R v Portelli

[2014] VSC 660

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

SCR 2014 0192

THE QUEEN

v

CRYSTAL PORTELLI

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JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	10 December 2014
DATE OF SENTENCE:	19 December 2014
CASE MAY BE CITED AS:	R v Portelli
MEDIUM NEUTRAL CITATION:	[2014] VSC 660

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CRIMINAL LAW – Sentence – Assisting Offender in serious indictable offence – Arson – Plea of guilty – Assistance to conceal evidence of a homicide – Alleged to have taken charge - Cleaning the house where an attack had occurred – Burning the car which had carried the deceased – At the time unaware victim had died – Not present for the attack - Remorse apparent – History of drug abuse – Assessed as a “damaged” person – Parity – Co-offenders sentenced in the Magistrates’ Court – Potential prosecution witnesses – Community Corrections Order – Assessed as suitable – Condition imposed for community work, treatment and offending behaviour programs – Section 6AAA Sentencing Act 1991.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T. Gyorffy QC	Office of Public Prosecutions
For the Accused	Mr P. Kilduff	Tait Lawyers

HIS HONOUR:

1. Crystal Portelli, on 10 December 2014 you pleaded guilty to one count of assisting an offender and one count of arson.  The maximum penalty for assisting an offender is five years’ imprisonment and the maximum penalty for arson is 15 years’ imprisonment.[1]  It is now my responsibility to sentence you for these matters.

   [1]See ss 325 & 197 The Crimes Act 1958 (Vic).

1. The offences were committed in the following circumstances.  In May 2013, a man named Nathanael Raimundo occupied premises at 125 Alfrieda Street, St Albans, and you lived in a bedroom of those premises.

1. In the early evening of 10 May 2013 and into the early morning of 11 May 2013, various people went to those premises and consumed drugs, including methylamphetamine, heroin, cannabis and also drank alcohol.  One of those people was a man named Hieu Nguyen, who later was assaulted at those premises by Raimundo and a man called Kether Mazzaro.  As a result of that assault, Nguyen died from his injuries having been left for dead in the vicinity of the Sunshine Hospital. 

1. You were not present for any of those events.  Indeed, on 10 May 2013, you had left the premises at about 8.30pm with a man named Peter Gergis.  You went out together initially to the Excelsior Hotel in Thomastown.  You later went to the city, to Windsor, to an apartment in Queens Road, Melbourne, and then to St Kilda, where you remained until about 7.25am on the morning of 11 May 2013. 

1. In the meantime at 125 Alfrieda Street, St Albans, in the early hours of 11 May there were a number of people present.  They included the deceased man, Hieu Nguyen, together with Raimundo, Mazzaro and others named Lily Ton, Alen Hodzic and Samir Mustafic.

1. It would appear that Raimundo concluded that Nguyen had taken and used some of his heroin and so he began an assault on Nguyen in the lounge room.  That progressed to him being struck with a bottle and ultimately being stabbed.  The Crown allege these criminal acts were done by Raimundo. 

1. Nguyen was still alive after the stab wound was inflicted and, according to the Crown, pleaded with Raimundo and Mazzaro to be taken to hospital.  At 5.23am a Honda Civic sedan, driven by Raimundo and Mazzaro, left the premises and left Nguyen for dead on the road opposite the entrance to the Emergency Department of the Sunshine Hospital. 

1. Nguyen was found by a security guard at about 5.50am but by the time people came to Nguyen’s assistance he was deceased.  The cause of death to Nguyen was a stab wound to the chest.

1. Sometime later, Mazzaro left the premises at St Albans and drove to his home at Keilor Lodge and telephoned a man named Tahir at about 6.00am.  He asked Tahir to come over straight away, and when he arrived Mazzaro told him about how Nguyen had been assaulted earlier that day and also told him that the Honda in which Nguyen had been transported to the hospital was now in his garage.  It appeared that Tahir noticed that there was a significant amount of blood in the vehicle.  Tahir then drove the car to a shopping centre in Sydenham and, having done that, attempted to find Mazzaro who was supposed to collect him from that site. 

