IN THE COUNTY COURT OF VICTORIA
AT Melbourne
CRIMINAL DIVISION	 Revised
Not Restricted
 Suitable for Publication	
Case No. CR-21-00081

DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		
		
SEAN FANELLI		

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JUDGE:	HER HONOUR JUDGE DALZIEL	
WHERE HELD:	Melbourne	
DATE OF HEARING:	1 OCTOBER 2021	
DATE OF SENTENCE:	8 OCTOBER 2021	
CASE MAY BE CITED AS:	Director of Public Prosecutions v Sean Fanelli	
MEDIUM NEUTRAL CITATION:	[2021] VCC 1661		

REASONS FOR SENTENCE
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Subject:	CRIMINAL LAW – SENTENCE 

Catchwords: 	Armed Robbery – Theft – Principle of Parsimony 

Legislation Cited:	Sentencing Act 1991 (Vic), s6AAA 
	
Cases Cited:             Worboyes v The Queen [2021] VSCA 169
	
Sentence:	Convicted and ordered to serve a Community Corrections for a period of 18 months. 
	
	Section 6AAA declaration: Conviction and total effective sentence of two years and six months imprisonment, with a non-parole period of twenty months. 

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APPEARANCES:
	Counsel	Solicitors	
For the DPP	Mr Jordan O’Toole 	Office of Public Prosecutions 	
			
For the Accused	Mr Nicholas Howard 	Victoria Legal Aid 	

HER HONOUR:

1	Sean Fanelli, you are to be sentenced today for two offences committed on 17 November 2019.  
2	The first is the charge of armed robbery.  At around 6.00 pm on that day, you entered the Bunnings store in Vermont South.  You collected a trolley and left it near the exit of the store.  You then moved around the store, collecting various items and then putting them on the trolley.  The items, which were valued at $756.65, were:
(i)	two kerosene 20L tins, 
(ii)	a Sidcrome socket set, 
(iii)	two Paint Strippa 4L tins, 
(iv)	three 12-volt battery packs, 
(v)	three turpentine 4L tins,
(vi)	18 AA battery packs, 
(vii)	three masking tape rolls, 
(viii)	a pair of garden snips, 
(ix)	12 liquid nails containers, 
(x)	9.5 metres of electrical cable and 
(xi)	a red-handled screw-driver.
3	The victim of this offence was an employee of Bunnings whose job it was to stand at the exit and check that people had paid for their goods before leaving the store.  He thought your behaviour was suspicious, so he kept an eye on what you were doing.  He saw you remove the screw-driver from its packaging, and at around 6.20 pm you started to leave the store, pushing the trolley with the items on it, whilst holding the screw-driver in your hand.  As you approached the victim you held the screw-driver out and pointed it at the victim, and said words to the effect of “If you do anything, I’ll fucking slit your throat”.  You left the store with the items.
4	I have viewed the footage of this incident.  Aside from holding the screw-driver and saying those words (which cannot be heard on the recording) you made no threatening moves towards the victim.
5	The victim was shocked and fearful as a result of your actions, so he did not pursue you out of the store.  He contacted his manager who called the police.
6	You walked away with the trolley to a Coles Express store a short distance away.  Around 5 minutes after you left the Bunnings, you went into the Coles Express and stole a double pack of Mars Bars, a four pack of V energy drink and a Gatorade drink from the fridge.  You left the store without making any attempt to pay.  
7	Once outside the Coles Express you collected the trolley of goods taken from Bunnings and walked away.
8	Two police officers who had responded to the call from Bunnings searched the area and found you further down the Burwood Highway.  You still had the trolley with you and the screw-driver in your hand.  You refused to comply with the directions of the police officers and were sprayed with OC spray. You ran from them, were sprayed again, and then arrested.  
9	You were searched at the scene of your arrest, and stolen items found, including a Mars Bar which you admitted was stolen.
10	You were taken to Box Hill Police Station and made a no comment record of interview, as was your right.  The police further investigated the matter, obtained statements and CCTV, and sent the screw-driver for DNA testing.  The likelihood ratio in relation to the DNA was that it was 100 billion times more likely that you were the source of the DNA on that item, than another person.
Procedural History and Subsequent events
11	You were charged on the 17th of November 2019 and were granted bail on 23 November 2019.  After two committal case conferences your matter was booked in for a contested committal in mid-2020, which was vacated due to the pandemic.  A contested committal was eventually conducted on 19 January 2021, with the victim of the armed robbery being cross-examined.
12	The matter came before me for a case conference in June 2021, and following discussions between the parties you were arraigned and pleaded guilty to these two charges on 5 July 2021.
13	On 30 June 2020, whilst on bail for the offences before me you committed the offences of assault an emergency worker on duty, unlawful assault (x 3), possess controlled weapon without excuse and commit an indictable offence whilst on bail.  You were sentenced for those matters at Ringwood in September 2020 and received a sentence of imprisonment of 59 days (time served) in combination with a 12 month CCO.  That sentence also encompassed a charge of theft committed on the same day as the matters before me, where you stole alcohol from a Dan Murphy’s store an hour or so before the armed robbery at the Bunnings.
14	You initially complied with the CCO imposed in September 2020 but after around 6-8 weeks your attendance and compliance began to decline.  Your order was put in contravention in January 2021, but you asked for another chance which was given.  Despite that you continued to fail to comply with the order and in around May 2021 you were charged with breaching that CCO.
15	You are not being dealt with by me for breaching that CCO.   The relevance of it is that under that order you were required to engage with drug and alcohol assessment and treatment, and also to arrange a Mental Health Care Plan through your GP.  In respect to the drugs and alcohol, whilst you were referred to a program, you failed to engage with it.  You also returned positive urine screens for methylamphetamine and cannabis.
16	In respect to the mental health care plan, whilst you apparently arranged a plan with your GP, you did not schedule any appointments with a psychologist.
17	Whilst you come before me without any prior convictions or court appearances, you have these subsequent matters which are relevant to my assessment of your prospects for rehabilitation.  It is concerning to me that you failed to comply with the therapeutic requirements of the CCO, and that on being given the opportunity under that Order to have another go, you failed again to comply.  
18	Furthermore, it is apparent from the offences on 30 June 2020 and the urine screens from October and April 2021 that you were using methylamphetamine.  
Gravity of Offending
19	I accept that the offending was unsophisticated.  There is no evidence of planning, save for the 20 minutes or so you spent in Bunnings collecting the items you stole, and in that respect, I cannot know whether you started to collect the items intending to simply steal them or to commit the armed robbery.  I accept that the gravity of this serious offence was at the lower end, in all the circumstances.  That being said, the victim was frightened by your behaviour, and the threat you made backed up by the screw-driver utilised as a weapon was sufficient that he let you leave without paying, and did not follow you.    
20	You selected these items to steal in order to sell them to get money for alcohol.  You told the police who spoke to you regarding the theft of alcohol earlier that day that you had been drinking from early in the morning on the 17th of November.  
