Director of Public Prosecutions v Giacominato
[2012] VCC 847
•20 June 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT BENDIGO
CRIMINAL DIVISION
Case No. CR-12-00346
CR-12-00528
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANTHONY GIACOMINATO REBECCA AUSTIN |
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JUDGE: | HIS HONOUR JUDGE PILGRIM | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 20 June 2012 | |
CASE MAY BE CITED AS: | DPP v. Giacominato & Anor | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 847 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P. Jones | |
| For Accused Giacominato | Mr A. Isaacs | |
| For Accused Austin | Mr S. Pascoe |
HIS HONOUR:
1 Mr Giacominato, you have pleaded guilty to one count of attempting to pervert the course of justice. You have further consented to this court hearing and dealing with three summary offences, one of careless driving, one of drive whilst licence suspended and one of exceeding the speed limit.
2 You have heard the learned prosecutor, Mr Jones, tell this court that the maximum penalty for the offence of attempting to pervert the course of justice is that of 25 years' imprisonment. That sentence equates with murder. The maximum penalty for careless driving is, in round figures, $2,500, it is a bit more but that is close enough. For driving while disqualified is 20,000 plus or two years' imprisonment and it is approximately five penalty units or $500 for speeding.
3
Ms Austin, you have pleaded guilty to one count of attempting to pervert the course of justice and, like with Mr Giacominato, the maximum penalty is
25 years' imprisonment for that offence.
4 Having pleaded guilty to these offences, I will impose a lesser sentence than I otherwise would have imposed. In other words, you will receive a discounted sentence for having pleaded guilty.
5
It was on Saturday 20 November 2010, at approximately 11.30, that you,
Mr Giacominato, were seen driving a motor vehicle in a northerly direction along High Street, Heathcote. You were driving at a fast speed in terms of the speed limit. You, Ms Austin, were seated in the front seat passenger seat next to your friend. At the time, you, Mr Giacominato, were suspended from driving. The speed limit through Heathcote at that point is 50 kilometres per hour. The vehicle was recorded by the informant as travelling at 64 kilometres per hour, which is reduced because of the legislative provision to 62.
6
The informant, Senior Constable Scherger, executed a U-turn to intercept you. Mr Giacominato, you then, upon sighting that marked police vehicle, braked. Senior Constable Scherger pulled in behind your vehicle and followed with his lights shining into the cabin of your vehicle as he followed. Senior Constable Scherger activated his flashing intercept lights and take down lights, which allowed him, as Mr Jones said earlier this morning, to see into the cabin of your car. Senior Constable Scherger observed your vehicle swerving from left to right and he observed the female passenger, which of course is you,
Ms Austin, attempting to get over into the driver's seat, and the vehicle then pulled over.
7
As Senior Constable Scherger approached your vehicle from behind, he could see through the rear window and he could see that you, Mr Giacominato, were sitting in the driver's seat with the seatbelt still on and Austin sitting on top of you. The police officer could see that you, Mr Giacominato, were trying to slide across to the passenger side of the vehicle. At this time Senior Constable Scherger shone his torch in the driver's side window, he was there standing there looking at you. Senior Constable Scherger returned to the police vehicle and called for assistance and upon returning to your vehicle he then saw that Austin, Ms Austin was in the driving seat posing as the driver. He knew Mr Giacominato had moved across into the passenger seat. Scherger went straight to you and said, "You just changed seats." You,
Mr Giacominato, claimed that you had tried to get into the driver's seat, you were trying to reverse the situation. You denied that you had been driving when the police officer said he had seen you driving at that excess speed. You, Ms Austin, said that you were driving and that Mr Giacominato had tried to get into the driver's seat. Ms Austin, when interviewed at the Craigieburn Police Station, near enough to 12 months later, you then woke up to yourself and told the truth.
8 Question 57, there were some words said and Senior Constable Scherger said to you, "You went past the police car. Who was driving and where were you?" You answered the last bit, "I was in the passenger seat." Ms Austin, as you recall, you made a statement to Senior Constable Scherger on the night he stopped you in Heathcote. You, in that statement, misrepresented the truth in the terms of where you were seated and where Mr Giacominato were sitting. Senior Constable Scherger, later in the record of interview that he conducted with you, said at Question 84, "Why did you make that statement knowing, after that being explained to you on several occasions, you said, "Honestly, I don't know. Like I think I was just - yeah. I don't know, I wanted to make him see that I would." You apparently broke down. He said, "Do you want to take a minute or two?" and you said, "No, it's OK." The policeman then said, "Are you OK?" and you said, "I was just trying to prove myself to him, how much I did care for him and that how much I would do for him. It was stupid." That is an understatement. Then later on in the record of interview, the police officer mentioned the swerving all over the road whilst you were trying to swap drivers and said, "It is very dangerous." You replied, "The whole thing was very stupid and." Mr Giacominato, you made a "no comment" record of interview when interviewed on 21 September, which is your right.
9 Ms Austin, you are now aged 31. Your parents separated when you were three years of age. Unhappily when your mother re-partnered this man demonstrated violence toward you and your mother. No doubt this unhappy state of affairs had ill effects on all within that family unit. I am told that your mother is now in a much happier and positive relationship with a new man. You attended school until Year 11. You first obtained employment with the Blind Institute. A little over 12 years ago you commenced work as a beauty therapist with Manhattan Skin and Laser Clinic. You have revealed your stupidity to your employer, Shirley Garrett. This lady provides an excellent reference. You are obviously a valued employee and remain an integral part of the Manhattan Clinic workforce. You have demonstrated your willingness to put back into the community through your involvement in the time spent with underprivileged teenagers, arranging workshops and no doubt encouragement to these young women.
