R v Sindoni
[2009] VSC 365
•27 August 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1442 of 2008
| THE QUEEN |
| v |
| AARON PLACIDO SINDONI |
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JUDGE: | BONGIORNO JA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1–5, 9–12, 14–16 and 23 June 2009 | |
DATE OF SENTENCE: | 27 August 2009 | |
CASE MAY BE CITED AS: | R v Sindoni | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 365 | |
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CRIMINAL LAW — Intentionally cause serious injury — Injury by shooting — No prior convictions — Evidence of good character disputed by pre-sentence report — No contradiction of pre-sentence report — Youthful offender — s 16, Crimes Act 1958
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr. B.F. Kissane | Office of Public Prosecutions |
| For the accused | Mr. S.G. Langslow | Leanne Warren & Associates |
HIS HONOUR:
Aaron Placido Sindoni, on 16 June 2009 you were convicted by a jury in this Court of intentionally causing serious injury to Cedar Ferry, contrary to s 16 of the Crimes Act 1958. It is now the duty of this Court to pass sentence upon you according to law. The maximum penalty for the offence of intentionally causing serious injury is imprisonment for 20 years. It is the most serious of the non-sexual assault offences short of attempted murder, of which you were acquitted by the same jury.
The Crime
On Thursday, 27 March 2008 you attended a pre-wedding party for a friend at Larry Flynt’s Hustler Club in Sydney Road, Brunswick. The premises were referred to throughout your trial as a nightclub although the activities for which it catered were never specifically spelt out. It is situated on the eastern side of Sydney Road between Stewart Street and Albion Street.
The evidence at your trial disclosed that you arrived at the club some time after about 7:30 p.m., and remained there until some time shortly after 1:00 a.m. the following morning. During that time you, in the company of the other 15 or so young males who attended the same party, drank alcohol and otherwise socialised. The club provided some form of exotic female entertainment during the evening.
In the course of the evening you left the club from time to time to smoke cigarettes. This you did on the footpath in the vicinity of ashtrays provided for smokers at the front of the club.
Some time after about 1:00 a.m. you were excluded from the club by one or more of the club’s security staff. Whether you were actually escorted from the club, as at least one witness said, or left the club and were refused re-entry, matters little. It seems clear that in one way or another you became angered by the treatment you received. The evidence also disclosed that the expressed reason for your exclusion was that you had had what the security staff believed to be “too much to drink”.
One witness, the club receptionist, whose evidence I accept, said that as you were being ejected from the club you uttered an obscenity to those ejecting you, which obscenity, on any view, constituted a threat. Although that evidence was not corroborated by the two security staff who were nearby, I prefer it to their evidence because of the cogency with which the young woman recounted the words she said you uttered, and her adherence to that evidence despite its being severely challenged in cross-examination. Also, her recollection of events generally was much better than that of either of the security staff involved. Other utterances attributed to you subsequently, and your actions in shooting Mr Ferry, are also consistent with it.
Upon leaving the club you took a taxi on the west side of Sydney Road some distance south of the club and directed the driver to take you to your home in Boundary Road, Pascoe Vale. In the course of the journey to Pascoe Vale you made disparaging remarks of a racist kind not inconsistent with the threat you had uttered before leaving the club, and, on the evidence of the taxi driver, behaved somewhat strangely in other ways.
Upon reaching your home you left the taxi, asking the driver to wait whilst you went inside. You emerged some minutes later wearing an off-white or light-coloured jacket which had a hood—a so‑called “hoodie”. Apparently unknown to the taxi driver, you were also then carrying a black balaclava and a .32 calibre semi-automatic pistol. The pistol was loaded.
You asked the taxi driver to take you back to where he had picked you up. The taxi headed in that direction but as it approached Albion Street, some distance north of the club, you asked the driver to turn left (or east) into Albion Street and then stop. This he did. He described the position in which he stopped as being on the north side of Albion Street opposite a dry-cleaning factory. Despite your case being that you directed the driver to turn right into Albion Street, and that he did so, it is almost certainly inherent in the jury’s verdict that it accepted the taxi driver’s version of events. It is equally certain that your assertion that the taxi turned right was concocted to fit in with the evidence of an alibi witness who was called on your behalf.