1. In the middle of this, you and Gergis appeared.  Tahir flagged you down and explained what had happened.  Gergis drove all of you back to Mazzaro’s house.  The Crown allege that you spoke with Mazzaro and, as the Crown opened the matter before me, “took control of the situation”.  According to the Crown, you told the others they needed to get petrol and that they had to “fix up the car”.  Petrol was purchased with two five-litre containers and ultimately the vehicle was driven by you to a driveway of a property in Leakes Road, Plumpton, which is on the road between Keilor and Melton.  You then got out of the car, poured the petrol inside the vehicle and lit it, and the vehicle was ultimately destroyed with a loss of $20,000.  The vehicle was actually owned by the mother of Raimundo’s girlfriend.

1. After burning the car, you and the others returned to Mazzaro’s house with Gergis.  You changed your clothes and then went back to Alfrieda Street with Gergis.  On the basis that the attack on Nguyen had taken place in those premises, you then determined that the house needed to be cleaned.  You told Tahir that even though they thought they had already cleaned it, it was possible that the Homicide Squad and the forensic science investigators would still find blood and so the cleaning commenced.  You are alleged by Tahir to have become hysterical about making sure that everything was clean.  He described in some detail the very careful cleaning effort that went into the premises.  He said:

Crystal was becoming hysterical about making sure that everything was clean.  They started cleaning with bleach or vinegar by throwing it on the floor and spraying the walls with a detergent.  The floor detergent was clear and I don’t know exactly what she was using.  I think at some stage they went to K-mart and got some more cleaning stuff.   Crystal was cleaning the walls and hallway.  I saw her cleaning the floor of the corridor and the walls of the corridor.   She also cleaned the kitchen and the actual place where it happened in the living room.  I saw her use the green washing detergent along the walls.  She had bleach she was pouring on the floor.  She was mopping the floors with a mop, they all had gloves on and were using a sponge and other cleaning products.  Others were assisting.

1. The witness Tahir also described seeing droplets of blood on the corridor wall. 

1. It appears that this cleaning effort went on for some considerable time.  You and Raimundo left the premises after 9.00pm and, indeed, went to the Safeway supermarket in St Albans where you purchased cleaning products and then returned to the premises.  You told another witness that you had spent the day cleaning the premises getting rid of all the blood using bleach.  This was a very sustained effort.

1. On the night of 11 May 2013, at about 11.00pm, it seems you became aware of the death of the deceased man Nguyen but prior to that you had not been so aware.  It is on that basis the charge against you alleges that you assisted an offender concerning the offence of intentionally causing serious injury. 

1. The seriousness of your conduct is epitomised by the fact that you knew a serious offence had been committed and, in order to conceal that, you went to considerable trouble to protect those directly responsible.  Your counsel was right to concede on your behalf that the loyalty you showed to these people who had carried out a vicious attack on the deceased man was thoroughly misplaced.

Plea of guilty

1. You pleaded guilty when arraigned in this Court but you had also pleaded guilty at the committal proceedings to the charges you now face.  Those pleas of guilty do represent, in my view, an acknowledgement of responsibility on your part and may be some indicator of remorse.  I am required to quantify the sentence I would have imposed on you if you had not pleaded guilty and I will shortly do so.

Personal circumstances

1. You are presently aged 29 years and you have been in custody in relation to these matters over a period of some six months.

1. You were born in Carlton.  Your parents apparently separated prior to your birth and you resided with your mother and with your maternal grandmother.   Clearly, your family relationships were unsatisfactory and you became aware that a step-father of yours who had been married to your mother had committed sexual offences in relation to your sister.  At age 15 you left home to escape your step-father’s verbal abuse.  You recall that you yourself were the subject of some level of sexual interference. 

1. After leaving home you lived on the streets, although you tried to remain in contact with your natural father and your first step-father.  As a young teenager you had a number of difficulties, including accidents involving both pushbikes and a motorcycle which resulted in some level of injury. 

1. Your relationship history has been also difficult and has resulted in domestic violence of both a physical and sexual nature in which you were the victim.

