Director of Public Prosecutions v Gigliotti

[2021] VCC 667

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

 Revised
Not Restricted
Suitable for Publication

CR 20-01573

DIRECTOR OF PUBLIC PROSECUTIONS

v

MATTHEW JARROD GIGLIOTTI

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	30 March 2021
DATE OF SENTENCE:	25 May 2021
CASE MAY BE CITED AS:	DPP v Gigliotti
MEDIUM NEUTRAL CITATION:	[2021] VCC 667

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Sentence - Pleas of guilty - Intentionally causing injury - Attempted aggravated burglary - Destroy property - Summary charge non-prohibited person possess firearm without exemption or approval - Limited criminal history but with some relevance to these offences - Factual background ongoing grievance between accused and victim - Diagnosed with alcohol abuse disorder (early remission), depression and anxiety and Post-Traumatic Stress Disorder - Suffers from severe traumatic psychological injury as consequence of motor vehicle accident - Ongoing struggles with mental health and alcohol abuse - Seeking ongoing treatment for alcohol abuse and counselling for mental health issues - Absence of Verdins considerations

Sentence: Convicted and sentenced to 22 days’ imprisonment in combination with a Community Corrections Order (CCO) of 2 years’ duration - Fined $300 with a stay of two months in relation to Summary Charge 7 - 22 days’ imprisonment declared as having already been served - s.6AAA Sentencing Act 1991 - Ancillary Forfeiture order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Singh	Solicitor for the Director of Public Prosecutions
For the Accused	Mr M. McLellan	Emma Turnbull Lawyers

HER HONOUR:

1Matthew Jarrod Gigliotti, you have pleaded guilty to one charge each of intentionally causing injury, attempted aggravated burglary and destroying property.  Intentionally causing injury and destroying property each have a maximum penalty of 10 years’ imprisonment and attempted aggravated burglary has a maximum penalty of 20 years’ imprisonment.

2I must take into account the maximum penalties in sentencing you as these reflect the seriousness with which Parliament regards each of the offences.

3Further, you have pleaded guilty to the summary offence of non-prohibited person possessing a firearm without exemption or approval, which has a maximum penalty of 240 penalty units or two years’ imprisonment.

4You were 27, nearly 28, at the time of the offending and you are now 29 years old.

5The complainant, a Dave McFarland, who was your neighbour, was 41 years old.

6In about June 2018, the complainant moved into his new home in Burns Street, Frankston.  On 18 August 2019, you visited the complainant, banging on his door, complaining that he was shining a flood light into your property at night.

7At about 2.00 pm on 23 August 2019, the complainant was in the toilet at the back of his house.  He heard a noise and went to the front of the house where he found you in his garage.  You had a knife in your hand and came at the complainant.  Mr McFarland attempted to run inside to escape but before he was able to do this, you cut his right forearm with the knife.  He received a 10-centimetre cut to his right forearm.  This gives rise to Charge 1.  The complainant tried to defend himself before running away and discharged fly spray at you as well as a taser gun which missed you.  Subsequently, the complainant was treated at the scene by ambulance officers for the laceration.

8After the complainant ran inside his house, he locked the doors behind him.  He ran to the back door as he heard you running around the back.  He pushed a couch against the back door and stood against it in order to prevent you from entering.  He then heard the door being kicked in and windows being smashed.  This conduct gives rise to Charges 2 and 3.

9The complainant then ran outside to another neighbour’s house and rang '000'.  The complainant later discovered that six windows at his premises had been smashed and that his back door had been kicked in.  He also noticed that shade cloth at the back of his premises had been slashed.  I understand that the slashed shade cloth is an uncharged act and is relied upon by the Crown by way of context and background only.

10Shortly after 2.15 pm on the same day police arrived and arrested you in your driveway.  You had cuts to your hand and blood on your shirt.  You appeared to be severely affected by alcohol.

