Director of Public Prosecutions v Camilleri
[2023] VCC 1460
•15 August 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication | |
AT Melbourne
CRIMINAL JURISDICTION
CR-22-01104
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RICHARD CAMILLERI |
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JUDGE: | HIS HONOUR JUDGE MULLALY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 April 2023, 11 May 2023, 8 June 2023 and 15 August 2023 | |
DATE OF SENTENCE: | 15 August 2023 | |
CASE MAY BE CITED AS: | DPP v Camilleri | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1460 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – Sentence
Catchwords: Making a False Document – Sentence Indication – Trauma – Police Officer – Mental Health – First Responder – Post-traumatic Stress Disorder – Depressive Disorder – Good Character – Significant Contributions made by the Offender to the Community –– Exceptional and Unique Circumstances – Mercy.
Legislation Cited: Sentencing Act 1991 (Vic), s 6(c) and s 70; Criminal Procedure Act 2009 (Vic), s 209(1).
Cases/Reports Cited: Inquest into the January 2017 Melbourne Bourke Street Event
(Coroners Court of Victoria at Melbourne, Coroner Jacqui Hawkins, 19 November 2020).
Sentence: 12 month Adjourned Undertaking Without Conviction.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms C. Paganis | Office of Public Prosecutions |
| For the Accused | Mr J. Gullaci SC | Tony Hargreaves & Partners |
HIS HONOUR:
1 On 20 January 2017, an event that would have tragic ramifications for so many people unfolded in the centre of Melbourne. Six people died, all victims of James Gargasoulas. The Coroner, Her Honour Magistrate Hawkins, in her wide ranging and detailed report following an Inquest, introduced or made the following remarks by way of introduction. She said this, and I quote:
On 20 January at approximately 1.28 pm James Gargasoulas drove a stolen… Holden Commodore into Melbourne Central Business District.[1]
[1] Inquest into the January 2017 Melbourne Bourke Street Event (Coroners Court of Victoria at Melbourne, Coroner Jacqui Hawkins, 19 November 2020) [1.1].
2 I will paraphrase: He then, at the intersection of Flinders Street and Swanston Street, performed ‘donuts’, shouting at onlookers and taunting police. He then drove north up Swanston Street, followed by a convoy of police vehicles.[2]
[2] Ibid [1.2].
3 I pause there. You, Mr Camilleri, were one of the police in that convoy.
After crossing Little Collins Street, he veered onto the footpath where pedestrians scattered to avoid being struck... [He then] turned into Bourke Street Mall… He drove at speed into lunchtime crowds... [He] struck 33 pedestrians, many who had their back to the… vehicle. Six pedestrians… sustained fatal injuries.[3]
[3] Ibid [1.3] and [1.4].
4 Her Honour said:
To simply describe these events does not capture their horror… Numerous witnesses likened it to a nightmare. The moments they witnessed were simply beyond their comprehension. The offender's actions were both unthinkable and repellent. They struck at the heart of Melbourne, the city's iconic streetscapes as their setting.
The offender's actions have reverberated nationally and internationally, leaving a lasting effect on countless people, including the friends and families of the deceased, the injured, and those who tended to the injured and dying and the witnesses of these events. I acknowledge all those affected and their enduring physical and psychological pain.[4]
[4] Ibid [1.5] and [1.6].
5 The Coroner said:
I also acknowledge the heroic actions of the many first responders to this large scale emergency who provided aid, support, and comfort to the injured and dying. On a day when Melbourne was witness to the callous acts of one man, it also saw remarkable selfless examples of the very best of humanity. Their service to our community cannot be overstated.[5]
[5] Ibid [1.7].
6 The Coroner concluded:
I also recognise that these events have had a severe and lasting effect on many of the witnesses who gave evidence at this Inquest, including Victoria Police members involved in the events of the day and the preceding week.
I commend any individual who chooses to pursue a calling that focuses on protecting the safety and welfare of others.[6]
[6] Ibid [1.8].
