R v Vitale
[2018] VSC 197
•27 April 2018
| IN THE SUPREME COURT OF VICTORIA | Not restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2017 0065
Between:
| THE QUEEN | |
| -and- | |
| CRAIG VITALE | Accused |
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JUDGE: | Croucher J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 March 2018 | |
DATE OF SENTENCE: | 27 April 2018 | |
CASE MAY BE CITED AS: | R v Vitale | |
MEDIUM NEUTRAL CITATION: | [2018] VSC 197 | |
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CRIMINAL LAW – Sentence following trial – Armed robbery – Intentionally causing serious injury – In 2011, accused, armed with loaded sawn-off shotgun, and brother robbed bottle shop proprietor – Accused fired gun at cash register in course of offence – No one endangered but shopkeeper frightened – After leaving bottle shop, accused fired shot into window of car in public street, causing serious injury to driver’s wrist/thumb – Very serious offences – Deprived childhood – Limited prior and subsequent criminal history – Long delay in bringing charges – Considerable reform in ensuing years – Very strong prospects of rehabilitation – Hardship of imprisonment because of psychological afflictions – Relevance of parity given co-accused brother’s sentence – Importance of general deterrence, denunciation, just punishment and rehabilitation – Less weight than otherwise to protection of community and specific deterrence because of such strong prospects of rehabilitation – Totality – Sentence of nine years’ imprisonment on intentionally causing serious injury; six years’ imprisonment on armed robbery (two years cumulative); total effective sentence of eleven years’ imprisonment; non-parole period of seven years – Sentencing Act 1991 (Vic), ss 5 & 18.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M. Rochford QC with Ms S. Coombes | John Cain, Solicitor for Public Prosecutions |
| For the Accused | Mr A. Patton | Valos Black & Associates |
HIS HONOUR:
Overview
At about 7:45 p.m. on Saturday 1 October 2011, the evening following the AFL Grand Final, Wayne Vitale and his brother Craig Vitale drove to the Do Bottle Shop in Kingsville in their mother’s white Saab motor car. They were there to commit an armed robbery. Wayne entered the bottle shop first. He was meant to create a distraction for his older brother, who followed fifteen seconds later. Each man had his face covered, was wearing a hood of sorts, and carried a bag. Craig was also carrying a loaded sawn-off double-barrelled shotgun.
Immediately upon entry, Craig pointed the gun at the shopkeeper Thi Kim Luong. He put his bag on the counter and motioned at her aggressively to open the cash register. So scared was Ms Luong that all she could do was wave her hands in fright. Impatient with her, Craig then fired a shot at the cash register, which bent its steel frame. The shot also disintegrated other items on the counter into a confetti-like cloud. He then demanded money. Ms Luong told him there was none, while appearing to feign an attempt to open the till – although her fumbling may have been a result of terror. Craig then made a rather desultory attempt to open the till himself, but he too failed.
In the meantime, Wayne headed out of the shop with a slab or two of Jim Beam cans in his bag and another under his arm. A moment earlier, Ms Luong’s son Quoc Do entered the shop from the rear and saw both men. Mr Do armed himself with two bottles of wine and crouched down behind the shelves for cover. When Craig noticed Mr Do, he pointed the shotgun at him. As he walked backwards towards the front exit, Craig grabbed the bag from the counter, pointed the gun at mother and son again and told Mr Do not to do anything stupid.
These events were captured silently and from three angles on the shop’s internal CCTV cameras. While their ordeal was only brief – Craig was in the shop for only 41 seconds – Ms Luong and her son must have been terrified for every moment.
But worse was to come for Noel Kennedy, another innocent person just going about his own business. After the two brothers left the shop, they got into the Saab and headed off, with Wayne driving and Craig in the front passenger seat. A short time later, they noticed a Hyundai motor car behind them. It was being driven by Mr Kennedy, who had just picked up some fish and chips for his family. Wayne stopped the Saab. Craig got out carrying the shotgun. Mr Kennedy was in the course of a three-point turn, just about to drive away, when Craig walked up to the car and fired a shot through his closed driver’s side window, which smashed to smithereens. The bulk of the shot struck Mr Kennedy’s left wrist. His hand was on the steering wheel at that time. Some pellets also struck his right shoulder. Craig returned to the Saab, and Wayne drove them to their family’s home address. Craig then drove away in the Saab, alone.
Meanwhile, not surprisingly, Mr Kennedy sped off in the Hyundai at a rate of knots. Initially, he did not realize he had been shot. As he drove away, however, he noticed blood coming from a hole in his left wrist. When he reached his driveway, feeling faint, he sounded the car horn, and his family and a neighbour came to his aid. Shortly thereafter, he was treated by paramedics and taken to hospital. Numerous shotgun pellets were removed from his wrist area and a few from his right shoulder. He had sustained severe damage to his wrist and lower thumb joint, including a gaping hole in his skin where his wrist joins his hand, a shredding of the carpel tunnel and broken bones.
