DPP v Stilo [2021] VCC 208 (4 March 2021)

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised

Not Restricted

Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOSEPH STILO

JUDGE:	HER HONOUR JUDGE CARLIN
WHERE HELD:	Melbourne
DATE OF HEARING:	1 March 2021
DATE OF SENTENCE:	5 March 2021
CASE MAY BE CITED AS:	DPP v Stilo
MEDIUM NEUTRAL CITATION:	[2021] VCC 208

Catchwords: Robbery; Armed Robbery; offending committed in company; offender has history of drug abuse

Sentence: Three years and six months with non parole period of two years imprisonmen

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms P Thorp	OPP

For the Accused	Ms N Karapanagiotidis	Stary Norton Halpen

1 Joseph Stilo, on 23 May 2019 you were the getaway driver for an associate John Velluto who committed an armed robbery on a post office in Aberfeldie. You and Velluto had previously agreed to rob the post office and the day before the two of you drove around the area looking at CCTV cameras and anything else of note. At about 1 pm on the actual day you drove Velluto in his car to a point a few hundred metres away from the post office and parked. Velluto headed towards the post office, wearing a grey jumper with a hood pulled over his head and carrying a bag, whilst you waited near the car. Velluto entered the post office with his face covered and pulled an imitation handgun out of his jacket pocket. He pointed it at the two shop owners who must have been terrified as, no doubt, were the several customers who happened to be present. After obtaining the contents of three cash registers, a total of about $1,350, Velluto ran back towards the car. You both got in and you drove him away.

2 Several months later and whilst on bail for a variety of other offences, you enlisted the help of another associate, Damien Disauro, to rob another shop, only this time you decided that you would be armed. On 12 October 2019, Disauro, drove you to the shop, a milk bar, in a car with no registration plates. Disauro then conducted a reconnoitre of the milk bar by going in and asking about the price of cigarettes before returning to the car. Disauro then drove you around the block and parked in a street behind the milk bar.

3 You got out of the car carrying a bag and a hatchet. You went into the milk bar at about 5.45 pm and approached the single female attendant, Helen Liu, who was behind the counter. You raised the hatchet over your head towards Liu and said, 'Put the money in the bag. Quick.' You jumped on the counter and again raised the hatchet over your head towards Liu, using threatening language as you did so. Liu opened the cash register and activated the alarm at the same time. She started putting $20 notes into your bag and you reached into the till and grabbed $5 and $10 notes. At this point the alarm sounded and you jumped off the counter and ran out of the shop dropping some of the notes you had stolen on the way. You ran back to the waiting car, which sped off.

4 A combination of circumstances led the police to suspect your involvement in both crimes and on 18 October 2019 a search warrant was executed at your home. The police found a silver coloured hatchet and clothing that appeared to match clothing worn during the incidents. You were arrested, interviewed and charged with armed robbery in respect of both matters. You were then remanded in custody and have been there ever since, a total of 500 days (since 18 October), as at the date of the plea.

5 Your co-accused Velluto and Disauro were also charged for their roles in the incidents, but their cases are still outstanding.

6 On 6 December 2019 you offered to plead guilty to robbery in relation to the first incident on the basis that you did not know that Velluto would be armed, but that offer was not accepted by the prosecution until 19 February this year following a pre-trial ruling on the admissibility of certain evidence. In relation to the second incident, you pleaded guilty to armed robbery and the related summary offence of commit an indictable offence whilst on bail at a committal case conference on 14 January 2020.

7 On 1 March 2021 you pleaded guilty before me to armed robbery, and commit indictable offence whilst on bail, in respect of the second incident and robbery, in respect of the first. After a plea on your behalf, it now falls to me to sentence you for your conduct. Your counsel, Ms Karapanagiotidis, submitted that a combination sentence of a term of imprisonment followed by a community corrections order was within range and appropriate in your case. The prosecutor, Ms Thorp, submitted in effect, that I would fall into error, if I imposed such a sentence and that the only appropriate sentence was one involving a head sentence and non-parole period.

8 In arriving at an appropriate sentence for you, I am required by law to have regard to a variety of factors which are sometimes complimentary and sometimes contradictory in nature.[2] Some tend towards leniency and some point the other way. No one factor automatically prevails over any other, rather I must have regard to them all and give each one the weight it deserves to arrive at a just sentence.

9 I turn to the objective gravity of your offending and moral culpability. The inherent seriousness of your crimes is reflected in the maximum penalties, being 25 years' imprisonment for armed robbery, 15 years' imprisonment for robbery and 3 months' imprisonment for committing an indictable offence whilst on bail.