7 You, Richard Camilleri, were one of the first responders. You were very much at the front line. As a consequence, you have suffered deep and enduring
post-traumatic stress disorder. I have read the expert psychiatric reports that clearly establish the decline in your mental health. Recalling or revisiting the events of that day are a trigger for you, so I will not dwell too much longer on this aspect of your background.
8 I was told this morning that an appointment for you to see a medico-legal psychologist for the purposes of this plea could not go ahead as it triggered a panic attack, as you sensed that you would have to recall. However, as I have said, I do need to put into context what happened to you that led to you putting some false facts in an affidavit in family law proceedings. We will step back some years to make clear the context of your offending.
9 At the age of 40 you made a significant change in your career. You joined the police force. You had, to that point, had a long work history as a fitter and turner, a print engineer, a self-employed installer of bathrooms and balustrade fittings. You had been raised yourself in a close and caring family. You had absorbed their decent values. You were married in 1997. You and your wife have two children. You were a hardworking family man.
10 It seems you have always harboured a desire to join the police force. You took the opportunity in 2013, enrolling in the Police Academy. You graduated
in 2014. You were first stationed at Moorabbin for a short time and then at South Melbourne police station in 2015. You were involved and performed in a range of police duties. You were exposed to the, sadly, common array of disturbing situations as a first responder but it is clear that you coped well, as perhaps your greater life experience and maturity served you well in dealing with the day-to-day difficulties that the police face in their ordinary shifts of work.
11 However, what occurred on 20 January 2017 turned out to be far from an ordinary shift and this has left a deep and enduring mark on your mental health. I will refer to the brief and measured description of the independent psychiatric reviewer Dr Tagkalidis, who was engaged for an assessment for Workcover purposes. These events are recounted by you but also, I have referred to the Coroner's report to make clear that she took into account your evidence and your statements provided to that Inquest.
12 On 20 January 2017 you and a more senior police officer were first deployed to a crime scene in a Melbourne suburb where Gargasoulas had attempted to murder his brother. Subsequent to that, and after having delivered a relevant person back to the police station, you were then tasked to go to the city where Gargasoulas had commenced to do the burnouts. You were with your partner in the three or four cars behind him when he sped down Swanston Street and into Bourke Street.
13 You described the scene as chaotic, as a nightmare, as did others as I have referred to, by the Coroner. There were some particularly frightening aspects of some of the deaths that have never left you. I have referred to those. I do not propose to go into the details, but as everyone knows there was a young child who was killed. You were ultimately required to assist, or did assist - not required, but did assist in removing Gargasoulas from his car and then you were tasked to assist him, along with a member of the public who you assumed was a doctor, and you remained there with him for some time.
14 After returning back to the police station in the evening and providing statements you then returned to work the next day. You continued to work until June or July of 2017. You began to experience intrusive recollections, bad dreams, nightmares, and you avoided going to jobs if you could. You became withdrawn, irritable, had a short temper and increasing agitation.
15 You developed substantial chest pains which were later diagnosed as panic related, and you attended the Dandenong Hospital on at least two occasions for assessments during 2017. The panic attacks have not really disappeared. You then were placed on Workcover from June or July 2017 for about
six weeks.
16 After the trauma of witnessing the Bourke Street killings your mental health deteriorated slowly but inexorably. Your mood and behaviour altered. You were not the person or husband you were before the trauma. Your relationship deteriorated, with separation and then divorce in 2019. Like many in the police force or first responders, personal relationships suffer. Marriages dissolve and family law proceedings are instituted.
17 With your lawyers you prepared an affidavit in February 2020 for the purposes of your family law proceedings. In the affidavit you included two matters that were not true. You said that after the diagnosis of post-traumatic stress disorder you were not permitted to carry a firearm and you said your duties were restricted. As to this you were permitted, and did carry a firearm in July 2017 to February 2020 except for a five-month period. You also resumed full time operational duties from July 2019, though there were periods that you were on Return to Work and always on Workcover or an overriding Workcover.
