R v Sindoni
[2012] VSC 238
•6 June 2012
| IN THE SUPREME COURT OF VICTORIA | Revised | |
AT MELBOURNE
CRIMINAL DIVISION
No. 0084 of 2011
| THE QUEEN |
| v |
| AARON PLACIDO SINDONI |
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JUDGE: | COGHLAN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 February 2012 | |
DATE OF SENTENCE: | 6 June 2012 | |
CASE MAY BE CITED AS: | R v Sindoni | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 238 | |
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CRIMINAL LAW – Recklessly causing serious injury – Retrial – Plea of guilty - Circumstances of offending – Consideration of sentencing after release on successful appeal treated as additional hardship – Good prospects of rehabilitation.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P. Rose SC | Office of Public Prosecutions |
| For the Accused | Mr P. Tehan QC | Defteros Lawyers |
HIS HONOUR:
Aaron Placido Sindoni, you have pleaded guilty to recklessly causing serious injury to Cedar Ferry in Brunswick on 28 March 2008. I will set out a brief chronology of the events which bring you here.
You stood your trial for the offence of attempted murder of Cedar Ferry in June 2009 and were found guilty by a jury of intentionally causing serious injury to Mr Ferry. You were sentenced to a term of imprisonment of eight years with a period of six years was fixed before you would be eligible for parole by Bongiorno J, as his Honour then was, on 27 August 2009.
You subsequently appealed to the Court of Appeal against your conviction. On 1 July 2011, the Court of Appeal allowed your appeal, quashed the conviction, a re-trial was ordered and you were released from custody on bail.[1] You had then been in custody for 989 days, approximately two years and eight and a half months. All but just less than five months of that period had been served prior to your conviction by the jury.
[1]Aaron Placido Sindoni v R [2011] VSCA 195.
You pleaded guilty before me on 1 February 2012 to recklessly causing serious injury to Mr Ferry.
On 27 March 2008 you attended a buck’s party that took place at Hustlers in Sydney Road, Brunswick along with 16 other men. Later in the night at 12.55am, you temporally exited the venue in order to smoke a cigarette as you had done so throughout the evening. Upon returning inside you were denied entry by the assistant manager of the club. It would seem that you were either struck or pushed to the right side of your face which forced you to take a few steps back towards the gutter.
You tried to make a number of phone calls before you eventually left and hailed a yellow cab that drove you to Sussex Street, North Coburg near where you were living at the time.
You got out of the cab and asked the driver if he could wait. He did so. When you returned you were wearing a light coloured hooded jacket. You previously had been wearing a black shirt and black pants.
You asked the driver to return you to where he had picked you up, but as you were approaching Albion Street, near where it intersects with Sydney Road, you asked the driver to pull over. You left the taxi without paying telling the driver, “I owe you one”. The cab driver attempted to follow you on foot but after a brief period returned to his taxi.
You made your way back to Hustlers having put a black balaclava on your head and arming yourself with .32 automatic pistol.
It was the Crown case that a man dressed in black with a hoody over his head went up to the bouncer of Hustlers, Mr Ferry, as he was returning from checking the car park and then shot the pistol three times. The first shot entered Mr Ferry’s left arm. The second shot hit the tail light of a Ford Territory that was in very close proximity to Mr Ferry.
The pistol jammed after a third shot was fired.
As a result of being shot, Mr Ferry had fallen to the ground. He got up and ran across the road and hid behind a four wheel drive.
You then returned to the club, raised the gun and made threatening remarks. You then left the premises.
You were then arrested the next day by the Special Operations Group at your sister’s address in Craigieburn.
As a result of the gun shot, Mr Ferry suffered a punctured lung and the lodgement of the bullet in his vertebrae. That bullet still remains in his spine to this day. I did not receive a further victim impact statement from Mr Ferry, but I did receive the victim impact statement tendered on the first plea. While Mr Ferry did not want to prepare a further victim impact statement, he did convey to the Court that he is still receiving psychological treatment and is not working. Needless to say, the impacts from your offending on him still remain as important as they were in 2008.
You are now 28 years old. You are of the opinion that while growing up, your family was of a dysfunctional nature. Your father was absent throughout some parts of your childhood and was also suffering from depression and alcoholism. But you have had both of your parents’ love and support throughout the years and they have supported you and your fiancée whilst you have been on bail.
You completed schooling up until Year 10 and left school after failing Year 11. You then worked as a carpenter’s apprentice, at your father’s urging, for two years before being dismissed. From that point, you had various jobs as a labourer and concreter, but nothing significantly long term, as your drug taking at the time affected your ability to hold down a job.
Your history of drug taking was fully explored in the sentence imposed by Bongiorno J[2] and I do not propose to go through it again.
[2]R v Sindoni [2009] VSC 365, [23]-[26]
You have no prior offending.
Whilst on remand, you completed a number of courses and received certificates for them which became Exhibit 4S on the plea. The courses were:
· First Aid training,
· Certificate IV in Small Business Management,
· Fulham Correctional Centre 40 Hour Semi-Intensive Drug Treatment Program,
· Certificates II & III in Asset Maintenance, and
· Certificate I (Introductory) in General Education for Adults.
