IN THE COUNTY COURT OF VICTORIA	Revised
Not Restricted
Suitable for Publication	
AT MELBOURNE
CRIMINAL JURISDICTION

CR 20-00271

DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		
		
MARK TRAVAGLINI		

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JUDGE:	HER HONOUR JUDGE RIDDELL	
WHERE HELD:	Melbourne	
DATE OF HEARING:	6 August 2020	
DATE OF SENTENCE:	17 August 2020	
CASE MAY BE CITED AS:	DPP v Travaglini	
MEDIUM NEUTRAL CITATION:	[2020] VCC 1244	

REASONS FOR SENTENCE
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Subject:
Catchwords:  		Aggravated Burglary – Intentionally Cause Injury
Legislation Cited:		Sentencing Act 1991
Cases Cited:
Sentence: 14 months 7 days imprisonment plus 18 month Community Correction Order
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APPEARANCES:
	Counsel	Solicitors	
For the Director of Public Prosecutions	Mr P. Raimondo (Plea)
Ms C. Cameron (Sentence)	OPP	
			
For the Accused	Mr L. Richter	Valos Black	

HER HONOUR:
Summary of Offending
1	Mark Travaglini, you have pleaded guilty to one charge each of robbery, aggravated burglary, intentionally causing injury, theft and a summary charge of possessing prohibited weapons being knuckle dusters and a flick knife.  The facts of that offending are as follows.
2	Mark Elyoughnon is the owner of Shifty’s Bar on Brunswick Street, Fitzroy and Jordan Bakker was his employee.  They lived in an apartment together with Kasey Miller about 100 metres down Brunswick St.
3	You were a regular at the bar and had come to know Mr Elyoughnon and 
Mr Bakker and had attended their apartment several times.
4	At about 10:45 pm on the night of 20 October 2019 you attended at Shifty’s in an aggressive and agitated state.  You were drug affected.  Mr Bakker was working at the Bar and thought you were drunk.
5	You were yelling at other patrons telling them to leave the bar and were behaving erratically.  You approached Mr Bakker and demanded that he hand over his house keys. You were aggressive and threatening and he feared that if he did not hand over the keys you might assault him.  He gave you his keys as a result of your threatening behaviour. This is the basis for charge 1, robbery.
6	You then left the bar and made your way to Mr Bakker’s apartment further down  Brunswick St.  Mr Elyoughnon was asleep in bed inside the flat and Ms Miller was in her bedroom watching videos.  You used Mr Bakker's keys to gain entry. That is the basis for charge 2, aggravated burglary.  
7	Mr Elyoughnon was awoken by the sound of his bedroom door being kicked in and he then saw you come into his bedroom. You were aggressive, jumping onto him as he lay in bed, and repeatedly punching him to the face.  You were wearing plastic knuckle dusters.  He estimates being hit 6 times. You were yelling “Money, money, where is my money, I’m owed $300 thousand.” 
8	Mr Elyoughnon was eventually able to push you off his bed and wrestle you to the ground. You continued to assault him whilst he was on the ground and you repeated your demands for money. The physical assault on Mr Elyoughnon is the basis for charge 3 intentionally causing injury.
9	During the assault, you showed Mr Elyoughnon that you had a flick knife tucked in your pants albeit at no time did you produce or use it.
10	Before leaving the bedroom, you grabbed a small white safe that was located on the floor. You left the flat with the safe. This is the basis for charge 4, theft.
11	Ms Miller phoned 000 and phoned their flatmate, Mr Bakker.
12	Mr Bakker had stayed at Shifty’s bar, tidying up but he and another person, Mr Hicock, soon attended the flat. They observed Mr Elyoughnon in an injured stated, describing him as ‘bloody and beat up, like someone who had just lost a boxing fight. His face had bumps all over it, like he had been punched repeatedly.  There was blood all over his lips and nose.  He seemed dazed and out of it, like he had a concussion.’ 
13	Police and paramedics attended the flat and Mr Elyoughnon was taken to the Royal Melbourne Hospital where he was treated and his injuries photographed.  
14	The Prosecution attempted to contact Mr Elyoughnon to obtain an update as to the state of his injury.  He declined to speak with the informant, and has also declined to make a victim impact statement.  At the time of making his statement, five days after these events, he said he was ‘pretty badly beaten up and his head was still sore and bruised'.  He was in pain even after a day’s rest.  Fortunately there was no serious injury or broken bones.  The parties are agreed that I should proceed on the basis that his physical injuries are resolved.