Upon leaving the taxi you did not pay the $24.00 fare but, instead, shook the driver’s hand saying, “I owe you one, mate”. You crossed Albion Street and entered a lane running south which gave access to an open car park on Sydney Road to the north of the club. At some point you donned your balaclava and then made your way to Sydney Road across the car park. As you emerged from the car park you encountered one of the club’s security staff, Mr Ferry, on the footpath of Sydney Road. He was returning from having patrolled the car park area in the course of his duties. You fired three shots from the pistol you were carrying at Mr Ferry, wounding him in the shoulder and resulting in a bullet lodging in his spine. He described the shot which hit him as having been fired from about 2 feet away. After being shot, Ferry fled across Sydney Road and down an alleyway which ran to the west. You chased him. He hid under a 4WD vehicle parked in the area until you ran off.
After you shot Mr Ferry and, probably, before you chased him across the road, you ran towards the door of the club still holding the pistol. In the vicinity of the doorway, you again shouted an obscenity towards those within. Again, that obscenity was not inconsistent with the threat you had made earlier in the evening.
After leaving the scene it is unclear where you went. A witness was called in the course of your case who deposed that you went to his home which was in Albion Street on the western side of Sydney Road at a time which would have given you an alibi of sorts with respect to the shooting. Hence the assertion on your behalf that the taxi had turned right at Albion Street and not left. The jury must have rejected his evidence, at least to the extent of the alibi. That they did so is not at all surprising. Your having been at that man’s home at all on that evening after leaving the club is completely inconsistent with a significant part of your interview with the investigating police. In that interview you said that you had been excluded from the club after being there for some time, that you walked home, and that you were not with anyone at any stage after you left the club.
The whereabouts of the gun used in the shooting remain unknown. Although you initially told the police that it was at a friend’s house in Brunswick, it was not found there or anywhere else.
Although you fired more than once at Mr Ferry, fortunately only one bullet struck him. This bullet entered through his upper left arm, fracturing his humerus on that side. It then fractured his third left rib and lodged in the vertebral body of his 12th thoracic vertebra. Having regard to his injuries, Mr Ferry was extremely fortunate. However, he has been left with ongoing physical symptoms, a significant psychiatric illness and a .32 calibre bullet embedded in his spine. He is receiving psychiatric treatment and will continue to require such treatment for the foreseeable future. The bullet in his spine will not be removed and, although it should not cause him significant pain, it will remain as a constant reminder of your criminal attack upon him for the rest of his life.
Mr Ferry has filed a victim impact statement which is in evidence before the Court and to which are attached a number of medical and psychological reports. It attests to his injuries and to their effects on him, including their financial effects. He is currently unable to work and is not likely to be able to work in the immediate future. Indeed, whether he will ever be able to be gainfully employed again must be regarded as doubtful.
Your counsel made extensive written submissions on your behalf with respect to Mr Ferry’s injuries and their effects on him. He referred to comments made by a number of Mr Ferry’s treating doctors which were optimistic as to his physical injuries, and the opinion that it is better that the bullet remain than that removal be attempted. As to his diminished or destroyed work capacity and compromised mental health, counsel pointed to other problems Mr Ferry had had in his life which might have contributed to his current condition. He drew the Court’s attention to suggestions in some of the material that Mr Ferry’s health had begun to improve more recently, and that upon completion of this legal proceeding it may well improve further.
There is, of course, some force in your counsel’s submissions. Everyone has life and health experiences of varying degrees of severity with which they must cope. In Mr Ferry’s case, he must cope with the ordinary vicissitudes of life, the negative aspects of which, I have no doubt, have been greatly exacerbated by your criminal conduct. Being shot at very close range by someone he did not know and with whom, as far as he was aware, he had no grievance will remain a dominant, perpetual and negative feature of Mr Ferry’s enjoyment of life until the day he dies.
Personal circumstances
You were born on 18 April 1984 so that you are now 25 years of age. You were 23 at the time of this offence.
A number of witnesses were called on your behalf on your plea, and three written references were tendered to the Court. The oral evidence and those references attested to your character, generally in glowing terms. The witnesses described you as being a person of good character who had grown up in a supportive Italo-Australian environment; that you were kind, thoughtful, industrious and a much-valued member of an extended family. Family friends spoke of your ability at football, your willingness to help others, and your preparedness, as a young boy, to support a mate with a serious illness.
