DPP v Enrico [2017] VCC 237 (14 March 2017)

Last Updated: 1 May 2017

IN THE COUNTY COURT OF VICTORIA

Revised Not Restricted Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

Case No. CR-15-01170

DIRECTOR OF PUBLIC PROSECUTIONS
v
DAMIAN ENRICO

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JUDGE:	HIS HONOUR JUDGE MCINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	12 September & 12 December 2016, 6 March 2017
DATE OF SENTENCE:	14 March 2017
CASE MAY BE CITED AS:	DPP v Enrico
MEDIUM NEUTRAL CITATION:	[2017] VCC 237

REASONS FOR SENTENCE

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Subject: CRIMINAL LAW

Catchwords: Sentence – attempted armed robbery – guilty plea

Legislation Cited: Crimes Act 1958 (Vic), Sentencing Act 1991 (Vic)

Cases Cited: R v Verdins [2007] VSCA 102; (2007) 16 VR 269

Sentence: Convicted and sentenced to a CCO of 4 years

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Holmes	Solicitor for the Office of Public Prosecutions
For the Accused	Mr C. Terry (Plea) Ms G. Nehma (Sentence)	Lewenberg & Lewenberg

HIS HONOUR:

1. Mr Damian Enrico is aged 48, having been born on 10 December 1967. He first came before this Court by way of plea on 12 September 2016, when he pleaded guilty to one charge in Indictment E14317657. The charge in such Indictment was attempted armed robbery, which occurred on 14 May 2014, the victim was John Aitken and it involved the use of an imitation pistol, a photo thereof which became Exhibit B.
2. Pursuant to ss.321M and 75A of the Crimes Act 1958 (Vic) the maximum penalty proscribed by Parliament is a period of 20 years' gaol. Such is indicative of the serious nature of this crime and, indeed, of the serious manner in which Parliament, on behalf of the community, views the commission of such crime.
3. Insofar as the actual circumstances, by way of consent Mr Terry, who appeared on behalf of Mr Enrico, accepted that the facts upon which I am to sentence Mr Enrico were set out in the prosecution opening upon the plea, Exhibit A. In that opening, the circumstances that I have earlier spoken about were detailed.
4. Mr Enrico's movements at the Melbourne Market Authority at 542 Footscray Road, West Melbourne, on that day were recorded on CCTV. He was recorded wearing a black hoodie with the hood pulled up over his head, black slacks, black shoes, and an orange high-visibility vest. Between 8 and 9 pm he went into what is known as the Rainfresh car park, where he confronted the victim, Mr Aitken, and produced the silver imitation semi-automatic pistol.
5. Mr Enrico identified himself as a police officer, to which Mr Aitken, the victim, replied, "Fuck off". Mr Enrico pressed the barrel of the pistol against Mr Aitken's head and said, "Give me the fucking money". Insofar as what that refers to I am not quite certain, but that is apparently what was said. Mr Aitken threw Mr Enrico to the ground headfirst, after which a short fight ensued during which Mr Enrico obviously did not do too well, and as a result left the scene, leaving the imitation pistol there. The point to be made is that he was to that stage totally unknown to the victim.
6. The circumstances themselves clearly indicate a strange happening, to say the least. In the record of interview which was subsequently undertaken, after the police executed a search warrant on 21 July, the following was said by

   Mr Enrico: that he went to the Market Authority to speak to the gentleman who conducts Rainfresh, Chris Tzouvelas, for the purpose of getting a job, this is apparently denied by Mr Tzouvelas. Further, he said a person he knew as Bobby, and Mr Aitken were staring at him, which he believed to be an act of aggression. He confronted Mr Aitken in the car park to ask him why he had a problem. He admitted fleeing because he was losing the fight and had in fact sustained injuries.

7. Mr Enrico denied at that stage having possession of any imitation pistol and denied attempting to rob Mr Atiken. Again, as I have said, it does not seem to be clear what is alleged as being by way of the attempted armed robbery to be robbed. There is no indication in these materials of what Mr Aitken had with him or what money was likely to be stolen.
8. As I said, tendered as Exhibit B was the photograph of the pistol. There is no pre-sentence detention. Section s.6AAA of the Sentencing Act 1991 (Vic) applies. There is no victim impact statement recorded. There is a disposal order sought to be signed which is now in front me and I will sign that now. I have also signed a forensic sample order.
9. As I said, the plea was conducted by Mr Terry on 12 September 2016. The circumstances were obviously concerning to me. There did not appear to be any real explanation proffered. The submissions were tendered, which I will come to later. They show that, although Mr Enrico had been to gaol before on a drug matter, his priors were relatively limited, certainly no priors of this seriousness. I was told that the background to this is a reaction to some form of domestic situation, and I was concerned in regard to his ideation at the time.
10. A pre-sentence CCO report and a Forensicare report were ordered and the matter was then adjourned to 12 December 2016. Tendered on that day was the pre-sentence report from Community Correctional Services, dated 9 December 2016, Exhibit D. That report was positive. Despite a number of issues, to use the words of the assessors which they considered as not being congruent, Mr Enrico was deemed suitable for a community corrections order, with a minimum period to allow sufficient time for all conditions to be completed and recommended conditions. In that report there was a note of the issues of depression, sleep deprivation, longstanding issues as to substance abuse. Tendered was a report from the psychologist Dr Matthew Barth dated 27 November 2016, Exhibit 1, as to history, it was noted that Mr Enrico described several periods of mood disturbances which were precipitated by various relationship difficulties, again consistent with the matters that I have been advised by counsel.
11. At paragraph 22 it is noted that:

"Mr Enrico presents as a very extraverted and flamboyant individual who goes to considerable lengths to present himself in a positive and moralistic light. However, a detailed analysis of his personal history and general adjustment indicated he remains a very insecure and immature for his age and he has had considerable difficulties establishing a clear direction for his life in the community. Primarily, Mr Enrico has found the process of establishing close relationships to be problematic, particularly with the reciprocal nature of such unions".

12. At paragraph 25 the following was said, which I think is important:

"Mr Enrico’s interpersonal and behavioural adjustment has caused him noteworthy issues in his relationships with others and his insight into his behaviour remains limited. However, he does not meet the full diagnostic criteria for a personality disorder. Nevertheless, Mr Enrico’s personality traits are indicative of ‘Features of Narcissistic Personality Disorder’ by DSM-5 criteria."

13. The opinion proffered therefore was that Mr Enrico's mental state was normal when evaluated by Dr Barth, his behaviour was prone to extroverted, grandiose and flamboyant actions. He is sensitive to any perceived threat to self-image and is prone to managing conflict in an overly masculine manner as a dysfunctional means to achieve self-enhancement and at subparagraph 6 of paragraph 26, “Mr Enrico’s interpersonal and behavioural adjustment is dysfunctional. However, he does not meet any diagnostic criteria for personality disorder." Concluding comments were the need for anger management training.
14. Suffice to say that report from Dr Barth gave support to the reasons why I sought a Forensicare report. Unfortunately, there was a failure for some reason or other for Mr Enrico to attend in order to have such Forensicare report prepared, and as such the matter was adjourned to 6 March 2017 so that such report could be received, the request for psychiatric report being sent by this Court on 12 September 2017.
15. When we resumed on 6 March of this year, we had in fact received the Forensicare report, Exhibit C. That report dated 2 March 2017, given the background that I have just set out, was somewhat disconcerting for the Court. The report was prepared by Dr Clare McInerney, a consultant psychiatrist with Forensicare.
16. At paragraph 9.1 in such report, under ‘Opinion and Recommendations’ the doctor said that she was "unable to corroborate much of the information provided by Mr Enrico about his personal circumstances, a factor which limits my opinion.” At 9.2, "Notwithstanding the above, I find no evidence that Mr Enrico has a psychotic disorder or a major mood disorder". At 9.3, "I note the assessment of Dr Barth, psychologist, that [Mr Enrico] displayed features of Narcissistic personality disorder.” She found no evidence for the role of any psychotropic medication for Mr Enrico, and further at 9.5 she states she could not “...see any psychiatric explanation for his offending behaviour, nor for the fact that his account of offending behaviour differs somewhat from that of the others".
17. Dr McInerney noted the prior history of substance abuse and said at paragraph 9.7, "There is evidence to suggest that Mr Enrico tends to easily become violent when angered, although possibly at times to gain advantage. This violence appears to have occurred in various contexts, including relationships, with acquaintances and with relative strangers". Finally at paragraph 9.8, "It seems most likely the assault occurred in the context of anger. He may benefit from anger management training".
18. The Court was therefore left in a peculiar situation. On 6 March of this year Mr Terry essentially sought, despite the seriousness of this crime and the maximum penalty involved, a significant community corrections order as an alternative to immediate imprisonment. Insofar as the classification of the offending, it was submitted to the Court, which I accept, that it should be seen as a mid to lower order culpability when one looks at the range of attempted armed robberies. It was unplanned; that is, Mr Enrico was at the market seeking to obtain employment. He appears to be unsuccessful in that matter. He was generally at a low ebb from a personal point of view. It was submitted that it was very unsophisticated offending and that clearly, whatever was the attempt, he did not do very well in the sense of the victim very much and very shortly came out on top.
19. Mr Enrico has two children that he looks after. He has no subsequent convictions, and as I have said, he has a background, albeit he has been to gaol for drug matters, that does not include significant matters of violence. Given the evidence, there was no suggestion of a R v Verdins [2007] VSCA 102; (2007) 16 VR 269 issue, except that based upon Dr Barth's report the Court is dealing with a very insecure and immature man.
20. Mr Enrico’s personal circumstances were relied upon, as were his relationships. He has apparently suffered significant periods of depression in the aftermath of separation from his various long term partners, in particular Stella and then Alison. His work history was reasonably good, if somewhat unstable, essentially being involved in labouring-type jobs, in particular at markets. Albeit the need given the serious nature of this crime for general deterrence to play a large role, it was submitted that the punitive aspects of a community corrections order with a substantial period of unpaid community work would, in the particular circumstances of this case, be capable of serving the purpose of punishment.
