IN THE COUNTY COURT OF VICTORIA	Revised
Not Restricted
Suitable for Publication	
AT Melbourne
CRIMINAL DIVISION
Case No. CR-21-02680

THE DIRECTOR OF PUBLIC PROSECUTIONS 		
		
v		
		
JACK CHIMINELLO		

---

JUDGE:	HIS HONOUR JUDGE ROZEN 	
WHERE HELD:	Melbourne	
DATE OF HEARING:	11 April 2022; 26 May 2022 	
DATE OF SENTENCE:	2 June 2022	
CASE MAY BE CITED AS:	DPP v Chiminello 	
MEDIUM NEUTRAL CITATION:	[2022] VCC 853		

REASONS FOR SENTENCE

Subject:		Perjury; conduct endangering persons; make false report to police
Catchwords: 	Sentence – driving offences – perjury – young offender – criminal history – drug use – family support - need for punishment, deterrence and rehabilitation – combination sentence;  
Legislation Cited:	Sentencing Act 1991 (Vic); Crimes Act 1958 (Vic); Summary Offences 
Act 1966 (Vic)
Cases Cited:		DPP v Toma [2007] VSCA 315; Worboyes v The Queen [2021] VSCA 
169; Barnard [2022] VSCA 42; R v Tran (2002) 4 VR 457; Azzopardi v 
R (2011) 35 VR 43; R v Lam [2005] VSC 495; DPP v Tokava [2006] 
VSCA 156; Boulton v The Queen [2014] VSCA 342; 
Sentence:		12-month Community Correction Order; 168 days’ imprisonment; $300 
fine with conviction; 6-month driver’s licence suspension 

APPEARANCES:
	Counsel	Solicitors	
For the Director of Public Prosecutions	Mr B. Nibbs	Ms A. Hogan 
Director of Public Prosecutions 	
			
For the Accused	Mr B. Newton	Mr J. Abbinga 
Randles Cooper Lawyers 	

HIS HONOUR:

