Director of Public Prosecutions v Giliberti
[2025] VCC 324
•21 March 2025
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-23-00573
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TONY GILIBERTI |
---
JUDGE: | HIS HONOUR JUDGE LYON |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 12 February 2025 |
DATE OF SENTENCE: | 21 March 2025 |
CASE MAY BE CITED AS: | DPP v Giliberti |
MEDIUM NEUTRAL CITATION: | [2025] VCC 324 |
REASONS FOR SENTENCE
---
Subject: Criminal Law
Catchwords:
Legislation Cited:
Cases Cited: Stephens v The King [2024] VSCA 47; DPP v Reynolds (a pseudonym) [2022] VSCA 263; R v Close [2020] VCC 1331; DPP v Bibby [2023] VCC 129; DPP v Lovett [2020] VCC 1994; R v Verdins & Ors [2007] VSCA 102; Bugmy v The Queen [2013] HCA 37; DPP v Herrmann [2021] VSCA 160
Sentence: 37 Months Imprisonment, 31 Month Non-Parole Period, Disposal Order
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr Y. Hardjadibrata | Office of Public Prosecutions |
For the Accused | Ms M. O’Brien | Robinson Gill Lawyers |
HIS HONOUR:
1Tony Giliberti, you have pleaded guilty to the following charges which carry the following maximum penalties: intentionally cause injury contrary to s18 Crimes Act, carries a maximum penalty of 10 years' imprisonment; conduct endangering persons contrary to s23, that is of serious injury, carries a maximum of five years' imprisonment.
2You have a criminal history to which I will refer later in these remarks.
Circumstances of Offending
3The crown tendered the summary of prosecution opening as Exhibit A and a summary of your offending is as follows:
4The victim in this matter is your former partner of 30 years and you have two adult children together.
5The victim ended the relationship in November 2021. You lived separately from December of that year, that is 2021, and a full no-contact family violence intervention order was put in place and was due to expire in August 2022. Prior to the expiration of this order, the victim applied for a further order to be made. On 19 August 2022 the Geelong Magistrates Court issued a further family violence intervention order. The conditions of this order did not allow contact with the victim.
6On 23 August 2022, at 4:30 pm, the victim was at her home and left to drive to work, turning onto Bellnore Drive, Norlane. You were driving in the other direction down Bellnore Drive.
7The victim observed you gesturing towards her by making the shape of a gun and pulling your middle finger at her. In response, the victim put her finger up at you and tried to pull over to take a photo of you with respect of breaching the IVO.
8You then performed a U-turn and followed the victim along Bellnore Drive. The victim turned left and parked on Bosbury Street. You pulled your car in front of the victim’s car on a 45-degree angle on the driver’s side to block her from escaping.
9You got out of your car and approached the victim’s open driver side window carrying a large hunting knife. You yelled 'how can you do this to me?' about extending the FVIO.
10You reached through the driver side window and stabbed the victim once to the right side of her neck, that is Charge 1 the charge of causing injury intentionally.
11The victim pushed the knife away, sustaining further cuts to her fingers. She then stated: 'Look at me, you have just killed me.' You replied: 'No, I haven’t, I’m gunna slit your throat', and then: 'I’m gunna go home and kill myself.' You then drove away.
12After the attack the victim called her sister and told her that you had stabbed her.
13A nearby driver was heading home down Bosbury Street and witnessed you getting out of your car holding a knife. She saw you pull your arm out of the window of the car with the knife before driving away.
14Two further civilians, who were not known to you, observed the knife in your hand but did not see any blood on the knife. They drove past before turning around and driving back to the victim. They called Triple 0 and one of them took off her jumper and applied pressure to the victim’s right collarbone. The wound was still bleeding. The victim showed them the wounds on her fingers.
15The victim was taken to the Geelong Hospital by ambulance. Your victim suffered a single puncture laceration two to three centimeters wide, described as an in/out injury to the right side of the neck. No major blood vessel was harmed. The victim had defensive injuries to the index finger and thumb of her right hand. Her neck was explored, cleaned and sutured.
16At 4:50 pm you were arrested at your address. Your vehicle was parked in the driveway at the back of the property.