10 In your particular case the offending was premeditated, involving the use of a getaway car and a degree of surveillance. In one case you drove around the area the day before looking for CCTV cameras and in the other your co-offender went into the store on a pretext immediately beforehand.

11 You also chose soft targets, meaning you knew that there was likely to be little if any, resistance, and as a result of Disauro’s reconnoitre you knew that the milk bar was staffed by a single woman and had no customers.

12 Further each offence was calculated to frighten your victims and had the potential to cause them long term harm. In that regard, whilst you did not know that Velluto was armed, you did know that he would either use force or put his victims in fear that force would be used on them. In relation to the armed robbery, your conduct in jumping on the counter, wielding the hatchet and making threats, was outrageous and terrifying. It was a serious example of the offence of armed robbery.

13 In your police interview you portrayed yourself as a reluctant participant in the main incident. You said, you looked for CCTV cameras, because Velluto asked you to do it and that when he called you the next day you were going to pull out but he talked you into it. You claimed it was not really planned and that you were 'off your head' on drugs. You also said, that when Velluto came back to the car, you thought, 'Fuck, what have I got myself into' when you realised that he had a gun. You said you later argued because he would not give you half of the money and he produced a knife on you.

14 The fact you committed an armed robbery only a few months later tends to undermine your claims to being horrified at Velluto's actions in the May incident. Further, your culpability for that armed robbery is increased by your involvement in the May incident as well as the fact that only 16 days before on 26 September 2019, you were charged and released on bail for offences of theft of motor vehicle, attempted theft of motor vehicle, handling stolen goods and possession of cannabis and methylamphetamine. You told the police that you only planned the armed robbery about one hour prior to the offence, and that Disauro, who you would not name, did not know what you were planning to do. You said you needed money for food and smokes.

15 You were interviewed by videolink on 14 July 2020 for the purpose of a report by psychiatrist Dr Claire McInerney.[3] You told Dr McInerney that your motivation for the armed robbery and I infer the robbery, was to obtain money to support your habit. You told her that at the time of the armed robbery you were, 'off your head on ice and GHB', and that you had not taken your prescribed medication for three days. In that regard Dr McInerney noted that you had previously been diagnosed with schizophrenia as well as drug dependence and had been prescribed medication including quetiapine and an anti-depressant. However, she noted that you had been psychiatrically assessed a number of times around the time of the armed robbery and displayed no evidence of active psychosis. She concluded that you were mentally well at the time of the armed robbery and there was nothing to suggest that any mental illness contributed to your offending. Rather, she noted that you were actively using drugs and alcohol at the relevant time and also that your past psychotic symptoms had been linked to drug use.

16 Whilst Dr McInerney's opinion was confined to your involvement in the armed robbery, there is also no evidence that mental illness contributed to your involvement in the robbery. To the contrary, by your own admission to police, you were high on drugs at the time.

17 Given Dr McInerney's opinion, Ms Karapanagiotidis quite rightly disavowed any reliance on a well-known case of Verdins, to argue that your moral culpability was reduced on account of mental illness. You knew what you were doing was wrong and that it would have been terrifying to your victims. The fact that you did it to obtain money for drugs explains your conduct, but in no way excuses it. I regard your moral culpability for all offences as high.

18 One of the matters to which I must have regard in arriving at an appropriate sentence for you is current sentencing practices. The reason is to promote consistency of approach in sentencing, particularly the application of relevant sentencing practices.

19 The most recent Sentencing Advisory Council statistics of the higher courts (June 2019) indicate that almost 80 per cent of people charged with armed robbery over a five year period received an immediate term of imprisonment with the most common term being three to four years.

20 Whilst no two cases are every truly the same, of more use than statistics are sentences imposed in comparable cases. Although not binding precedents to be applied or distinguished, such sentences do provide a convenient yard stick against which to measure any sentence I propose in this case.

21 I was not referred to any comparable cases by either counsel however a review of recent sentences for armed robbery on soft targets reveals sentences ranging from combination sentences of imprisonment and corrections orders, to sentences of a number of years. The different penalties highlight the fact that ultimately my duty is to impose a just and appropriate sentence on you in the unique circumstances of this case.

22 Turning to your background and personal circumstances. You were born in Melbourne and raised in Keilor East. You are now 27. You are an only child and your parents separated when you were eight or nine years old. Thereafter, you mainly resided with your mother but spent time with your father.

