Director of Public Prosecutions v Giordimaina

[2023] VCC 2254

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
 Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

ROBERT GIORDIMAINA

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JUDGE:	HIS HONOUR JUDGE TIWANA
WHERE HELD:	Melbourne
DATE OF HEARING:	22 November 2023
DATE OF SENTENCE:	7 December 2023
CASE MAY BE CITED AS:	DPP v Giordimaina
MEDIUM NEUTRAL CITATION:	[2023] VCC 2254

REASONS FOR SENTENCE
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Subject:Criminal Law – Sentence

Catchwords:              Armed robbery – Victim working alone in a service station in the early hours of the morning – Offender released from prison two months prior to offending – Relevant criminal history – Unsophisticated offending – Bugmy principles applicable – Diagnosis of schizophrenia and PTSD – Borderline intellectual disability – Verdins principle 3 and 5 enlivened –  Significant history of methamphetamine abuse – Early plea of guilty – Limited evidence of remorse – Guarded prospects of rehabilitation.

Legislation Cited:      Sentencing Act 1991.

Cases Cited:R v Lee [2006] VSCA 80; Worboyes v The Queen (2021) 96 MVR 344; R v Verdins (2007) 16 VR 269; Bugmy v The Queen (2013) 249 CLR 571.

Sentence:                  2 years and 8 months’ imprisonment with a non-parole period of 1 year and 8 months.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr S Tamburro	Office of Public Prosecutions
For the Accused	Mr M Kozlowski	Emma Turnbull Lawyers

HIS HONOUR:

Introduction

1Robert Giordimaina, you have pleaded guilty on indictment to one charge of armed robbery, contrary to section 75A(1) of the Crimes Act 1958. This offence carries a maximum penalty of 25 years’ imprisonment.

Circumstances of the offending

2The circumstances of your offending are set out in the summary of prosecution opening dated 6 June 2023.[1] Your counsel accepted that I will be sentencing you on the factual basis contained in this summary.

[1]Exhibit A.

3On 26 December 2022 at around 1:58 am, you entered the United Petroleum service station in Deer Park where Mr Singh was working alone.

4You approached the counter and asked Mr Singh for an Apple-brand phone charger. Mr Singh turned around and got two chargers from the back wall. When he turned back to face the counter, you were holding a large kitchen knife.

5You told him ‘Open the till, I don’t want the chargers, and give me all the money’.

6Mr Singh responded, ‘You asked me for the chargers’, to which you replied, ‘I don’t want the chargers, give me all the money’.

7Mr Singh opened the register and gave you $300 in cash. He did not hand over any of the $50 or $100 notes that were in the till.

8Mr Singh asked you about the chargers again, to which you replied, ‘Just give me the money or I’ll kill you’. Mr Singh believed that, if he did not comply, you would carry out this threat, jump over the counter, and try to kill him.

9You asked Mr Singh for more money. He replied that he did not have any more.

10You took the cash and left through the front door.

11Mr Singh called his manager to notify him of the armed robbery, and then called 000.

12Police attended the service station and obtained CCTV footage of the armed robbery. This footage was played in court.[2]

[2]Exhibit B.

13On 3 January 2023, police published details of the armed robbery, including still images of you taken from the CCTV footage.

14That same day your mother contacted police to report concerns that you were walking to her house. She reported that you had been using methamphetamine, and became very aggressive when substance affected.

15She also reported that she recognised your picture in the news coverage of the armed robbery that occurred on 26 December 2022.

16At around 11:45 pm, police attended your mother’s home. She confirmed that she recognised you from the images.

17Around 8.30 am on 6 January 2023, police executed a search warrant at an address in Deer Park where your brother lived.

18Your brother advised the police that you had resided with him for around six months until 26 December 2022, when he told you to pack your stuff and leave because you were causing trouble. Your brother similarly confirmed recognising you in the police publication regarding the armed robbery at the service station.

19Police identified a kitchen knife that matched the one used in the armed robbery. Your brother advised that he used to have a full set of four similar knives, but you had taken them, and there was now only one left.

20At around 9:35 am, police travelled towards your mother’s address for further enquiries. On the way, they observed you walking along the street.

21Police commanded you to get on the ground, with which you complied, and you were placed under arrest.  You were then conveyed to Sunshine police station to be interviewed in relation to the armed robbery.

22You told police that you needed your methadone and could not think. You denied threatening anyone for money and otherwise exercised your right to silence.

Criminal history

23You have a relevant criminal history commencing in November 2012. While you may not have a prior matter for robbery, armed or otherwise, you have numerous priors for dishonesty. This includes offences of theft, obtaining property by deception, dishonestly receiving stolen goods, attempted theft, aggravated burglary and burglary. You also have prior matters for violence including threat to kill and unlawful assaults. You have received terms of imprisonment, Community Correction Orders and fines. You have contravened Community Correction Orders. Your appearance before the Broadmeadows Magistrates’ Court on 3 December 2021 resulted in a total effective sentence of 18 months imprisonment with a non-parole period of 12 months. It is accepted that you served this sentence in its entirety and were released from prison on 13 October 2022.