10 As you revealed to Senior Constable Scherger, you have dabbled with the drug industry. Mr Pascoe tells this court that the use of ecstasy and amphetamines were recreational. Be very careful, there is no such thing as party drugs or recreational drugs. The genesis of this irresponsible behaviour arose from broken relationships in your past. Be assured you must choose friends wisely and avoid the drug culture.
11 Mr Pascoe, very properly, reveals that you have yet to face the Magistrates' Court on drug related matters, but they are at a summary level not at an indictable level.
12 Your plea of guilty is an indication of your remorse and Mr Pascoe again, on your behalf, expresses your remorse to this court.
13 You blatantly lied to the informant, Senior Constable Scherger. It was the wilful and stupid behaviour, demonstrated on this night to that policeman, that no doubt influenced the Director of Public Prosecutions to lay the attempt to pervert the course of justice count rather than a less serious count that may well have been laid, had your behaviour been less monstrous and the stupidity demonstrated on this night is just bordering on total disbelief. The policeman's lot is not an easy one, there are songs about that, and your ridiculous behaviour is to be denounced in the strongest of terms.
14 Mr Giacominato, your influence upon Ms Austin on this night, in your attempt to self protect yourself is a disgrace. I have no doubt this shameful behaviour has destroyed what was once a good relationship. You have an atrocious driving record. Mr Isaacs says the count of drive while disqualified or suspended has now reached 13. Some of those of course are not prior convictions because they have been dealt with after this offending was committed, but he openly and honestly reveals that you have been at it yet again and find yourself in prison. You have to be a very slow learner now you find yourself incarcerated for the second time for driving a motor car, because if you analyse it bluntly, that is what you have done. Drive a motor car and you are in gaol. How stupid is that. The community will not tolerate those who drive when either a court or the legislature has said your privilege and right to drive has been in some way contaminated. I remind you that the maximum penalty for driving while disqualified is two years' imprisonment if you have got prior convictions and now you have got 13 of them.
15 Whilst talking of prior convictions, I said to you that your record is a disgrace, you have been issued with six separate traffic infringement notices by policemen, you have been to the court prior to your latest appearance 14 times, now 15 or 16. Up until your last appearance in court, you had 38 separate offences and at that time eight drive while disqualified or suspended offences. Absolute disgrace.
16 Mr Isaacs, in his eloquent plea on your behalf, spells out how your life has unravelled since you and your housemate were seriously assaulted in '08 or '09. Up until that time you had been a very hardworking young man in the automotive industry. You foolishly descended into using drugs of dependence and you now face the long and tortuous road to recovery. Drug addiction is a curse in our society and very difficult to beat.
17 To your credit, since being released from prison when you were on remand, you have attended upon Mr Ian Lamberti. You have completed the eight counselling sessions and have agreed to continue to seek help from this professional gentleman.
18 In addition to these health issues, you are struggling with post traumatic distress disorder, a condition frequently misunderstood in society, because you cannot see that the fellow is battling or the lady is battling with a problem, it is all internal and it must be dealt with.
19 Your prospect for rehabilitation has to be rated as good. You have the love and support of your family, many of whom attended court to support you here today. Not only that, your employer has traveled to Bendigo to demonstrate his faith in you. He supplies a reference attesting to your skills and a position is available to you in his workplace on your release from prison.
20 Your plea of guilty is an indication of your remorse. Mr Isaacs again, on your behalf, expresses your remorse to this court.
21 You heard me speak of the absolute stupidity of your actions on this night. You treated the police officer with absolute disrespect. He was standing there watching you say you did not do it. Crazy. As I said to Ms Austin, the sheer stupidity and audacity of your actions and spoken words no doubt influenced the Director of Public Prosecutions in laying the count of attempting to pervert the course of justice rather than the lesser count, as I said to Ms Austin. Just the sheer enormity of it is so stupid.
22 Mr Giacominato, you have a long way to travel in terms of returning to good health. The imposition by the magistrate of the community corrections order is made endeavouring to assist you to rehabilitate. I remind you that a community corrections order is an alternative to prison.
23 Ms Austin and Mr Giacominato, I assure you that I have taken into account all that was said on your behalf by each of your counsel. I further take into account the references provided by Ms Garrett and Mr Novelli. I further take into account what was said on your behalf by Ms Higgins.
24 Ms Austin, on the count of attempting to pervert the course of justice, you will be convicted and fined $750.
25 You, Mr Giacominato, will be convicted and released on a community corrections order for a period of 12 months, to commence from the same date as the other one that you have already signed. I think it is 30 July, is it not? Is it 30 July, Mr Isaacs, or 2 August?
26 MR ISAACS: The 2 August is the appointment, sir.
27 HIS HONOUR: So he has got to sign on 2 August?
28 MR ISAACS: Yes.
29 HIS HONOUR: Thank you.
30 On the careless driving count, you are convicted and fined $1,000.
31 On the driving while disqualified, you are convicted and sentenced to 40 days imprisonment.
32 On the speeding count, you are convicted and fined $250. You are to pay those fines, not your mother and father. I will grant you a stay of three months in relation to that, at which time you can negotiate a time installment plan to pay the fines off.
33 Had it not been for your plea of guilty, Ms Austin, I would have convicted and sentenced you to three months' imprisonment and suspended it for a period of 12 months.
34 In relation to your count, Mr Giacominato, I would have I think, it is very hard to look into a crystal ball, but I think I would have sentenced you to a term of
15 months' imprisonment with a minimum of nine. Do not come back. You know what is going to happen if you do, I have just told you. That is not a threat, it is an obligation. Thank you.
35 (At a later stage).
36 Thank you, you go with the police officers.
37 You are free to leave, Ms Austin.
38 MR PASCOE: If Your Honour pleases.
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