11Police conducted a search of your property and found a large bloodstained kitchen knife by the fence which was identical to other knives that were kept in a knife block at your home.  They also found an imitation 9 millimetre 'gel blaster' handgun with a laser light sight beam and attached silencer, in the shelf area of a walk-in wardrobe in a downstairs bedroom at your house.  This gives rise to the summary charge.

12When you were interviewed by police at 10.37 pm that same day, you said that you were heavily intoxicated and that there was no way of recollecting anything.  You said that you were very embarrassed and very remorseful.  When asked why you were drinking so heavily, you said that you were on a mental health program and had been trying to give up drinking for a while.  You said some really horrible things had happened to you in the past.  You said that a number of years ago you were in a major car accident and a friend of yours went through the windscreen.  You said that you watched him die and it was horrendous.  You had been dealing with the TAC ever since and had been trying to stop drinking.  You said that you should not have been drinking that day but that you were and that you had been known to make bad choices when you drank.  You said that the car accident was in 2009 and you had been seeing a psychiatrist.

13You told police that you started drinking vodka at about 10.30 or 11.00 am alone at home.  You did not know how much you had to drink but you blacked out.  You said that you had not been to a mental health session yet.

14When asked about your relationship with your neighbour, you said that you had asked him numerous times to stop having the lights on.  You said that he had left threatening messages on your car and that there were a lot of syringes at the front of his house.  You said that you had asked him politely to stop, that there was a giant flood light that he liked to leave on at night and you had seen it a few times.

15You had no recollection of the knife or of the imitation firearm, asking police if it was yours.  You said that the firearm was bought in Australia and fired water bullets, that it had been in the house for years and years.  You said that you had no recollection of smashing windows or of cutting the complainant’s arm with the knife.

16When asked if there were any other factors which caused you to drink excessively, you said, 'Yes, my mother.  We are in a legal battle over directorship of a company that has been going on for months and years'.

17When asked if you were remorseful as you were at a police station, you replied that you had no idea what you had done.

18Mr Gigliotti, your offending is most serious and warrants a punishment which is just in all of the relevant circumstances.  Your conduct must be appropriately denounced.  You attacked your neighbour in a most savage fashion, entering his garage and trying to break into his house when he was trying to prevent further injury being inflicted.  He was entitled to feel safe in his home, without the invasion and violation that you subjected him to.  It is no excuse whatsoever that you were heavily intoxicated at the time – indeed, your behaviour is even more dangerous in circumstances where you apparently were so affected by alcohol that you had no recollection of what you were doing.  In saying this, I do not treat your intoxication as an aggravating factor.  However, I put you on notice that there is a definite link between your offending and imbibing alcohol such that if you choose to become intoxicated in future and commit offences, your decision to imbibe alcohol may well be used as an aggravating feature of any future offending.  Do you understand that?

19OFFENDER:  Yes.

20HER HONOUR:  There is no victim impact statement but obviously, the complainant was terrified of you and it would take little imagination to know that not only was he physically harmed but may well have been impacted in an ongoing way by the terrifying ordeal that you put him through.

21You have one prior court appearance – in August 2013, you were dealt with for reckless conduct endangering serious injury, three charges of criminal damage, theft, theft of a motor vehicle, and unlawful assault, as well as a number of driving offences.  In relation to the reckless conduct endangering serious injury, failing to stop motor vehicle on request and driving whilst authorisation was suspended, you were convicted and sentenced to an aggravate term of nine months’ imprisonment which was wholly suspended for 12 months with time in custody recorded as being four days.  You were fined in relation to a number of the other offences and in relation to the unlawful assault, without conviction, the matter was adjourned for 12 months and you were ordered to undertake a positive lifestyle program which was to include anger management, a road trauma awareness program and grief counselling.

22Although this prior matter occurred a number of years ago when you were 21 years old, the offending which involved violence and criminal damage has some relevance to the matters now before me.

23Your counsel went to pains to point out the lack of a number of aggravating features.  I am sentencing you for what you have done and while I acknowledge there are more serious examples of the offences you have committed; I still regard your offending as serious.  Whilst there might have been ongoing grievances between you and your neighbour, this was no way to handle it.  There is nothing to suggest that at the time that you committed the offences, the victim was engaging in any of the behaviours that you objected to in any event.

