Director of Public Prosecutions v Giudice
[2022] VCC 500
•11 April 2022
| IN THE COUNTY COURT OF VICTORIA AT BENDIGO CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-01637
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GRAHAM GIUDICE |
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JUDGE: | HIS HONOUR JUDGE DEAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 March 2022; 22 March 2022 & 8 April 2022 | |
DATE OF SENTENCE: | 11 April 2022 | |
CASE MAY BE CITED AS: | DPP v Giudice | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 500 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Damaging property - Intentionally causing serious injury - Contravening family violence intervention order - Late-stage plea of guilty - Extensive criminal history - Serious family violence - Borderline personality disorder - Post-traumatic stress disorder - Major depressive disorder - Specific and general deterrence - Serious violent offender
Legislation: Crimes Act 1958; Family Violence Protection Act 2008
Case Cited: R v Verdins (2007) 16 VR 269
Sentence: Imprisonment of 8 years with a non-parole period of 5 years and 6 months - s 6AAA declaration - Imprisonment of 10 years with a non-parole period of 7 years - Sentenced as a serious violent offender in relation to Charge 2
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. Cordy | Office of Public Prosecutions |
| For the Accused | Mr G. Davis | Rolfe Criminal Law Pty Ltd |
HIS HONOUR:
1 Graham Giudice, you have pleaded guilty to the following offences:
i) Two charges of damaging property, contrary to s 197(1) of the Crimes Act 1958, the maximum penalty for that offence is 10 years imprisonment;
ii) One charge of intentionally causing serious injury, contrary to s 16 of the Crimes Act 1958, the maximum penalty for that offence is 20 years imprisonment; and
iii) One charge of contravening the family violence intervention order, intending to cause harm or fear for safety, contrary to s 123A(2) of the Family Violence Protection Act 2008. The maximum penalty for that offence is 5 years imprisonment or a fine of 600 penalty units.
2 You have also pleaded guilty to the related summary offence of contravening a family violence intervention order by intentionally damaging property, contrary to s 123(2) of the Family Violence Protection Act 2008. The maximum penalty for that offence is 2 years imprisonment or a fine of 240 penalty units.
3 Contested committal proceedings were conducted at which the victim of your offending was cross-examined, and you pleaded guilty on the day that your trial for the offences was due to commence. Your plea is therefore at a late stage of the proceedings, but it has nevertheless spared your victim and her family the further burden of a criminal trial. Furthermore, it has facilitated the administration of criminal justice during the COVID-19 pandemic, by assisting this court in addressing the current backlog of cases awaiting hearing and resolution. I also accept that to a limited degree your plea is some evidence of remorse for your offending and I have taken it into account in your favour in mitigation of sentence.
4 You have admitted an extensive criminal history for offences of violence, damaging property and the contravention of family violence intervention orders. You have been the subject of three community correction orders for such offending, which you have persistently breached. You have also been fined and imprisoned for offences of violence. The victims of your offending in the past have been the mother of your children and other women with whom you have been in personal relationships. The seriousness of your offending, which dates to 2011, has escalated, culminating in the grave offending now before this court.
5 At the time the family violence intervention order (the subject of Charge 4 on the Indictment) was taken out by your victim in this case on 26 May 2020, you were on a community correction order for offences of violence against your former partner and also on bail in relation to offences of violence against a person suspected of stealing a car from you.
6 I have received police summaries in relation to your criminal history, disclosing a pattern of offences of violence committed by you against vulnerable women. Plainly, your criminal history is of particular significance in this case and the protection of the community and specific deterrence are prominent sentencing considerations.
7 The prosecution opening was tendered in evidence and your offending may be summarised as follows -
8 At the time of your offending on 24 January 2021, you had known the victim for approximately two and a half years and during that time you had been in an on-and-off relationship with her for approximately 15 months. That relationship ended in April 2020 and the victim took out a family violence intervention order against you on 26 May 2020 following serious acts of family violence committed by you against her.
