Director of Public Prosecutions v Gigliotti

[2018] VCC 802

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-02165

DIRECTOR OF PUBLIC PROSECUTIONS

v

VINCENT GIGLIOTTI

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	1 June 2018
CASE MAY BE CITED AS:	DPP v Gigliotti
MEDIUM NEUTRAL CITATION:	[2018] VCC 802

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms M. Vingerhoets
For the Accused	Mr R. Martini

HIS HONOUR:

1Vincent Gigliotti, you have pleaded guilty on indictment to one charge of intentionally damaging property and two charges of making a threat to kill.

2On a further indictment, you pleaded guilty to a single charge of attempting to pervert the course of justice. Additionally, you pleaded guilty to three summary offences, one of committing an indictable offence whilst on bail, one of driving while suspended and one of careless driving.

3At the time that you committed these offences, you were 39 years of age.

4The circumstances of your offending are set out in the detailed prosecution opening dated 14 February 2018, a copy of which was tendered and exhibited on the plea.  I will not recite the full circumstances of your offending.  It is sufficient for present purposes to provide only a brief outline as follows.

5At the time of the offending, you and two of the victims in this matter, Ms Shaw and Ms Chingotta resided at a boarding house located in Frankston.  In the early hours of May 19, 2017, you knocked on Ms Shaw's door requesting drugs.  She did not provide you with any.

6Subsequently, approximately two hours later, Ms Shaw observed you in the kitchen of the residence looking agitated and angry.  You approached her, grabbed hold of her by the shirt and told her that you had two firearms buried outside in the backyard of the residence and that you were going to shoot her.  You said, "I'm going to fucking kill you."  This consitutes Charge 1 of making a threat to kill.

7Ms Shaw later retreated to her bedroom and remained awake for the remainder of the morning, fearful of you.  Later at about 6.30 am, she overheard you talking on the phone, saying that you were armed and she was fearful that you might carry out your earlier threat.  She attempted to flee the residence and you followed her.

8At the time, Ms Chingotta also happened to be leaving the property and as she was backing her vehicle out of the driveway, Ms Shaw jumped in the back seat seeking refuge.  You then approached the rear of the vehicle and punched the back window, causing it to shatter.

9Ms Chingotta continued reversing down the driveway and you punched the vehicle again, this time on the passenger side.  She eventually pulled out onto the road and drove away. This constitutes the intentionally damaging property.

10Shortly after this incident, you engaged in a telephone conversation with your case worker from the Eastern Region Mental Health Association.  You had been involved with this organisation for approximately ten months and had arranged for an assessment to take place later that day to determine your suitability for entry into a rehabilitation facility.

11Due to your anger and agitation, your case worker transferred your call to the supervisor.  You proceeded to make threats to him.  You threatened that you would locate his address via the Tax Department and kill both he and his family, as well as the rest of “the dogs” at Eastern Region Mental Health Association.

12Due to previous interactions with you, he took the threats seriously and called the police.  Later the same day, you were arrested by police, taken back to Frankston Police Station where you were formally interviewed during which you made no admissions.  However, police informed you that both Ms Shaw and Ms Chingotta made statements regarding the earlier incident.

13You were then remanded and transported to Melbourne Assessment Prison the next day, and that morning, you made a phone call from MAP to a male associate. During that call you asked that gentleman to assist in managing your affairs whilst you are in prison, including telling him, "Try and get that bitch.  Try and get those bitches to retract their statement.  Just tell 'em.  Go in there and say, 'Retract your statements' 'cause I'll fucking - don't worry - I'll be seeing them when I get out."  This constitutes the charge on the second indictment, attempting to pervert the course of justice.

14The Prison Intelligence Unit notified the informant of this intercepted phone call on 22 May and you were later charged in September without being interviewed in relation to this offence.

15In relation to the summary offences in August of 2016, at about 8.10 pm, you had been driving a motor vehicle east along Thompsons Road in Cranbourne North, and as you were driving, you veered left off the road and onto the gravel and grass shoulder in the east bound lane.  You tried to correct the vehicle by veering right, which caused you to lose control.  The vehicle slid, hit a drain and flipped before slamming into and over the wire boundary fence and finally coming to rest in a nearby paddock.  At the time, you license was suspended.

16At the time of the offending at the Frankston Boarding House, you were on bail for these driving offences.

17Your offending is serious.  Attempting to pervert the course of justice carries
25 years' imprisonment as a maximum penalty.  Making threats to kill and intentionally damage property each carry ten years maximums.  These are the three most serious offences and I take into account these maximums.

18Clearly by these penalties, the legislators indicate their objective seriousness.  The circumstances I have outlined would have been frightening and would have endangered fear.  In particular, the damaging of property in the way in which it was done, together with the threats made would have made these events particularly traumatic.  I accept that there was some drugs background about which apparently you had contacted police.  It is also clear that you reacted in totally unacceptable fashion to those circumstances.