Subsequently, over the next two years, Mr Kennedy endured two further bouts of surgery on his wrist and lower thumb region. His physical recovery has been slow, arduous, painful and incomplete. His thumb is now marginally shorter than it was and he still suffers from restricted movement and discomfort. Numerous pellets remain embedded in his wrist. He has been advised that further complications, such as osteoarthritis, will occur over time.
Following a police investigation, on 19 October 2011, Craig Vitale was arrested and interviewed about the armed robbery and the shooting. He denied the offending. He said that he was at a birthday party in Endeavour Hills at the relevant time and, what is more, that his cousin James Lua had attended that party later that night claiming to have committed an armed robbery and to have shot a man. (The truth is that he did not have a cousin named James Lua.) Craig was released without charge. It was there that the matter more or less rested for nearly the next five years.
In June 2016, the investigation was resumed. Cleverly, following the broadcast of the CCTV footage of the armed robbery and an interview with Mr Kennedy on Channel 7’s television news, police covertly recorded conversations between the two brothers. It is obvious, from the recording, that the two men replayed the news report on a mobile phone and spoke about that report, the armed robbery, the shootings and their respective roles in those events.
On 24 June 2016, Craig Vitale was arrested by police but made no comment to the allegations when put to him. He was charged with various offences, including armed robbery and attempted murder, and has remained in custody ever since.
The same day, Wayne Vitale was arrested at Tullamarine Airport. Initially, he denied any involvement in the offences. Subsequently, however, after the covert recordings were played to him, he admitted his own involvement in the armed robbery and made a signed statement implicating his brother as the one who carried the shotgun and fired it on each occasion. He was charged with armed robbery of Ms Luong but not with any offence concerning the shooting of Mr Kennedy.
On 24 April 2017, having pleaded guilty, Wayne Vitale was sentenced in the County Court by Judge Gaynor to three-and-a-half years’ imprisonment on the armed robbery and to two months’ imprisonment (concurrent) on a charge of handling stolen goods. The judge fixed a non-parole period of eighteen months. Her Honour declared that, but for the pleas of guilty, she would have imposed a sentence of five years’ imprisonment with a non-parole period of three years.
At his trial in this Court in July-August 2017, Craig Vitale (whom I shall refer to hereafter as “Mr Vitale”) pleaded not guilty to charges of reckless conduct endangering serious injury to Ms Luong, armed robbery of Ms Luong, attempted murder of Mr Kennedy and the alternatives of causing him serious injury intentionally and causing him serious injury recklessly. His principal defence was that he was not involved in any of these offences. The prosecution attempted to call Wayne Vitale as a witness but he refused to testify and ultimately was declared “unavailable”.[1] Parts of his statement were nevertheless admitted into evidence, over objection. On 7 August 2017, the jury found Mr Vitale not guilty of reckless conduct endangering serious injury and attempted murder but guilty of armed robbery and intentionally causing serious injury.
[1]As that term is understood in the Evidence Act 2008 (Vic).
The subsequent plea in mitigation was delayed for a substantial period, at the instance of Mr Vitale, so that, quite properly, he could be assessed by a psychologist, a neuropsychologist and then a psychiatrist.
Having heard that plea in mitigation, it is now this Court’s duty to impose sentence.
The offences are very serious. They were outrageous in their violence and have had a significant impact on the victims, especially Mr Kennedy, and are deserving of condign punishment. Further, unlike his brother, Mr Vitale cannot rely on any pleas of guilty or remorse in mitigation, as he chose to stand his trial and still maintains his innocence.
As will be seen, however, all is not lost for Mr Vitale. There are some significant mitigating factors to be brought into account. Most importantly, despite his pleas of not guilty, an absence of remorse, insistence upon his innocence and the nature and gravity of his crimes, I am satisfied that Mr Vitale has very strong prospects of rehabilitation. To be sure, those prospects would be even stronger but for a couple of further offsetting considerations to which I shall come later. Nevertheless, I think it is appropriate that his strong prospects of rehabilitation be reflected in the sentences I shall impose, substantial though those sentences still must be.
Victim impact statement
I turn now to the victim impact statement filed and read to the Court by Mr Kennedy.
In addition to the physical injuries I have mentioned earlier, Mr Kennedy initially endured such severe pain in his hand that he could sleep only for brief periods. He found it difficult to focus on anything during his waking hours until the painkillers took effect. The sensation in his hand, fingers and thumb is abnormal and uncomfortable. The restrictions in movement have had some impact on his office-based work, but tasks around the home and playing sport with his son have been even more difficult. The ordeal has impacted on his whole family. For example, his children have had trouble settling or even going out at night. Further, a family holiday to the USA was put off in 2013 following Mr Kennedy’s increased sensitivity to danger following shootings in that country. Finally, Mr Kennedy still feels uncomfortable when stuck at traffic lights or driving down a narrow street or if he hears a loud noise.
The victim impact statement provides an eloquent and moving description of the impact of Mr Vitale’s offence on Mr Kennedy and his family. I have had regard to the contents in considering sentence on the offence of intentionally causing serious injury.