9 On 23 January 2021, the victim was socialising with a friend and following the consumption of alcohol, she rang you and asked that you collect her and her friend and drive them to her home in Maiden Gully. You agreed and you all arrived at her house at 7.15 pm. You were all drinking alcohol and following a dispute between the victim and her friend, the friend left the house. At approximately 10.30 pm, your victim went to bed. At approximately 1.00 am the following morning, you burst into her bedroom, damaging the door. You angrily told her you had gone through her telephone and that she was a liar.
10 You got on top of her telling her you had read the names of other men in text messages that she had sent. You then punched her multiple times in the face and called her a liar. You twisted her wrist with significant force, punched her repeatedly and then pushed her off the bed. You then got on top of her and strangled her to the point where she could not breathe. You then punched her again repeatedly to the stomach, face and head. She managed to get back into bed after your attack on her had stopped and you then made her cuddle you. That morning she awoke in extreme pain and saw the shocking injuries you had inflicted upon her. She said to you, 'Look what you have done to my face.' Your callous, appalling reply was, 'Have a think about what you have done to me.'
11 Your victim was in shock and was due to go to work. She was concerned about her appearance and whether she should go to hospital. You told her she'd regret it if the police became involved. You then left her alone and seriously injured in her home at about 9.00 am. It was not until the early afternoon that the victim's mother went to her house, saw her injuries, called an ambulance and the victim was conveyed to hospital. You became aware that your attack had been reported and the following day drove to the victim's family home where her car was parked and deliberately damaged it by doing a burnout in close proximity to her car.
12 The victim was treated in hospital initially for three days for three fractures to her face, one of which was a large comminuted fracture of the floor of the right orbital bone. She had extensive bruising to her neck, a fractured rib and a fractured nose. She also had extensive lacerations to her face. She suffered extreme pain, and her injuries, which took in excess of two months to heal, required subsequent medical repair. I have received in evidence photographs of her shocking injuries and I will deal with the contents of her victim impact statement in due course.
13 You were arrested hiding in a bedroom cupboard at your father's house by investigating police, after your father told investigators when they came to the house to arrest you that he hadn't seen you for days. In a record of interview with the police, you falsely stated you had left your victim's house on the night in question and walked home. You falsely stated that you had returned at 10 am or 11 am the next day and knocked on the door but the victim didn't answer. You also denied attending at the victim's family home and damaging her car. You were charged with the offences before the court and remanded in custody where you remain.
14 It is clear from this summary that you committed a cowardly and vicious assault on an intoxicated and defenceless young woman in her own home in the dead of night. Your attack upon her was relentless and fuelled by a paranoid sense of entitlement. You must have known you were inflicting extremely painful injuries to her, and indeed you have pleaded guilty to intentionally inflicting those injuries, by punching with what must have been great force. You also strangled her.
15 It is the fundamental responsibility of this court to protect women from violent, controlling, paranoid men like you and this sentence must be calculated to deter other men from offending in this appalling manner. These are very serious examples of the offences that you have pleaded guilty to and the court must unequivocally state that offending of this grave nature will be met with the imposition of very significant terms of imprisonment upon conviction. You will also be punished for your vicious and cowardly crimes.
16 I have received in evidence victim impact statements of your victim survivor and her parents, detailing the devastating impact your crimes have had upon them. Your victim survivor details the extreme pain she has suffered, the medical procedures she has endured, and the profoundly traumatic effect your offending has had on her quality of life and her employment. Her parents attest to the shock suffered by them seeing their daughter injured in hospital, and the impact on their family life that resulted from your brutal attack on their child in the home that she grew up in.
17 I now turn to your personal circumstances.
18 You were born in October 1991 in Bendigo and are now aged 30. You are the youngest of your parents' four children. Your parents separated when you were three years old and you resided with your mother until the age of 12, at which time you moved to live with your father. You were educated in Bendigo until Year 9. Your two sisters reside in Bendigo and you have a good relationship with them. Your brother took his own life three years ago, aged 29, following a relationship breakdown. I accept that this tragic event had a deeply traumatic effect upon you, and it compounded the trauma you suffered following the death of a workmate in a workplace accident that you witnessed.
19 You moved out of your father's house at the age of 20 to live with your partner, with whom you have two children now aged seven and nine. Your partner is the victim of a number of your prior convictions. Despite the criminal treatment of her, she is supportive of you, and I accept that you are close to your two children.