1	Jack Chiminello, you have pleaded guilty to one charge of perjury contrary to s 314(1) of the Crimes Act 1958 (Vic), one rolled-up charge of conduct endangering persons contrary to s 23 of the Crimes Act 1958 (Vic) and a summary charge of making a false report to police contrary to s 53 of the Summary Offences Act 1966 (Vic).  
2	The maximum penalty for the offence of perjury is imprisonment for 15 years;  for the offence of conduct endangering persons it is imprisonment for five years; and for the summary offence it is 120 penalty units or imprisonment for 12 months.
Circumstances of offending 
3	The circumstances of your offending are set out in the Summary of Prosecution Opening which is an agreed summary and the following is a summary of that opening.  
4	On 26 August 2021, at approximately 10.40 am, you were driving your Ford XR6 utility, registration BNF748 at a fast speed on McDonalds Road in South Morang.  You drove through a red traffic signal, turned into Civic Drive catching the attention of a police vehicle which activated its lights and sirens and followed you.  You accelerated heavily and then failed to stop at another red light causing other road users to take evasive action to avoid a collision.  
5	The pursuing police lost sight of you and notified the Police Communication Centre.  
6	At 10.44 am, you contacted the police advice line from your mobile phone while driving and reported that the registration plates BNF748 had been stolen.  This was a lie (Summary Charge 24 – make false report to police).
7	You continued to drive erratically at fast speeds and the police chase was resumed.  While you were driving along Lyndarum Drive, you nearly collided with a public bus before mounting the footpath and driving for at least 10 metres along the footpath.  You then accelerated heavily over low-lying traffic islands.  
8	Once again, the police abandoned the pursuit and you returned to an address in Wollert.  
9	All of this driving is relied upon as the factual basis for Charge 2 – conduct endangering persons, which is a rolled-up charge.  
Investigation and arrest 
10	Police ascertained that the vehicle registered BNF748 was a blue Ford utility registered to you.  Police investigators contacted you at 12.26 pm to inform you they were investigating the theft that you had reported.  They arrived at 17 Paramount Rise and found you in your car which had no number plates. 
11	You told investigators the last time you had seen the car with number plates was just before midnight on 26 August 2021 and that you did not drive the car after this.  You provided a written statement containing this information which you signed and acknowledged to be true and correct.  The statement was made to First Constable Akram Ali.  When you made the statement, you knew that its contents were not true and correct (Charge 1 – perjury).
12	Police investigations, including examination of CCTV footage, revealed the account given by you to have been false.  You were arrested on 8 September 2021.  You told police that you had removed and destroyed the number plates but you otherwise participated in a ‘no comment’ interview with police.  
13	You were charged by police on 8 September 2021 and granted police bail which was varied at the filing hearing on 13 September 2021.  
14	On 30 October 2021, you were remanded in custody for unrelated matters.  As at today's date, there are 168 days of pre-sentence detention to be taken into consideration.
Personal circumstances 
15	You were born in September 1995, which means you were 25 years of age at the date of the offending.  You are now 26.  You grew up on a farm in Donnybrook with your parents and three siblings.  There is no suggestion of any childhood family trauma as is commonly seen in this court, although, you had a strict upbringing.  You are closest to your 33-year old brother, Matt, who provided the court with a reference about you.  
16	Your parents are in their 60’s and continue to work on the farm.  You maintain contact with your parents from prison and plan to live with them on your release. They have taken a close interest in your court proceedings and I see that they have joined the link to hear the sentence today.  
17	You struggled at school and were the victim of constant bullying.  After leaving school in Year 9, you started but did not complete a mechanical apprenticeship.  You worked as a mechanic for two and a half years.  You plan to work again for your father when released from prison.  
18	When you were 20, you started a relationship with the mother of your now four-year old son.  The relationship ended three years ago when you noticed your ex-partner using drugs.  You continue to see your son regularly when you are not in gaol.
19	You have a history of substance abuse dating back to the age of 10 when you started smoking and drinking alcohol.  From the age of 15, you started using ecstasy and cocaine until the age of 18 when you commenced using methamphetamine and GHB.  
20	The court received the following character references about you from:  
(a)	Tony Chiminello, your father; 
(b)	Linda Robinson, your mother; 
(c)	Matt Chiminello, your older brother; 
(d)	Amanda Chiminello, your older sister; and 
(e)	Zoe Hart, the mother of your son.  
21	In her letter to the court, your mother wrote:
I just want you to know that we, as a family, are united and here for Jack and will continue to support him.
22	Your older brother, who has fought and overcome his own drug addiction, told the court that he knows he can help you stay clean.  He has a full-time job waiting for you upon your release from custody.  He said that he has 100 per cent confidence in you.  
23	I have carefully read each of these references and given them considerable weight on your plea.  You are very fortunate to have the support of your loving family and your former partner.  
24	These references are a tangible indication to the court that your prospects of rehabilitation are good despite your history.  However, it is only you who can overcome your substance abuse. And it is only by overcoming that abuse that you can resume a normal positive life in the community.  Mr Chiminello, I cannot emphasise this enough.  The talking is the easy bit.  Talking to your lawyers, talking to medical practitioners and talking to me about your intent to reform is the easy part.  It is the doing it that is the hard part and it is only you that can do that. 
