District Court New South Wales Medium Neutral Citation: R v Larry Enrico Pucci [2018] NSWDC 10 Hearing dates: 29 January 2018 to 31 January 2018 Decision date: 09 February 2018 Jurisdiction: Criminal Before: Mahony SC DCJ Decision: Custodial sentence. For orders see [26] Catchwords: Recklessly cause damage to property Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Veen v R (No. 2) (1998) 164 CLR 465 Category: Sentence Parties: Director of Public Prosecutions (Crown) Larry Enrico Pucci (Offender) Representation: Counsel: B Queenan (Crown) L Christoff (Offender) Solicitors: Office of Department of Public Prosecution Crescent Head Legal File Number(s): 16/123790 Publication restriction: Nil REMARKS ON sentence Introduction 1. On 29 January 2018, the offender pleaded not guilty to one count on an Indictment that he did recklessly damage property, to wit, one glass dock, the property of the Attorney General's Department, Taree Local Court. On 31 January 2018 a jury delivered a verdict of guilty to that charge. Following that verdict, learned Counsel for the offender was given the opportunity to obtain instructions to apply for an adjournment to enable the offender to prepare for a sentence hearing. He was instructed to proceed immediately to a sentence hearing. The sentence hearing 1. The Crown tendered the offenders criminal antecedents, which became Ex A. Also tendered was the offender's custodial record, which became Ex B. 2. The record established that the offender had previously been sentenced in respect of other matters to a period of 2 years imprisonment to commence on 28 August 2015, which was to expire on 27 August 2017. A non-parole period of 1 year and 4 months was imposed, to expire on 27 December 2016. 3. The charge on the Indictment arose from conduct of the offender at the Taree Local Court on 21 March 2016. He was then in custody, however, the proceedings in which he was then involved were separate proceedings which concerned his then partner. 4. Those proceedings had the following history. They were commenced in the Forster Local Court on 22 October 2015, at which time the offender was represented by a solicitor. On that occasion, the offender's partner gave evidence. On 26 October 2015, the matter was listed at Forster Local Court for mention only and no evidence was presented. The offender was represented by a solicitor on that occasion. The matter was then transferred to the Taree Local Court and on 4 December 2015 the offender was represented by a solicitor. The witness gave evidence on that occasion and was cross-examined by the offender's solicitor. The solicitor was then sacked and when the matter resumed on 21 December 2015 at Taree Local Court, the witness gave further evidence and was cross-examined by the offender. 5. The matter was then mentioned at Taree Local Court on 7 March 2016 and stood over to 21 March 2016 for further hearing. It was on that occasion that the charge arose. The factual findings 1. The verdict of the jury establishes that on 21 March 2016 the offender was placed in the glass dock of the Taree Local Court. He was taken to the court just prior to the luncheon adjournment and was handcuffed while he was in the dock. There was no factual dispute as to what occurred thereafter. It was clearly depicted on CCTV footage produced from three separate cameras in the courtroom. That footage shows that between 1.05pm and 1.09pm the offender was in an agitated state and was seen to lash out and kick the glass panel of the dock on three occasions and then kick the glass door of the dock on two occasions. 2. The Magistrate had left the courtroom and a police officer, Sergeant Atkinson, calmed the offender sufficiently for him to be taken to the police cells during the luncheon adjournment. 3. The offender was returned to the dock, again in handcuffs, after 2pm to continue the hearing. He had been informed before the luncheon adjournment that his further cross-examination of the witness was to be confined to a period of 30 minutes, and that he had one hour to prepare that cross-examination over the luncheon adjournment. Following his return to the dock, he was again shown on the CCTV footage to be agitated and at approximately 2.32pm, he slammed the glass panel with his hands which were in handcuffs. Following that incident, he made three further back kicks to the glass door of the dock. The hearing proceeded and the offender was in the course of making his submissions when at approximately 3.10pm, CCTV footage showed the glass panel of the dock to shatter. 4. Those facts were not in issue. The only issue in the trial was whether the Crown had proved beyond reasonable doubt that the accused recklessly caused damage to the dock. The jury verdict of guilty means that the jury found that the Crown had proved beyond reasonable doubt that he did so. Submissions on behalf of the Offender 1. Learned Counsel for the offender submitted that the facts set out above were clearly visible on the CCTV footage. Also important here was the context evidence relied on by the offender, namely, evidence of his medical condition and evidence relied on by him of his own perception that he was suffering an injustice at the time the events took place. It was submitted that there was no reason for the court to dismiss that evidence and that the offender genuinely perceived an injustice. This was put forward not as an excuse for his conduct, but went to his state of mind at the time of the offending. 2. Learned Counsel acknowledged that the offender's criminal antecedents would not entitle him to any leniency. However, here, the damage was not caused intentionally, but rather, he was convicted of recklessly damaging the dock. It was a most significant factor here that he was frustrated at the time. Such frustration was manifested by his conduct within the dock, by him gesticulating and pointing at persons in the court. His conduct was motivated by his frustration rather than any desire to wilfully destroy property. 3. The court would also take into account the various diagnoses of which he had given evidence, namely, that he suffered depression, ADHD, anxiety and possibly mild Bi-polar Disorder, which had not been diagnosed. It was submitted that those diagnoses went hand in hand with the type of conduct observed on the CCTV footage. 