17Whilst police were attempting to search your address, Sergeant Gray was attempting to lift the garage roller door. From inside the garage, you used the hunting knife to penetrate the metal roller door on several occasions. The knife hit Gray’s ballistic vest, and that is Charge 2, reckless conduct endangering serious injury.
18As the police negotiated for you to come out, you said: 'Just put some bullets through the door'. You surrendered after three hours.
19You were interviewed by police. In the record of interview, you told police that you 'lost it' when you learned of the further intervention order. You admitted stabbing at the victim’s neck and causing injury to her. You also admitted stabbing at the roller door while the police attended and spoke to you.
20You were remanded on 23 August 2022 and have now spent 941 days, not including today, on remand by way of pre-sentence detention. I will reckon that period as already served.
21You have made good use of your time in custody. You have undertaken counselling, participated in therapy, and remain medicated. Ms O’Brien submitted that you have turned around your outlook and you are now realistic about your relationship with your ex-partner, however, I shall say more of that later.
Procedural History and Delay
22It is obvious that this matter has a long and protracted history, the offending having occurred in August 2022. This is all the more so for the fact that you made admissions to the police in your record of interview. As your counsel submits, and I accept, this matter was always going to resolve to a plea of guilty; it was just a matter of settling on the appropriate charges.
23Since the filing hearing on 24 August 2022, the matter went before the Magistrates Court on four occasions before you were committed for trial on 11 April 2023. After that date, and despite case management by judicial registrars and different judges of this court, between May 2023 and 12 July 2024, this matter was listed for directions hearings and adjourned on 14 occasions. On the last four of those occasions, your previous solicitor simply failed to appear before the court.
24It is entirely apparent that you were being poorly advised and then badly let down, and at great expense. Your current solicitor, Ms Condon, deserves special mention and the thanks of the court for taking over the matter, engaging in clear and reasonable negotiations which saw the matter resolve to a plea of guilty within a few weeks of her initial involvement. And the court thanks you for that, Ms Condon.
Objective Gravity and Moral Culpability
25I now turn to a consideration of the objective gravity of your offending and an assessment of your moral culpability.
26I have read Ms Varmasli’s victim impact statement made 4 December 2024. Ms Varmasli did not want her statement read in court. I will respect her wish for privacy. It is sufficient to say that she is still suffering considerable psychological injury after your attack. It is hoped that the severity of her symptoms will reduce with further time. It is appropriate to take into account the effect your actions have had on Ms Varmasli in formulating the appropriate sentence in this case.
27Sergeant Gray declined to make a victim impact statement. Even for an experienced police officer, your actions at the roller door would have caused concern for their safety at least.
28The objective seriousness of your offending can be measured by the maximum penalty for intentionally causing injury, and the circumstances in which you committed that offence. Your conduct invoked the trifecta of abhorrent behaviour scourging our community: domestic violence against an ex-partner in an unexpected confrontation, flagrantly breaching a court order, and the use of a weapon against a woman. Your ex-partner was entitled to the protection of the extended court order of the IVO. Instead, you confronted her, cutting her off in her car and attacking her through the open window whilst she was confined in her seat. Your use of a knife to attack her as she sat in the car was cowardly and egregious. Your words to her could only have been said to invoke terror, although you did not act again after you said them.
29Moreover, your later conduct was designed to provoke a reaction from police. Fortunately, their training, experience and high professional standards ensured your safety and theirs.
30I accept that your overall conduct was not planned; it was all spontaneous, reactive and highly emotionally driven. That does not, however, explain, excuse or mitigate your behaviour. Your moral culpability for your offending is also prima facie high, although I have a deal to say about your psychological conditions later in these remarks, and that will affect how I see your moral culpability.
31Such offending is ordinarily met by principles of deterrence, just punishment and a measure of protection of the community. As your counsel, Ms O’Brien conceded in her able plea on your behalf, your offending must be met by a period of imprisonment.
Personal Circumstances
32You are 52 years old being born in July 1972.
33You were raised in the Norlane area of Geelong, and you were the second of four children. You currently have no contact with any of your siblings.
34Your counsel submits that you grew up in abject poverty. You told Mr Newton that both of your parents received government assistance, and overall the financial circumstances of your family were very poor.
35The relationship between your parents can also be described as poor. You told Mr Newton that the relationship was abusive and included multiple instances of physical violence perpetrated by your father on your mother.