19It is clear that you had, at that time, little ability, particularly to control your anger and emotions, and much work is required to change that in the long term.  I accept these were the actions of someone who had gone off his medication, his mind-set in reacting without thought for consequences was set.  The threat made to the supervisor at the Eastern Regional Mental Health Association is particularly egregious, would have created anxiety, fear and upset and these offences are serious, but they become secondary when your behaviour from prison is considered.

20The attempting to make arrangements to infect, scare and suborn witnesses from testifying in court by threats of harm strikes at the heart of the criminal justice system and administration of justice, and such behaviour must be denounced in the strongest possible terms.  General deterrence, as well as specific deterrence assumes real significance in the sentence.

21I take your plea into account.  I accept that it has facilitated the course of justice and has a utilitarian value of being - of having avoided a trial.  The plea will attract a discount on your sentence.

22The matter of remorse is more difficult to assess.  Certainly, your answers to police interviewing you reflect both the willingness to minimise your offending, seek to excuse it and your demeanour that in court in part at least, shows you are entirely focused essentially on the impact of these matters on you.

23It was correctly submitted that the proper sentence would be a term of imprisonment.  It was put that that period could be followed and mitigated in its length by an imposition of a community corrections order, which could begin to address your complex issues.

24Much material was presented to the court about your mental state.  It was argued that the Verdins principles applied in your case in terms of a mental health issue effecting your decision making and process.  This argument is, of course, counterbalanced by the consideration that any mitigation derived from your mental health difficulties are seriously diminished by your voluntary drug taking.

25I accept that you have identifiable and diagnosed disorders.  Your history clearly shows that you will be absolutely aware that the going off medication and engaging in voluntary taking of illicit drugs would cause significant problems.

26I have carefully read all of the material which was tendered, in particular, the many reports from experienced and well known forensic psychologists such as Ruth Vine back in 2005, Mr Sidoni in 2008, Lester Walton in 2011, reports from St Vincent's in 2010, Warren Simmons in 2014 and Carla Lechner in 2017.  As well as letter from the St Vincent's Correctional Health Psychiatric Outpatient Clinic, and from the consultant psychiatrist to report on your admission to Thomas Embling in 2011.

27The most recent experience of attempted rehabilitation is your admission to the Maroka Unit, a challenging behaviour unit at Ravenhall Correctional Centre from 16 November 2017, which you have probably now completed.  Your diagnosis, whether as was said before, is bipolar effective disorder or a schizo-effected disorder was managed on Haloperidol and Quetiapine, both anti-psychotic medication.

28Your mental health stabilised and you participated well in the program.  This participation, though encouraging, does not mean the court can simply accept that you have somehow achieved rehabilitation and can release you into the community.

29Much management and supervision will be required.  Much assistance and cooperation in relation to accommodation, work, medication, referrals to mental health plan and much beside will be needed to ensure the risk of the - your risk of reoffending is minimised.  On any view, it is a complex management problem.

30Someone with your history of mental issues and your prior criminal history, which runs to some 24 pages, cannot but lead to the conclusion that your prospects of rehabilitation must be guarded.

31I have taken your personal history and circumstances into account.  This is outlined in the many reports, which have been tendered.

32The crucial facts are that you were asked to leave home at age 14. You then led an itinerate lifestyle after your conduct as a young person led to expulsion from schools.  Your family has a significant history of psychiatric illness.  Your work history has been limited.  Your history of drug use is long and describes polysubstance abuse over many years, including ice, heroin, alcohol and cannabis.

33There have been many alternative diagnosis from time to time and many hospital admissions, mostly drug induced psychosis.  Substance abuse has clearly complicated what is already a disorder which is more amenable to better prognosis than schizophrenia.

34I take into account that in relation to the community integration program at Ravenhall, the voluntary short term program, you demonstrated a willingness to participate, learn and take advantage of that opportunity.  I received comprehensive reports from Daschel Rears of March 2018 and from
Greg Shinkfield, program manager at the Maroka Unit.  Your participation there is a positive recent development and your own letter suggests that you are prepared to make a successful return to society with continuing commitment.

35You assert you have "learnt your lesson" and done everything in your power to be rehabilitated.  I have seen the certificates as to the completion of the well within program.  These are positive indicators as I have said.  But your own assessment of your readiness to return to the community, given your background, is perhaps understandably optimistic, but slightly simplistic.

36I originally sought an assessment from Corrections which found you unsuitable.  Between 1997 and 2001, you completed ten community-based dispositions.  Between 1997 and 2017, you contravened eight community-based dispositions, six of these in the last five years.  The writer suggested an extended pre-sentence report to explore options, such as the residential restriction condition, compliance, strategies and transition into a residential detox and rehab as alternatives.