While neither Ms Luong nor Mr Do filed a victim impact statement, it is obvious from the evidence at trial, and would be expected anyway, that they were terrified during the armed robbery, which is a matter I take into account in sentencing on that offence.
Nature and gravity of offences, culpability and degree of responsibility
I turn now to an assessment of the nature and gravity of the offences, and Mr Vitale’s culpability and degree of responsibility for those offences.
Armed robbery
Armed robbery is a statutory offence the maximum penalty for which is 25 years’ imprisonment.[2]
[2]See s 75A of the Crimes Act 1958 (Vic).
The gravity of this offence can vary substantially. At one end of the spectrum, a child, purely spontaneously, might rob another of his lunch money with a toy gun. At the other extreme, a group of hardened criminals, who have planned meticulously for months, might rob a bank of tens of millions of dollars while firing guns and assaulting and threatening to kill tellers and customers in an attempt to scare them into submission.
This instance of armed robbery falls somewhere between those two poles, but is still a very serious example of the offence. On the one hand, the property stolen – a few slabs of Jim Beam at most – is of low monetary value. Further, the offence, while involving some planning, was never going to realize much and could not be said to have been thought through very carefully. Indeed, the brothers were unwise enough to use their mother’s car. Nor was the offence professional in its execution. Instead, it was a largely botched and amateurish affair. Not a dollar of cash was taken.
On the other hand, the offence had some very serious features. Mr Vitale pointed a loaded gun at both Ms Luong and her son, which, as I have said, must have been terrifying. What is more, he even deliberately fired the gun at the till. While I must be careful to give Mr Vitale the full benefit of his acquittal on the charge of recklessly endangering serious injury to Ms Luong by firing the gun, and therefore must exclude from my analysis any risk of endangerment to her or any possible recklessness thereto, counsel for both parties accepted that it is proper to have regard to the added fear that must have been caused by reason of the discharge of the gun. Further, as submitted by Ms Coombes, who was led by Mr Rochford QC for the Director both at trial and on the plea, Ms Luong was an unsuspecting, defenceless woman working in a shop at night, and who was obviously frightened, as was her son, which Mr Vitale must have known, all of which adds to the gravity of the offence. Further, I accept that the offence was Mr Vitale’s idea and that he, not his brother, was the driving force behind the offence.
As I shall explain in more detail shortly, but for the constraining effect of considerations of parity with his brother, the sentence to be imposed on the armed robbery would be substantially longer.
Intentionally causing serious injury
Intentionally causing serious injury is, by definition, a relatively serious offence. It involves intentionally causing another person serious injury and carries a maximum penalty of 20 years’ imprisonment.[3]
[3]See s 16 of the Crimes Act 1958 (Vic).
Like armed robbery, the gravity of this offence can vary markedly. Grave instances of the offence can be among the most serious non-fatal offences against the person, and even as grave as some inchoate offences relating to murder. For example, some instances of the offence have involved permanent catastrophic harm caused in grossly violent circumstances. At the other end of the spectrum, at least historically, when the threshold for “serious injury” was lower than it is today, some offences prosecuted as intentionally causing serious injury were arguably less serious than their notionally less serious companion offences of intentionally causing injury and recklessly causing injury.
In my view, for several reasons, the manner of and circumstances surrounding the shooting make this a very serious example of the offence. First, I am satisfied that Mr Vitale fired the shot in an attempt to ward off Mr Kennedy as a potential pursuer over, or witness to, the armed robbery.
Second, Mr Kennedy was merely an innocent member of the community going about his own business. To be confronted with such unmitigated violence in those circumstances is appalling.
Third, the firing of the gun was also extremely dangerous. The shot must have passed within only centimetres of Mr Kennedy’s vital areas. It is no exaggeration to say that, with a slight movement of the angle of the gun or by Mr Kennedy, he could have been killed.
Fourth, while the jury’s verdict means that Mr Vitale meant to cause at least serious injury, given the fine margins involved, he must have also perceived some risk that Mr Kennedy might be more gravely injured, or even killed.
Fifth, in the recorded conversation with his brother on 23 June 2016, Mr Vitale said, “I should have [blown] his head off when I had the chance.” While he is not to be treated as if he intended to kill, for he was acquitted of attempted murder, and, indeed, the remark is consistent with the absence of such an intention, it is nevertheless a callous thought that, in my view, reflects poorly on his state of mind back at the time of the shooting. This also offsets, to some extent, his prospects of rehabilitation, which, as I have said, are very strong and to which I shall return shortly.
Finally, while the serious injury caused was well short of catastrophic, it was and is still a very significant injury. It is apparent, from both the evidence at trial and the victim impact statement, that Mr Kennedy has suffered considerable pain, impairment, fear and discomfort for a long period, and will never fully recover from his ordeal.
Mitigating factors
I turn now to the factors in mitigation on which Mr Vitale is entitled to rely. Before doing so, I shall set out in some detail his background as outlined by Mr Patton, who appeared for Mr Vitale both at trial and on the plea.
