and Gaetano Lomacchio v The Queen

[2015] VSCA 195

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0075
GAETANO LOMACCHIO	Applicant
v
THE QUEEN	Respondent

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JUDGE:	BEACH JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	24 July 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 195
JUDGMENT APPEALED FROM:	DPP v Lomacchio [2014] VCC 2024 (Chief Judge Rozenes)

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CRIMINAL LAW – Sentence – Application for leave to appeal – Obtaining property by deception – Attempting to obtain property by deception – Burglary – Applicant and co-offenders obtaining and attempting to obtain money by deception by impersonating Armaguard employees at various banks – Parity – Whether sentence infringed parity principles – Whether applicant sentenced in respect of charges that had been withdrawn – Not reasonably arguable that sentencing judge erred – No reasonable prospect that less severe sentence would be imposed – Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	No appearances	Robert Stary Lawyers
For the Respondent	Ms V Anscombe, Acting Solicitor for Public Prosecutions

BEACH JA:

Introduction

1. On 14 July 2014, the applicant pleaded guilty in the County Court to one charge of obtaining property by deception, two charges of burglary and two charges of attempting to obtain property by deception.  The charges arose out of three episodes at banks located in Niddrie, Campbellfield and Broadmeadows.  On 4 December 2014, following a plea hearing on 6 November 2014, the applicant was sentenced as follows:

Charges on Indictment C13408364	Offence, Offence date and location		Maximum	Sentence	Cumulation
1.	Obtain Property By Deception [s 81(1) of the Crimes Act 1958] (12 April 2012, Niddrie)		10 years [s 81(1) Crimes Act 1958]	36 months	Base
2.	Burglary [s 76(1) of the Crimes Act 1958] (7 August 2012, Campbellfield)		10 years [s 76(3) Crimes Act 1958]	4 months	Nil
3.	Attempt Obtain Property By Deception [ss 81(1) and 321M of the Crimes Act 1958] (7 August 2012, Campbellfield)		5 years [s 321P Crimes Act 1958]	21 months	3 months
4.	Burglary [s 76(1) of the Crimes Act 1958] (7 August 2012, Broadmeadows)		10 years [s 76(3) Crimes Act 1958]	4 months	Nil
5.	Attempt Obtain Property By Deception [ss 81(1) and 321M of the Crimes Act 1958] (7 August 2012, Broadmeadows)		5 years [s 321P Crimes Act 1958]	21 months	3 months
Total Effective Sentence:		3 years and 6 months’ imprisonment
Non-Parole Period:		2 years
Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:		5 days
AncillaryOrders:		Forfeiture and Disposal orders

1. The applicant now seeks leave to appeal against his sentence.  The applicant’s proposed grounds of appeal are as follows:

1.The learned sentencing judge erred in sentencing the applicant on the basis of conduct relating to a withdrawn charge.

2.The learned sentencing judge erred in fixing a sentence that offends the principle of parity and gives rise to a justifiable grievance.

The offending

1. The offending at Niddrie occurred on 12 April 2012 and involved the applicant, the applicant’s brother, Rocco Lomacchio, and one Rocky Bornino.  On 12 April 2012, Rocco Lomacchio was working at the Westpac Bank in Keilor Road, Niddrie.  At approximately 9:05am, the applicant and Bornino entered the bank dressed in Armaguard uniforms.  Rocco Lomacchio opened the front entrance to allow Bornino into the bank.  Bornino was equipped with a utility belt on his Armaguard uniform and was wearing a firearm.  The applicant remained outside the bank.  Rocco Lomacchio escorted Bornino to a secure room at the rear of the bank.  Bornino signed a currency despatch receipt, using a letter and numbers, which was standard Armaguard procedure.  Bornino then collected a total of $440,000 in cash in bags and was then escorted from the secure room by Rocco Lomacchio, before leaving the bank.  These facts constituted the basis of charge 1 (obtaining property by deception).