37A full report was prepared dated 24 April of this year, and that assessment found you as of high risk.  The report discussed future referrals to the Australia Community Support Organisation to enable assessments and referrals to treatment providers with regular urinalysis.  You would be required to continue to engage in treatment and with specific programs aimed at offending behaviour and anger management.  Employment services and accommodation assistance can be available to you.

38There is no doubt that there are significant concerns at your ability to minimise the risk of reoffending if you relapse into drug use and experience psychotic episodes.  You appear to be developing insight and you were found suitable by the report.  This occurs having served on my reckoning at least, 378 days in custody, excluding today, about some 13 months.

39The most pressing requirement in my view for the long term protection of the community is that a comprehensive program of management and supervision as suggest that in the longer report from Corrections be put in place.  If there is to be any advance in your rehabilitation, it will be demonstrated in a few short months.  If you are unable to take up this opportunity, it may be your last opportunity because in your background, there is the valid supposition of institutionalisation, continued drug taking and mental instability, which will see you back in this court, inevitable facing a longer prison term.

40In my view, the threat count and in particular, the attempting to pervert the course of justice count requires an adequate punishment to recognise that specific and general deterrence really dictate that reclusion is the only adequate response of the court.

41The sentence of the court is that you be convicted and sentenced to 12 months' imprisonment to be followed by a community corrections order.

42The sentence is intended - the sentence of the court is of 12 months' together with the community corrections order is intended, in effect, to take place immediately, you having served 13 months.  The 12 months is made up in this way.  I have sentenced you to eight months with a community corrections order for the attempt to pervert the course of justice.  Then six months on each of the threat to kill charges, one month on the commit indictable offence whilst on bail, two months on the drive whilst authorisation is suspended, three months on the damage property and $400 fine for the careless driving.

43I order that one month on the charge of threat to kill, Count 3, and one month on the threat to kill, Charge 1, be cumulative on the charge on the attempt to pervert the course of justice, the first count on the second indictment, and one month on the charge of damaging property, Count 2, and one month on the driving whilst suspended by cumulative, making 12 months, with the rest being concurrent.

44All drivers licenses held by you are cancelled and you are disqualified for a period of 12 months from today.

45And but for your plea, I would have sentenced you to a three year total effective sentence with a non-parole period of two years.

46I will declare that you have served 378 days excluding today.

47I have not included a judicial monitoring condition on your community corrections order, but I indicate with as must precision as I can that corrections upon any substantial breach of this order on your part in the very first few months of this order will charge you with contravention of that order and that contravention will see you back before me and without any adequate excuse for that contravention, I can tell you that the penalty for the contravention will be severe and that I will re-sentence you on these offences.  And when I re-resentence you, it will be for a substantial period of imprisonment, Mr Gigliotti.  Did you understand?

48OFFENDER: Yes, You Honour.

49HIS HONOUR:  Are there any other ancillary orders that were required?

50MS VINGERHOETS:  No, Your Honour.

51HIS HONOUR:  Yes, thank you.

52MR MARTINI:  Your Honour, might I just clarify the CCO?  I did not hear you say the length in time for the CCO.

53HIS HONOUR:  Twelve months.

54MR MARTINI:  Twelve months.  Thank you, Your Honour.

55HIS HONOUR:  Mr Martini, could you get your client to sign the CCO

56MR MARTINI:  Yes, of course, Your Honour.

57HIS HONOUR: He will have to go through the usual steps in relation to Corrections.

58MR MARTINI:  As Your Honour please.

59HIS HONOUR:  Mr Gigliotti, no doubt Mr Martini will perhaps explain it to you in more detail.  But the key to you not contravening this order is to remain in active communication with Corrections.  They can help you in all sorts of ways.  They will require things of you that you need to abide by.  But if you fail to attend to supervision appointments or treatment or assessment of appointments or start a program and then stop, or commit further offences or go back on using drugs, you will be breached of this order.

60OFFENDER:  Yes.

61HIS HONOUR:  And that leaves this court with nowhere to go and you nowhere to go.  So really, at your age and with your background, you either right now decide to do something about your life.

62OFFENDER:  Yep.

63HIS HONOUR:  Or you are going to be spending a lot more time of these years to come through that door.

64OFFENDER:  That is right.

65HIS HONOUR:  So if you decide to do that, that is a matter entirely for you.

66OFFENDER:  Yes.

67HIS HONOUR:  Yes, you may remove Mr Gigliotti, thank you.

68MR MARTINI:  Just one other matter, Your Honour.  Just in relation to fine, I take it that is Fines Victoria?

69HIS HONOUR:  Yes.

70MR MARTINI:  As Your Honour pleases.

71OFFENDER:  Will I get directions to the Corrections Office and all that?

72HIS HONOUR:  That will be done.

73OFFENDER:  Okay, thank you, Your Honour.

74HIS HONOUR:  Well we will see.  Thank you.  Sine die.

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