25	Two medical reports were relied upon by your counsel.  The first was a report dated 21 April 2020 prepared by Dr Steven Chau, consultant psychiatrist.  Doctor Chau notes you have a long history of Substance Use Disorder which commenced at the age of 17 mainly using methamphetamine.  He states that you last used one month ago and were keen to get your life on track.  Doctor Chau notes that you had two years of one-to-one therapy for drug and alcohol counselling commencing in 2017 due to a court order.  
26	Doctor Chau diagnosed you with ADHD, Methamphetamine Use Disorder in early remission, Generalised Anxiety Disorder and possibly Bipolar Affective Disorder Type 2.  
27	More recently, a report has been prepared by Victorian Forensic and Clinical Consulting.  The report, dated 11 May 2022, was prepared by Daria Sizenko, provisional psychologist, together with Pamela Matthews, forensic psychologist.  The authors were aware of the current charges and were provided with the report of Dr Chau. 
28	The authors record you telling them that you told police your licence plates were stolen 'in order to attempt to mitigate the situation' but later realised that you had 'created additional problems' for yourself.  You said to them that you 'acted out of fear and anxiety' and said that you were using methamphetamine and GHB almost daily in the lead-up to your offending and that you were not in a good place.
29	You were assessed on the Inventory of Offender Risks, Needs and Strengths, IORNS.  You scored in the very high range on both the Overall Risk Index and the Static Risk Index; average range on the Dynamic Risk Index and low on the Protective Strength Index.  The report summarises your situation as having 'greater historical risks, similar levels of current needs but fewer protective factors at his disposal than his peers'.  
30	You were also assessed on the DASS-21 Depression, Anxiety and Stress Scale – Short Form.  You scored in the severe range for depression, anxiety and stress.  
31	Ms Matthews diagnoses you as meeting the DSM-V criteria for Severe Stimulant Use Disorder (methamphetamine) and Severe Sedative Use Disorder (GH)B.  Ms Matthews notes that you continue to meet your prior diagnosis of ADHD.  
32	In conclusion, Ms Matthews opines that your:
ongoing substance use as well as struggles with decision-making, problem-solving and impulse control as a result of ADHD would have been significant contributing factors to his current offending.
33	On the important question of your prospects for rehabilitation, Ms Matthews notes that you are 'currently also motivated by wanting to be an active and positive figure in [your] son's life'. She notes that although you were coping with the custodial environment, 'limited access to mental health and substance use intervention supports will likely hinder [your] process for rehabilitation'.
34	I have taken these reports into account.  
Previous character
35	Your offence history commenced in 2015 when you were 19 years of age.  That history comprises driving offences, drug-related offences, making a false report, theft, burglary and criminal damage. Such a history at a young age demonstrates a certain contempt for the law and a need for specific deterrence in the sentence I impose.  
36	You have been the subject of four Community Correction Orders; two that expired and two which were cancelled by formal court breach.  You told the author of the Pre-Sentence Report that I ordered that your contraventions were due to your youth and that as you had never been in custody you were ‘not worried’.  
Objective seriousness
Driving
37	Your driving, as summarised above, put other road users at serious risk of harm.  It is only a matter of luck that no one was hurt or even killed by your high-speed reckless driving.  The reason you drove in the manner you did was to avoid the police who were chasing you.  I take a very dim view of your conduct.  Road users are entitled to drive without fear of the conduct of other drivers.  I am particularly concerned that you were the holder of a probationary licence at the time and that you had previously been before the Magistrates' Court in relation to driving offences.  
38	The charge is a rolled-up charge.  You face one maximum penalty despite the evidence demonstrating that you committed a number of discrete offences during the course of your driving on 26 August 2021.  Although I may only impose one penalty in relation to this charge, that penalty must represent your overall criminality in relation to your driving.
Perjury
39	The seriousness with which the criminal law regards the offence of perjury and its capacity to undermine public trust in legal institutions ‘is reflected in the maximum penalty of 15 years which applies to this offence’.  
40	I accept that yours was not a planned perjury.  It appears that the idea of reporting that your licence plates had been stolen came to you as a way to avoid responsibility for your dangerous driving.  Having made the report to the Police Advice Line you felt compelled to make the statement to investigating officers despite knowing that what you were saying to police was untrue.  
41	Your perjury gave rise to an unnecessary police investigation into an offence that had not been committed.  However, I accept that your counsel's submission that the diversion of police resources, in this case, was quite minor because you admitted that you had lied at an early stage of the investigation.  
42	Finally, I consider that the summary offence of making a false report to police, while a serious matter, is largely subsumed into your perjury and can be adequately addressed by a fine with conviction. 
Matters of mitigation 
43	I take into account your early plea of guilty which has saved witnesses from giving evidence and the cost of a trial.  Your plea of guilty is also significant as it reflects remorse on your part for your offending.  
44	At the present time, your plea of guilty carries more weight than was the case before the pandemic.  As the Court of Appeal has repeatedly emphasised, the delays on our court system are such that an accused who pleads guilty at present is entitled to an ‘additional augmented mitigatory effect on sentence’ because the plea ‘will benefit the beleaguered administration of justice’ in this state.  You must benefit from a ‘perceptible amelioration of sentence’.