Your mother and another family member spoke of your devotion to your family generally. All of the witnesses described the event for which you are to be sentenced as being completely out of character. None of them, in evidence-in-chief, referred to your having been involved in the use of illegal drugs. However, one of them, a family friend, said in cross-examination that some three and a half years ago you had become involved with drugs and had spent some time in a drug rehabilitation clinic. This reference, which appeared to be fortuitous, and a general lack of explanation as to why someone in your position would commit this crime, caused me to postpone your sentencing to enable a pre-sentence report, pursuant to the Sentencing Act 1991, to be prepared.
On 6 August 2009, the Court received a pre-sentence report from the Department of Justice written by community corrections officers at the Werribee office of Corrections Victoria. Copies of that report were provided to the prosecutor and your counsel so that either or both of them could file a notice of intention to dispute any part of that report and avail themselves of the opportunity to cross-examine the makers of the report and/or lead further evidence in respect of it.[1] Neither wished to do so, and so the matter was not listed again for further hearing.
[1]ss. 88 and 89, Sentencing Act 1991.
The pre-sentence report is considerably more enlightening, particularly with respect to your substance abuse, than was any of the evidence put before the Court on your plea. It also paints a somewhat less rosy picture of your childhood than that with which the Court was presented. Your frankness in informing the writers of the report of your history is to be commended. The report described you as being open and communicative, and providing ample information to the writers with respect to your family and social history, whilst noting that you maintain your position that you did not commit the offence of which you have been convicted.
You reported to the corrections officers that you commenced drinking alcohol at about the age of 13. From the age of 16 your alcohol intake increased. At the age of 19, you lost your employment due to a lack of motivation and your not taking your work seriously, and then commenced drinking daily to intoxication. You told the officers that this pattern of drinking continued for about six months until you obtained another job and commenced drinking only on days off and at weekends. Subsequently, however, you said that you consumed alcohol seven days a week, often drinking to intoxication in recent times. You said that on the night of this offence you were drinking Bourbon and Coke, and that your lack of recollection of the events of the evening was due to your drink being “spiked”. You told the officers that there were times when you blacked out due to alcohol intake.
With respect to illicit drugs, the pre-sentence report notes that you commenced smoking cannabis at the age of 14 and became a heavy user of this substance from about the age of 18. It also notes that you commenced using amphetamines at the age of 16 and that there were subsequent periods of 15 days or more in which you did not sleep.
The corrections officers reported that you told them that, at about the age of 19, you commenced to use the drug known as “ice”, and within a short time your usage of this drug was costing you $500.00 per day. You said that this pattern of drug use continued for a period of three years, although how you obtained $500.00 per day for this habit is not explained in the report. Subsequently, you switched to cocaine for which you paid $8,000.00 an ounce—an amount which would last you a month.
You told the corrections officers that at the age of 18 you commenced using Valium because of anxiety induced by your use of cannabis and, subsequently, amphetamines. You said that you became addicted to Valium and then progressed to using Serepax, which you obtained by “doctor shopping”.
In your conversation with the corrections officers you referred to the clinic to which one of the witnesses called on your behalf had also referred. Her evidence to the Court was that your attendance at that clinic had, in effect, cured you of a short-lived drug addiction. You, however, told the corrections officers that you had remained at the clinic for only eight days before leaving because you were craving drugs.
As far as your family history is concerned, you told the corrections officers that throughout your formative years your father was absent the majority of the time due to his contact with the criminal justice system or because he was living interstate. You said that, although your childhood was, as they record it, “dysfunctional”, your parents always remained loving and supportive towards you. In particular, you said that they were supportive towards you in respect of issues surrounding your drug abuse.
The Crown has not alleged that you have been convicted of any prior offences. I note, however, that the pre-sentence report refers to driving related offences when you were 23 in respect of which you were convicted and sentenced to a term of imprisonment which was wholly suspended. Having regard to the fact that the Crown has not alleged these offences, they will not be considered in determining your sentence in this case.