1. The offending at Campbellfield occurred on 7 August 2012 and involved the applicant and his mother, Tina Lomacchio.  At approximately 8:45am on 7 August 2012, the applicant and Tina Lomacchio attended the Westpac Bank in Barry Road, Campbellfield.  Both were dressed in Armaguard uniforms, and both wore equipment belts which appeared to hold firearms.  The bank was not yet open for business.  The applicant and Tina Lomacchio waited at the bank front door until they were admitted to the branch by staff.  The applicant asked ‘Is there any money to go?’  A staff member responded in the negative.  The applicant and Tina Lomacchio then left the bank.  These facts constituted charges 2 and 3 (burglary and attempting to obtain property by deception).

1. The offending at Broadmeadows occurred on the same day as the offending at Campbellfield.  Again, the offending involved the applicant and his mother.  At approximately 9:08am on 7 August 2012, the applicant and Tina Lomacchio attended at the Westpac Bank in the Broadmeadows shopping centre in Pascoe Vale Road.  Both were dressed in the same Armaguard uniforms that they had worn earlier.  They entered the bank.  The applicant was escorted into the teller area close to the strong room.  A staff member queried the absence of the usual identification of either the applicant or his co-offender.  The applicant said he would return to the truck to collect his identification.  He also said that his female colleague was a trainee and did not yet have any identification.  The applicant and his mother then left the bank.  These events constituted charges 4 and 5 (burglary and attempting to obtain property by deception).

Other offending

1. Similar offending to the offending described above was committed by Bornino and Rocco Lomacchio on 9 November 2012 at banks in Windsor, South Yarra, Caulfield North, Highett, Cheltenham, Dingley and Beaumaris.  While the applicant was originally charged in relation to that offending, ultimately those charges were withdrawn and the applicant’s plea proceeded on the basis of his involvement only in the Niddrie, Campbellfield and Broadmeadows episodes that occurred on 12 April and 7 August 2012.

Co-offenders’ sentences

1. All four offenders were sentenced by the same judge.  Bornino entered a plea of guilty at a committal mention on 9 May 2013.  Having given an undertaking to give evidence against his co-offenders at trial, Bornino was sentenced on 14 June 2013 to a total effective sentence of 3 years and 3 months’ imprisonment with a non-parole period of 15 months.  In respect of the offending at Niddrie, Bornino received a sentence of 2 years for theft and 3 months for aggravated burglary.  The sentence on the theft charge was the base sentence and no order was made for cumulation in respect of the aggravated burglary charge.

1. Rocco Lomacchio entered a plea of guilty at a committal hearing on 3 July 2013.  He was sentenced by the judge on 23 August 2013 to a total effective sentence of 5 years and 2 months’ imprisonment with a non-parole period of 3 years.  For the offending at Niddrie, Rocco Lomacchio received a sentence of imprisonment of 3 years and 3 months in respect of the charge of obtaining property by deception.  This was the base sentence.

1. Tina Lomacchio entered a plea of guilty at the committal hearing on 3 July 2013.  She was sentenced by the judge on 23 August 2013 as follows:

Charges on Indictment	Offence, Offence date and location	Maximum	Sentence	Cumulation
2.	Burglary [s 76(1) of the Crimes Act 1958] (7 August 2012, Campbellfield)	10 years [s 76(3) Crimes Act 1958]	1 month	--
3.	Attempt Obtain Property By Deception [ss 81(1) and 321M of the Crimes Act 1958] (7 August 2012, Campbellfield)	5 years [s 321P Crimes Act 1958]	12 months	--
4.	Burglary [s 76(1) of the Crimes Act 1958] (7 August 2012, Broadmeadows)	10 years [s 76(3) Crimes Act 1958]	1 month	--
5.	Attempt Obtain Property By Deception [ss 81(1) and 321M of the Crimes Act 1958] (7 August 2012, Broadmeadows)	5 years [s 321P Crimes Act 1958]	18 months	--
Total Effective Sentence:		18 months’ imprisonment, wholly suspended for an operational period of 3 years
Non-Parole Period:		N/A
Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:		2 days

The judge’s reasons

1. The judge commenced his reasons for sentence with a description of the offending.[1]  The judge said:

In brief summary, you participated in a scheme to obtain money from banks pretending to be armed guard cash couriers. For that purpose you were dressed in clothing that closely resembled that worn by armed guard money couriers, including guns, and requested money for transfer from the various banks. There were ten such occasions.  You obtained, or attempted to obtain, large amounts of cash from bank officers who were deceived or to be deceived into thinking you were part of the regular cash carrying system.[2] 

[1]DPP v Lomacchio [2014] VCC 2024 (‘Reasons’) [2]–[6].