15	Shortly after leaving the victims’ flat, you attended at Transformer Restaurant in Fitzroy.  You continued to act in a threatening manner but you were pacified by the owner who assisted you by dressing your wounds before he called the police. 
16	You left Transformer Restaurant however you were located by police nearby.  You were aggressive towards them and were subdued with capsicum spray before being arrested.  Police located the Mr Elyoughnan’s safe nearby and then searched you and located the house keys stolen from Mr Bakker as well as the knuckle dusters and flick knife.  Possession of the knuckle dusters and flick knife is the basis for summary charge 5, possess prohibited weapons.
17	You were transported by ambulance to St Vincent’s Hospital for treatment.  You continued to act aggressively and were unco-operative, including making a threat against Constable Ball.  Eventually, you were cleared by medical staff and released into police custody.  You were charged and remanded.
18	The reasons behind your behaviour are unclear.  Certainly you were drug affected, however your demands for $300,000 were irrational.  I cannot draw any conclusion as to whether there was a money debt between you and the victim, though there was a suggestion of drug use together. 
Sentencing Principles
19	Regardless of any issue between you, your behaviour deserves my denunciation on behalf of the court and the community.  It is unacceptable to use violence and threatening behaviour in this way to settle any dispute.  The sentence I impose must generally deter others from so acting.  It must protect the community from such violence and aggression.  That is particularly so when your threatening behaviour occurred in public places with other persons present.
20	Assessing the objective gravity of these particular offences leads me to the following conclusions.
21	In relation to the robbery, it was committed by way of demanding the victim’s keys in a threatening manner, accompanied by your violent demeanour.  I have no doubt the victim did not wish to hand over his keys but felt he had no choice.
22	You were however someone known to him.  He says in his statement he had not previously seen you behave aggressively.  
23	You made no specific threat to hurt him, or any other person or to take any particular action if he did not give you the keys.
24	Although it was in his workplace I agree in the circumstances of this offending that does not particularly aggravate the gravity of the offending, other than to note he perhaps felt responsible for the safety of any patrons present.
25	In my view it is a robbery at the lower end of that offence.
26	The aggravated burglary is made out by the fact you knew a person was likely to be present at those premises, namely Mr Elyoughnan and had an intention to assault and to steal.  Your behaviour in going straight to his bedroom and the events which then unfolded, demonstrate those intentions clearly. 
27	That is a serious offence, reflected in the maximum penalty of 25 years imprisonment.  It is serious because it is an offence here which intrudes on the sanctity of the victim’s home, a place where they should feel safe.  It has the capacity to impact their ongoing feelings of security in their home due to memories of that event.  Although I have no victim impact statement I can accept there would likely have been ongoing anxiety and stress caused by these events.
28	In this case there was no forced entry or damage because you had the keys.  Your forceful entry into Mr Elyoughnan’s bedroom was violent.  This charge, as was accepted by the Prosecution, is largely eclipsed by what occurred thereafter.  
29	The intentionally cause injury is the most serious of the offences here.  It occurred in the victim’s home.  He was woken by your violent entry to his bedroom and while in that vulnerable situation he was immediately set upon.  You jumped on top of him.  You were wearing knuckle dusters.  You hit him repeatedly to the face and the head area.  The potential for more serious impact when someone is hit to the fact and head is real.  Fortunately here he did not suffer lasting physical consequences, however he did suffer injury which required treatment at hospital.
30	The assault continued when he was on the floor and in perhaps an even more vulnerable position.  It only stopped when you took the safe.
31	In my view that is a moderately serious example of the offence of causing injury intentionally.
32	In relation to the theft, that was an item of personal property.  It contained money.  Fortunately that item was recovered.  
33	The prosecutor agreed in closing submissions that in the circumstances here it would not be inappropriate to impose an aggregate sentence for the offences in the house given their close relationship to each other.
34	Your Counsel submits I should impose a combination sentence of imprisonment with a Community Correction Order.  The prosecution submit that, although you have already served 10 months imprisonment, the available maximum to me in a combination sentence is insufficient to meet the sentencing considerations They submit I should impose a head sentence and non-parole period.
Personal Background
35	Turning to your background.  You are 34 years old, 33 at the time of the offending.
36	 You grew up in the housing commission flats in North Fitzroy and have lived most of your life in that area.  Your parents' relationship was tumultuous with periods of separation.  Their relationship finally ended when your mother became pregnant to another man, the timing of that is unclear but certainly in your early primary school years.