Background
Mr Vitale is the eldest of six children. He was born in New Zealand to Samoan parents. He was aged only 23 at the time of the offending and is now 29.
He and his family migrated to Australia when Mr Vitale was aged ten. They endured significant poverty and hardship, both before and after their migration.
During his childhood and adolescence, Mr Vitale was the victim of, and witness to, extreme domestic violence by his father, who was an alcoholic. So violent was his father that he even broke his son’s arm on one occasion. Mr Vitale was also a victim of sexual abuse, including anal rape, and a bashing by an extended family member.
He left home at fifteen, living transiently with family and friends, or on the streets.
His formal education, which was only to Year 10 level, also ceased at that time. He had significant social and academic difficulties at school, and was disengaged from schooling well before he left. On the other hand, school was one of his few safe refuges in his early life, despite the fighting in which he was involved on occasions.
Mr Vitale commenced drinking alcohol when very young, at about twelve or thirteen, and drank heavily into his early-20s. He was introduced to the drugs ‘speed’, ‘ice’ and ‘ecstasy’ when living on the streets as a teenager. He continued to use drugs for a substantial period. Since late-2011, however, he has remained abstinent from drug and alcohol use. More of that later.
Formal testing by psychologist Carla Lechner and neuropsychologist Martin Jackson places Mr Vitale’s intelligence in the low-average to average range. Mr Jackson’s additional testing revealed also that Mr Vitale reads in the low-average range, and that his immediate memory span, sequencing span, new learning skills and multiple task processing skills are in the extremely low to borderline range. His other cognitive skills are intact. He is described as a concrete thinker and as one who struggles with abstract reasoning.
Mr Vitale has been diagnosed with symptoms of post-traumatic stress disorder (“PTSD”), major depressive disorder or depression and anxiety with paranoid features. It is accepted that these conditions are referable to the traumatic events experienced in his childhood. In addition to the domestic violence to which he was exposed, and the sexual abuse, Mr Vitale, at the age of only eight, discovered a severed head of a female in a rubbish bin. These events, I should have thought, would be all the more troubling for a child of such tender years.
As a consequence of his poor mental health and the deprived and violent circumstances of his childhood, Mr Vitale made several attempts at suicide from an early age. He recalls that the rope snapped when he tried to hang himself at thirteen; that he tried to have his father’s car roll over him at fourteen; that he tried to drown himself from the ages of sixteen to eighteen, but was rescued on each occasion; and that, in 2011, he put a gun to his head and pulled the trigger, but it did not fire. At some point, he also tried to overdose on drugs but was revived.
Mr Vitale did not engage any mental health treatment or counselling until 2015, when he saw psychologist Dr Melissa Vella on the referral of his GP in late-2014. Dr Vella saw Mr Vitale on seven occasions between February and December 2015, with the sessions focusing on childhood trauma, anxiety, and anger in his relationships. Dr Vella reports that Mr Vitale’s insight improved markedly over the sessions, and that “he began to report instances in his daily life where he was engaging in more thought-out actions with others rather than reactionary aggressive actions”.
Subsequently, between November 2015 and June 2016, Mr Vitale engaged in eleven counselling sessions with counsellor and therapist Robert McInnes. I shall return to Mr McInnes’s opinion later in these reasons. Suffice it to say at present that Mr Vitale impressed Mr McInnes as doing very well in these sessions.
While he has had periods of unemployment – no doubt a function, at least in part, of his limited skills and education – it appears that Mr Vitale has always had a strong work ethic. Even as a child, he would do what he could to supplement the family income, including mowing lawns and cleaning up rubbish and tending to gardens for neighbours. He completed a diesel mechanic apprenticeship after leaving school. He then worked in a wide variety of jobs. At the time of his arrest in June 2016, he was employed in confined space rescue.
For one who now stands convicted of such serious offences and who has had such a deprived early life, Mr Vitale has a comparatively modest criminal history. In 2009, at the age of 21, he was convicted of driving offences, including driving in a manner dangerous, for which he was placed on a community correction order (“CCO”) for six months. Earlier that year, he was convicted and fined for shoplifting and other minor offences. These are his only prior convictions.
Mr Vitale has subsequent convictions for two matters. First, in early-2012, he was convicted of offences committed only about two weeks after the armed robbery, on 16 October 2011. The offences included possessing a gun (which was the same gun used in the armed robbery), unlicensed driving, recklessly causing injury, reckless conduct endangering serious injury and threatening to kill. The latter three offences involved his father. He was placed on a CCO for eight months (and his previous CCO was also brought up on a breach). Second, in November 2015, he was convicted of recklessly causing injury. Another driver ran a red light and crashed into the car in which Mr Vitale and his partner were travelling. When the driver tried to leave the scene, Mr Vitale assaulted him, causing a split lip. On a subsequent appeal to the County Court in February 2016, the sentence was varied from the three months’ imprisonment imposed by the magistrate to a CCO for two years. He was complying with the CCO at the time of his arrest in June 2016 but it has been cancelled since because of his incarceration.