[2]Ibid [3].

1. The judge then described the applicant’s offending on 12 April and 7 August 2012 at the banks in Niddrie, Campbellfield and Broadmeadows, before saying:

A total of ten banks were targeted in the scheme. You  were only involved with the three that I have referred to. On 9 November 2012 your brother and Mr Bornino effected the scheme at another seven banks in the one day. When arrested by police on 6 December 2012 you made a no comment record of interview.[3]

[3]Ibid [6].

1. The judge then noted the sentences that he had already imposed on Bornino and the applicant’s brother and mother.  In the course of doing so, the judge dealt with the issue of parity between the applicant and his co-offenders.  The judge said:

With respect to Mr Bornino, I made a declaration that his sentence had been reduced as a result of his undertaking to give evidence against his co-offenders. I described his assistance as ‘significant’ and said that securing the cooperation of offenders is unlikely to be obtained without ‘substantial inducements’.  With respect to your brother, Rocco, it was conceded that his employment at the bank was an aggravating factor with respect to charge 1.  In sentencing him I treated his criminality as more serious than Bornino’s on the basis that he had breached a relationship of trust with his employer and

that the breach was probably most instrumental in ensuring the success of that particular enterprise.

There is a further distinction between you and Bornino that needs to be noted.  He pleaded guilty to a series of charges of aggravated burglary, seemingly founded on the fact that each time he entered a bank he was armed and had an intent to commit a relevant offence.  I expressed some concern about this charge at the time and I have been informed by the prosecutor at the previous instance that the Director of Public Prosecutions, in response to my concerns, has not charged you with those offences but with burglary charges on occasions where you crossed into a secure part of the bank.  One might say that one technical and superfluous offence has been replaced with another.  In any event, what I propose to do is what I did in the case of Bornino and that is to make any sentence I impose on the burglary charges wholly concurrent with the substantive charges of obtaining or attempting to obtain property by deception, as the case may be.

Notwithstanding the distinctions, I am otherwise conscious that in sentencing you I must take into account the sentences imposed on the others.  The law requires a sentencing judge to have regard to the principle of parity amongst co-offenders.  The principle that like offences and like offenders receive like penalties is integral to the maintenance of public confidence in the criminal justice system.  You  will understand that the undertaking to give evidence by Bornino along with the other factors, which I have already referred to, must produce a different sentence for you.  So too does the role played by your brother in charge 1 produce some different sentencing considerations.  I clearly must consider the sentence imposed on your mother with respect to the charges other than charge 1. Viewed separately it is difficult to distinguish your involvement from hers in those charges, but she had not participated in charge 1 whereas you had.  On that charge alone it is to be observed that whilst you are to be distinguished from your brother having regard to his particular relationship with the bank, there is not that much to distinguish your conduct from that of Bornino or for that matter your brother.  The scheme was to utilise your brother’s special position in the bank. You participated in that scheme and played the role accorded to you.  Sometimes it is said that, say in the case of the bank robbery, the driver waiting in the getaway car or the lookout plays a lesser role than the person who confronts the teller with the gun, but that is because the person with the gun exposes all to the greater risk, and is the person who terrorises the public.  I am not sure that in cases such as that where the scheme contemplates that very thing happening that the getaway car driver should receive any lesser sentence. In your case I am satisfied that standing guard as you did outside the bank was no lesser event than that played by Mr Bornino and for that matter by your brother, if one puts to one side the aggravating fact that he was an employee.[4]

[4]Ibid [8]–[10].