From the time of your arrest, you have spent 989 days in custody. It has been urged upon me by Mr Tehan QC, who appeared on your behalf, that I should sentence you to a term of imprisonment which would lead to your immediate release. The prosecution however had submitted that the time already served falls short of a suitable range for this crime.
There are two factors of importance that would be an additional feature of this case. The first, of course, is that you fall to be re-sentenced when you have been on bail for almost a year. The fact of sentencing after release on successful appeal has been treated as a matter of additional hardship.[3] I take that feature of the case into account.
[3]R v Wei Tang [2009] VSCA 182.
The second factor is the consideration of what has happened to you since your release. It is closely related to the first factor, but is not subsumed by it, and I have also taken it into account.[4]
[4]I considered the same additional feature in R v Nguyen [2011] VSC 173
Since being released, you have commenced employment with Nationwide. On your plea, your employer came and gave evidence as to your hard working character and that is to your credit.
You have also commenced studies in Mandarin with RMIT in order to gain a diploma to assist you with your business plan. On the plea I received a feasibility study that you have written for your own benefit in order to establish your own concrete business and it is very impressive.
Dr Walton, in his report dated 30 January 2012, under the heading, “Opinions and Conclusions”, stated in regards to your chances of rehabilitation:
“In my opinion he expresses genuine remorse concerning his offending behaviour. He spontaneously stated at interview he wished he had been given the opportunity to apologise to the victim. He expressed victim remorse and he stated he would appreciate being informed regarding the victim’s current status. He said he had now completed a number of courses and was determined to get on with his life and also hoped to simultaneously put the legacy of his dysfunctional upbringing behind him. At interview he acknowledged he does have a tendency to feel suspicious and this was confirmed through the personality testing. He stated his intermittently elevated level of suspicion/paranoia has had its genesis in his dysfunctional family upbringing as opposed to his history of cannabis use or crystal methylamphetamine use.
In my opinion he could benefit from receiving some ongoing psychological treatment. At interview he conceded he could benefit from psychological treatment and confirmed he would appreciate the opportunity to receive this treatment in conjunction with any other disposition imposed by the Court. As indicated above, he stated he hoped he would not be required to serve a further period of imprisonment. I would be prepared to provide him with ongoing psychological treatment in conjunction with a community based disposition. I confirm I did not assess him as having an Antisocial Personality Disorder or as having a general anger management problem. I am further of the opinion his offending behaviour was out of character in the sense he had no history of violent behaviour or antisocial behaviour (except as was reflected in his illicit drug use.)
Based upon my assessment of Mr Sindoni, it is my opinion his prospects of rehabilitation are favourable and most probably very favourable. He reports a very positive, supportive and constructive relationship with his fiancée.”
Although your prospects of rehabilitation are very good, at the time of this offending, you were largely aimless and lacked motivation. I am satisfied that you have used both the time you were incarcerated and the time you have been on bail to your advantage. I fall to sentence a person who appears to have turned his life around and you have a more than reasonable chance of being a responsible member of the community. When you were sentenced by Bongiorno J it was at the end of a trial. You were sentenced for causing serious injury intentionally and your prospects were rather bleak.
You have now come to be sentenced for an offence which carries a maximum of 15 years’ imprisonment. There has now been significant delay between your offending and sentence of more than four years and you have pleaded guilty.
I regard this example of recklessly causing serious injury as being in the middle of the range given the concession as to your intent which flows from the acceptance of your plea. The alarming feature of this case is that you went to your home to collect the pistol and then returned to Hustlers and used it. I am satisfied, on the basis of what was said to me on this plea, that the pistol has now been destroyed.
Alcohol fuelled violence is not acceptable under any circumstances. You have maintained that your drink was spiked on the night and that led you to act in the way that you did, but as a result of your plea of guilty, I do consider that you accept the responsibility for your actions.
I am obliged to give weight to general and specific deterrence, denunciation and just punishment and I have done so.
I accept that you are remorseful. You are now 28 years of age and were 23 at the time of the offending.
I have previously indicated that when the matter was last heard before me, that I did intend to impose a sentence with a non-parole period which would provide for your immediate release if the Adult Parole Board saw fit to release you. I am told that your case can be considered by the Adult Parole Board today.
Were it not for the changed circumstances, particularly that you have been on bail now for almost a year, I would have given you a longer sentence, particularly a longer period when you would have been eligible for parole. I regard it as being in the community’s interest and your interest that you be kept under the supervision of the Adult Parole Board for a longer than usual period.
You will be sentenced to be imprisoned for a period of five and a half years, and I fix a non-parole period of 989 days before you are eligible for parole.
I declare that you have already served 989 days pre-sentence detention pursuant to this sentence.
I state that, pursuant to s 6AAA of the Sentencing Act 1991, had it not been for your plea of guilty, I would have sentenced you to be imprisoned for a period of seven years with a non-parole period of five years. That exercise is somewhat unrealistic on the basis that had you stood your trial, it probably would have been for a different offence.
I order that this declaration and the above statement pursuant to s 6AAA to be entered in the records of the Court.
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