Background

24You were born in Victoria and raised in South Australia. You attended a local school in Adelaide and completed Year 11.

25You have 10 brothers and five sisters. Your parents separated when you were aged 10.

26As a child you witnessed your father physically and sexually abuse your mother. You recall hearing your mother’s screams. You were also physically abused by your father. In addition, you were molested by one of your elder brothers.

27At the age of 16, you moved in with your sister and her family. Your sister would give you cannabis and make you participate in online sex work.

28You began drinking alcohol from the age of 11 which has continued throughout your life. Prior to your remand, you were consuming a cask of wine every two days, as well as beer and spirits.

29You smoked cannabis from the age of 16 until you were 20. You began using methamphetamine on a daily basis from the age of 19. Upon release from prison, you would relapse immediately. Following your release from your last custodial sentence on 13 October 2022, you were able to maintain a period of abstinence before relapsing into using methamphetamine in December, shortly before you committed the armed robbery.

30You have also used heroin, ecstasy and prescription medication on some occasions.

31In 2016, you moved to Melbourne with your mother.

32In terms of employment, you worked at Target in Adelaide for six months. You then worked as a roof plumber. Following an eight year gap when you did not work, you commenced employment with a roofing restoration company in 2017 where you worked for six months. You have been unemployed since.

Mental health

33I have had regard to the reports prepared by Dr Adam Deacon and Ms Gina Cidoni.

Dr Deacon’s assessment and recommendations

34Dr Deacon opines that you have been haunted by intrusive memories and flashbacks of childhood abuse consistent with Post-Traumatic Stress Disorder (PTSD). He also states that you have a confirmed diagnosis of schizophrenia. This has been characterised by paranoia, persecutory delusions, auditory hallucinations and ideas of reference from television and radio. You have had six psychiatric admissions between 2012 and 2019, and two recent admissions in 2022. You were prescribed antipsychotic medication in 2017. You accept that you have not been compliant with your medication regime when in the community. Upon your release from prison in October 2022, you failed to take your antipsychotic medication. You recall telling your brother that you would reoffend as you preferred to be in prison rather than in the community.

35Dr Deacon described you as a vague and imprecise historian who functioned with low intelligence, consistent with a prior IQ of 72, representing borderline intellectual disability. He said rather than being evasive, this stemmed from you being forgetful. Dr Deacon states that your significant history of methamphetamine abuse has without a doubt destabilised your schizophrenia. You have utilised methamphetamine to relieve your PTSD symptoms stemming from childhood abuse.

36You have benefited from resuming your antipsychotic medication in custody, and your mental health as a result has likely improved. You told Dr Deacon that your preference is to remain in custody rather than in the community.

37Dr Deacon notes that you have a repeated history of prompt reoffending upon release from custody. He states that you require a referral to a community mental health service when you are released. You require intensive case management and may benefit from a period in a Community Care Unit. You also require drug counselling and psychoeducation relating to your schizophrenia. You can benefit from support with NDIS given your recurrent issues with homelessness.

38As is clear, your risk of recidivism is contingent upon your mental illness being effectively treated, abstinence from methamphetamine and stable accommodation.

Ms Cidoni’s assessment

39Ms Cidoni’s assessment of you is largely consistent with that of Dr Deacon. She states:

Childhood adversity has left a profound impact on Mr Giordimaina. Growing up in a household marked by physical and sexual abuse, witnessing traumatic events, and experiencing violence at the hands of his father created a deeply traumatic environment. The history of abuse likely contributed to his development of mental health issues, such as Schizophrenia and PTSD, and a propensity for substance abuse as a way to cope with the emotional distress stemming from his traumatic past. Additionally, childhood sexual abuse by his older brother further compounded his emotional trauma, disrupting his ability to function in the community effectively.

40Ms Cidoni assesses your risk of re-offending as medium to high. She states that to reduce this risk, ongoing psychiatric care is essential, emphasising consistent medication compliance. NDIS can provide essential support for daily living, including attending appointments and monitoring medication compliance.  Treatment also needs to focus on your methamphetamine and alcohol use.

Nature and gravity of the offending

41The maximum penalty of 25 years makes plain that armed robbery is a serious offence.

42The victim was vulnerable, working alone in a service station in the early hours of the morning. You threatened to kill the victim while armed with a kitchen knife. While the victim has chosen not to make a victim impact statement, he describes being genuinely fearful for his life and safety.

43In R vLee, [3] the Court of Appeal stated:

This Court has on a number of occasions emphasised the seriousness with which offences committed against persons who work in isolated and unprotected environments will be viewed. Such persons as taxi drivers and those who work in service stations, convenience stores or small family businesses are extremely vulnerable and are clearly entitled to the full protections of the law. That protection of the law means that the principle of general deterrence assumes considerable significance.

