Director of Public Prosecutions v Garipoli

[2021] VCC 2086

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-21-00490

DIRECTOR OF PUBLIC PROSECUTIONS

V

JUSTIN GARIPOLI

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JUDGE:	HER HONOUR JUDGE TODD
WHERE HELD:	Melbourne
DATE OF HEARING:	9 December 2021
DATE OF SENTENCE:	13 December 2021.
CASE MAY BE CITED AS:	DPP v Garipoli
MEDIUM NEUTRAL CITATION:	[2021] VCC 2086

REASONS FOR SENTENCE
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Subject:CRIMINAL

Catchwords:              Plea of guilty – one charge armed robbery – circumstances of COVID-19 pandemic

Legislation Cited:      Crimes Act 1958 (Vic) ; Sentencing Act 1991 (Vic)

Cases Cited:Bugmy v The Queen [2013] HCA 37, R v Verdins & Ors [2007] VSCA 102

Sentence:                  Total effective sentence of three years and six months with a non-parole period of two years and two months.

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APPEARANCES:	Counsel	Solicitors
For the Director	Mr P. Wingrove	Office of Public Prosecutions
For the Accused	Mr N.  Rolfe	Rolfe Criminal Law

HER HONOUR:

Introduction

Plea of guilty and maximum penalty

1Justin Garipoli you have pleaded guilty to one charge of armed robbery, the maximum penalty for which is 25 years’ imprisonment.

Circumstances of the offending

2The Prosecution Opening, dated 23 November 2021, sets out the circumstances of your offending.  It was tendered on the plea and became Exhibit A.  It is attached to and forms part of these reasons.  I will summarise just some of the facts giving rise to your offending here.

3Late on 4 July 2020 or early on 5 July 2020, Mr Luke Beers arranged to meet an associate, a Mr Warnock, at a footbridge in Castlemaine.  The ostensible reason for the meeting was to exchange an ice pipe.

4At about 12.20 am Mr Beers, with his partner Ms Maerz, went to the meeting in her Hyundai and parked near the footbridge.

5They waited in their car.  While waiting, they saw a black Suzuki pull up behind them and two people get out.  Ms Maerz assumed it was Mr Warnock and his girlfriend.  She unlocked her car.  In fact, the two people were you and your co-accused, Ms Sawka.

6Ms Sawka got into the back seat of the Hyundai.  You banged on the front passenger window which was partly open.  Then you reached in and unlocked the car door.

7You had a box cutter in your hand.  It was later accepted Ms Sawka did not know about that.  You demanded money from Mr Beers, threatening to ‘give [him] a scar’ if he did not comply.  This constitutes part of Charge 1- armed robbery.

8Mr Beers was wearing a gold chain around his neck; you told him to hand it over.  Mr Beers took it off and gave it to you, then you asked for his watch as well.  After Mr Beers had taken off his watch, Ms Maerz grabbed it and offered the alternative of money being transferred into your account, in lieu of the watch.

9You agreed to this.  After a test of transferring $1 using the PayID feature on her mobile banking application, you then said to Ms Maerz that unless she transferred further money you would take her car.  Ms Maerz then transferred a further $490 to you.  This constitutes part of Charge 1- armed robbery.

10You then told Ms Maerz that she had 30 seconds to hand over Mr Beers’ watch, otherwise you would take the car.  Ms Maerz gave you the watch and asked if she could get it back.  You told her that if she paid an extra $1500 by the end of the month, she could get the watch back.  She asked you if you were sure about this arrangement, you replied you had already done this with somebody else and they got their property back.This constitutes further part of Charge 1- armed robbery.

11You then told your co-offender Ms Sawka, who was still sitting in the back seat of the victim’s car, 'If you see anything you like, just take it.'

12Ms Sawka then got out of the car, you punched Mr Beers through the now open passenger door and walked back to your car with Ms Sawka.  (I note that this punch is uncharged and acknowledged to have occurred after the completion of the armed robbery.  It is led for the context of the offending.)

13Once back in your car, you and Ms Sawka drove away.  Ms Maerz reported the event to police that night.