24I take into account your background.

25You have never met your biological father but were raised by your mother and stepfather in a supportive family environment.  You have a very good and close relationship with family for the most part although, I understand that you have had difficulties in your relationship with your mother from time to time.

26Although your mother and stepfather separated, you still enjoy a close relationship with both of them and they were both in court to support you at the plea hearing.  I see you also have people in court here, family members and friends supporting you today.

27I understand that you have a diagnosis of dyslexia which hampered you from academic achievement even though you tried hard to do well at school.  By Year 10, you obtained an apprenticeship with a motorcycle business and studied through TAFE.  When in your third year, you were involved in a serious car accident.  You sustained physical and psychological injuries.  Your mother’s partner with whom you had a close relationship, was killed in the accident and understandably developed symptoms of Post-traumatic Stress Disorder which are clearly documented in the material tendered which was tendered on your behalf.

28I understand that the accident had a profound impact on you and your family.  You sustained injuries to your right hand, right knee, back, as well as a concussion.  You have an ongoing claim through the Transport Accident Commission and have engaged a solicitors’ firm to represent you.

29In 2010, being after your parents had separated, you and your mother and brother were forced to move out of the family home as your mother could not work due to health issues.  You had to move a good distance away from your stepfather.  In 2012, the property in which you were living caught fire and you and your family lost most of your possessions.

30In 2015, you started your own business which is a tiling and waterproofing business.  You also obtained your domestic builder’s licence at around this time.  Your business is still going, and you work six to seven days each week.  Your business employs one full time staff member and often provides work to sub-contractors and I understand the business is going well.

31You have been in a long-term relationship with the mother of your child and your child is now two years old.  This relationship broke up in 2018 whilst your former partner was pregnant.  You have not met with your child for 18 months but plan to pursue a better parenting arrangement in the future.  I was told that the breakdown of this relationship and difficulties arising thereafter in relation to access had further added stress to you.

32You are now in a relationship with a Ms Stacey-Anne Tsiakopolous.  You have been together since 2018 but had been friends for several years before you embarked on a relationship.  You live together and are engaged to be married.  Ms Tsiakopolous is expecting your first child in June this year.

33You are the primary income earner in the relationship.  Your counsel submitted in his written submissions that a term of imprisonment would cause hardship for Ms Tsiakopolous, both emotionally and financially.  However, at the plea hearing, he submitted that she would experience exceptional hardship.  Ms Tsiakopolous gave evidence as to the financial and emotional impact that your incarceration would have on her, effectively stating that she would be homeless if you were to be imprisoned.  Despite her evidence that she had nowhere to live, it seemed to me that there were options and that her evidence was somewhat disingenuous with all due respect to her.  It was obvious that she had the care and support of your family at the very least and I do not accept that she would be without a room for herself and her child if you were to be imprisoned.  I have factored in her evidence both in respect of the emotional and financial impact that your imprisonment would cause.  Unfortunately, the test for exceptional hardship is a stringent one and I am not satisfied that it has been met in your case.  However, I take into account that any time in gaol that you might spend without your fiancée and soon to be born child, would make time a good degree harsher for you because of your concern for them in your absence in circumstances where you have given them emotional and financial support.

34In your favour you pleaded guilty at an early opportunity and in the circumstances, I allow for a significant discount in the sentence that I might otherwise impose.  In pleading guilty you saved the witnesses the time and trouble of giving evidence and you saved the community the time and expense of contested proceedings.  I accept that a plea of guilty in the present times of COVID-19 gives the course that you have adopted greater significance and signifies an acceptance of responsibility on your part.

35I also accept that the record of interview and other material tendered on your behalf, including the letter from you, indicates that you are remorseful and have a good deal of insight into the seriousness of your offending.  The extended assessment report prepared in relation to the community corrections order further emphasises these matters.