36As a child you describe what Mr Newton refers to as 'significant behavioural problems'. You recount having frequent violent outbursts, aggression towards your parents, tantrums and criminal behaviours such as theft and animal cruelty.
37You stated that your parents 'couldn’t control' you. As such, you report being removed from their care on two occasions in primary school and placed into out-of-home care.
38You attended Norlane Primary, followed by Bell Park Tech. You struggled academically, never being able to master any more than basic literacy and numeracy. You were placed in 'special classes' in secondary school but note that you continued to struggle, ultimately leaving school in Year 9.
39It is worth noting that your behavioural problems continued through your schooling and into your working life. You did not pursue an apprenticeship, but you have obtained tickets as a rigger and crane driver and you have worked consistently in construction since leaving school, although I note that you have self-reported multiple problems in the workplace due to negative interactions with co-workers and employers.
40Despite those problems you do have had, as I say, a long and continuous work history and you have provided well for your family, Mr Giliberti. Over the course of your married life, you worked six days a week. Your wife also worked. Together you bought a house and you paid down the mortgage. The house was sold in recent years. The vast bulk of the net proceeds was distributed to your ex-partner, and I note the little you received was mostly paid to your previous solicitor.
41You worked until late 2021 when the stressors associated with the separation caused such mental health problems that you were compelled to give up work.
42You currently work in steel fabrication in prison and have expressed a desire to return to work upon your release.
43You do not drink or use drugs and you have no history of doing so, although both Dr Cidoni and Mr Newton note some hazardous drinking behaviour in late 2021 with your separation.
44You have a criminal history dating back to 1991 when you faced the Geelong Magistrates Court on six occasions in a four-year period for offences of dishonesty, public behaviour offences and assault charges. You next appeared in June 2022 on driving charges including reckless conduct endangering serious injury, for which you were placed on a CCO. The gap in your offending history is explained by the relative stability of, and commitment to, raising your family.
45You met the complainant in 1991 when you were 20 years old. You subsequently married and now have two sons and three grandchildren. Both your sons are settled in full-time work and in good jobs.
46The relationship with your ex-partner has been described by your counsel as 'volatile and characterised by outbursts of anger'. Despite this, your counsel submits that you managed to avoid any contact with the criminal justice system for the period of your relationship from 1995 through to about 2022.
47The marriage ended in 2021, and the IVO was taken out, as I have said. The renewal of the IVO, it was submitted, partly precipitated your current offending.
48Since this offending you have had no contact with any of your family members – that is, not with your ex-partner, your sons or your grandchildren. You have not had any contact with your parents - although your father died when you were 20 - with your mother or your siblings for years. Your time in custody has been marked by your isolation from all family or friends. This has been exacerbated by your mental health issues which has put you into conflict with at least other prisoners.
49You have a long-documented history of mental health issues, which I am told dates back to the first assistance provided by your long-time GP, Dr Fitzgerald, who first diagnosed major depressive disorder in 2007. I received the report of Dr Steve Carroll dated 21 November 2013 written to your GP, and Dr Carroll addressed your long-standing depressive symptoms and chronic suicidal ideation. I then received the report of Mr Graeme Castle, psychologist, sent to your GP dated 10 November 2017, where initial assessment indicated symptoms of persistent depressive disorder, emotional dysregulation with traits of personality disorder and borderline personality disorder. You were referred to a psychiatrist, Dr Rowena Sycamnias, who noted in February 2019 your traumatic and conflictual birth family history through your childhood and teen years, then the conflict in your relationship with your partner as the boys grew up, your determination to change by voluntarily attending men’s behaviour program in 2011, and Dr Sycamnias considered the assessments provided by Mr Castle. It appears in that time you made (recent to that time, that is 2019), suicidal gestures, but stopped from carrying them out because of your sons. Dr Sycamnias prescribed medications to meet emotional dysregulation, anxiety and excessive ruminations over feelings of rejection and isolation. Later in September 2019 you were referred to Dr Jossy Antony, another consultant psychiatrist, who also diagnosed major depressive disorder, moderate in severity, and a provisional diagnosis of ADHD. Dr Antony recommended ongoing psychological therapy and continued medication for depression but was unable to take you on as a patient.
