis may additionally apply to the offender’s mother. There was a suggestion of bipolar. ADHD was excluded. Given the variety of different possible diagnoses a recommendation for further exploration was recommended.

40. Given the denial, Dr Allnutt did not propose any connection with offending and thought processes or motivations beyond a contemplated hypothetical. It is stated ASD is associated with poor social judgement. This offence is not an example of poor social judgement.

41. Dr Allnutt opined the mental health problems are likely to make custody more onerous. I accept the oddities and the desire of isolation and solitariness which may or may not be associated with mental health manifestations are likely to make custody more onerous and this will support a variation to the ratio.

42. The offender was found by the psychologist to fall in the low-moderate risk for recidivism.

43. Dr Allnutt assessed the offender on 18 January 2023 and had the benefit of Ms Cullen’s report. The offender provided a repetition of some background features. Dr Allnutt noted the history of depression and anxiety consistent with a persistent depressive disorder existed and unusual perceptive experiences. He opined the capacity of insight and judgement was adequate. Additionally, it was noted that “whether or not his social difficulties relate to an underlying personality problem, personality traits or autism spectrum disorder is a difficult determination to make. A differential diagnosis would include a schizoid personality”.

44. I observe that soon after entering custody after verdict a psychological referral was noted. This referral contains a comment that the offender was placed on a waiting list for mental health impairments. It is stated this was based on information available without disclosing the information.

45. There is nothing that serves to reduce his moral culpability. I do not accept the submission that his youth lessens his moral culpability. I do not consider his regular drug use, which is reflected in a diagnosis of substance abuse disorder, informs his conduct. He was not in the ravages of addiction. He was a regular user of cannabis and ketamine. He was actively employed and maintaining being domiciled with his family. He needed money and chose what he perceived as an option.

46. I determine he falls in the low-moderate risk of reoffending given that little is explained about his descent into violent crime so readily merely to obtain money. He acted significantly out of character and the offending is not ameliorated by any mental health issue. He is likely narcissistic and a loner. This limits the ability for societal influence upon his conduct. His parental support was existent at the time of offending and did not prevent offending. I determine his prospects of rehabilitation to be reasonable.

47. One of the purposes of sentence is to recognise the harm done to the victim of the crime and the community. This was an extreme and senseless offence with significant physical injuries well supporting grievous bodily harm. General deterrence and denunciation are important sentencing considerations in senseless acts of violence. Although noting the finding on risk of reoffending, personal deterrence continues to play a role albeit more confined.

48. I am assisted by a victim impact statement. The content is an opportunity to address the offender with the harm occasioned by his conduct. It also is to assist the court. The victim has detailed the period of rehabilitation from his significant injuries and the impact his injuries imposed upon him both financially, emotionally, and socially. The ongoing psychological harm is well understood. This offence must have been confronting and aroused fear. That he remains concerned about safety even at home is well understood given that he was blameless and savagely attacked in his own home during the day. The immediate and ongoing harm is acknowledged and formally recognised by the court.

1. The s.5 threshold is undoubtedly passed for the principal offence. Having considered all the possible alternatives, I am satisfied no penalty other than full-time imprisonment is appropriate. This is conceded on behalf of the offender. As previously stated, I take into account the sensible concessions made during the trial which resulted in a utilitarian benefit in saving time and inconvenience to witnesses.

2. Counsel for the offender provided four authorities as comparable cases. The limitations of these cases were acknowledged. There are similarities as there are dissimilarities. They provide some limited guidance.

3. The offender spent a period between 1 March 2021 to 23 June 2021 on remand. He then entered custody after verdict on 24 October 2022. Sentence will be backdated to reflect this period and will commence on 1 July 2022.

4. I propose to reflect the conditions on bail to modify the statutory ratio. I do not use it as quasi-custody to apportion a reduction to sentence.

5. I make a finding of special circumstances informed by the conditions on bail including home detention, onerous impact of custody, the first custodial sentence, youth and given the uncertainty about offence motivators and to assist reintegration, the need to provide for an additional period of supervision upon release. I also take into account the more restrictive conditions in custody due to COVID. This includes the degree of movement and also the limited access to programs and visits.

6. Convicted on both offences.

7. For the offence of possess prohibited drug: s.10A.

8. For the offence of wound with intent: I impose a sentence of a term of imprisonment of 6 years with a non-parole period of 3 years to date from 1 July 2022. Eligibility for release to parole arises on 30 June 2025. This is a variation of the statutory ratio to one of 50% and gives effect to my finding of special circumstances. No lesser sentence would reflect the seriousness of the offending.

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Decision last updated: 11 April 2023