18 In March 2020 police sergeants were speaking to you regarding your Workcover, it seems. By reason of a process or a procedure that was not clearly explained by the prosecution, an internal investigation was mounted which saw the police investigators somehow obtaining your family law affidavit. In trawling through it, the false statements were discovered and a prosecution commenced. Sensibly, the original charges were compromised to the present single charge of making a false document.
19 On 8 June 2023, you applied to the court to indicate to you the sentence that would be imposed if you pleaded guilty. I indicated I would impose a fine without conviction. On 13 June 2023 you accepted that indication and an arraignment occurred earlier today. Family Courts and indeed all courts rely on honesty and integrity in the documents tendered. Of course, many months after the dreadful Bourke Street trauma you were living with your wife and she saw you, it is assumed, going to work and broadly knew the circumstances of your work.
20 The family law matter settled, as I understand it, by mediation. There was no cross-examination or a court hearing, no cross-examination of what you said about firearms and work hours or any attack on your credit. It is said the settlement was more favourable to you because of the affidavit, but that is something that is not possible for me to unpack. These settlements are complex and involve many, many matters to and fro from each side. As a police officer you are expected to be truthful. You fell short of that, but not in any respect connected to your role as a police officer. It was in private affairs.
21 It should be understood that the affidavit was signed in February 2020.
This was right at the time of the Coroner's Inquest and, as I have already noted, you gave evidence at that Inquest. At this time these events significantly escalated your trauma. It was triggering for you. I refer back to, without repeating the words, that is the sincere commendation of the Coroner because they apply to you. The Coroner's wise observations as to the enduring psychological impact on you are also apt to reflect on that; her words have been borne out sadly.
22 In the sentence indication I made it clear that I was in no doubt that you were someone who could justify the submission that you have a genuine mental illness, being your deep post-traumatic stress disorder and you have a
co-morbidity of a major depressive disorder. The conclusion of all the experts who have examined you make this crystal clear. I refer in brief to the summaries set out in the report that I have already quoted from; that is, from Dr Tagkalidis.
23 He said at page 8 under the heading Other Medical Reports,
I note the following medical reports: Dr F. Al Wahab, treating psychiatrist, dated 5 January 2022 concluded that you were suffering from chronic
post-traumatic stress disorder with co-morbid major depression, severe without psychotic symptoms, and you did not have a capacity for work at that time. Dr Sharif, your treating general practitioner, in his report dated
2 February 2022 concluded that you were suffering from post-traumatic stress disorder with some other symptoms and you have no capacity for any type of employment.[7]
[7] Psychiatric Assessment Report of Dr Matthew M Tagkalidis dated 29 March 2022, as tendered on the Plea, p 8.
24 He also quoted from the medical report put forward by your lawyers, from
Dr H. Das, psychiatrist, dated 21/12/2018, which concluded that you were suffering from post-traumatic stress disorder of moderate severity with a
co-morbid condition of depression, and that you presented more with symptoms of depression than that of post-traumatic stress disorder and you were working part time in modified duties at that time in 2018.
25 Dr Tagkalidis concluded in the following terms:
I conclude that you [that is, you, Mr Camilleri] are suffering from post-traumatic stress disorder, a major depressive disorder.[8]
[8] Ibid.
26 The basis of this was your historical and mental state findings as detailed above. There were no pre-existing psychiatric issues of relevance for you. He considers that you were functioning well in life prior to the relevant events and the resulting injuries caused a substantial detrimental effect on your functioning and emotional wellbeing as described above.
27 Your current functioning and coping has not been compromised by personality based factors, but solely by the injury caused to you. He said the relevant events contributed 100 per cent to your current emotional distress. Your diagnosis reflects that you have suffered significant traumatisation that justifies a full diagnosis of post-traumatic stress disorder with a significant traumatising experience and resulting associated symptoms, including re-experiencing phenomena, avoidance phenomena, and symptoms of increased arousal.
28 The diagnosis reflects the fact that you clearly developed a depressive syndrome consequent to the major incidents described, and that the depressive symptoms is of a severity which justifies a major depressive disorder diagnosis, and he says that that has been clearly set out.