It appears that the most positive thing to occur in Mr Vitale’s life both before and since his offending of October 2011 is his relationship with his partner Monica Leyton, which commenced earlier in 2011. Ms Leyton’s background is quite different from Mr Vitale’s. Her family are professionals who have had no trouble with the law. She is studying to be an early childhood or primary school teacher.
The two met in January 2011. Ms Leyton discovered early in their relationship that Mr Vitale had a drug and alcohol problem, but she was impressed that he was attempting to do something about it through a programme that was part of the CCO he had incurred in 2009, which, it seems, was still on foot somehow. Ms Leyton then fell pregnant early in their relationship, but miscarried soon afterwards in September 2011. In her reference, Ms Leyton says that this was the lowest point in their lives and that losing their child was “like having [their] souls ripped from them slowly”. She says that Mr Vitale took the miscarriage very hard. His behaviour changed drastically and he carried around a terrible sense of sadness and anger.
Subsequently, Mr Vitale confided in Ms Leyton about his deprived childhood, including the grinding poverty, domestic violence, sexual abuse and suicide attempts, as well as the extent of his drug and alcohol abuse. Mr Vitale confirmed this through his disclosures to the mental health professionals who have reported on him to the Court. He also explained that Ms Leyton has provided him with much needed stability and love, but that she was also firm in her ultimatum that he was to cease drug and alcohol use if their relationship was to continue.
It was in those circumstances that, from late-2011, Mr Vitale resolved to become totally abstinent in respect of drugs and alcohol. And he did. Moreover, he achieved this without professional help – that is, to use his words, he went “cold turkey”. He became devoted to physical fitness, which led to his interest in boxing, to which I shall return shortly. He also studied to obtain various licences, including forklift, bobcat and truck-driving licences. He secured paid employment, eventually gaining a responsible job in confined space rescue. It is also during this period that he was counselled, first by Dr Vella, and then by Mr McInnes.
Mr Vitale’s dedication to fitness included boxing training at a gym. He showed great ability and fought as a heavyweight, first as an amateur and then as a professional. Anyone who has seen any of his fights on the internet – and I have – will know that he was a very powerful man who could knock other heavyweights out cold with a single punch. Such was his prowess that the former world heavyweight champion Mike Tyson showed an interest in mentoring him and taking him to train and fight in the USA.
It is against that background that I find some difficulty in comprehending why a man of such immense physical power and skill would choose to present and fire a sawn-off shotgun, with his strongly-built brother in tow, in order to rob a woman half his weight and twice his age of a few measly dollars and a couple of slabs of Jim Beam. It is equally difficult to understand why such a man would be moved to fire a shotgun into the driver’s side window of a car that he believed was following him after the robbery. All of this behaviour seems inconsistent with the character of the man Mr Vitale appears to have become in the years following the offences. And yet, understandably, that is what the jury, acting on the evidence in the trial, found that he did in suburban Melbourne back in 2011.
As things turned out, Mr Vitale gave up boxing at the peak of his powers. He did so, he says, because the sport was taking him away from Ms Leyton and impacting on their relationship.
Having set out that background, I turn now to the mitigating factors, most of which, it will be seen, overlap to a greater or lesser degree.
Deprived early life
First, in my view, that Mr Vitale has had such a deprived and violent early life is a matter that must be brought into account in mitigation. As the plurality of the High Court said in Bugmy v The Queen:[4]
[42] … The Director acknowledges that the effects of profound deprivation do not diminish over time and he submits that they are to be given full weight in the determination of the appropriate sentence in every case.
[43] The Director’s submission should be accepted. The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person’s capacity to mature and to learn from experience. It is a feature of the person’s make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.
[44] Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving “full weight” to an offender’s deprived background in every sentencing decision. However, this is not to suggest, as the appellant’s submissions were apt to do, that an offender’s deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.
[4]Bugmy v The Queen (2013) 249 CLR 571 at [42]-[44] (per French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).
Significantly, while Mr Vitale has two appearances for offences of violence, these offences are of quite a different order of gravity than the current offences. In addition, it could not be said that he has “a long history of offending”. Further still, given the way in which he, in the main, has turned his life around and engaged in positive steps towards reform in the years since the subject offences, this is not a case in which it can be said that his childhood exposure to extreme violence and alcohol abuse still suggests an “inability to control the violent response to frustration [that] may increase the importance of protecting the community from the offender”. Thus, it seems to me that “full weight” should be given to his deprived background in explaining his outrageous behaviour and reducing his moral culpability.
None of this means that his moral culpability is reduced to nought, or anything like it. His culpability still must be quite high. Instead, it is simply reasonable to expect that a child who is exposed to such violent and destructive ways would grow up to become a young man who might consider resorting to such violence, as Mr Vitale did here, but without the usual wherewithal to refrain from doing so, which in turn reduces his moral culpability somewhat.
Relative youth at the time of offending
The second matter in mitigation is that Mr Vitale was only 23 at the time of the offending.