14It is clear that to some extent you knew the victims in this case.  There is some collateral information that suggests there was disharmony between you and the victims in this matter as a result of rental arrangements that had gone wrong.  I am not particularly concerned with the relationship sitting behind these events, or the grievances, perceived or real, between the parties.  There was nothing about those circumstances that were pleaded in mitigation.

Arrest and Interview

15You were interviewed by police on 10 July 2020 and, in the main, exercised your right to silence.  You were remanded in custody.

Procedural Chronology

16

A filing hearing was conducted on 10 July 2020; you were granted bail on

27 August 2020.  A committal was heard on 4 and 5 March 2021 and you were committed on all charges.  New offending arose during your time on bail that is not now before this court (it will be dealt with in the Magistrates’ Court early next year).  You were arrested on those unrelated charges on 16 April 2021.  Bail was formally revoked on this matter on 19 May 2021.  A case conference was conducted in this court on 7 June 2021 and a sentence indication hearing was before me on 25 October 2021.

17I note that on the sentence indication it was effectively conceded by your counsel that no ‘substantial and compelling reasons’ were in existence to avoid the operation of s5(2H) of the Sentencing Act 1991.  That being so, and the fact that your offending was category 2 offending, given that you committed the offence in company, I indicated that the only sentencing disposition available to the court was a head sentence with a non-parole period.  The case was then adjourned.

18Initially your plea was listed for 24 November 2021 but it was adjourned administratively to a allow your representatives to obtain further material.  Finally, plea submissions were heard on 9 December 2021.

Personal circumstances

19You were born and raised in Melbourne’s western suburbs.  Your father was born in Calabria, your mother in the United Kingdom.  You had an elder half-brother Brad and brother Anthony; you are the youngest.  Your brother Brad was in and out of prison all his life; you describe him as a ‘career criminal’.  When you were little you looked up to him, tried to be like him.

20You are now 29 years old.  You were 28 at the time of your offending.

21Your father was frequently away with work; when he was home he would argue with your mother and was physically abusive of you and your siblings.  The household exposed you to significant conflict, particularly between your parents.  Your father was extremely critical of you, though your mother was caring and available to you.  You are in the process of rebuilding relationship with your mother and you no longer have contact with your father.

22You struggled at school both academically and socially.  You frequently got in trouble.  You achieved basic literacy but found you could not understand much of what was being taught;  at some point you stopped trying.  You were bullied on account of being overweight and playing for the wrong football club.  Your brother offered you some protection, but when he was sent to jail you were exposed again.

23You displayed skill at archery and shooting as a young person.

24You report being sexually abused by a trusted family friend when you were nine years old.  You were offered gifts in exchange for doing certain things.  You told your brother, who threatened to kill the perpetrator, but this was apparently otherwise not addressed.

25You left home at 17 due to the volatile nature of your parents’ relationship. 

26You left school soon after commencing Year 10 and commenced work.  Initially working for the family landscaping business.  You later completed a Certificate III in Warehousing and Distribution.

27In 2012 you entered a relationship with a woman some 17 years your senior, and had a child, Sofia, from this relationship, who is now eight years old; you do have a good relationship with Sofia.

28Your current partner is Stacey Taylor, you met Stacey in 2018.  You subsequently assumed responsibility for her children, some of whom have significant needs, as their stepfather.  Your first child together, Ameeya, was born on 15 July 2021, you have not yet held her.

29Your drug use history started with cannabis at 14 after being introduced to drugs by your brother.  Initially, you wanted to use drugs to be more like him.  Your use escalated to amphetamines, GHB and methylamphetamine.  You have achieved periods of sobriety, but you report use of between 3.5 to 7 grams a day in the period before your remand.  You describe ‘going off the rails’ between 2015 and 2019 and using ice heavily.  Your criminal history reflects this, commencing in the Melbourne Magistrates’ Court in 2015 with a range of court appearances unfolding in 2017 and 2019.

30After you were remanded on these matters your partner Ms Taylor helped you get CISP bail on 27 August 2020.  You moved in with her and her three children from that time.  You seem to have at least in part successfully participated in the CISP program while on bail ,but you did relapse into ice use and were apprehended for further offending (not before this court) in relation to what I understand are drugs charges to be dealt with in the Magistrates' Court.