36It was submitted that on the basis of the report from Carla Lechner (psychologist) dated 5 March 2021, her addendum report, as well as a report from South Eastern Counselling and Psychology and from Dr Paul Duffy, that the symptoms of your PTSD were operating at the time of the offending in such a way so as to warrant a reduction in your moral culpability and a reduction in the weight that I ought otherwise attach to other relevant sentencing principles.  You have also been diagnosed with alcohol use disorder in early remission as well as depression and anxiety.

37It is clear to me that at the time of the offending you were suffering from
Post-traumatic Stress Disorder and it would appear that you were self-medicating with alcohol.  Although your intoxication was such that the PTSD symptoms were somewhat masked, I am satisfied the symptoms were still operating at the relevant time, manifesting themselves in your angry and irrational attack upon the complainant.  Therefore, I make some allowance so as to reduce your moral culpability and I make some reduction in the weight that would otherwise attach to specific deterrence and general deterrence.  In the absence of Verdins considerations which have been somewhat diluted by your intoxication, I would have placed strong weight on general deterrence in a bid to deter others from behaving as you have.  I would have attached some weight to specific deterrence also.  However, the weight which attaches to each of these considerations is somewhat reduced in view of the findings that I have made.

38In view of the nature of the offending, your struggles with mental health and alcohol abuse, but also weighing in the protective factors such as your strong work ethic, your strong family support and fairly limited criminal history and also the steps towards rehabilitation you have made since the offending, I assess your prospects of rehabilitation as being guardedly good.  I have also taken into account, as I have said, the steps you have taken since the offending to address these underlying problems.  However, I am sure that you would agree that you have a good way to go in this regard.

39Further, I allow that time in gaol would be harder for you because of your mental health issues and there would be a risk of a decline in your mental health should you be further incarcerated.  Also, I factor in that any time in custody in the present COVID-19 environment, such as they are, would make time somewhat more difficult.

40I have also taken into account the character references which have been tendered by a number of people who think very highly of you and speak well of your character and this is another matter relevant to my assessment of your prospects for rehabilitation.

41I understand that you were bailed on 13 September 2019 and have been largely compliant with the bail conditions for over 18 months.  That being said, Mr Singh, the learned prosecutor, correctly pointed out that despite being required to abstain from alcohol consumption, it appears that you had continued to consume alcohol until December 2020.  The learned prosecutor said that at present, there was no charge in respect of breaching bail and there were no other charges pending.

42I note that as part of your bail conditions, you are required to undertake counselling through Lamberti Associates.  The report from Ms Sandra Terry from Lamberti Associates dated 11 December 2019 indicates that you successfully remained alcohol-free since your arrest.  She further noted that you had experienced many benefits of ceasing to drink, such as being more functional at work without hangovers, and living a more prosocial and active lifestyle.  These sentiments seem to be echoed in a letter which you wrote to me.  The report indicated that you were initially defensive and closed to rehabilitation treatment.  However, you progressed positively as time went on.  The report spoke well of you, indicating that you developed a good attitude and had been compliant with what was required of you.  Despite breaking up with your fiancée and encountering difficult circumstances, you had been able to remain alcohol-free since your arrest on

23 August 2019.  The report also records that you had had access with your daughter on a regular basis at least a few times a week for the past month.  I understand that that situation may not persist.

43I queried your counsel as to why you had stopped with Lamberti Associates and was told that this was for financial reasons.  However, you had sought treatment from your general practitioner, Dr Duffy, seeking medication to help with abstaining from alcohol consumption.  On your instructions, following abstaining from alcohol consumption completely in December 2020, you embarked on a four-week course on Naltrexone and Valium in order to manage the withdrawals.  You instructed your counsel that you have not consumed alcohol since this time.

44I was told that you had applied for funding from TAC for psychological counselling and had received funding for five sessions as at 24 March 2021.  I note that you have previously obtained counselling from South Eastern Counselling and Psychology, as referred to in their report dated 10 January 2021.  Although the motor vehicle accident was in January 2009, you received counselling on four occasions between 6 May and 21 October last year.  That report also indicates that you meet the criteria for 'a severe traumatic psychological injury directly related to 'the motor vehicle accident in 2009'.  The recommendation from Mr John Jakupi, the author of the report, was that you enter into intense regular therapy to prevent attempts in the future to self-medicate through drugs and alcohol which would only exacerbate your original symptoms.