37	When you were three years old, you were involved in a serious car accident, being struck and dragged along the road for a substantial distance.  You had two broken legs and were in a wheelchair.  You also suffered a head injury which you report caused you learning difficulties.  You stayed down in Grades 2, 5 and 7 and you continue to have difficulties with literacy. 
38	You had behavioural problems in school and were diagnosed with Attention Deficit/Hyperactivity Disorder.  You recalled being medicated.  Repeating years at school meant you were some years older than your peers when you started secondary school.  You were bullied and continued to struggle with learning.  You left school at 14 and started working with your grandfather in his butcher shop.  Your grandfather fired you when you were involved in theft from a football club.  You enrolled in a technical school obtaining Year 10 and 11 certificates.  You have had some work history in event installations.
39	 After your parents separated you lived primarily with your mother who had formed a new relationship with Mr Cameron King, who became your step-father. You enjoyed an exceptionally close bond with Mr King who treated you as his own son, taking you fishing and camping.  You regarded him as your 'best mate' whilst growing up. Indeed, when your mother and Mr King separated, you remained living with Mr King. 
40	Tragically, your step-father was murdered when you were 19 years old.  That event devastated you.  Your mother says Cameron King, '…had been your world since you were a three year old and you were lost without him'.  She said 'Mark found his death very hard to accept'.  
41	You were supported in the aftermath by your best friend.  However that person also died soon after, no doubt compounding your grief.  You had some very limited counselling after Mr King’s death, but it is clear those events are largely unresolved for you.  
42	Both of your parents are still part of your life.  Your mother re-partnered, and you have a reasonable relationship with her partner.  Your relationship with your mother has had its difficulties but has improved in recent times and she is very supportive of you.  You have a strong relationship with your father, who is intolerant of your drug use. 
43	You commenced using ecstasy and cannabis as a teenager, and by 2005 your cannabis and alcohol use had become daily.  In 2008, in your early 20s, you began using methylamphetamine, as well as GHB and cannabis.  You managed to achieve some abstinence in 2015, however gradually descended to the point that you were using ice and cannabis daily prior to this offending before me.  You had also consumed alcohol on the day of this offending despite apparently being abstinent from alcohol for some time.
44	At the time of these offences, you were living between your partner Lisa’s house and your father's house.  You were also at times homeless because your father would not tolerate your drug use, and you wanted to conceal it from Lisa and her son. 
45	You have been in a relationship with Lisa for 6 years. She has a 12 year old son, from a previous relationship and you have acted as a step-father to him. Your drug use has caused issues in your relationship, however Lisa remains supportive of you.  She and her son have been regular visitors for you during this remand.
Psychological Assessment
46	You were assessed by psychologist Miriam Latif who has provided a report.  She recites your history.  She also notes that you report twice attempting suicide.  You reported consistently feeling like an outsider in your life and struggling to socialise and connect with others, reporting isolating yourself as a result.  You had enjoyed connection with others through Shifty’s bar, though noted drug use was with associates you made in that setting.
47	Ms Latif noted your presentation with anxiety symptoms.  She says after the death of your step-father you viewed the world as a dangerous place and had trouble trusting others.  You began to worry about safety.  Those feelings along with unresolved grief escalated over time and she says that given your lack of appropriate social skills for life stressors, you have attempted to self-medicate through drug use.  She says your social anxiety is of moderate severity.
48	You have previously been medicated with Lexapro due to anxiety for a number of years, however you were non-compliant at the time of this offending.  In the custodial setting you are currently medicated. 
49	On testing, according to Ms Latif, you showed clinical levels of anxiety.  She diagnosed you with both Social Anxiety Disorder and Generalised Anxiety disorder, and notes the symptoms of unresolved grief and secondary depressive symptoms.  
Prior Criminal History
50	You have a limited but relevant prior criminal history for violent offences.  In addition to possession of weapons charges, in 2011 you were fined for Recklessly Causing Injury.  In 2015 you were placed on an 18 month Community Correction Order for 3 charges of Recklessly Causing Injury, 2 charges of Affray, and a charge of assault with a weapon.  
51	You managed to achieve some abstinence from drug use during the period in 2015 when the CCO was imposed and you completed a short course in Engineering.  It seems you were also working and in a relationship for a period.