50In my view, this history indicates that you have been at least insightful into and willing to receive help for your mental health issues in the past. I shall say more after I make a few remarks about the current psychological assessments provided on the plea.
Reports of Patrick Newton and Dr Anthony Cidoni
51I was provided with the psychological assessment report of Mr Patrick Newton dated 2 December 2024 and the forensic psychiatric report of Dr Anthony Cidoni dated 10 June 2024.
52Dr Cidoni considered alternative diagnoses of major depressive disorder and acute stress reaction or adjustment disorder, however, given your long-standing depression prior to your marriage breakdown, considers major depressive disorder to be the correct diagnosis. He considers you also have displayed long-standing personality disturbance with features of antisocial and borderline personality disorder which both became more prominent under stress. Dr Cidoni considers you have some cognitive compromise and recommends neuropsychological testing to identify and meet any deficits.
53Dr Cidoni considers your mental state is likely to remain unstable in custody with periods of low mood and suicidality but notes that you have a good level of insight into your mental health challenges and that you have accepted psychiatric treatment in the past and whilst in custody.
54Mr Newton conducted an extensive review of your upbringing, and mental health treatment, (to which I have already referred), and concludes that you have suffered a conduct disorder in childhood which continues to manifest in unruly and disinhibited behaviour as an adult. He considers these traits are sufficiently severe to meet the criteria for a personality disorder with mixed borderline and antisocial features. Mr Newton notes the long-standing diagnosis of major depressive disorder and reports at paragraph 44:
'The impacts of this condition have been intensified by concurrent personality disturbance which in turn has led to multiple self-harming and suicidal gestures on Mr Giliberti’s part. The presence of comorbid mood disturbance in personality pathology has seen his symptoms persist despite the provision of skilled medical and psychological treatment from multiple practitioners and community mental health teams.'
55Mr Newton observed that your symptoms incorporate significant reactive elements centred on your continued grief at the loss of your relationship and the fear that your ex-partner will move onto another partner.
56Specifically, Mr Newton considers your personality disorder with mixed borderline and antisocial features would have increased your level of anger on the day of your offending and added to the prospect that you would act out aggressively.
Sentencing Submissions
57Ms O’Brien who appeared on your behalf on the plea submitted that the following matters should operate to mitigate your sentence:
i.Your plea of guilty carries utilitarian benefit and evidenced remorse;
ii.You suffered extra curial punishment brought on by the matter’s history and actions of your former legal representative and delay;
iii.You have insight into your mental health issues; you have sought out help over many years and you want to engage to improve your prospects for rehabilitation;
iv.She submits that there are Verdins, Bugmy, or perhaps more appropriately, Herrmann principles which apply, stemming from your difficult and conflictual childhood, right through to the present where you are plagued by mental health issues and continued deep feelings of rejection; and
v.She submits your prospects of rehabilitation, as evidenced through presenting to medical and mental health professionals, there has been no offending in custody and your desire to return to work should be assessed as reasonably good.
58Mr Hardjadibrata who appeared for the prosecution submitted that the only appropriate sentence is a head sentence with a non-parole period.
59Mr Hardjadibrata submits that some reduction of your moral culpability is appropriate in this case given the psychological and psychiatric material, but the reduction should only be modest. The prosecution submits your moral culpability remains high.
60Second, he submits that it cannot be said that rehabilitation prospects in your case are good - your ruminations about the relationship with your former partner have not been sufficiently addressed, and there is a risk of reoffending in relation to her.
61Third, Mr Hardjadibrata submits that you have displayed only superficial empathy for either complainant. He disagrees there is any further remorse in relation to the harm caused to the victims.
62The prosecution provided a number of comparable cases for consideration. I was referred to Stephens v R [2024] VSCA 47, DPP v Reynolds [2022] VSCA 263, DPP v Bibby [2023] VCC 129, R v Close [2020] VCC 1331, DPP v Lovett [2020] VCC 1994 and other cases. In these cases, the courts imposed sentences of between 23 to 39 months on the charge of intentionally cause injury involving knife wounds. In the end, I cannot be overly influenced by sentences imposed in other cases, but I must take into account the objective circumstances of your offending, sentencing principles and the matters personal to you, so far as I am able, and arrive at the appropriate sentence in this case.
