DPP v De Stefanis [2019] VCC 427 (28 March 2019)

Last Updated: 11 April 2019

IN THE COUNTY COURT OF VICTORIA

Revised Not Restricted Suitable for Publication

AT SHEPPARTON

CRIMINAL JURISDICTION

CR 18-00091

DIRECTOR OF PUBLIC PROSECUTIONS
v
FRANCO DE STEFANIS

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JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Shepparton
DATE OF HEARING:	27 March 2019, 28 March 2019
DATE OF SENTENCE:	28 March 2019
CASE MAY BE CITED AS:	DPP v De Stefanis
MEDIUM NEUTRAL CITATION:	[2019] VCC 427

REASONS FOR SENTENCE

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Subject: Criminal law – sentencing – arson – conduct endangering persons – long history of chronic mental illness – long history of chronic mental illness – offences committed whilst non-compliant with medication and in a psychotic state – sentenced to the equivalent of time served – released on Involuntary Assessment Order pursuant to Mental Health Act 2014 – Verdins principles all enlivened.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr R. Pirrie	John Cain, Solicitor for Public Prosecutions
For the Accused	Mr P. Skehan	Emma Turnbull Lawyers Pty Ltd.

HER HONOUR:

1. Franco De Stefanis, you have pleaded guilty before me to one charge of arson and one charge of conduct endangering persons. Both those charges are serious and that is reflected in the maximum penalty that Parliament says I can impose in respect to both charges. For arson, that is 15 years' imprisonment and for conduct endangering persons, five years' imprisonment.
2. I will proceed to sentence you on the basis of the prosecution opening that was read yesterday.
3. I have noted that you admitted a criminal history and there is an appearance at the Shepparton County Court on 22 March 2012 in relation to threatening to inflict serious injury, public nuisance and assault and resist police for which you were convicted and placed on a Community Correction Order for one year with special conditions including treatment for mental health issues. It is apparent from a review of your history that you were able to comply with that order.
4. The offending relates to you attending the Woolworths grocery store, Mooroopna in the early hours of 13 July 2017. At about 7 o'clock Mr Bryant, the store employee, opened the store and a number of customers entered including you. You walked towards the aisle which contained a large amount of toilet rolls on display and you used a match to set a portion of those rolls alight and promptly left the store. Charge 1 - arson.
5. The fire spread to other sources and therefore the store was evacuated. Customers and other staff were asked to leave. The Country Fire Authority arrived a short time later and extinguished the fire.
6. A large amount of stock was damaged that could not be salvaged and also there were some property damage to the store. A total of $201,332 in stock was damaged and the cost of repairs is $27,198. The value of the damage caused by the fire was $228,530.
7. There were customers and two staff members present at the store at the time of the offending and by lighting the fire, you placed those persons in danger of serious injury and that is the facts constituting Charge 2 - conduct endangering persons.
8. You were eventually arrested by police at about 11 am that day in Shepparton. You denied any involvement in setting the fire. You were arrested and taken into custody and later deemed unfit for interview and thus a record of interview was not conducted.
9. Your history in terms of what has happened since your arrest has been problematic and that relates primarily to treatment for mental health issues that I will go into shortly. You were charged on 13 July 2017 and the matter proceeded by the usual processes and you were committed for trial in this court.
10. Given your particular circumstances and the fact that the issue as to your fitness to stand trial was legitimately raised and had to be investigated, I consider that the plea of guilty is one still entered at an early time and you will be given an appropriate discount in your sentence accordingly.
11. You are a man who is aged 52. You were born in Mooroopna. Your parents are of Italian background. They were fruiterers and they are now retired. You are the youngest of their four children.
12. I have had regard to the report that has been prepared by Associate Professor Andrew Carroll, Consultant Forensic Psychiatrist, and that report is dated 3 December 2017. He goes into detail about his findings after he saw you at Thomas Embling Hospital on 27 November 2017. I noted that he states in his report you had had three admissions to Thomas Embling Hospital, Argyle Unit and other units since your remand just to try to regularise your psychiatric condition.
13. When he saw you, you were an involuntary patient under the Mental Health Act at Thomas Embling Hospital on the acute unit, Argyle.
14. He said that in the community you lived in private rental accommodation in Mooroopna but that had been lost and that you had not been working at the time of your arrest and you were receiving the disability support pension and your finances were managed by State Trustees.
15. You have had a long and very detailed psychiatric history with treatment from the public mental health services since 1994. He sets out the formal diagnosis in paragraph 40. Your clinical diagnosis is in fact paranoid schizophrenia. He also noted that you have been frequently the subject of community treatment orders in the past.
16. You are currently prescribed anti-psychotic medication and are being held at Ravenhall Prison in a unit that is set up especially to manage people with psychiatric issues.
17. Importantly, Dr Carroll noted that your mental illness over the years had been very difficult to treat and there were issues with compliance with medication. He thought at that time you remained actively psychotic even after some months in the Thomas Embling Hospital. He agreed with the diagnosis of paranoid schizophrenia.
18. He did not think that at the time of the offending that the defence of mental impairment was open to you and he thought you were fit to stand trial.
19. Your condition is one that is permanent in nature and impacts upon your day-to-day life and your decisions that you make.