23 You attended school up until Year 10, when you left to start work. By the age of 14 you were drinking to excess and by your late teens you were abusing drugs. You lived independently from age 18 to 21 in private accommodation paid for by your father. You then returned to live with your mother.

24 Your substance abuse affected your ability to hold down permanent work. You have held short-term jobs in carpentry, engineering, concreting and labouring. Your longest employment was of a painter for the CFMEU.

25 You have been productive in custody, having worked as a chef, cleaner and billet. You have remained drug-free and regained some of your physical health, having gained 10 kilograms and working out at the gym. You have also undertaken a number of educational programs.

26 Your drug use has also strained your relationship with your parents but they do remain supportive of you. You have regular phone contact with them and you will reside with your mother upon your release. You instruct that there will be work available to you on your release, through a family friend, who works in steel fabrication.

27 Other matters I am required to take into account are the impact of your offending on your victims and their personal circumstances.[5]

28 Only Helen Liu, the victim of your armed robbery made a Victim Impact Statement. Since she did not want her Victim Impact Statement read aloud in court and to protect her privacy I will not descend into the details of that statement. Suffice to say a plan that took you only minutes to execute has had enduring consequences for Ms Liu and her family.

29 Whilst your other victims did not make victim impact statements, it is not difficult to imagine, that the consequences for them have been similarly traumatic.

30 You are entitled to a significant discount in your sentence for the fact you pleaded guilty to the armed robbery and offered to plead guilty to the robbery very early in the proceedings. In so doing, you have facilitated the course of justice and taken legal responsibility for your crimes, which is particularly valuable at present given the strain COVID-19 has placed on the criminal justice system. You have also spared your victims the experience of coming to court to give evidence.

31 A plea of guilty is not, of itself, proof of remorse. People can plead guilty for many reasons. Further, as the courts have made clear, true remorse is not anxiety at the prospect of being punished, nor simply regretting one's conduct. True remorse involves a desire to make amends and a determination to change one's behaviour. [6]

32 It is difficult to accept that you felt any great remorse for the May incident, given you went on to commit a serious armed robbery yourself. On the other hand you were largely cooperative with the police, and told Dr McInerney that you regretted your actions and were highly motivated to address your substance abuse. You also indicated your remorse to your father and Emmanuel Russo, both of whom provided character references for you.

33 I am not satisfied that you have any great understanding of the impact of your offences on your victims, but I do accept that you are remorseful for your conduct and I take that into account in your favour.

34 Ms Karapanagiotidis pointed out there was a delay in finalising the criminal proceedings against you as a result of the prosecution not accepting your early offer to plead guilty to robbery, not armed robbery, in respect of the May incident. I accept that there was this delay during which you had the uncertainty of not knowing whether you would be facing trial for armed robbery however this delay was minimal in the scheme of things and the mitigatory effect very slight.

35 I turn to your character and risk of reoffending. You have had two court appearances prior to the May offence. These were in the Magistrates’ Court for driving related offences and one criminal damage. Shortly after the May offence, on 4 June 2019, you had your third and only other court appearance. Again this was in the Magistrates’ Court and was for driving related offences, although there was a single charge of possessing a controlled weapon. Whilst your prior offences are serious enough, the offences which have brought you to this court represent a marked escalation in offending and this is the first time you have been in prison.

36 It is worrying that you are not deterred by your prior court appearances. It is particularly worrying that neither your court appearance in June 2019, nor the fact you were charged and released on bail in September 2019 for other offences, deterred you from committing the armed robbery in October 2019. The chronology of your offending indicates a continuing disregard of the law.

37 Dr McInerney considered that whilst you understood the contribution of drug use to your offending you tended to overemphasise the relevance of mental illness. She noted that you have had only minimal psychotic symptoms since entering custody and abstaining from drugs despite being on a very low dose of anti-psychotic medication. She concluded that abstaining from substance use, is key to your mental health and your prospects of rehabilitation. She noted your high motivation to do this, but also the temptations you will face upon your release.

38 You have what many others that come before the courts do not have, a loving supportive family and job prospects. In that regard I note the character references written by your father and your potential employer

39 I agree with Dr McInerney. If you can stay off drugs, your future prospects are good. However based on your criminal history I would have to assess your prospects at this stage, as only moderate.