21	The charge of theft is a minor offence which would not ordinarily call for a term of imprisonment. 
Personal Circumstances
22	At the time of the offences you were 29 years old.  You were raised in the area where these offences were committed, with three siblings.  You parents are still together and you describe your upbringing as stable and absent of any trauma.  
23	Whilst you were happy at school, with friends and doing well, you were offered a job leading to a spray-painting apprenticeship, when you were in Year 9.  You took that up and competed that apprenticeship in 2004.  You have a good work history up until 2019, working as an automotive spray-painter.  
24	You started consuming alcohol when you were around 13, and engaged in binge drinking as a teenager.  You used cannabis from around that time, and still do, I was told.  
25	In 2017 you started a relationship with a woman who was a drug user.  By the time that relationship ended in 2019 your own drug use was out of control.  With the loss of that relationship, then the commencement of the pandemic, you lost your job, home and car.  In addition to drug use you abused alcohol as a way to deal with your depression.
26	Whilst on bail you did find work in June 2021, but that job did not last due to a downturn in business because of the pandemic.  I am told you are currently on Centrelink benefits and have accommodation.  Whilst you have an outstanding court proceeding for allegations of drink driving and speeding from April 2021, you have no other new matters coming before the court.
27	A report was provided which had been prepared by a psychologist last year, for the purposes of your Magistrates’ Court plea.  Ms Cokorilo considered you had good insight into the links between your mental state, abuse of alcohol and your offending.  She diagnosed you as suffering from a Major Depressive Disorder of severe intensity, alcohol abuse disorder, at the time of the commission of the offences you were then facing, which means that those diagnoses are relevant to the offending before me.  Your lawyer, in view of the effect of alcohol intoxication on your offending, did not seek to rely on the principles in the case of Verdins.
28	Your counsel urged me to impose a CCO, relying on the following matters:
(a)	You have no prior convictions, and whilst you have some subsequent court appearances you have not had any further dishonesty offences since June 2020, and the only new charges from April this year are for driving offences;
(b)	Whilst you did not plead guilty at an early stage, your plea still has utilitarian value, and has facilitated the administration of justice.  The benefit to the community from your plea is considerably greater due to the effect of the pandemic on the operations of the court;
(c)	A period of imprisonment, particularly for a person entering the system from the community, is unusually onerous at this time.  A person going into custody needs to undergo quarantine, and once in the system there are restrictions on activities, visitors and courses.  Despite the efforts of Corrections over the course of the pandemic, a number of prisons and remand centres now have positive cases of COVID-19 occurring.  In prison a person has even less ability to control their potential exposure to the virus; and
(d)	It was submitted that you have good prospects of rehabilitation.  Whilst I am concerned by your breaching of the other CCO, I do accept that you have reasonable prospects, provided you address your substance abuse issues, and the underlying mental health issues.
29	In summary, your lawyer submitted that a CCO could meet all the sentencing purposes, and provide rehabilitative support for you, that would ultimately protect the community from further offending by you. He submitted that you now have a better understanding of the need to comply with the conditions of a CCO and are aware that a further breach would almost inevitably see you serving a term of imprisonment.
30	The prosecution accepted that, applying the principle of parsimony, that a CCO would be within range.
31	It appears from the report of Ms Cokorilo that you have untreated mental health issues that will impact your behaviour.  The assessment by the Mental Health Advice and Response Service as part of your assessment for suitability for a CCO concluded that you have a mild mental health problem.
32	Mr Fanelli, it is of concern to me that you initially attempted to deny using methylamphetamine when that drug appeared in urine screens in late 2020 and early 2021.  You reported to Ms Cokorilo that you “used methamphetamine a dozen times between the ages of 21 and 24 and has experimented with cocaine a few times in the past.”  If you are to address your abuse of drugs and alcohol you will need to be more forthcoming with those seeking to assist you.  I am also concerned that whilst Ms Cokorilo thought you exhibited good insight into your issues, you then failed to comply with the CCO conditions regarding drug and alcohol abuse, and you did not book any appointments with a psychologist under the mental health care plan.
33	The CCO assessment report found you suitable for a CCO.
34	Armed robbery is a serious offence.  It carries a maximum penalty of 25 years’ imprisonment.  In most cases a person convicted of this offence can expect to be sent to jail.  On the other hand, the Court of Appeal has made clear that in some circumstances even when a person has committed a serious offence, a CCO can meet the sentencing principles and goals.

35	Weighing all the factors put before me, and bearing in mind that failure to complete a CCO in the past does not prohibit imposition of a CCO again, I will impose a CCO upon you for this offending.  The conditions and terms of that order will be:   with conviction; the period of the CCO will be 18 months; the special conditions will be that you perform 200 hours of community work; that you engage in treatment and rehabilitation for drugs, alcohol and your mental health; that you be under supervision for the first 12 months of the order; and that you be subject to judicial monitoring.  
36	While I originally considered a provision prohibiting you from consumption of alcohol and attendance at licenced venues, I do not think that that will have any practical effect, unless you engage in the rehabilitation courses offered under the order.  I will also direct that up to 75 hours spent in treatment or rehabilitation can be counted as hours of unpaid community work, pursuant to s48CA(2)
37	Pursuant to s6(AAA) of the Sentencing Act 1991, I declare that had you not pleaded guilty, I would have sentenced to two and a half years' imprisonment with a non-parole period of 20 months.