52	You did not reappear in the Criminal justice system until 2019 when you were dealt with for breaching that CCO as well as new offences of Unlawful Assault and Contravening two Family Violence Intervention Orders in relation to two separate women, as well as possession a prohibited weapon and using a carriage service to harass.  Those offences had occurred in 2015 and 16 and it seems they had taken some time to catch up with you in the context of some homelessness and failing to appear.  
53	A second CCO was imposed which included 80 hours of unpaid community work as well as treatment for drug addiction and for mental health.
54	That CCO was imposed 3 and a half weeks before this offending.  That is an aggravating factor.  Clearly whatever agreement you made at the time of receiving that CCO to comply with conditions and undergo treatment had not taken effect.  At the time of this offending your drug use was out of control and you had not yet engaged in any treatment.  
Period of Remand
55	Your remand has of course interrupted the situation you were in.  It is your first time in custody and I gather it has had a sobering effect on you.  For the last 3 months you have been in protective custody due to issues with other prisoners.
56	The deterrent effect of imprisonment and this period being drug free has motivated you to engage as best you can during your remand.  You have engaged in courses and you were working as a kitchen billet.  You are also expressing motivation to engage in treatment, including inpatient treatment if available.  I take those matters into account.  
57	I also take into account that ongoing access to both courses and mental health treatment in custody has been negatively impacted by the COVID-19 pandemic.  The custodial setting has become a more onerous one with COVID-19.  You have been unable to have any visitors where previously Lisa and her son were visiting twice weekly as well as your parents, grandparents and sisters visiting regularly. You were highly dependent on contact with them for emotional support.  Access to remote contact with them via iPads and the like are limited due to demand.
58	Education and rehabilitation programs are suspended and work is limited.  There is reduced time out of cells with reduced access to gym and library facilities.  There are lockdowns occurring and the virus has now reached prisons.  As with the broader community, prisons are places of heightened anxiety in the COVID-19 setting.  Prisoners however are unable to make autonomous choices about social contact and distancing.   How long restrictions in the broader community, let alone in the prison system, will remain is unknown. However I take those matters into account.
59	In your case, you are what is legally, an ‘egg shell skull’  That is, your mental health history as I have described, including your pre-existing diagnosed anxiety for which you are medicated, is likely to be further exacerbated by the impact of COVID-19 within the prison setting.  I take that into account.
Plea of Guilty
60	I also take into account the value of a plea of guilty in the current environment where the COVID-19 pandemic has caused considerable delay of all trials.
61	You pleaded guilty at a very early stage – being February of this year.  No witnesses were called or cross examined, that plea occurring at a mention hearing.  You receive the full benefit of your plea.  You have saved the victims the additional stress of giving evidence, and of likely protracted time to resolve the matter in the current environment.  There is also a utilitarian benefit of your plea as you have saved the cost and time of a trial.
62	I accept that your plea is an expression of remorse and I take that into account.  I accept that you are ashamed for this offending and violent behaviour. Comments made during your psychological assessment with Ms Latif suggest to me that you still lack insight into your behaviour and your drug use.  You need to confront your reality which is that you are now amassing a history of serious violent offences.  Your prospects of rehabilitation which are fair, are almost entirely dependent on your ability to deal with your drug addiction.  Hopefully this period of imprisonment has given you a necessary wake up call, but you have work to do.  
63	You have the support of your extended family and your partner.  I have read references from your mother, grandfather and aunt, all of whom confirm aspects of your history which I have described and all of whom express their love and support for you.  When off drugs it is apparent you can be a kind, generous person.  As your aunt eloquently says “Drugs and depression sadly can turn beautiful kids into strangers.”  They hope you can now set about achieving the goals you are setting for yourself.  
64	You have accommodation waiting for you and you have previously expressed some ambition to go into engineering or horticulture.  
65	I have been provided with an assessment report in relation to your suitability for a Community Correction Order.  You were assessed as suitable and a number of conditions were recommended.
66	This is serious offending. However, having regard to my assessment of its objective gravity, along with your limited prior history, your early plea of guilty, your remorse, your prospects of rehabilitation demonstrated by your efforts to rehabilitate yourself in custody, your good family support, and availability of accommodation and your expressed motivation to rehabilitate yourself, in my view a combination sentence is within range to meet all sentencing considerations here.
67	I propose to sentence you as follows. 
68	On Charge 1, robbery, you are convicted and sentenced to 3 months imprisonment. 
69	On Charges 2, 3 and 4, that is aggravated burglary, intentionally causing injury and theft, you are convicted and sentenced to 14 months imprisonment and an 18 month Community Correction Order.  I will return to the conditions of the order in a moment.  