1. Next, the judge dealt with the submissions that had been made to him on the plea.  The judge went on to repeat some matters he had said when he sentenced the applicant’s mother and brother.  The judge said:

In sentencing you brother and mother I said:

‘To repeat what I said at the sentencing of Mr Bornino, your offending was serious, motivated by greed, reasonably well planned, brazen and, if successful, would have reaped substantial reward.  It was aimed at a high net worth target, a bank.  As it was, with respect to charge 1, you deprived the bank of some $440,000.00.  That episode was particularly well planned and executed.  It was a sophisticated operation. The deceptions were clever and whilst the success in the first theft was, as I have said, no doubt substantially contributed to by the fact that you, Rocco Lomacchio, worked in the branch and were able to facilitate the offence, it is clear that if the timing was right and the bank staff were a little inattentive the scheme had the potential to be quite successful on the subsequent occasions.  Whilst the concerted and repetitive conduct in August and November was mainly unrewarding and was somewhat opportunistic, it was nevertheless persistent, desperate, bold and motivated by greed.  In each instance there was an outside chance of harm.  As I said in the discussion with counsel, whilst you were not in a position to cause harm to anyone, someone intervening for the bank might have resorted to real weapons with unfortunate consequences for you or some innocent bystander.’

Those observations apply equally to you.

Emboldened by the success of the first episode and in the absence of both Mr Bornino or your brother, you embarked upon two further attempts, this time in the company of your mother.  It is hard to understand as I said in sentencing her what role she played or how she came to be involved.  I stated in justification for suspending her sentence that I felt that that but for the involvement of you and your brother it is unlikely that she would have become involved.  That may have been a somewhat generous and unwarranted observation on the evidence before me in that case.  The hypothesis that you were sucked into this by Mr Bornino is equally without substantiation.[5]

[5]Ibid [15]–[17].

1. The judge then dealt with background matters and exhibits tendered on the plea (references, a letter written by the applicant to the judge and medical reports).  Finally, the judge said:

I take into account your plea of guilty. It was offered at the very last opportunity and hence does not and cannot be expected to receive a discount similar to that given to your brother Rocco, or for that matter to your mother when she was sentenced. You have a limited but nevertheless relevant prior conviction. As I said in sentencing your brother and mother, this offending was part of a chain of events and had its genesis in charge 1, which informed and encouraged the subsequent offending in which you participated without the involvement of either Bornino or your brother and brought to play assistance by your mother.  The offending was serious and calculated albeit ultimately amateurish in its execution insofar as the events of 7 August are concerned. You are fortunate that you did not continue beyond that date.  I distinguish your culpability from that of your brother in respect of charge 1.  His offending was aggravated by the fact that he was an employee of that branch. On the other hand he is entitled to a greater discount for his earlier plea of guilty as is your mother with respect to charges 2 to 5.  I accept that you have reasonable prospects of rehabilitation and that you are not likely to offend in this way again.  Specific deterrence need not play as significant a part in the sentences as it otherwise would.

The basic purposes for which a court may impose a sentence are punishment, deterrence (both specific and general), rehabilitation, denunciation, and protection of the community.  In sentencing, I must have regard to a range of matters such as the seriousness of the offence, your culpability for it, your personal circumstances and those of the victim if any.  I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that as far as possible offenders are rehabilitated and reintegrated into society. 

I was asked to consider giving you a sentence which avoided immediate custody. I have come to the firm view that such a sentence would be inappropriate having regard to the purposes I have just stated and in particular having regard to the seriousness of the offending, your involvement, the lateness of your plea and the sentences imposed on your co-offenders.[6] 

[6]Ibid [20]–[22].

Analysis

1. It is convenient to start with the applicant’s complaint about parity (proposed ground 2).  In his written case, the applicant limits his parity complaint to one in respect of the sentence imposed upon his mother, Tina Lomacchio.  More specifically, the complaint is limited to the difference between the sentences imposed upon the applicant and his mother in respect of the charges of attempting to obtain property by deception at the bank in Campbellfield.  For that charge, the applicant received a 21 month sentence, 3 months of which was cumulated upon the sentence imposed in respect of the Niddrie offending, whereas the applicant’s mother received a 12 month sentence that was wholly suspended for 3 years.  The applicant submits that ‘the profound difference’ between these sentences for the same conduct ‘is unjustified, particularly in light of the sentence imposed in relation to the Broadmeadows bank’.

