Director of Public Prosecutions v Aloia

[2016] VCC 169

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-01508

DIRECTOR OF PUBLIC PROSECUTIONS

v

GEMINO ALOIA

---

JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	20 January, 15 February 2016
DATE OF SENTENCE:	15 February 2016
CASE MAY BE CITED AS:	DPP v Aloia
MEDIUM NEUTRAL CITATION:	[2016] VCC 169

REASONS FOR SENTENCE
---

Subject:         Threat to inflict serious injury.
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:      Fine

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D. Piekusis
For the Accused	Mr N. Hutton

HIS HONOUR:

1Gemino Aloia, you have pleaded guilty to one charge of making a threat to inflict serious injury for which the maximum penalty is five years imprisonment. S. 49 of the Sentencing Act also empowers a sentencing court to impose a fine. In relation to this charge the maximum fine that maybe imposed is 600 penalty units which equates to more than $60,000.

2In passing sentence I must have regard to the maximum penalty and I have done so.

3Your offending occurred on 24 September 2013, nearly 2 ½ years ago. The circumstances giving rise to your offending are contained in a summary of prosecution opening which I admitted into evidence as exhibit A. That summary was read in open court by the learned prosecutor and was accepted by your counsel Mr Hutton as being accurate and, as forming a proper basis upon which I can proceed to pass sentence upon you.

4It is not necessary that I here repeat in detail what is contained in the summary except in a very limited way. Between 27 August 2013 and the date of this offence you were associated as a “nominee” of the Comanchero Motorcycle Club, South Melbourne chapter. A co-offender named Bemir Saracevic is also associated with that club holding the position as treasurer. From 27 August 2013 until the time that you committed this offence Saracevic with others was attempting to extort more than $800,000 from one Keith Tribe. You became involved as early as 9 September 2013 at the request of Saracevic. 

5Your role in the charged offence was to attend at the home of Keith Tribe with a co-accused Mark Balsillie and with him affixed to the door of the premises a bullet. The purpose of doing this was to reinforce implied threats made earlier by Saracevic and others to Tribe if he did not meet demands that were made of him to pay money.

6I accept that your role in the offending was limited and can be distinguished from the roles played by others such as Saracevic, Jaha, Maratai and Balsillie. Your offending is really limited to that which is contained in paragraphs 17 to 26 inclusive of the prosecution summary. I accept there is no evidence that you had any broader knowledge of the extortion and blackmail that was being carried out by others against Mr Tribe.

7Nevertheless, the support that you gave was important given that almost all approaches demanding money from Mr tribe were carried out by more than one person. I accept the evidence shows there was no one home at the address when you committed this offence and your knowledge at the time was to the effect that the property was not inhabited. But it is the conveying of the threat that is at the heart of the offence.

8When you pleaded guilty you also admitted a limited criminal history. In August 2013 you were convicted at the Broadmeadows Magistrates' Court of possessing a weapon without approval or excuse and you were fined $1000 with conviction. This offending occurred a short time after that offending. There is also a subsequent matter relating to the possession of a toy handgun but I have disregarded that subsequent matter as being of little if any relevance here.

9You were arrested and charged on 1 October 2013. You have served 23 days in custody on remand before being bailed.

10Mr Hutton provided me with a detailed outline of submissions which I have found helpful. I marked those submissions as Exhibit 1.

11Mr Hutton submitted that I should fine you for your offending. The prosecution agreed that a non-custodial disposition was within the sentencing range having regard to your limited role and the short duration of your offending.

12Mr Hutton relied upon section 5(4) of the Sentencing Act which provides a sentence requiring confinement should not be imposed unless the purposes of sentencing cannot be achieved by any other sentence that does not require confinement. He submitted and I agree that general deterrence, punishment and denunciation are the most relevant sentencing principles to be applied in this case.

13You have pleaded guilty to the charge and I treat you as having pleaded guilty at the earliest available opportunity. You were originally charged with other offences but those offences were withdrawn. When the prosecution indicated it would charge you with this offence you immediately indicated that you would plead guilty to the charge. By your plea of guilty you have saved the time and cost of a trial. I must have regard to your plea of guilty at the earliest opportunity when passing sentence and you are entitled to a reduction in your sentence because of this fact.

14I accept that there has been some delay in this matter not of your making and that you have used your time fruitfully and to your advantage. Whilst you have been on bail for a period of two years and four months you have been required to report three times per week and this in itself is a form of punishment. I was told, and accept, that you have ceased all contact with your co-offenders and the Comanchero Motorcycle Club. If I may say so, that is a very wise decision on your part.

15I turn to your background. You were born on 17 August 1987. You are a single man with no children or partner. You attended school and left after completing Year 10 and thereafter you have been gainfully employed and in recent times you have successfully established your own garden maintenance business. You apparently have about 40 permanent contracts. I admitted into evidence references from persons who attest to your hard work ethic and your character. Both speak highly of you.

16I have formed the strong view that provided you continue to choose those with whom you associate carefully your chances for a full rehabilitation are reasonably good.

17In all the circumstances I have decided to go down the path of sentencing for which Mr Hutton contends. Because you have taken some constructive steps to rehabilitate yourself and you have not reoffended, except in relation to the toy gun, since this offending some 28 months ago, I am of the opinion that there is little point to be served in placing you on a community corrections order. You will however be fined.

18On the charge of threat to inflict serious injury you are convicted and fined the sum of $5,000.

19I have been asked to make a forensics sample order. Because of the seriousness of the offending and because the order sought was not opposed and because it is in the public interest I have signed that order.

20I declare that there has been 23 days of pre-sentence detention under the sentence passed this day and that 23 days be reckoned as having been already served under the sentence as passed this day.

- - -

MR HUTTON:  As Your Honour pleases.  I seek a stay of three months on the payment of the fine, Your Honour.

MS PIEKUSIS:  Sorry, Your Honour?

HIS HONOUR:  Do you have anything to say about the stay, Ms Piekusis?

MS PIEKUSIS:  No, no objection, Your Honour.

HIS HONOUR:  I'll grant a stay of three months in relation to payment of the fine.

MR HUTTON:  As Your Honour pleases.  Your Honour, the prosecutor has just raised something with me and I should raise it just out of an abundance of caution.  Your Honour has fined Mr Aloia $5,000 and in addition you declared 23 days of PSDS time served pursuant to this order I imagine but I'm not sure that makes sense under the Act if Your Honour hasn't imposed a prison sentence.  That's all I'm - - -

HIS HONOUR:  You asked me to make the declaration.

MR HUTTON:  I understand that, Your Honour, I'm just not sure how it fits in if there's no prison sentence so I don't know how - I'm just raising it for that reason.

HIS HONOUR:  Well I'll tell you how it fits in.  It fits in in this way.  If your client decides not to pay the fine - - -

MR HUTTON:  Yes.

HIS HONOUR:  - - - and is sent to prison as a result, it will be taken into account.

MR HUTTON:  I'm grateful, Your Honour, thank you.

HIS HONOUR:  That's the reason for making it.

MR HUTTON:  Thank you, Your Honour.

HIS HONOUR:  That's why I thought you asked me to make it.

MR HUTTON:  It's Monday, Your Honour, I'm tired.

HIS HONOUR:  You're free to leave, Mr Aloia.  Adjourn the court till 10 o'clock.

- - -