4. Counsel acknowledged that remorse was not a factor here as the offender had pleaded not guilty. However, he had a subjective case which should be taken into account. He was not coping well with imprisonment and his health needs were not being met during his incarceration. It was submitted that his last sentence involved a non-parole period which terminated on 27 December 2016. In those circumstances, it was submitted that any sentence should commence from that date, and any appropriate sentence would already have been served. The Crown submissions 1. The Crown submitted that the maximum penalty for the offence was 5 years imprisonment. Whilst the matter could have been dealt with in the Local Court, it was the election by the offender to have the matter dealt with in the District Court, which brought it within the court's jurisdiction. In those circumstances, the court would not take into account the summary jurisdiction available for this offence. 2. The Crown submitted that the objective seriousness of the offending here was not above mid-range, however, it was serious enough for the threshold contained in s 5 of Crimes (Sentencing Procedure) Act 1999 ("CSPA") to be crossed. It was submitted that it was always the Crown case that the offender intended some damage, not the particular damage which occurred when the glass dock shattered and that was consistent with the jury verdict. Otherwise, the Crown submitted that it did not take issue with the other submissions made on behalf of the offender. Determination 1. The Court accepts the Crown's submission that the objective seriousness of the offending here did not fall above mid-range for an offence pursuant to s 193(1)(a) of the Crimes Act 1900. Rather, the offending fell below mid‑range for an offence of recklessly damaging property, but not at the lower end of that range. I find that the offending, involving as it did violent conduct by lashing out with the offender's feet on no less than eight occasions and striking the glass panel with both hands as they were handcuffed, causing the metal handcuffs to come in contact with the glass, involved serious criminal conduct within the court of law in which the offender was placed. The objective seriousness of the offending is therefore just below the mid-range for offending pursuant to s 195(1)(a) of the Crimes Act. 2. The Court notes that the offender sought to have placed before the jury evidence of his various diagnoses and medication, not as an excuse for his conduct, but as context evidence in order to frame the submission made on his behalf that his perception was that he was subjected to an injustice during the proceedings in which he was placed in the glass dock area, whilst he continued to be handcuffed. It was this perception that he was suffering an injustice which led to his frustration and the conduct described above. That does not, in my view, amount to a mitigating factor in this case. Many people who suffer the same type of conditions with which the offender was diagnosed, or a combination of them, appear before the courts on a daily basis without resorting to the type of conduct exhibited by the offender on this occasion. General deterrence is therefore an important factor to take into account, notwithstanding the medical condition of the offender, by sending a clear message to the community that proceedings in court should be conducted civilly, without resort to such violence. It was not submitted otherwise by his counsel. Not only is the courtroom a place where justice is dispensed, it is a place of work for the court staff, legal practitioners and others who attend there, and violent conduct of this type will not be tolerated. 3. Specific deterrence is also important here in that the offender should understand that any repetition of this type of conduct will not be tolerated by any court in the future. I have had regard to the criminal antecedents of the offender which is contained in Ex A. Those antecedents are manifold, commencing in the Children's Court in 2001 through to the present offence. Ignoring the Children's Court matters, the antecedents include crimes of violence, dishonesty and of domestic violence, for which the offender has at times been sentenced to terms of imprisonment. Given the concession made by his counsel, there is no need to set out his criminal history in detail. 4. I have regard to what the High Court said in Veen v R No. 2 (1998) 164 CLR 465 at 477 where the plurality said: "The antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. The antecedent criminal history is relevant, however, to show that the incident offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience to the law. In that case retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted." 1. The criminal antecedents of the offender here clearly fall within the latter category contemplated by the High Court. The offender is therefore entitled to no leniency in relation to this offending. The offending constituted conduct which manifested complete disregard for the law by the offender. 2. The objects of sentencing are set out in s 3A of the CSPA as follows: "3A The purposes for which a Court may impose a sentence on an offender are as follows: (a) To ensure that the offender is adequately punished for the offence, (b) To prevent crime by deterring the offender and other persons from committing similar offences, (c) To protect the community from the offender, (d) To promote the rehabilitation of the offender, (e) To make the offender accountable for his or her actions, (f) To denounce the conduct of the offender, (g) To recognise the harm done to the victim of the crime and the community." 1. I accept the Crown submission here that the threshold contained in s 5 of the CSPA has been crossed, and there is no alternative other than a term of imprisonment to be imposed in this case. 2. It was submitted on behalf of the offender that he was not coping well with imprisonment, and that his health needs were not being met. Whilst it is clear that those health needs are somewhat complex, the evidence during the trial established that his needs were being met by the prescription of various medications and consultations with health professionals from time to time. 3. It is an aggravating factor that this matter occurred whilst the offender was serving a prison sentence. However, I take into account that he was to be released on parole on 27 December 2016 and any term of imprisonment should commence after that date. I therefore intend to sentence the offender to a fixed term of 15 months imprisonment from 28 December 2016. Sentence 1. I make the following orders: 1. Mr Pucci you have been found guilty of an offence that you did on 21 March 2016, recklessly damage property, to wit, one glass dock, the property of the Attorney General's Department, Taree Local Court, and you are convicted of that offence. 2. I sentence you to a fixed term of 15 months imprisonment to commence on 28 December 2016 and to terminate on 27 March 2018. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 February 2018