70	On the summary charge of possessing a prohibited weapon, you are convicted and fined $250.
71	I direct that 7 days imprisonment on charge 1 be served cumulatively on the sentence imposed in charges 2, 3 and 4.  Therefore the total term of imprisonment is one of 14 months and 7 days.
72	I declare that you have already served 302 days and that those days should be reckoned and having been served under this sentence.  
73	The conditions of the CCO, if you agree to undertake it, will be as follows in addition to the core conditions:
(a)	You are to be under supervision;
(b)	You are to complete 80 hours of unpaid community work,
(c) 	You are to undergo testing and treatment for drug and alcohol addiction 	as directed by Corrections, that includes urine testing, that also 	includes a condition whereby Corrections Victoria may direct you to 	undergo residential rehabilitation,
(d)	You are to undergo assessment and treatment for mental health as 	directed;
(f)	You are to undergo offence specific treatment namely programs directed 	at anger management or violence programs as directed,
(f)	I direct that up to 50 hours of treatment may be credited against the 	unpaid community work.  So in other words the more hours of treatment 	you engage in the less unpaid community work you will be required to 	complete.
74	Before I can impose the CCO, Mr Travaglini, you must agree to undertake that order and to abide by the conditions.  Do you agree to undertake that order on your release from custody?
75	OFFENDER:  Yes, Your Honour.
76	HER HONOUR:  And you should understand that any breach by way of reoffending or by way of non-compliance would bring you back to me and I would be then required to re-sentence you for any further offending or for any breach - sorry, and also to re-sentence you for this offending.
77	OFFENDER:  Yep, understood.
78	HER HONOUR:  All right.  And the likely result if that occurred would be return to prison.  Do you understand that?
79	OFFENDER:  Yep.  Yep.
80	HER HONOUR:  All right.  In relation to s.6AAA of the Sentencing Act 1991, but for your plea of guilty the sentence I would have imposed would have been one of 3 years imprisonment with a non-parole period of 2 years and 2 months imprisonment.  
81	There is an application for disposal in relation to the weapons.  I understand, Mr Richter, that was not opposed and I propose to make that in the terms sought.
82	MR RICHTER:  Not opposed, Your Honour.
83	HER HONOUR:  Thank you.  I'll indicate that the current system means that my associate will prepare the paperwork for the correction order and that will be forwarded to Mr Travaglini at the prison today.  It'll be arranged for him to sign it and then that will be returned back to the court.
84	MR RICHTER:  (Indistinct).
85	HER HONOUR:  So that would be undertaken today.
86	MR RICHTER:  Yes, Your Honour.
87	HER HONOUR:  Yes, Your Honour.  I should also say, and I'll make this as part of the sentencing reasons, that given Mr Travaglini's release date will be able to be estimated, I would hope that Corrections Victoria will engage with him ahead of that release date so that any assessments for programs which are part of the order might be able to be undertaken while he's in custody so that there is no gap between his release and treatment starting.  
88	Mr Travaglini, can you hear me?
89	OFFENDER:  Yes, Your Honour.
90	HER HONOUR:  Thank you.  All right, so you understand you've got some more time to go but when you are released then you'll be on the Community Correction Order.  I'm not going to bring you back for monitoring.  I think at 34 you're big enough to take this opportunity in hand for yourself.
91	OFFENDER:  Yeah.
92	HER HONOUR:  Be aware that time immediately after release is a very risky time for people coming out of custody so be on your guard at that time.
93	OFFENDER:  Yeah, I will be, Your Honour.
94	HER HONOUR:  It's a high risk time and, as I've said, I hope Corrections will engage with you ahead of your release so that things can be in place, but even if they don't you've got family and Lisa around you and you're of an age where you can make some steps yourself to give yourself the best chance so that this is the last time you're ever in a court room.
95	OFFENDER:  I've already put them in place, Your Honour.
96	HER HONOUR:  Excellent.  All right, well that concludes your matter.
97	OFFENDER:  Thank you, Your Honour.
98	HER HONOUR:  Thanks very much.  Thanks counsel for your assistance.
99	MR RICHTER:  Thank you, Your Honour.
100	HER HOLNOUR:  Thank you, we'll now adjourn.
101	MS CAMERON:  As Your Honour pleases.
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