Relative youth is a relevant consideration in this case. I say “relative” youth because it is not as if he were only 18 at the time. But 23 is still relatively young. All else being equal, a younger person is less likely to think things through or consider consequences.
On the other hand, the gravity of the offences causes me to conclude that Mr Vitale’s relative youth does not have the same prominence in sentencing as it might have had in a less serious case of armed robbery and intentionally causing serious injury. There are many statements of the Court of Appeal endorsing the view that youth is usually a matter of first importance in sentencing; and others that recognize that, in some cases, including some involving serious violence, youth may have to be subjugated to other sentencing considerations such as general deterrence and denunciation.[5]
[5]See, e.g., the several authorities discussed by Redlich JA (with whom Coghlan and Macaulay AJJA agreed) in Azzopardi & Ors v The Queen [2011] VSCA 372 at [34]-[44] and by the Court (Maxwell P, Neave JA and Kaye AJA) in DPP v Anderson [2013] VSCA 45, esp. at [46]-[52].
Nevertheless, in my view, despite the fact that he has a criminal history of sorts, and despite the gravity of the offences for which he stands for sentence now, some account must be taken of the fact that Mr Vitale was still relatively young at the time of committing those offences.
Further, given his deprived early life, it is as if his maturation has been stunted or delayed, such that, even at 29, he is at a stage of life where his values and attitudes are still being formed. It is of course a pity that he has been developing, and will continue to develop, those values and attitudes in gaol, which is hardly the best place for any person to mature. But that, of course, is an unavoidable consequence of the nature and gravity of his crimes. He must go to gaol, and for a substantial period. One of the great aims of the criminal law, however, is to rehabilitate younger offenders. And, given his unusual circumstances, including the delay in his maturation and the delay in prosecution, Mr Vitale finds himself in circumstances which cause me to think that he should be allowed some mitigation for his relative youth at the time of the offending and his late development in light of his deprived early life.
Limited prior and subsequent criminal history
Thirdly, as I have already remarked, Mr Vitale has only a comparatively modest prior and subsequent criminal history for one who stands for sentence on such serious offences. I shall not repeat that history here.
Positively good character
Fourthly, it is also apparent from the references tendered, and despite a criminal history and the gravity of the subject offending, that Mr Vitale has some very positive aspects to his character.
For example, Ms Leyton speaks of Mr Vitale’s “loving, caring, kind, giving and honest” nature. She applauds his “courage to stop self-destructing and start living”. Further, references from Mr Vitale’s cousin Moana Va and his uncle Reverend Sanito Va speak of a compassionate, honest and trustworthy person who always wants to help others, and of his humility and reliability, as well as his caring and loving nature.
In his report to the Court, Mr McInnes said this:
I have counselled over 830 clients in anger management between 2010 and 2017. Every now and then you get through to a person who understands the concepts presented and completely changes, mainly because no one has ever explained those principles to them. Craig is one of a handful of clients I have counselled who changed significantly over the six-month period, until his arrest for the offences committed in 2011.
I regard Craig as someone capable of having a significant impact in his community. He was already starting to do that in 2016. That is, starting to teach others that violence was not the way forward and leads nowhere, only to more violence and continual trouble. Because of his large and dominant physical presence and his history, his community expected him to protect and support them in an aggressive way. But that was not the message he was giving them, but rather showing and telling them there was a better way, although this was not readily accepted.
By June 2016, Craig had just started a new career, had saved money and purchased his first new car, was supported and being supported by his partner and they were looking to buy a house together.
Thus, there is a very positive side to Mr Vitale’s character, which must be brought into account in sentencing and balanced against other factors such as the gravity of the offending.
Delay in prosecution
The fifth matter in mitigation concerns the delay of almost five years between his initial arrest and the prosecution of the matter. It is reasonable to accept that there has been a strain on Mr Vitale in not knowing his fate for some years. Far more important, however, is the fact that Mr Vitale has used the ensuing years wisely, and, despite the subsequent road-rage incident, has made significant strides towards reform, to which I shall come soon.
Hardship of imprisonment
The sixth matter in mitigation was urged by Mr Patton based on the following aspects of the reports of neuropsychologist Mr Jackson and psychiatrist Dr Deacon. In particular, Mr Jackson said this:
It is clear that custody would be a more onerous situation due to his impairments of working memory, high level attention and complex new learning and memory, but also due to his ongoing issues with paranoia.
His problems with working memory and new learning and memory mean that he will get overwhelmed by information and will potentially be at risk of getting into trouble with other prisoners or prison officers because he gets overwhelmed and does not remember what he is being told or what he is supposed to do. …
I am also very concerned about what appears to be an undiagnosed psychiatric disorder (paranoia) and the potential this could have in the prison setting. If he continues to feel paranoid and gets panicky and agitated, then there is a high risk of him getting into altercations with other prisoners and prison officers, as well as a high risk of potentially his condition deteriorating. …
To a similar effect, Dr Deacon said the following:
Mr Vitale is experiencing prison with considerable difficulty. It can be reasonably anticipated that he will continue to experience prison as more onerous than a person without such a profile of mental health issues.