1. At the age of 25 you were married to a man who was violent and, because of his Muslim background, required you to wear a headdress.  You became pregnant and lost the child and the marriage ended after some twelve months.  By this stage you were a regular user of drugs as a means of escape from your circumstances.  Other most difficult situations have occurred to you and I accept without hesitation that your background has been very difficult.

1. As far as drugs are concerned, you commenced using cannabis at the age of 14 and by the age of 18 you were using it every day.  At the age of 18, you also began to use amphetamine and, at the age of 23, used methylamphetamine for a period of time.  You have attempted to undertake drug rehabilitation programs, both with the CISP and also a drug program in prison.

1. Your education appears to have finished prematurely, although at the age of 18 you undertook basic nursing training at RMIT Bundoora for a period of 12 months.  You completed a diploma in beauty therapy in 2012 and did casual work at cafes and at the casino for a period of time.

1. In a report to the Court on your behalf by psychologist Mr Bernard Healy, he concluded that you were suffering from significant anxiety and that you feel as though the difficulties which you are presently facing will never be overcome.  He regards you as a “damaged young person” and you are aware of your vulnerability to the prospect of relapsing into the use of drugs.  You have informed him of your resolve to remove yourself from the drug scene and cultivate a new life.  I am told that on the evening prior to these offences you had not slept, had consumed a large amount of alcohol and far too much of the anti-anxiety prescription drug Xanax.

Other sentencing considerations

1. Your future depends very heavily on your willingness to bring about a change in your environment, your attitude and your life generally.

1. During the course of the plea, a letter addressed to the Court which I understand you wrote on 9 December 2014 was produced.  I have read that letter and it does appear to show a significant insight into the difficulties which have caused you to be in the situation you now are.  You have written that you  recognise the need to work through your difficult past experiences in order to identify the things that pull you back into drug use and the consequences that inevitably flow from that.  You also describe your aspiration to become a youth worker and indicate that you have taken steps towards enrolment with a view to doing that course in the new year.  You also aspire to a family life which is both normal and positive.  Further, you indicate your acceptance of responsibility for your actions.  Your future aspirations, drug treatment goals and personal goals are seen by me as positive and genuine steps, and I commend your willingness to act as you have described.

Antecedent history

1. You have some 18 or so prior convictions from five court appearances, many of which are relatively minor street offences.  That said, they involve levels of violence and, as a I put to counsel during the plea on your behalf, a disregard for the rules that should govern our behaviour.  In particular, your conduct over the years between 2011 and 2013 seem to display a significant contempt for the rules, for people in authority and for compliance with bail and community based orders.  I note that I have now been informed that on 17 December 2014 in the Melbourne Magistrates’ Court you were sentenced to an aggregate sentence of one month imprisonment for a large number of offences against the Bail Act 1977 (Vic).

1. However, overall, I accept that that conduct of yours was largely brought about as a consequence of your consumption of drugs and, in all likelihood, a feeling of hopelessness as to your situation.

Parity

1. Several of your co-offenders have been dealt with.  Mr Tahir was sentenced in the Melbourne Magistrates’ Court on 5 December 2014.  In response to an undertaking on his part to give evidence for the prosecution in relation to the principal offence of murder, he was sentenced to an 18-month adjourned bond without conviction and ordered to pay $2,000 to the court fund.  He had pleaded guilty to one charge of arson in relation to the Honda. 

1. The man with whom you had been out on the night of 10 May 2013, Peter Gergis, pleaded guilty to one count of arson in respect of the Honda and gave an undertaking to give evidence on behalf of the prosecution, which in effect was an undertaking to give evidence against you which has not been necessary.  He had prior convictions and he was also sentenced to an 18-month adjourned bond however with conviction and ordered to pay $3,000 to the court fund. 

1. Of those three, your offending is the more serious and you do not offer yourself as a witness for the prosecution as Mr Tahir has.  I understand why that is.

Submissions

1. Mr Kilduff of counsel, on your behalf, conceded that your offending was serious and that general and specific deterrence were significant considerations. 