[3]R v Lee [2006] VSCA 80 [24].

44I accept that the offending was unsophisticated. It did not involve any facial disguise. No actual violence was used and the offending was not committed in company. However, I make plain that the absence of these factors does not mean your offending was not serious, it clearly was. The presence of these factors would have elevated the seriousness.

45Armed robberies on soft targets are to be condemned. The sentence must denounce your offending as well as send a message to anyone who may be inclined to offend in a similar manner, that such offending will result in condign punishment. You have a lengthy and relevant prior history and this offending occurred just over two months following your release from prison. In those circumstances, the sentence the Court imposes must act to deter you from further offending.

Matters in Mitigation

46You pleaded guilty at the earliest opportunity in the Magistrates’ Court. Your plea of guilty entitles you to a significant discount. You have saved valuable court time and expense, facilitated the course of justice and have accepted responsibility for your actions. You have not sought to challenge or cross-examine any witness. Your plea of guilty must be accorded an additional and palpable discount as it was indicated when this Court was facing an increased backlog of trials.[4]

[4]Worboyes v The Queen (2021) 96 MVR 344.

47I am prepared to accept that your plea of guilty provides some limited evidence of remorse. However, beyond that there is no other cogent evidence demonstrating contrition.

48I accept that you have endured a difficult and traumatic background which involved witnessing and experiencing abuse at the hands of family members. This background explains your abuse of illicit substances and has contributed to your mental health issues. The principles in Bugmy[5] have application in a general sense. Accordingly, I am able to moderate your moral culpability to some extent.  

[5]Bugmy v The Queen (2013) 249 CLR 571.

49Bearing in mind the mental health issues you face, I accept that principle five in Verdins[6] is engaged. I accept that your mental health issues may make your time in custody more burdensome. I note that you told Dr Deacon:

He said his psychotic symptoms have partly subsided, including reduced auditory hallucinations and paranoia. He thought he was being watched through his cell window, so he covered it with two layers of curtains. He avoided watching the TV and listening to the radio because he worried that he would be spoken to. He said he was afflicted with flashbacks of his childhood sexual abuse. He said he had said some stupid things resulting in him being slapped a few times, but he had otherwise avoided conflict.[7]

[6]R v Verdins (2007) 16 VR 269. (Verdins)

[7]Page 4 of exhibit 3 first paragraph. See also [95] and [96] of Ms Cidoni’s report (exhibit 2).

50Despite your mental health issues, you remain a suitable vehicle for general deterrence. You committed a serious offence at a time you had relapsed into using methamphetamine. You chose not to take your medication. Dr Deacon is unable to link your mental health issues to your offending conduct.[8] On the whole, you are currently coping well in custody and have resumed taking anti-psychotic medication. Nevertheless, I am prepared to accept that general deterrence can be somewhat moderated in line with principle three of Verdins.

[8]Exhibit 3 page 4, [7].

51I was told that you have found your time in custody particularly isolating. You have received some personal visits from your mother, but the contact with her has been mostly via telephone and online. There has been no contact from any other family members or friends. You have completed a number of courses and have been working in the laundry and as a cleaner.

52Your prospects of rehabilitation are tied in with you addressing your mental health issues, being compliant with medication and seeking treatment for your long standing abuse of methamphetamine. At present, your prospects are guarded at best.

53I was told that you intend to live with your mother upon release.

Sentencing

54I have had regard to the detailed and helpful prosecution submissions on sentence  dated 12 July 2023. The submissions include a table of cases.[9] The prosecution emphasised the importance of general deterrence and denunciation and drew my attention to your relatively lengthy and relevant criminal history. Prosecution submitted that the prior history was relevant in assessing your rehabilitation prospects and the related need to protect the community. In all the circumstances, the prosecution submitted that this offending called for a head sentence with a non-parole period.

[9]Exhibit B.

55On your behalf, your counsel made a tentative submission in favour of a combination sentence, but was realistic that a sentence attracting a non-parole period was more likely. He submitted that I should consider a non-parole period that would potentially allow you greater time in the community subject to supervision which could implement plans and treatment necessary to assist with the issues you face.

56Having carefully considered all the material and taken into account all sentencing factors, I sentence you, Mr Giordimaina as follows:

57On Charge 1, armed robbery, you will be convicted and sentenced to 2 years and 8 months’ imprisonment.

58I set a non-parole period of 1 year and 8 months.

Pre-sentence Detention

59Pursuant to s 18 of the Sentencing Act 1991, the period of 335 days of pre-sentence detention, not including today’s date, is hereby declared as having already been served in respect of this sentence, and I order that such declaration and its details be entered in the Court’s records.

Section 6AAA declaration

60Pursuant to s 6AAA of the Sentencing Act, I indicate that had you pleaded not guilty and been convicted, I would have sentenced you to a term of 4 years’ imprisonment with a non-parole period of 2 years and 8 months.