Rehabilitation prospects 
45	Section 5(1)(d) of the Sentencing Act 1991 (Vic) (‘the Act’) provides that one of the purposes for which a sentence may be imposed is to ‘establish conditions within which it is considered by the court that the rehabilitation of the offender may be facilitated’.
46	You were 25 when you offended and you are now 26.  While there are many younger offenders who come before this Court, you are young enough to make your prospects of rehabilitation a prominent concern in my sentencing task.  
47	Rehabilitation of youthful offenders is ‘one of the great objectives of the criminal law’.  In the case of Azzopardi v R, Redlich JA explained that this is because: 
…young offenders are typically still in a stage of mental and emotional development and may be more open to influences designed to positively change their behaviour than adults who have established patterns of antisocial behaviour.  
48	As Mr Newton, your counsel, submitted, furthering your rehabilitation is not only in your interests and those of your family, importantly, including your young son,  but it is also part of this court's role in achieving crime prevention to protect the community.  This is because 'crime prevention to protect the public and the rehabilitation of the offender are interlinked objectives'. 
49	As noted earlier, your older brother, Matt has informed the court that he has a job waiting for you on your release.  The job will be working as part of the family business at Donnybrook.  Mr Newton, on your behalf, informed me that while possessing a driver's licence will be an advantage for both you and the business, if I was to cancel or suspend your licence this would not mean that the job would not be open to you.  
50	Section 89A(1)(a)(ii) of the Act confers an unfettered discretion on me to cancel or suspend your probationary licence and disqualify you from obtaining another one ‘for the period of time the court specifies’. 
51	I note the prosecution did not submit that I should make an order under s 89A.  
52	However, on reflection, I consider that your highly dangerous driving as described above and your history of driving-related offences dating back for five years requires me to make an order under s 89A for the protection of the community and to denounce your conduct.  I will return to that presently. 
Combination sentence  
53	On your behalf, Mr Newton of counsel persuasively submitted that you should immediately be released from custody onto a Community Correction Order (CCO).  This course was supported by Mr Nibbs of counsel for the prosecution.  
54	I consider that the gravity of the driving offence, in particular, warrants a sentence of detention.  However, having regard to the mitigating factors, I accept that a combination sentence of imprisonment and a CCO is able to meet all of the relevant sentencing considerations, including general deterrence and just punishment.  All of the pre-conditions for such a sentence are met.  
55	The purpose of a CCO is to provide a community-based sentence that may be used for a wide range of offending behaviours while having regard to and addressing the circumstances of the offender.  
56	I have had regard to the purposes of imposing a sentence as set out in s 5 of the Act.  In a case such as this, the paramount sentencing considerations are general deterrence, just punishment, denunciation and rehabilitation.  In sentencing you, I must deter others from engaging in dangerous driving such as you did and from lying to the police to avoid responsibility.  I must unequivocally denounce such serious criminal conduct.  
57	In the case of Boulton v The Queen, the Court of Appeal explained that a CCO ‘can be used to rehabilitate and punish simultaneously’.  These purposes are generally to be achieved through an appropriate duration and a proportionate combination of conditions (see s 48A).  
58	Pursuant to s 8A(2) of the Act, the Court ordered a brief pre-sentence assessment report to establish your suitability for a CCO and to obtain advice concerning the most appropriate conditions to be attached to any such CCO (s 8A(2)(a) and (c)).  The proceeding was adjourned to enable the report to be prepared.  
59	On 30 May 2022, the court received a report dated 27 May 2022 in response to the request.  
60	The report includes the following information:
(a)	Mr Chiminello was assessed by a video conference on 27 May 2022;
(b)	His general risk of reoffending was assessed as high according to the Level of Service Risk Assessment Tool; 
(c)	He was assessed as suitable for a CCO based ‘on the information available at the time of the assessment’ (p.2); 
(d)	The recommended conditions were those that had been identified in the request, with the addition of a condition under s 48CA of the Act, that is hours of treatment to be counted as unpaid community work;  
(e)	The report noted that Mr Chiminello recognises that the CCO will be his final chance;  
(f)	Mr Chiminello was referred, according to the report, to the Court Mental Health Advice and Response Services (MHARS) regarding the imposition of a mental health condition and the Court received the MHARS report on 1 June 2022; 
(g)	The conditions proposed by the Court were endorsed in the report ‘to support Mr Chiminello to work towards addressing factors underpinning his involvement in offending behaviours and to assist holding him accountable regarding his progress’ (p.2);  
(h)	The author of the report recommends an ‘offending behaviour program, namely a road trauma awareness seminar program condition’.  This is intended to assist Mr Chiminello to ‘develop further insight regarding harm and impact associated with his offending behaviour’ (p.2).  
61	I have considered the pre-sentence report and I consider that a sentence of imprisonment combined with a 12-month CCO is an appropriate sentence to address both the punitive and rehabilitative aspects of the sentence.  I have accepted your counsel's submission that the term of imprisonment should be limited to the time you have already served and that you should be immediately released onto the CCO.  While I consider that there is still a need for you to be punished for your offending, this can be achieved by the unpaid work requirements of the CCO.