Prior criminal history

31I have taken into account your criminal history which unfolds between 2015 and 2019.  You have been sentenced for contravening family violence intervention orders, reckless conduct endangering serious injury, unlawful assault, recklessly causing injury, false imprisonment, threatening to inflict serious injury, among other charges.  Your history is compact but worrying.  It appears to be deeply connected to your drug use.

Nature and Gravity of the offending

32I am obliged to consider the nature and gravity of the offending and your culpability in that context.  First, I note that you were in company with another person during the commission of this offence, thus making it a category 2 offence for the Sentencing Act 1991.  You carried a weapon, a box cutter, and threatened to give your victim ‘a scar’ if he didn’t comply with your demands.  The offending was committed in the early hours of the morning.  There were two victims.  It took place in a relatively isolated area.

33Your offending was somewhat protracted.  Your demands continued even when met.  There were three separate items of property that you obtained.  It was however, somewhat unsophisticated in that the means used to get the electronic transfer of money were clearly going to identify you and create powerful evidence against you.

34In the statements you made to Ms Cidoni, a Psychologist (and I note that the other psychological reports tendered on your plea were prepared in relation to other offending) you state that you were intoxicated with ice at the time you committed this offence.  I will deal later with the relationship between your substance use and the offending, but on the spectrum of similar offending, in my assessment this approaches but does not reach the midpoint.

Impact on victims

35I am obliged to take into account the impact of your offending on your victims.  Both were made aware of their entitlement to write victim impact statements and they chose not to do so, however, Ms Maerz said in her statement, 'The whole thing upset me and I am still shaking.'  Mr Beers said, 'The whole time I was worried Justin was going to cut me, he even said he would give me a scar.'

36I take into account the position that you put your victims in and the fear you put them in.  They should never have had to endure what you put them through.

Matters in mitigation

Plea of guilty

37At any time entering a plea of guilty requires me to impose a significant discount on your sentence.  Although yours was not a plea at the earliest opportunity, it has spared the community the costs, human and financial, of a trial, however, at this time, when the administration of justice in Victoria is so inhibited by the circumstances of the COVID-19 pandemic, and the great number of trials awaiting hearing, authority now makes it clear that a very significant and palpable discount must be imposed in addition to the ordinary plea discount.  I make it clear that were it not for this latter feature in particular, the sentence I would be imposing on you would be much higher.

Psychological material

38

Reports from psychologists, Ms Gina Cidoni, Mr Bernard Healey and

Dr Nina Zimmerman (a psychiatrist) were tendered on your plea.  I have had regard to all of them. Your lawyer ultimately did not press specific Verdins submissions on the basis of that material.

39But I take it into account in a general way.  You are clearly someone who was subject to an unstable and sometimes cruel environment as a young person growing up.  You fell under the sway of the influence of an elder brother who was criminally inclined.  The vulnerabilities that you had, made you susceptible to and were compounded by your embracing of illicit substances.  Now, what underlies that use as well as the use itself, must be grappled with.

40I do take into account the matters in Ms Cidoni’s report in relation to your untreated PTSD and persistent depression.  I take into account that your imprisonment will be made more burdensome on you as a result of these persistent conditions.

41Originally, Mr Rolfe argued that the Bugmy principles applied in your case, but he retreated from that submission.  I do take into account that you had a bruising and unpredictable childhood which has to some degree set you on the path you are now on.  I find that your circumstances are not the entrenched chronic social disadvantage described in the case of Bugmy, I do however, hold in mind the trauma in your background and how it exposed you to this kind of future.

Prospects of rehabilitation

42A significant portion of your plea was directed at submissions on your prospects of rehabilitation by reference to the support you now have in place from your partner, her family, and a future employer.

43Before addressing your prospects of rehabilitation, I will outline something about your substance abuse history.  On your own account this started around 2015.  Prior to committing this offending you were using daily.  In Dr Zimmerman’s report (at paragraph 97), she writes:

'Mr Garipoli’s methyl amphetamine use has been directly related to much of his prior offending, both in driving acquisitive offending to fund his habit and in contributing to impulsivity and rage resulting in violent offending.'

44Helpfully, you have not attempted to minimise this use when discussing it with the assessing psychologists.  When you are sober you can identify why you offend and how the drug taking impacts on your decision-making, work and relationships.[1]

[1] Cidoni Report at [63].