29 I have reflected further on this evidence and the impact on you of this whole sentencing process. You still suffer panic attacks, as I was told today; that is, in anticipation of a further medico-legal appointment. You suffered a panic attack which meant that you could not participate in the pre-appointment surveys or paperwork. You have migraines and unexpected nose bleeds when in stress. You are still unable to work and may never work again.
30 Your mental state and the acute trigger of the Coroner's Inquest in
February 2020 meant your decision making in signing your affidavit with those untruths was far from rational or clear headed. You were unable to apply appropriate consequential thinking. In my view there is a clear causal connection which significantly reduces your moral culpability.
31 Further and importantly in cases of this kind, I consider your level of
post-traumatic stress disorder and the reasons for it are so unique that the community would be far from comfortable if I used you as the one to send a message of deterrence to others who may be minded to lie in their Family Court or other court documents. In my view the weight to be given to general deterrence in your case ought be significantly moderated.
32 Also, your mental state would likely deteriorate if you were punished by a Community Corrections Order which would bring you in contact with others who have animosity to the police. Your personal circumstances also prompts me to give significant mitigation. You are a man without any prior convictions. You are entitled to call in aid your good character in asking for a merciful sentence.
33 As I raised with your counsel there is, within our Sentencing Act 1991 (Vic), provisions that guide judges with respect to findings as to character. These provisions are not often raised in pleas for sentencing reasons and they are set out in section 6 which reads factors to be considered in determining an offender's character after referring to prior convictions and general reputation. The statute goes on, and I quote sub-paragraph (c) with respect to a finding that you have made a significant contribution to the community: ‘any significant contributions made by the offender to the community’.
34 I refer again, without repeating all the words that Her Honour the
Coroner Hawkins set out in her report, in particular the last paragraph which I will repeat which says:
I also recognise that these events have had a severe and lasting effect on many of the witnesses who gave evidence at this Inquest, including Victoria Police members involved in the events of the day and the preceding week.
I commend any individual who chooses to pursue a calling that focuses on protecting the safety and welfare of others.[9]
[9] Inquest into the January 2017 Melbourne Bourke Street Event (Coroners Court of Victoria at Melbourne, Coroner Jacqui Hawkins, 19 November 2020) [1.8].
35 You are entitled to have your character seen as elevated and consequentially deserving of greater mitigation and mercy, the more so here because your contribution caused your mental breakdown and impacted on your one-off wrongdoing amongst years and years of law-abiding honest life. It has also severely affected you and ended your career and perhaps your working life. You have paid a high price. You are currently in a stable, caring relationship. Your partner's letter to the court is very helpful.
36 You are receiving good treatment, though the untimely and tragic loss of your treating psychologist set you back a bit. These proceedings have also weighed heavily on you.
37 As to your future, what I can say with confidence is that I consider that there is no prospect of you ever re-offending. Your reform, in my view, is guaranteed.
38 Other matters in mitigation are you pleaded guilty. This matter, if it was contested, would have been complex, involving lawyers as witnesses, analysis of instructions taken, who drafted what in what documents and what impact they had on the ultimate proceedings. You relieved the prosecution, in my view, of a considerable burden of proving this case beyond reasonable doubt, and importantly saved witnesses from court proceedings, including perhaps lawyers and your ex-wife.
39 The benefit to you is that there ought be an augmented benefit, because the court lists are still dealing with the effects of the pandemic. The benefit that I give to you must be palpable and it must be encouraging to others who are guilty to plead guilty.[10] The benefit can be seen not just in shorter terms of imprisonment or corrections orders, but in appropriate cases different types of penalties, including whether a conviction is necessary to be ordered.
[10] Worboyes v The Queen [2021] VSCA 169; Chenhall v The Queen [2021] VSCA 175.
40 Here there has been a delay in this case. You were interviewed promptly in May 2020 but not charged for almost 18 months. That was not explained. The matter proceeded slowly due to COVID. Once committed to this court the matter moved beneficially through case management in this court to a case conference and a sentence indication hearing, and ultimately to today's finalisation of the matter. Most of the delay was before the charges were laid. The court cannot control those sorts of delays. They are entirely with the police.