This evidence was unchallenged. I accept that Mr Vitale has found, and will continue to find, imprisonment more burdensome than it is for prisoners without his afflictions, and that there is a risk that his condition will deteriorate in prison.
Strong prospects of rehabilitation
Finally, as I indicated earlier, I am satisfied that Mr Vitale has very strong prospects of rehabilitation. Contrary to Mr Patton’s submission, I do not say those prospects are excellent, but they are very strong and not merely reasonable to good, which was the submission made by Ms Coombes. There are several reasons for this conclusion.
Notwithstanding the road rage incident in 2015, his callous remarks in June 2016 and his failure to accept responsibility for the offences the subject of sentence, Mr Vitale’s transformation since 2011 has been remarkable. His sustained period of abstinence from illicit drugs and alcohol, his engagement in counselling, his growing insight into his own mental health problems, his engagement in regular paid employment, his interest in educating others against the ways of violence, his devotion to fitness and a healthy lifestyle – all of these things are demonstrative that he is well on the way to reform. As I intimated earlier, it is apparent that his transformation is due in no small part to the influence of Ms Leyton. But he still had to act on her ultimatum, which he has done, and more.
Despite the difficulties he has had in prison, he has continued to work towards reform by remaining drug-free and by doing various courses, including those concerning drug and alcohol treatment, managing loss and coping with change. He has also done practical courses that, hopefully, will equip him for further employment upon his eventual release, including courses relating to computers, welding, workplace safety, first aid, using power tools and warehouse logistics. In other words, it appears that he has done whatever he can while in prison to improve himself.
To be sure, Mr Vitale’s prospects of rehabilitation would be even better – perhaps excellent – had he pleaded guilty and shown remorse and had he not offended subsequently at all. But the absence of pleas of guilty and remorse and the occurrence of the assault in 2015 cannot deny his great strides towards reform over the last six-and-a-half years.
It is for those reasons that, balancing all matters, I assess his prospects of rehabilitation as very strong.
Sentencing purposes
I turn now to the purposes of sentencing.
Section 5(1) of the Sentencing Act 1991 (Vic) provides that the only purposes for which sentence may be imposed are, to use the shorthand, general deterrence, specific deterrence, denunciation, protection of the community, just punishment and rehabilitation.
General deterrence, denunciation and just punishment
In my view, general deterrence, just punishment and denunciation are important considerations in these offences of armed robbery and intentionally causing serious injury. The community should understand that behaviour of the type engaged in by Mr Vitale is denounced by the courts and will result in substantial terms of imprisonment that reflect that a mother and her son have been frightened out of their wits by being robbed at gunpoint and that another man has been shot and seriously injured in even more chilling circumstances, and that these people’s lives have been marred forever in consequence.
Specific deterrence
While the need for specific deterrence must be given some weight, that need is moderated significantly as a result of Mr Vitale’s limited prior and subsequent criminal history and my view that he is very unlikely to engage in such behaviour again given his very strong prospects of rehabilitation.
Rehabilitation and protection of the community
In my view, rehabilitation remains an important consideration. This is particularly so because Mr Vitale has such strong prospects of rehabilitation.
I do not consider that there is any need to add any significant separate component in sentencing for the protection of the community. As I say, I consider it very unlikely that Mr Vitale would act in such a seriously violent way again. The sentences that result from the other purposes of sentencing will ensure that the individual sentences, the total effective sentence and the non-parole period are of more than sufficient severity to protect the community.
I think it is important to recognize the interplay between rehabilitation and protection of the community in any event. Mr Vitale will be returning to the community ultimately. It is therefore in the community’s interests that such prospects of rehabilitation as he has be maximized, and that he is not crushed, so that, when he does return to the community, his risk of reoffending is as low as it reasonably can be and his chances of successful reintegration into the community are as strong as they can be.
Parsimony
Section 5(3) of the Sentencing Act, relevantly, provides that “a court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed”. This provision reflects the common law principle of parsimony. I have applied this provision and this principle when considering the appropriate sentences in this case.
Current sentencing practices
In so far as I can determine them, I have had regard to current sentencing practices for each offence.
Both parties submitted, and I accept, that I should also have some regard to the fact that the sentences for these offences, especially intentionally causing serious injury, may have been lower in 2011 than they are today.
Sentencing statistics show, for the period from 2010-11 to 2014-15, that prison sentences for armed robbery ranged from about one month to fourteen years’ imprisonment; that the average (mean) sentence ranged from about two years and four months’ imprisonment in 2014-15 to three years and three months’ imprisonment in 2013-14; and that the median sentence was three years’ imprisonment.[6] Thus, despite my impression to the contrary, those statistics do not support the view that sentences have increased for armed robbery, at least as at 2015. I suspect, however, that it may be that armed robbery sentences have increased in the last three years.
[6]Sentencing Advisory Council, Sentencing Snapshot: Armed robbery, No 186, June 2016, p 3.