40 In determining the appropriate sentence, I must consider how a term of imprisonment would be likely to impact you. Ms Karapanagiotidis argued that a term of imprisonment may weigh more heavily on you than other people given your vulnerable psychological state. As well as episodes of psychosis Dr McInerney noted that you reported previous incidents of self-harm and mood disturbances. However, she considered that your mental health has not been negatively impacted by being in custody, indeed it appears to have improved and stabilised because of your abstinence from drugs. However, she did note, that you had, apparently, been bullied by fellow prisoners, over access to your psychiatric medication, and for that reason have a particular vulnerability in prison. Whilst, this scenario does not appear to fall strictly within the fifth limb of Verdins, which is really concerned with the burden of a prisoner's mental health, I nevertheless take it into account as a factor in mitigation.

41 I also take into account the fact that you are being sentenced during the COVID-19 pandemic. I accept that a term of imprisonment during the pandemic is generally harder than at other times. Whilst the worry of contracting the virus in prison has probably abated with time, the curtailment of various activities and programs, the reduction or suspension of personal visits and the occasional lockdowns are all additional burdens.

42 In addition to specifying matters to which I must have regard in arriving at an appropriate sentence, the Sentencing Act 1991 prescribes the purposes, indeed the only purposes, for which a sentence may be imposed. These are just punishment, deterrence, rehabilitation, denunciation and protection of the community. I am obliged not to impose a more severe sentence than is necessary to achieve those sentencing purposes. A custodial sentence must only be imposed as a last resort but is inevitable in your case. That said, I am obliged not to impose a longer sentence than is necessary.

43 Further, when there are multiple charges as here, the total effective sentence must not offend the principle of totality. What that means is that you must not be punished any more than is proportionate and appropriate to your overall criminality. You also must not be punished twice for the same conduct, a principle which arises in the context of you being charged with armed robbery and committing an indictable offence whilst on bail.

44 In your case general and specific deterrence and denunciation loom large in the sentencing process. Of course, the need for my sentence to deter you and others and denounce your conduct is not the end of the matter. I must and do take into account the various mitigating factors I have already outlined in detail as well as your prospects of rehabilitation. At 27 you are still a young man who has been imprisoned for the first time. Ultimately, community protection is best achieved your rehabilitation.

45 It is clear that a community corrections order has a punitive element and that it can, in appropriate cases, achieve all the sentencing purposes, including denunciation and general deterrence, whilst promoting rehabilitation. However, balancing the competing factors as best I can, I have formed the view that your offending is just too serious for anything other than a term of imprisonment with a non-parole period. I propose to fix a relatively low non-parole period to facilitate your potential rehabilitation.

46 On the armed robbery charge, I convict and sentence you to 3 years' imprisonment.

47 On the charge of commit an indictable offence whilst on bail, I convict and sentence you to one month imprisonment wholly concurrent with the sentence of the armed robbery charge.

48 On the robbery charge, I convict and sentence you to one year imprisonment, six months of which is to be cumulative on the sentence imposed on the armed robbery charge.

49 That makes a total effective sentence of 3 years and 6 months (42 months altogether). In respect of that sentence, I set a non-parole period of two years. That is the earliest time at which you can be released. Whether you are released is up to the Adult Parole Board.

50 I declare that you have served a total of 504 days pre-sentence detention, not including today, in respect of this sentence and order that this declaration be entered in the records of the court and that the period be deduced administratively.

51 If you had not pleaded guilty to these charges, and then been found guilty by a jury, I would have sentenced you to a total effective sentence of imprisonment of four years, six months, with a non-parole period of

52 The prosecution have sought a disposal order in relation to both offences. My understanding is that those orders are not opposed by the defence and I am satisfied it is appropriate to make them. One, is in relation to the silver hatchet that was used in the armed robbery and the other one is in relation to a foam dart gun box, which I think arose out of the execution of the search warrant, but is not otherwise relevant to the proceedings.

53 HER HONOUR: All right, so Mr Stilo, I understand you were hoping for a combination sentence, but that is not what has happened. But you understand the sentence that I have imposed which is altogether - - -

56 OFFENDER: Yeah. So can I apply for parole (indistinct words) 2 years, is that correct?

59 HER HONOUR: All right. Now, can I just ask counsel if there are any other matters?

^[1] The agreed facts upon which I sentence you were set out in the Consolidated Summary of Prosecution Opening, Exhibit A on the plea.

^[4] Your background and personal circumstances were set out in the Outline of Plea Submissions and the report of Dr McInerney, Exhibits 1 and 3 on the plea respectively.

County Court of Victoria

DPP v Stilo [2021] VCC 208 (4 March 2021)