20. I have accepted that all the principles of Verdins have been enlivened and your sentence will be moderated accordingly. Currently, it is the case that you have been in custody now for some six hundred and twenty-four days.
21. I have received today a letter from your treating doctor, Dr Das, the psychiatric registrar at the Erskine Unit at Ravenhall Correctional Centre. He confirms that he is treating you for your various psychiatric disorders and that you are a person who presents with a high degree of interpersonal violence risk.
22. He says that you are mostly non-compliant to treatment, leading to certification for Thomas Embling Hospital for enhanced care. He has foreshadowed in the event that you are released today that you will be taken to the Sunshine Emergency Hospital on an Involuntary Assessment Order given your risk. Documentation to that effect has been provided to the court.
23. In formulating the appropriate sentence, I have regard to all the relevant sentencing principles. General and specific deterrence are usually very important sentencing principles in these sorts of cases but I have moderated the effect of those having regard to your psychiatric condition that I have articulated. I must impose just punishment and I must, on behalf of the community, condemn your actions and also provide for punishment that will protect the community.
24. ACCUSED: I am remorseful, Your Honour.
25. HER HONOUR: Having regard to the fact that the offences, the two offences are founded on the same facts, I consider that it is appropriate to impose an aggregate sentence of imprisonment. What that means is I am just going to impose the one term of imprisonment in respect of both charges.
26. In respect to the charges of arson and conduct endangering persons, you will convicted and sentenced to 624 days' imprisonment. I make a declaration of pre-sentence detention of 624 days. I direct that that be entered into the record of the courts.
27. I make the disposal order sought and also - in the circumstances, is a forensic sample order sought?
28. MR PIRRIE: Yes, I do not
29. HER HONOUR: Has he not in the past provided that?
30. MR PIRRIE: I am not sure, Your Honour. I understand what Your Honour is saying but certainly if there is one on record then there is no need. But if there is not one on record
31. HER HONOUR: Did you have a chance to get instructions about that, Mr Skehan?
32. MR SKEHAN: No, I did not, Your Honour. I beg your pardon.
33. HER HONOUR: All right.
34. MR SKEHAN: Your Honour, in regard to his past offending, it would seem that putting aside the interest of - the public interest in having a database that is well-populated
35. HER HONOUR: Yes.
36. MR SKEHAN: I would argue it is not in the interests of justice because he does not fall into the cohort who is committing burglaries or sex offences. Those two types
37. HER HONOUR: All right. Well, look, in the circumstance, having regard to the seriousness of the offences that are charged and his past history, I do consider that such an order is warranted and it is in the public interest. I note that it is not by consent but I will make that Order.
38. The only other order I need to make is a s.6AAA declaration. But for the plea of guilty, I would have imposed a term of imprisonment of three years to serve two years, three months.
39. That completes my sentencing remarks.
40. MR SKEHAN: As Your Honour pleases.
41. HER HONOUR: Mr De Stefanis, the only thing that comes out of that is that at some stage you will be given a little cotton bud to put in your mouth, just to rub on the side of your mouth.
42. OFFENDER: Yeah, yeah. DNA.
43. HER HONOUR: And that is so as to provide the sample of your DNA for police for them - to enable them to have that on their records. I have to tell you that if you do not consent, that is if you do not agree, they can use reasonable force to take that sample by way of blood test.
44. OFFENDER: I have already got blood sample in hospital and things like that. If they want it, they can take it anyway, Ms
45. HER HONOUR: So hopefully, if you just agree to put the little cotton bud in your mouth and rub it on the side of your cheek it should not be a problem.
46. OFFENDER: Yeah, I do not have to worry about it, nothing to hide.
47. HER HONOUR: All right? Right. The process today is that you will now be released but you will be taken, transported by an ambulance to the Sunshine Hospital Emergency Department, on an Involuntary Assessment Order, and you will be dealt with there as an inpatient and they will make their decision as to whether you remain there as an inpatient or treated in the community. They will be consulting with you once they have had an opportunity of assessing you.
48. I understand Mr De Stefanis that you do have a friend in the community with whom Mr Skeehan has been able to make some contact on your behalf?
49. OFFENDER: Yes, yeah. Yes, and he says he has made it so that I may stay with him. I am very grateful. I never expected that.
50. HER HONOUR: That is good. So provided you are compliant and you take the necessary medication, that may be an option for the future for you. All right?
51. OFFENDER: Thank you. Thank you, Your Honour.
52. HER HONOUR: Good. So that concludes your matter now.
53. OFFENDER: Yes.
54. HER HONOUR: Thank you for being attentive this morning and I am sure the situation is clear for you. But do you want to spend some with Mr Skeehan before we disconnect the video link just so that he can confirm the order?
55. OFFENDER: Um, yes please. Yes.
56. HER HONOUR: Yes please? All right. Well look, what I will do then is I will adjourn for a short time to enable that to be undertaken and everyone else in the room will leave
57. MR SKEHAN: Indebted, Your Honour.
58. HER HONOUR: and you will have that privacy. But I do appreciate the efforts you have made given such short notice.
59. MR SKEHAN: As Your Honour pleases.
60. HER HONOUR: I think it has been a worthwhile exercise to get this sorted out.
61. MR SKEHAN: Indeed.
62. HER HONOUR: Yes.
63. OFFENDER: Yeah, it is commendable.
64. HER HONOUR: So all the best, Mr De Stefanis, I am going to leave the courtroom now. All right? You do not have to leave. You can wait and talk to
65. OFFENDER: No, you are standing, Your Honour.
66. HER HONOUR: your counsel. All right. Thank you. We will adjourn.