I turn now to the sentencing statistics for intentionally causing serious injury. These statistics show, for the period from 2010-11 to 2014-15, that prison sentences for intentionally causing serious injury ranged from five days (when combined with a CCO) to fourteen years’ imprisonment; that the average (mean) sentence ranged from about four years and four months’ imprisonment in 2011-12 to five years and two months’ imprisonment in 2014-15; and that the median sentence was four years and six months’ imprisonment. During the same period, average (mean) non-parole periods ranged from three years and one month in 2011-12 to four years and two months in 2014-15.[7] Thus, these statistics support my impression that sentences for this offence have increased, at least until 2015. Again, I suspect the increase would be even more marked today.
[7]Sentencing Advisory Council, Sentencing Snapshot: Causing serious injury intentionally, No 187, June 2016, pp 3-5. The non-parole periods in the data were set in respect of total effective sentences, which, in at least some cases, included other sentences that have added to the total effective sentence.
However, these statistics are, of course, of limited utility, mainly because they do not distinguish cases according to their most important sentencing considerations – such as the seriousness of the particular offence, whether there were significant aggravating or mitigating factors, whether there was a plea of guilty or not guilty, whether or not there were significant prior convictions, and so on. Nevertheless, they do give some guidance.
Sometimes, case comparisons can be a useful tool in gauging current sentencing practices. Counsel did not, however, refer me to any comparable cases. But, in the area of sentencing, it is almost always difficult usefully to compare other cases in any event. No two cases are ever truly alike. After all, sentences are not precedents to be applied or distinguished. Nevertheless, I have considered some other sentences imposed for armed robbery and intentionally causing serious injury, and the reasons given for imposing them. I have found them instructive in gauging the order of sentences imposed for these offences, and the extent to which those sentences tend to be affected by various aggravating and mitigating factors. In the end, however, as is always the case, because of the limits of that process, I have been driven to rely principally on the particular circumstances of this case and sentencing principles to arrive at the appropriate sentences for Mr Vitale’s particular offences.
Parity
As indicated earlier, I must also have regard to the principle of parity among co-offenders when sentencing on the armed robbery in view of the sentence imposed on Mr Vitale’s brother for the same offence. It will be remembered that Wayne Vitale received a sentence of three-and-a-half years’ imprisonment for that offence.
While the two men committed the armed robbery as part of a joint criminal enterprise and each is therefore liable for the acts of the other, there are important differences that place them in significantly different positions. I have found that the armed robbery was Mr Vitale’s idea and that he was the driving force behind the offence. He also held and fired the gun and offered the violence towards Ms Luong and her son. Also, Mr Vitale is two years older than his brother, who made admissions, pleaded guilty, was found to be remorseful and had no prior convictions. On the other hand, Wayne Vitale had incurred subsequent convictions for recklessly causing injury, damaging property and threatening to kill his former partner, each of which arose out of a separate event. He also had outstanding separate charges of an assault arising out of a road rage incident and another concerning a fight outside a hotel.
Plainly, Mr Vitale’s offence of armed robbery warrants a significantly heavier sentence than that which was imposed on his brother for the same offence. As I have said, however, but for the constraining effect of considerations of parity with his brother, the sentence I am about to impose on Mr Vitale for the armed robbery would be substantially longer.
Totality
I turn now to totality. While the two offences are distinct and were committed at separate times, they occurred relatively close in time and, in a sense, were part of the one lawless episode. Further, both parties accepted, correctly in my view, that there must be a degree of concurrency between the sentences in order to comply with the dictates of totality.
Non-parole period
I should also add that, while Mr Vitale’s prospects of rehabilitation, like all other mitigating factors, have impacted on the individual sentences, the level of cumulation, the total effective sentence and the non-parole period I am about to impose, I think his prospects are so strong that it is appropriate to impose a non-parole period that is shorter than might otherwise be imposed. Hopefully, such a sentence will encourage Mr Vitale to continue to work towards reform and his earliest possible release. If he is released on parole, this also will ensure that he is supervised in the community for a substantial period. If this occurs, this should redound to the benefit of both Mr Vitale and the community.
Ancillary orders
Before formally announcing sentence, I note that applications have been made for a disposal order in respect of various items, a forfeiture order in respect of the gun and some ammunition, and a forensic sample order. The applications are not opposed. In those circumstances, I shall make the orders sought.
Sentence
I turn now to sentence.
Mr Vitale, please stand.
Balancing all other factors as best I can, I sentence as follows:
On Charge 2, the armed robbery of Ms Luong, Mr Vitale is convicted and sentenced to six years’ imprisonment.
On Charge 4, intentionally causing serious injury to Mr Kennedy, Mr Vitale is convicted and sentenced to nine years’ imprisonment.
I direct that two years of the sentence on Charge 2 (armed robbery) be served cumulatively upon the sentence on Charge 4 (intentionally causing serious injury).
This makes a total effective sentence of eleven years’ imprisonment.
I fix a non-parole period of seven years.
Finally, pursuant to s 18 of the Sentencing Act, I declare that 673 days of pre-sentence detention, including today, be reckoned as served under this sentence.
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