62	Before I ask you to consent to such an order being made, I am going to tell you a little about the order so you know what they mean so please, just listen carefully to the following.  
63	The following core conditions apply to all CCOs:  
(a)	You must not commit whether in or outside Victoria during the period of the order, an offence punishable by imprisonment;  
(b)	You must report to and receive visits from the Secretary to the Department of Justice or her or his nominee during the period of the order;  
(c)	You must report to the Community Correction Centre at Coolaroo by 4 pm on 6 June 2022;  
(d)	You must notify the Secretary, or her or his nominee, of any change of address or employment within two clear working days after that change;  
(e)	You must not leave Victoria, except with the permission of the Secretary to the Department of Justice or her or his nominee; and 
(f)	You must comply with any direction given by the Secretary or her or his nominee that is necessary for the Secretary or nominee to give to ensure you comply with the order.
64	Mr Chiminello, do you understand these requirements?  Thank you.  
65	In all the circumstances and taking into account all the mitigatory matters relevant to you and the relevant sentencing considerations, including parsimony, I consider that a combination sentence is the most appropriate sentence to punish you and also to facilitate your ongoing rehabilitation.
Orders
66	On Charge 1, perjury, you are convicted and sentenced to a CCO of 12 months duration with the following conditions.  
Unpaid community work 
67	I require you to perform unpaid community work for a total of 80 hours.  This is to adequately punish you.  As recommended in the pre‑sentence report - because I am also imposing a treatment condition - I order that up to 40 hours that you satisfactorily undertake of treatment can be counted at hours of unpaid community work (s 48CA).  That is, if you complete 40 hours of treatment, you will only need to complete 40 hours of unpaid community work.
Treatment and rehabilitation condition 
68	The opinion of Ms Matthews is that ‘ongoing substance use as well as struggles with decision-making, problem‑solving and impulse control as a result of ADHD would have been significant contributing factors to [your] current offending’. 
69	Your criminal history demonstrates the close link between your substance abuse and your offending.  In the letter he wrote to the court, your father states that you committed offences to impress friends that you had made and who introduced you to ice.  Your mother says that your ice addiction has led to your offending behaviour.  As I have said, I attach considerable weight to this evidence coming as it does from your loving but apparently realistic parents.
70	In attaching the treatment and rehabilitation condition to the order, I have had regard to the need to address the underlying causes of your offending as I am required to do under s 48D(2) of the Act. 
71	I have also had regard to the recommendations, information and matters identified in the pre-sentence report.  The author of the report endorses the treatment and rehabilitation conditions that the Court proposed plus an offending behaviour program.  
72	You will be required to undertake such assessment and treatment, including testing for drug abuse or dependency and alcohol use or dependency, as may be directed by the Secretary pursuant to s 48D(4) of the Act.  
73	As recommended by the MHARS report dated 1 June 2022, and pursuant to s 48D(3)(e) of the Act, I include a condition of ongoing assessment and, if indicated, treatment of your mental health in order to promote well-being and to reduce the likelihood of reoffending.  
Other Conditions
74	I attach a supervision condition to ensure your compliance with the CCO (s 48E).  As noted above, the pre-sentence report supports this course.  This condition responds to the assessment in the pre-sentence of your risk of reoffending as ‘high’.  
75	To enable the court to monitor your compliance with the CCO, I have attached a judicial monitoring condition.  Because your risk of reoffending has been assessed as high, I want you to come back to me in six weeks so that I can assess your progress.  It is vital that you get off on the right foot.  
76	I want you to appear and for a progress report to be provided to the court by Corrections on 13 July 2022 at 9.15 am.  I will then decide what further judicial monitoring, if any, is needed.
77	I can only impose a CCO if you agree to such an order being imposed.  I will tell you a bit about the consequences for breaching such an order now and I would like you to listen carefully, please.  
78	If you contravene the order by not fulfilling the conditions or if you breach the order by committing further offences, you can be charged and a sentence of imprisonment is one of the options that can be imposed for the breach.  You can also be re-sentenced for the offences that are before me now and, of course, one of the options available would be a term of imprisonment.  You have got to make sure that while you are on this order you do not commit any further offences during the term of the order that might incur a term of imprisonment, otherwise, you will almost certainly be back before the court and re-sentenced on the charges that are before me.
79	You also need to understand that if you fail to comply with any direction of the Secretary to the Department of Justice, being a Community Corrections officer as part of this order, a substantial fine can be imposed.  Do you understand the conditions and the consequences of breaching a CCO?
80	OFFENDER:  Yes, I do, Your Honour. 
81	HIS HONOUR:  Do you consent to the order being made?
82	OFFENDER:  Yes, Your Honour.
83	HIS HONOUR:  All right.  On Charge 2, conduct endangering persons, you are convicted and sentenced to 168 days imprisonment, which pursuant to s 18 of the Act, I declare as to be reckoned as already served.  You are, therefore, to be released forthwith.  
84	On the related summary offence, Charge 24, you are convicted and fined $300.  
85	Pursuant to s 89A of the Act, your driver's licence is suspended for a period of six months.  
86	Pursuant to s 6AAA of the Act, I declare that had you pleaded not guilty to the charges and had you been found guilty of each of them after a trial, the sentence I would have imposed would have been imprisonment for one year and three months.