1. He relied on the claim you make that at the time that these offences were committed you were affected by alcohol and drugs and have an extensive history of drug abuse.

1. He made the submission that your offending was less serious than I was confronted with in the matter of R v Singh& Ors.[2]I agree with that submission. 

   [2][2008] VSC 293.

1. Mr Kilduff also tendered the letter that you have written to the Court, which I have referred to, coupled with several documents indicating that you have undertaken programs which hopefully will be of assistance to you since you have been held at the Dame Phyllis Frost Centre.  You also completed a 12-hour remand drug treatment program in October/November 2014. 

1. A work report of 19 November 2014 indicates that in relation to work carried out in the prison, you have conducted your duties to a good standard and have been a willing learner.  The author of the report indicated that a continuation in those duties might create employment opportunities upon your release.

1. Mr Kilduff urged me to treat the time that you have spent in custody as being sufficient time in custody and otherwise impose on you a Community Corrections Order.  In his submission, such an approach would facilitate your rehabilitation and improvement in your position in life. I am not willing to do that though I will not add substantially to the period you have already served.

1. Mr Gyorffy for the prosecution submitted that further imprisonment beyond what you have already served was required, particularly in relation to the offence of arson.

Conclusion

1. You have now been in custody for 196 days – a little over six months.  You are still a young woman and you have pleaded guilty to these offences.  With some reservation based on your history, I am persuaded that you have resolved to improve your life and to detach yourself from the consequences of abuse of drugs and the people that go with that habit.  If it turns out that I am wrong about that and you commit further offences, you can expect to spend significantly more time in custody.  A sentencing judge or magistrate in the future will have these reasons for sentence. 

1. With a view to imposing a Community Correction Order on you, I have received an Assessment Outcome Report from Corrections Victoria.  You are assessed as suitable for such an order.  The report notes that you have some support in the community. The report also notes the diagnosis of your depression, anxiety and substance abuse issues.  Given the limits on the support you have in the community, a Community Corrections Order is a logical step to take and we will see whether you can reap  the benefits.

1. So, in the circumstances, and notwithstanding the submissions of the prosecutor, I propose to fix only a further short period of imprisonment.  I do that based on the need for parity with the sentences imposed on your co-offenders and because I take the view that the best way for you to avoid further offending is to change your life in the way you propose.  In my view the kind of supervision and assistance that will be afforded to you under a Community Corrections Order is more likely to facilitate your rehabilitation. 

1. You will be sentenced as follows:

On Charge 1, being a charge of assisting an offender in a serious indictable offence you will be sentenced to a period of 6 months imprisonment.  On Charge 2, being a charge  of arson you will also be sentenced to a period of 6 months imprisonment.  I direct that two months on the charge of arson be served cumulatively on the charge of assisting an offender.  That results in a total period of imprisonment of eight months. 

1. I declare pursuant to s 18 of the Sentencing Act 1991 that your pre-sentence detention is agreed at 193 days and I direct that that period be reckoned as time already served and entered in the records of the Court accordingly.

1. Pursuant to s 16(1) of the Sentencing Act 1991, the sentence which I have imposed on you will be served concurrently with the sentence you are presently serving imposed by the Magistrates’ Court.

1. On both charges you will be further sentenced to undergo a Community Corrections Order for a period of two years.  In addition to the usual conditions of such an order the following further conditions will apply:

1.You will carry out 100 hours of unpaid community work;

2.You will undergo assessment and treatment in relation to your drug use and history as directed;

3.You will undergo mental health assessment and treatment as directed;

4.You will undergo offending behaviour programs as directed;

5.The hours taken in relation to 2, 3 & 4 above will be deducted from the community work hours outstanding.

1. I am informed that you have verbally agreed to these arrangements and I understand you have also now signed the order.

1. Pursuant to s 6AAA of the Sentencing Act 1991 I declare that had you not pleaded guilty to these charges I would have imposed total effective sentence on you of 24 months' imprisonment and directed that you serve a minimum of 18 months before being eligible for release on parole.