21. Mr Terry submitted that the vast majority of Mr Enrico's adult life has been spent in contributing and staying out of trouble, despite the circumstances that occurred in his teenage age. He has not been in any difficulty for many, many years. It was submitted that prison should be the last resort, that a therapeutic order with a punitive function, which can be structured by way of a community corrections order, should be imposed.
22. I must say the result of all this still leaves the Court disconcerted. However, given the low culpability in the matter, the circumstances spoken about by Dr Barth, albeit not a psychiatric disorder, I find there was something unusual going on in Mr Enrico's mind on this day, that led him to commit this unplanned criminality. Given the circumstances and, I thought, the very generous professional concession by the DPP that a community corrections order was within range, and having considered all the matters, in particular the unique nature of this crime, I have determined to accept the submission put to me by Mr Terry.
23. However, I am concerned to ensure that behaviour of this type does not occur again. I consider that a community corrections order should be imposed for a period of four years. As I say, I do so with some disquiet because I am still not fully convinced, nor do I think I fully understand Mr Enrico nor the circumstances of this day. However, taking a positive view and being positive given his history, I am prepared to order an alternative to immediate imprisonment
24. As I say, such will involve a community corrections order for a period of four years. I will accept the conditions recommended, that there be supervision, that there be unpaid community work. I have determined that that should be for a period of 250 hours and that there should be an intensive period of two years over which that should be performed; that there should be an order or a condition that Mr Enrico subject himself to psychiatric assessment as recommended and also to offending behaviour therapy as recommended.
25. Ms Nehma, given that determination, I understand that when your client originally undertook the pre-sentence report he indicated that he would consent to such an order. I think you should check now, however, that he still is of that view. It is not an easy period to be subject to such an order for four years and I want to make it clear, Mr Enrico - and you might confirm this when you are talking to him - you would not want to come back before this Court having breached this order because the alternative will be clear. Perhaps you might just check before we ask Mr Enrico's consent.
26. MS NEHMA: Yes, Your Honour. If I can approach him, thank you. Thank you for that opportunity, Your Honour. I'm instructed that he remains consenting to a CCO.
27. HIS HONOUR: Yes, all right. If you would stand up please, Mr Enrico. You will be convicted of this charge and sentenced to a community corrections order for a period of four years. The conditions recommended are supervision throughout such period under condition 48E, unpaid community work to be served by way of 250 hours under 48C, and I order that that work be performed in an intensive period of two years; that under 48D you subject yourself to appropriate psychiatric assistance as directed, and equally to appropriate offending behaviour as directed.
28. Mr Enrico, given the circumstances, I hope that the propositions put to me are correct, that from now on you will ensure that you do not get into these issues, that if you have problems you will not take it out as you have in this case. I just want to say to you again these community corrections orders are meant by the Government to be serious. The conditions must be complied with. A breach of conditions is of the same dimension as committing further criminality. All of such can lead to a community corrections order being cancelled.
29. Given the seriousness of this matter there was consideration by the Court of an immediate period of imprisonment. You are being given a chance. As I say, the view of both counsel was that such order was within the appropriate sentencing range, but you would not want to come back here having committed further criminality, having breached this order. There will then be no alternative, all right?
30. OFFENDER: Yes, Your Honour.
31. HIS HONOUR: So all the best.
32. OFFENDER: Thank you.
33. HIS HONOUR: Just take a seat while we attend to the formalities. I thank counsel for their assistance over what has been a somewhat dragged out performance.
34. MS HOLMES: Yes, Your Honour.
35. HIS HONOUR: I also thank the prosecution for their professional attitude and let's hope we are all rewarded.
36. MS HOLMES: Yes, thank you, Your Honour. I do have three copies of the disposal order that's sought.
37. HIS HONOUR: Yes. I have signed the 464ZF order. Mr Enrico, this is an order that requires you to undergo a procedure to provide a forensic sample. You will have to do that at a police station. The details are given to you on the form where to go. It is important for you to go and do that voluntarily because they can bring you back here.
38. OFFENDER: Okay, Your Honour.
39. HIS HONOUR: Your counsel or your solicitor will explain that.
40. MS NEHMA: Yes, Your Honour. Perhaps for the sake of completeness I will put on the record that the 464ZF order and the disposal order are not opposed.
41. HIS HONOUR: Yes, thank you. I will sign the disposal order. I do not need to do a 6AAA when I have done a community corrections order, but I think it is clear that the alternative was pretty stark.
42. MS HOLMES: Yes, Your Honour.
43. HIS HONOUR: All right, Mr Enrico, good luck.
44. OFFENDER: Thank you.
45. HIS HONOUR: We can adjourn sine dine.

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