The disparity between the picture painted by the witnesses called and testimonials tendered on your behalf, and the pre-sentence report, is stark. Your counsel’s submission on the basis of that evidence—that you are essentially a law-abiding person who acted out of character on one occasion—must now be considered in light of the fact that, on your own admission, you have been an illegal drug user for many years, and must have continued such drug use up to at least about the time you committed the offence for which you are about to be sentenced. Further, no explanation is before the Court as to how a drug habit costing up to $500.00 per day could be lawfully maintained on the income you would have been capable of earning in the work it is said you performed; namely, that of a semi-skilled carpenter or something similar. Your drug use was itself criminal behaviour. Certainly, it disentitles you to come before the Court as a person of exemplary character, as your counsel argued and to which your witnesses attested.
As far as this offence is concerned, there is no evidence that you were affected by drugs at the time you committed it. Your counsel submitted that you were affected by alcohol and said that CCTV footage shown in the course of your trial demonstrated this. Further, you were apparently ejected from the nightclub because you had had too much to drink. Whilst it is possible to accept that you had had a considerable quantity of alcohol that night, I do not agree with your counsel that that is demonstrated by your actions on the CCTV footage. Rather, that footage shows you as being agile in your movements and clearly able to move at a fast pace on foot.
Courts of this State daily see the results of violence fuelled by alcohol. The lowering or even elimination of inhibitions by drinking alcohol seems to be endemic. Yet the community appears to continue to tolerate an ever-increasing number of outlets for its sale and consumption, particularly by young people, and tolerates pernicious advertising campaigns which unashamedly promote its use as glamorous and, therefore, desirable. If, as your counsel submitted, you were affected by alcohol at the time of this offence, that may, of course, help to explain why you committed it. It does not, however, mitigate the punishment it deserves.
Sentence
The law requires the Court to consider a number of discrete matters in reaching an appropriate sentence. It must inflict a sentence which punishes the offender for the crime he has committed. The sentence must, by its nature, denounce that crime. It must take into account principles of general deterrence and deterrence of the offender himself, whilst also taking into account the possibility of the offender’s rehabilitation. It must inflict a punishment which, as far as punishment can, protects the community from crimes of this nature, at least by the offender being sentenced. Finally, it must impose a sentence which is proportionate to the crime committed. In giving appropriate weight to each of these sentencing considerations, the Court must take into account aggravating and mitigating factors with respect both to the crime itself and to the offender who is to be punished.
In this case your youth and your absence of relevant prior convictions are both matters which count in your favour. Each of them is relevant to the question of rehabilitation. Subject to the qualification I have added as a result of the pre-sentence report, the material put forward by the various witnesses called on your behalf must also be taken into account. You are not, however, entitled to any consideration for remorse or contrition for which you may have claimed credit had it been present. In particular, you have not assisted the police to find the pistol with which you committed this crime so as to enable its removal from circulation.
With respect to aggravating factors, the fact that you spent a period of almost half an hour obtaining the loaded weapon with which you shot Mr Ferry is some indication of the degree of forethought you put into the commission of this offence. I do not accept your counsel’s submission that you obtained the weapon merely to frighten someone with it. Had that been the case, there would have been no need for it to be have been loaded, and to have had a substantial number of rounds in the magazine. Nor do I accept that your decision to shoot Mr Ferry was a decision made on the spot: your use of a gun which had obviously been loaded prior to arriving on the scene belies this explanation.
Your counsel submitted that this offence of intentionally causing serious injury should be at the lower end of the middle range of offences of this kind. I also reject this submission. Whilst it might not be the most serious example of intentionally causing serious injury which could be imagined, it certainly falls well above the hypothetical mid-point of seriousness. To spend 25 minutes obtaining a loaded pistol and a disguise before deliberately shooting someone bespeaks a degree of planning and pre-meditation which makes this offence more serious than many other examples of this crime. This alone would merit condign punishment. When it is viewed in light of the permanent injuries you have inflicted on Mr Ferry, it becomes very serious indeed.
It is the sentence of the Court that you be convicted of intentionally causing serious injury to Cedar Ferry, and that you be sentenced to a term of imprisonment of eight years. It is further ordered that you serve a minimum of six years before being eligible for parole.
It is declared that you have served 145 days by way of pre-sentence detention applicable to this sentence, and it is ordered that this declaration and its effect be entered in the records of the Court.
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