20 You have worked as a mechanic for the past 14 years and although you have not completed formal training in relation to that, you have developed a successful business. In 2019, a fire in your workshop resulted in extensive damage and you suffered serious burns for which you were hospitalised in intensive care. This event further aggravated your pre-existing post-traumatic stress disorder.
21 I have received in evidence a psychological report of Ms Gina Cidoni, and an update thereto setting out your developmental history and psychological profile. I accept that you suffer from borderline personality disorder, post-traumatic stress disorder and major depressive disorder. It would appear that the origins or your post-traumatic stress disorder and major depressive disorder reside both in your childhood development and the subsequent traumatic experiences that I have referred to.
22 Ms Cidoni is of the opinion that your borderline personality disorder confounds your other conditions. In other words, the borderline personality disorder complicates the treatment of those conditions. Ms Cidoni is of the opinion that your borderline personality disorder is causally connected to your offending in this instance and I accept that this is correct. As she states, borderline rage can occur suddenly and unpredictably and that is what occurred on this occasion.
23 It was submitted on your behalf that, based upon the opinion of Ms Cidoni, the principles enunciated by the Court of Appeal in R v Verdins (2007) 16 VR 269 are engaged in your case. In particular, it was submitted that by reason of your borderline personality disorder your moral culpability for your offending is to be moderated, and further that the application of the principle of general deterrence is to be moderated in your case.
24 Your criminal history and the police summaries I have been provided with demonstrate that over a number of years you have committed serious acts of violence whilst enraged in the setting of personal relationships. This conduct is well-known to you. You are aware yourself of your explosive personality and it would appear that you have not taken any steps to address this, despite previous dispositions of courts intended to support your rehabilitation. In such circumstances, in my opinion, the diagnosis of borderline personality disorder does not moderate your moral culpability or the application of the principal of general deterrence to you.
25 In any event, even if I am incorrect about this, your borderline personality disorder indicates that the protection of the community from you, is a very significant sentencing consideration in this case. Furthermore, you will be sentenced as a serious violent offender in relation to Charge 2 on the Indictment and, by operation of Part 2A of the Sentencing Act 1992, the protection of the community is the principal purpose for which the sentence on that charge will be imposed.
26 However, I accept as was submitted by your counsel that your mental illnesses will increase the hardship of imprisonment upon you. I also accept that you will require a lengthy period of supervision in the community upon your ultimate release from prison. It is clear from the evidence before me and by reference to your criminal history that your prospects for rehabilitation are to be approached with caution, and you require ongoing psychological treatment for your illnesses.
27 I have also had regard to the fact that you will be imprisoned during restrictions imposed in relation to the COVID-19 pandemic and this in turn will also increase the hardship of imprisonment upon you.
28 In the result the sentence of the court is as follows –
29 On Charge 1 on the Indictment, you are convicted and sentenced to be imprisoned for 9 months.
30 On Charge 2 on the Indictment, you are convicted and sentenced to be imprisonment for 6 years and 6 months.
31 On Charge 4 on the Indictment, you are convicted and sentenced to be imprisoned for 18 months.
32 On Charge 5 on the Indictment, you are convicted and sentenced to be imprisoned for 12 months.
33 In relation to the related summary offence you are convicted and sentenced to be imprisoned for 6 months.
34 The sentence imposed on Charge 2, is the base sentence. I direct that 3 months of the sentence on Charge 1, 6 months of the sentence on Charge 4, 6 months of the sentence on Charge 5 and 3 months of the sentence on the related summary offence by served cumulatively on each other and cumulatively on the base sentence; this makes for a total effective term of imprisonment of 8 years.
35 I direct that you serve 5 years and 6 months before becoming eligible for release on parole. I declare that you have served 440 days by way of pre-sentence detention, not including today.
36 But for your plea of guilty I would have imposed a total effective term of imprisonment of 10 years and fixed a non-parole period of 7 years.
37 I direct that it be entered into the record of the court that you have been sentenced as a serious violent offender in relation to Charge 2. I will make the disposal order sought by the prosecution.
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