Analysis
63I am satisfied the plea in this matter has real utilitarian benefit and facilitates the course of justice. For the reasons I have already outlined, although the plea was not made at an early time, I do not consider the fault for this lies with you. I consider that with proper legal advice, and given the admissions you made in the record of interview, a plea would have been offered at an early time.
64The objective gravity of your offending is high. I am satisfied that your moral culpability should be reduced, but only slightly, by your personality disorder and associated mental health conditions.
65I am satisfied that the general principle enunciated in Bugmy, or perhaps more properly in Herrman, should be applied to your circumstances. In short, your childhood was marked by conflict, violence, your untreated personality disorders, and perceptions of isolation and rejection. These have carried through into your adult life. Through your actions you are entirely isolated from your family. You feel rejected by your ex-wife. As noted in Bugmy, there is a danger to the community, or in this case specifically a danger to your ex-partner, from those who have not been brought up or learned the rules and mores of society. In your case, however, your criminal history is relatively limited, and you continue to actively seek help for your mental health issues.
66I do not consider your prospects for rehabilitation are quite as optimistic as your counsel submits. It is worrying that Mr Newton observed your continued fixation on hopes of reconciliation with your partner three years after your separation and two and half years after you stabbed her in the neck. Mr Hardjadibrata rightly submits that until you accept the relationship is over, your prospects for rehabilitation are at best guarded.
67I do, however, have regard for the fact that you have a long and continuous work history, that you have no sustained history of alcohol abuse, no history at all of drug abuse and you were able to abstain from criminal offending for 25 years or more. For these factors alone, your prospects for rehabilitation are not extinguished. You face real problems for the fact that you are now entirely isolated from your family and Ms O’Brien did not outline any other pro-social supports in your life for when you are released from prison.
68It is apparent that you will need considerable support in the community if you are genuine in your determination to achieve rehabilitation.
69I am also satisfied that the procedural history of this matter has caused considerable delay which is not attributable to you. At least, as I have already observed, you have continued to seek and receive treatment whilst you have been in custody.
70It is my hope, Mr Giliberti, although your counsel is somewhat pessimistic about the prospects of you receiving the help of support through parole – (Interruption)
71As I say, Mr Giliberti, although your counsel is pessimistic, I am hopeful that you may receive some support through the parole system. I have tried to structure a sentence that provides the statutory minimum period required by law for the gap between your nominated non-parole period and your head sentence, which is a gap of six months, and I am hopeful that you do get parole because you will need support upon your release. I must, however, proceed on the presumption that you will serve every day of the sentence, and so given the time that has already been served by you, the delay that has occurred through no fault of your own, I am imposing a non-parole period which will start nearly immediately.
72The sentences I impose, therefore: on the charge of intentionally cause injury, you are convicted and sentenced to a term of 34 months.
73On the charge of conduct endangering serious injury, you are convicted and sentenced to 12 months' imprisonment.
74Sorry, we are just having a legal debate here. We are all good, it is a charge under s23, you agree with that Mr McCarthy.
75MR McCARTHY: I do, Your Honour.
76HIS HONOUR: Thank you. On that charge you are convicted and sentenced to 12 months' imprisonment.
77I make three months of the sentence on Charge 2 cumulative on the sentence on Charge 1.
78That leads to a total effective sentence of 37 months' imprisonment.
79I order that you serve two years and seven months, that is 31 months, before you are eligible for parole.
80I declare the period of pre-sentence detention as 941 days, excluding today.
81On my calculations, Ms Condon, the period of 941 days, it should be two years, six months - and what did we say Ms Meloni - 26 days. Which means that Mr Giliberti is theoretically eligible for parole in the next few days.
82MS CONDON: I am grateful for that indication, thank you.
83HIS HONOUR: Thank you. The 6AAA declaration is that but for the plea of guilty in this matter, I would have imposed a sentence, all things being equal, of four years with three years to serve.
84Mr McCarthy, are there any other matters or orders sought ‑ ‑ ‑
85MR McCARTHY: Yes, Your Honour, a disposal order for the knife.
86HIS HONOUR: A disposal order for the knife, anything to say about that Ms Condon.
87MS CONDON: No, Your Honour.
88HIS HONOUR: All right, thanks. I will make that order in chambers, Mr McCarthy.
89MR McCARTHY: As the court pleases.
0
8
0