45In sentencing you, I have factored in that you suffered a good deal financially because of your offending which has served as a type of punishment as well.  When you were bailed, an intervention order which was imposed meant that you had to leave the address in Burns Street.  This meant that you had to break a lease which resulted in a loss of $2,388 and you had to sign a new lease which meant that you were effectively paying two lots of rent for over two months.  Also, whilst on remand, your business went into a decline as your partner was unable to manage it and jobs were either delayed or lost.

46I understand that you are concerned that the outcome of this matter might also impact on your ability to become a builder.  This situation is speculative and the only aspect I can take into account is that you are anxious about the situation.

47At the plea hearing, the prosecution submitted that in all of the relevant circumstances, I ought sentence you to a term of imprisonment in combination with a community corrections order.  Mr Singh advised that he obtained instructions that time served, being 22 days, would not be sufficient.  Your counsel submitted that in all of the relevant circumstances and, applying the decision of Boulton, that a community corrections order in combination with a gaol term being time served was appropriate.  He also referred me to statistics from the Sentencing Advisory Council, submitting that the data showed that community correction orders were regularly imposed for offending involving attempted aggravated burglary.  He submitted that a longer than usual community correction order could be imposed in order to achieve relevant sentencing objectives.  When I asked how you might complete such an order, especially if unpaid community work were required, your counsel submitted that you would simply have to make time in order to do this and asked that I make some allowance for a trade-off between rehabilitation conditions and unpaid community work requirements.  He echoed these submissions today.

48I had you assessed for a community corrections order, requiring a lengthy assessment to be conducted.  I am concerned about your ability to finally conquer your difficulties with respect to mental health and alcohol abuse.  I must place fairly solid weight on protection of the community in all of the relevant circumstances.

49Today I asked Mr Singh whether he had further instructions in respect of the appropriate sentence in this matter.  He most properly indicated to me that he had not but in view of your progress, in terms of abstention from alcohol, it was a matter for me as to what I might do.  And whilst he did not have instructions or further instructions he conceded that the screens, which I had been provided, which verified your abstention from alcohol, might well influence me toward to the submission that had been made by your counsel.

50In view of the progress that you have made since the offending and having considered the regular or the negative urine screens and also the confirmation of your regular attendance for psychological counselling, as well as the report from Community Corrections, although the offending is serious I am satisfied that it would be in the best interests of the community and your best interests to continue on the positive path that you are now taking.  If I were to send you to gaol at this point, then the significant gains that you have made would be seriously threatened in my view, which would not be in anyone’s interests.  However, if you were to re-offend in anyway whatsoever then it may well be that any progress you were to have made, pending another plea hearing, would not save you from the disposition that you would be facing.  That is, it would be almost inevitable that if you re-offended in a similar way to the way that you have on the occasion before me, you would be facing a gaol term, despite any efforts towards rehabilitation.

51I am grateful for the comprehensive report from Community Corrections which indicated that you are at low risk of re-offending and are suitable for a community corrections order; due to a number of protective factors in your favour, some of the conditions that I had suggested, including supervision, were said not to be appropriate or necessary in your case.  And I have been guided by the expertise of the author of the report in this regard.

52Would you please stand up.

53You are convicted of each of the offences.

54I make the forfeiture order that is sought by the Crown and which is not opposed by you.

55In relation to the offences on the indictment, I sentence you to an aggregate term of 22 days’ imprisonment in combination with a community correction order, the terms of which I will set out in a moment.

56I declare that the 22 days' imprisonment, which I have just announced, has already been served by way of pre-sentence detention.

57In relation to Summary Charge 7, you are convicted and fined $300 and I will grant you two months in order to pay that fine.

58Now, I propose to place you on a community corrections order in combination with the gaol term that you have already served.  But I can only do that if you agree, so please listen carefully to the order that I propose.