41 In my view the additional lifelong penalty of a conviction in this case is not warranted. It is not proportionate. A considerable array of mitigatory matters and a significant moderation of the main sentencing purposes of denunciation and general deterrence and the important discretion of exercising compassion and mercy in deserving cases means that a penalty without conviction is the appropriate penalty. The prosecution contended for a more severe penalty of a Community Corrections Order with conviction. That, in my view, is not necessary; far from it.
42 As I have said during the course of the plea and through these reasons, I have reflected more on the evidence and on the purposes of sentencing. I have referred to what is, to me, a justifiable approach in this case and that is to show mercy. This concept, which is well entrenched in the sentencing discretion, is referred to at one place in the Sentencing Act 1991 (Vic).
43 It arises in Part 3BA division 1, which permits orders to be made adjourning proceedings with an undertaking. In section 70 the purposes of that section are set out, and it says an order may be made under this division:
(a) to provide for rehabilitation of a defendant by allowing the sentence to be served in the community unsupervised;
(c) to allow for circumstances in which it is inappropriate to record a conviction;
and most relevantly sub-paragraph:
(e) to allow for the existence of other extenuating or exceptional circumstances that justify the court showing mercy to an offender.
44 A particular provision allows for an adjournment without conviction if you give an undertaking to be of good behaviour. The prosecutor, quite fairly, in her final submissions in answer to my reference to that part about extenuating circumstances agreed that your circumstances were exceptional and unique.
45 The provisions of the Criminal Procedure Act 2009 (Vic) relating to a sentence indication means that once you are arraigned, I cannot impose a sentence more severe than the one indicated.[11] I can, and in practice I have, imposed a less severe sentence when further evidence is led or the full weight of the evidence that is put forward becomes clear. That is the situation here. This is a case where there are exceptional and extenuating circumstances that justify the court showing mercy.
[11] Criminal Procedure Act 2009 (Vic), s 209(1).
46 An undertaking or a promise to the court for a person like you, Mr Camilleri,
is a significant serious matter, and I have no doubt you would take it seriously. In my view it would promote further rehabilitation or closure to you. After further reflection, and I interpose that is what sentencing judges should always do, continue to step back and consider again until the appropriate sentence is found.
47 I have done that, and I have come to the conclusion that the exercise of mercy here for this one-off failing in all the circumstances should lead to a sentence of the matter here being adjourned for 12 months on you giving an undertaking to be of good behaviour. That order will be without a conviction being recorded. That is the sentence that I impose.
48 MR GULLACI: If Your Honour pleases.
49 MS PAGANIS: As Your Honour pleases.
50 HIS HONOUR: Mr Camilleri, in these video or virtual hearings we have been able to get consent from people about corrections orders because the legislation has changed and we could do it over the screen, as it were, that they give their oral consent. It appears to me, assisted by my associate, that we really need you to sign the document that is the undertaking. We can't do it without your signature.
51 So what I propose to do is to ask you orally here as a background, will you consent to the undertaking to be of good behaviour for 12 months and return back to court if you are called upon to do so. If you're not called upon to do so, that will bring the matter to an end. If you tell me you will sign that document we'll send it to you, or we'll send it to your lawyers. You'll sign it in a very short turnaround and return it to the court. Will you do that?
52 OFFENDER: Yes, Your Honour.
53 HIS HONOUR: Thank you. There are no further orders required?
54 MS PAGANIS: Nothing further, Your Honour.
55 HIS HONOUR: 6AAA has provisions that I should or must give an indication of what I would do if I imprison someone or give them a fine of a particular kind or sometimes if it's a CCO, it's all a bit unclear, but of course there has been a very significant amelioration and benefit to you for your plea of guilty. Had you run this trial and been found guilty you probably would have been on a much more serious charge and there would been risks of corrections orders, perhaps even worse.
56 If there's nothing further, I thank counsel for their very considerable assistance here in a difficult matter.
57 MS PAGANIS: As Your Honour pleases. Thank you.
58 HIS HONOUR: You are free to go.
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