45In Ms Cidoni’s opinion you require intensive drug treatment and treatment for what she describes as underlying PTSD.  In her opinion, your best hope is residential rehabilitation, that has a dual diagnosis perspective to treat the underlying causes of your addiction as well as the addiction itself simultaneously.

46You have remained abstinent in prison, which suspends your addiction but does not assist with the real work of staying sober in the community.

47You have relatively recently commenced a relationship with Ms Taylor, and she has recently given birth to your daughter.  Ms Taylor and her family all write of their affection for and support of you.  You have a home and a life to go to.  Your brother-in-law has offered you work in the kitchen at his hotel.

48Moreover, you have taken on an importance in Ms Taylor’s children’s lives and I have had regard to the letters from the professionals that attest to the potential for you to be a good influence on all of them.

49You wrote a letter tendered on your plea that sets out your feelings of remorse about what you did and I do accept your plea contains within it elements of remorse and that you are now able to express this, and your gratitude to your partner Stacey.  

50I have also had regard to the work you have done while in custody by undertaking courses were available.  I have no doubt that you are sincere about addressing your problems while you are sober.  You certainly do not lack supporters in this enterprise.  

51It will however ultimately be up to you, and you alone, whether you can reward those supporters by undertaking the no doubt difficult and gruelling and painful day in, day out work of meeting your entrenched addiction and separating yourself from it.  It will take more than a loving family around you to do that.  So much is clear by the fact that when you last offended while on bail you were living with and had the support of this family.  But of course, Rome was not built in a day and there will be setbacks.

Parity

52It was put on your plea that I should consider the parity of your sentence with that of your co-accused Ms Sawka.  However, Ms Sawka’s plea was to the much less serious offence of robbery, the prosecution having accepted that she had no knowledge of the weapon that you held prior to the events unfolding.  Her case was resolved on a different legal and factual basis.  I do bear in mind her sentence, but yours must be different.

Conditions of custody during COVID

53I take into account that you will serve your term of imprisonment, and have served imprisonment to date, under conditions in custody that are much harsher because of the measures taken in the context of the COVIC-19 pandemic.  This has made custody more difficult for all prisoners, but for you in particular, this has meant a limitation on visits and access to courses, and has caused you not to meet your baby daughter.  I take into account the more onerous conditions, both that you have served and that you will serve, in the remainder of your sentence.

54You were unable to attend the funeral of your brother who passed away suddenly in August this year, and I take that into account.

Current sentencing practices

55In arriving at your sentence I have had regard to sentences and other similar cases.  Some of which were provided on the plea.  Many of those provided were pleas where firearms were used.  So, none of those cases were particularly helpful in their particular circumstances, but I have considered them as well as a range of other cases in trying to sentence you for your offending.

Statutory Sentencing Considerations

56As I have already said, pursuant to s5(2H) of the Sentencing Act 1991, and this being a category 2 offence being in company with Ms Sawka at the time, I am obliged to make a sentencing order under division 2 of part 3 of the Sentencing Act 1991, that is a term of imprisonment and not in combination with any other form of sentence.  It was not in dispute in this case that a sentence of imprisonment with a non-parole period was the only disposition open.

Sentencing principles

57I must apply the proper sentencing principles in your case.  There is certainly a role for general deterrence in the sentencing you for the offence of armed robbery.  With regard to your past history, I also find that there is a role for specific deterrence.  I regard the protection of the community to be best served by your rehabilitation, through me and through this sentence the court denounces this conduct.  You will also be punished for what you did.  There is a tension in your case between the questions of rehabilitation, associated community protection, and the other purposes of this sentence, but specifically general and specific deterrence and I will resolve them the best I can.

Disposition

58On Charge 1: armed robbery, you are convicted and sentenced to three and a half years’ imprisonment, resulting in a total effective sentence of three and a half years and I direct that you serve a minimum non-parole period of two years and two months, before becoming eligible for parole.

59Pursuant to 6AAA of the Sentencing Act, I declare that had you not pleaded guilty but been found guilty after trial, I would impose you a sentence of four years and 11 months’ imprisonment, with the minimum non-parole period of three years and six months' imprisonment. 

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