59The community corrections order would run for a period of two years.

60The conditions of the order would be as follows:

61First of all, the mandatory terms that apply to all community correction orders, which are:

62You must not commit another offence for which you could be imprisoned during the time that the order is in force;

63You must comply with any obligation or requirement prescribed by regulation 17 of the Sentencing Regulations 2011;

64You must report to, and receive visits from, the Secretary to the Depart of Justice (or his or her delegate);

65You must report to the Frankston Community Corrections Centre before 4 pm within two clear working days of today.

66You must let a community corrections officer know within two clear working days of you changing your address or job;

67You must not leave Victoria without first obtaining permission to do so from the Secretary to the Department of Justice (or his/her delegate);

68You must obey all lawful instructions from and directions of the Secretary to the Department of Justice (or his/her delegate).

69Now further, the conditions that will apply or would apply if you agree to this order, in addition to the mandatory terms listed are:

70You must undergo 120 hours unpaid community work within the next two years.

71Up to 50 hours of this condition may be satisfied by the successful completion of the equivalent period in respect of the treatment and rehabilitation conditions.

Treatment and Rehabilitation

72You must undergo assessment and treatment including testing for alcohol abuse or dependency as directed by the Regional Manager.

73You must undergo mental health assessment and treatment including (but not limited to) mental health, psychological, neuropsychological and psychiatric treatment in a hospital or residential facility, if necessary, as directed by the Regional Manager.

74You must also undergo programs or courses aimed at addressing factors relating to the offending as directed by the Regional Manager.

75Now, do you consent to the terms and conditions of the order?

76OFFENDER:  Yes, Your Honour.

77HER HONOUR:  I should tell you that if you do not comply with all of the requirements of this community corrections order then you will face breach proceedings before me.  You will be sentenced in relation to the breach and you will be re-sentenced in relation to the charges, in which case you may well be sentenced to a period of imprisonment.  I would regard a breach of the community corrections order as a most serious matter, whether it be because of further offending or because of non-compliance with any of the other conditions of the order.

78Do you understand this?

79OFFENDER:  Yes, Your Honour.

80HER HONOUR:  Do you maintain your consent to the proposed order?

81OFFENDER:  I do, Your Honour.

82HER HONOUR:  All right, just one moment.  Just one moment.

83Therefore, in relation to the charges, you are convicted and sentenced to a community corrections order in the terms and conditions that I have just set out.  That is in combination with the gaol term, as I have indicated previously.

84I will ask your counsel to help you with the signing of the order.

85As I say, I have made a forfeiture order in relation - that is in relation to the knife and firearm.

86If not for your pleas of guilty, I would have sentenced you to a total effective sentence of four years’ imprisonment with a non‑parole period of three years in relation to those matters that I have just sentenced you on.

87Now, Mr McLellan, could you please help your client with the signing of that.  Just before you do, Mr McLellan.  I see it was not recommended that your client undergo offending behaving programs, but in that regard, I thought that was necessary.

88MR McLELLAN:  Yes, Your Honour.

89HER HONOUR:  So I have taken a view that he can do that.  All right, thank you.  Now, anything arising, counsel, from those sentencing remarks?

90MR McLELLAN:  Nothing further from me, Your Honour.

91HER HONOUR:  Yes.  Mr Singh?

92MR SINGH:  Nothing.  Nothing, thank you, Your Honour.

93HER HONOUR:  All right, thank you.  Now, Mr Gigliotti, there might be temptation to go and celebrate by having a big drink tonight.  Can you just not do that or have any other substances please.

94OFFENDER:  Yes, Your Honour.

95HER HONOUR:  Just go and have a nice coffee or something.

96OFFENDER:  Yep.

97HER HONOUR:  And I hope never to see you again.  All right?

98OFFENDER:  Thank you, Your Honour.

99HER HONOUR:  Thank you, all the best.  We will now adjourn.

100MR McLELLAN:  As Your Honour pleases.

101MR SINGH:  Your Honour pleases.

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