1. There is no substance in this submission.  The applicant fell to be sentenced having already committed a very serious criminal offence in which the sum of $440,000 was taken from the bank in Niddrie.  The applicant had prior convictions for theft and making a false report to police.  The applicant pleaded guilty ‘at the very last opportunity’.[7]  Notwithstanding those matters, the judge only imposed a sentence of 21 months — a mere three months of which was cumulated upon the applicant’s base sentence.

   [7]Ibid [20].

1. The applicant’s mother was in a completely different position.  She had not participated in the episode at Niddrie;  she had no prior convictions;  and she offered an early plea of guilty.[8]  In the circumstances, it is simply not reasonably arguable that the applicant could have any legitimate or justifiable sense of grievance in the difference between the sentences imposed by the judge.[9]

   [8]DPP v Lomacchio [2013] VCC 1004, [11] and [14].

   [9]See generally, Lowe v The Queen (1984) 154 CLR 606; Postiglione v The Queen (1997) 189 CLR 295; Wong v The Queen (2001) 207 CLR 584; Green v The Queen (2011) 244 CLR 462; Azzopardi v The Queen (2011) 35 VR 43.

1. With respect, the judge’s reasons disclose a very careful and considered analysis of the parity issues in this case.  Both the reasons given by the judge and the sentences actually imposed disclose no arguable basis for contending that the judge, in sentencing the applicant, infringed parity principles.

1. I turn now to consider the applicant’s complaint that he was sentenced ‘on the basis of conduct relating to a withdrawn charge’ (proposed ground 1). The applicant contends that the judge, by referring in his reasons for sentence to a scheme involving 10 banks, sentenced the applicant on the basis of some involvement in the episodes that occurred at the seven banks that were visited by the applicant’s brother and Bornino on 9 November 2012. Specifically, complaint is made by the applicant about the judge’s repetition of what he said when sentencing the applicant’s brother and mother,[10] and then the judge’s statement that ‘those observations apply equally to [the applicant]’.[11]  The applicant contends that one of the observations that the judge stated applied to him was the judge’s unparticularised reference to ‘subsequent occasions’ and then the statement:

Whilst the concerted and repetitive conduct in August and November was mainly unrewarding and was somewhat opportunistic, it was nevertheless persistent, desperate, bold and motivated by greed.  In each instance there was an outside chance of harm.[12]

[10]Reasons [15].

[11]Ibid [16].

[12]Ibid [15] (emphasis added).

1. The applicant submits that by referring again to the offending that occurred in November 2012, and by stating that ‘those observations apply equally to [the applicant]’ the judge sentenced the applicant in respect of charges that had been withdrawn prior to the plea hearing. 

1. The applicant’s submissions are devoid of merit.  A plain reading of the judge’s reasons discloses beyond argument that the judge only sentenced the applicant in respect of the offending that occurred at the first three banks on 12 April and 7 August 2012.[13]

   [13]See, in particular, Reasons [6] and [20].

1. Having said that the observations made when sentencing the applicant’s brother and mother applied equally to the applicant, the judge then explained that statement by reference to the conduct actually engaged in by the applicant.  In doing so, the judge said:

The offending was serious and calculated albeit ultimately amateurish in its execution in so far as the events of 7 August are concerned.  You are fortunate that you did not continue beyond that date.[14]

Neither the judge’s reasons for sentence nor the sentences imposed provide any basis for the suggestion that the judge sentenced the applicant ‘on the basis of conduct relating to a withdrawn charge’.  The application for leave to appeal must be refused.

[14]Reasons [20] (emphasis added).

1. Finally, I should say for the sake of completeness that, having regard to the objective seriousness of the applicant’s offending, and notwithstanding the various matters that go in mitigation, the sentence imposed by the judge was, with respect, entirely appropriate.  There is no reasonable prospect that a court hearing an appeal in this case would impose a less severe sentence than the sentence imposed by the judge.  For this additional reason, the application for leave to appeal must be refused.[15]

   [15]Cf ss 280(1) and 281 of the Criminal Procedure Act 2009.

Order

1. The application for leave to appeal is refused.

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