Director of Public Prosecutions v Giuliani
[2022] VCC 169
•21 February 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-01415
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANTHONY GIULIANI |
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JUDGE: | Judge Holding | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 February 2022 | |
DATE OF SENTENCE: | 21 February 2022 | |
CASE MAY BE CITED AS: | DPP v Giuliani | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 169 | |
REASONS FOR SENTENCE
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Subject:Criminal law – Sentencing.
Catchwords: Plea of guilty – criminal record – common assault – possess a drug of dependence – cannabis L – Covid-19 – verdins – serious example of common assault – wheelchair – parity – psychological condition – NDIS – victim impact statement – co-offender– breach of trust.
Legislation Cited: Sentencing Act 1991 (Vic) s 18(4), 6 AAA – Confiscation Act 1997 (Vic) s 78(1).
Cases Cited: R v Verdins & Ors [2007] VSCA 102 - R v Renzella [1997] 2 VR 88.
Sentence: Convicted and sentenced to 12 months’ imprisonment with a non-parole period of 5 months. Convicted and fined $150.00.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr C. Thompson | Office of Public Prosecutions |
For the Accused | Ms D. Langton | Leanne Warren & Associates |
HIS HONOUR:
Anthony GUILIANI you have pleaded guilty to:
I.Charge 1: Common Assault – that has a maximum penalty of 5 years' imprisonment.
II.Charge 2: Possession of a small quantity of Cannabis which in the circumstances of this case carries a maximum penalty of a fine of up to 5 penalty units.
Circumstances of the offence.
It is necessary to briefly recount the recent history of your legal proceedings before me as that chronology has some relevance to the factual basis upon which you are to be sentenced.
Your case was listed before me as a trial commencing on 4 February 2022. As of that date the major charge listed for trial was a charge of intentionally causing injury. Briefly stated it was alleged that you and your Co-Offender, Mr Kuiper, had been allowed entry by the victim (‘Mr Gregg’) into his home, whereupon you both proceeded to assault him. It was alleged that initially that assault involved punches and kicks but progressed to a point where the Co- Accused produced a stanley knife and used that knife to inflict a cut to Mr Gregg's neck and thigh.
The trial was to proceed on the basis that you were complicit in the infliction of that injury. On 4 February 2022 negotiations between your Counsel (‘Mr Langton’) and the Prosecutor (‘Mr Thomson’) took place with the result that your trial resolved on the basis that you would plead guilty to one charge of common assault and one charge of possessing a small quantity of cannabis. A fresh indictment (No: K1163945.1) was filed with the Court and you were arraigned on those charges on the afternoon of 4 February 2022. There was then a joint application to adjourn your plea hearing to the following Monday, 7 February 2022 so that the Prosecution opening could be redrafted to accord with the fresh indictment and the change in in the Prosecution position as to the basis upon which you were complicit in the actions of your Co-Offender.
On 7 February 2022 the Prosecution filed a document headed 'Prosecution Plea Summary and Submissions' dated 4 February 2022.[1] During the plea hearing it became apparent that while generally that summary reflected the basis upon which your case had been resolved, there were some details in the summary that were disputed by you. I therefore stood the case down for some time to allow your Counsel and the Prosecutor to see if those details could be resolved or whether your case needed to proceed as a contested plea hearing.
[1] Prosecution Plea Summary and Submissions' dated 4 February 2022 is Exhibit A on the plea.
Ultimately there was agreement between the Defence and Prosecution with the result that the opening dated 4 February 2022 was further amended and the Prosecutor clarified some descriptions of the factual allegations in that document in accordance with the agreement between the parties. That clarification related to paragraphs 4 to 6 of that document. The first sentence in paragraph 6 was deleted[2] and it was made plain that in consideration of paragraphs 4 and 5 of the summary it was not alleged that you delivered any kicks to the victim or were complicit in the infliction of kicks delivered by your Co-Offender upon Mr Gregg. It was plain that the withdrawal of the intentionally cause injury charge and the redrafted summary was on the basis that you were not complicit in the use of the stanley knife that inflicted the cuts to Mr Gregg. Given those clarifications and amendments it is agreed between the parties that the Prosecution Plea Summary accurately describes your offending.[3]
[2] It was no longer alleged that towards the end of the assault the Accused said, ‘If you give us $50 we’ll stop’.
[3] The only other amendment to the opening was a typographical error in the submissions on sentence where the first word of paragraph 16 should be the Accused’s name instead of the victims name.
On the afternoon of 24 June 2019 you and your Co-Offender Antony Kuiper went to an apartment building located at 150 Brunswick Street Fitzroy. The victim, Brian Gregg. was residing in unit 227 of that apartment complex. Mr Gregg lived in that apartment alone and was confined to a wheelchair because he had suffered a stroke some years before that had resulted in him being unable to walk properly.
Mr Gregg's apartment was situated on the second floor of the complex and both you and the Co-Offender took a lift to the second floor and knocked on the door of Gregg's apartment. You are both known to Mr Gregg and he invited you both inside.
Mr Kuiper, told Mr Gregg he wanted to talk to him about something and then hit Mr Gregg between the eyes causing Mr Gregg to be stunned. Mr Greg was in his wheelchair at the time and he was then pushed in his wheelchair by the two of you into the bathroom of his apartment. Mr Gregg protested, “What do you cockheads want, get the fuck out of my house!”.
10.You and Mr Kuipier then pulled down the shower curtain in the bathroom and put it on the floor. Mr Gregg was most concerned by this action and thought that his life was in danger. Mr Gregg was then punched, and Mr Kuiper kicked him to his body and head whilst he was on the bathroom floor. You then punched Mr Gregg three times. Your complicity in the punches inflicted upon Mr Gregg by Mr Kuiper and the three punches that you personally delivered are the physical acts that constitute Charge 1, Common Assault.
11.Mr Gregg repeated the request for you both to get out of his house. Your Co-Offender then used a stanley knife to cut Gregg on the neck and thigh while Mr Gregg was lying on the floor. Mr Gregg was crying out and your co-Offender told him to be quiet. The Co-Offender then stole the key and lanyard that Mr Gregg was wearing around his neck.
12.You and the Co-Offender then left the apartment. A neighbour who had heard the disturbance rang the police. Police attended a short time later and Mr Gregg told police what happened. The police observed blood on Mr Greg's face, cuts to his neck and swelling around his mouth. Mr Gregg's injuries were photographed by police and an ambulance took him to St Vincent's Hospital.
13.Within about half an hour of the police attendance at Mr Gregg's apartment you were arrested only a short distance from the apartment at the corner of George and Webb streets Fitzroy. Police observed that you were intoxicated and you were belligerent and aggressive when arrested.
14.When you were searched by the Police they located the stanley knife stained with blood and the lanyard and keys stolen from Mr Gregg in a blue jacket that you were wearing during the search. CCTV footage indicated that when you and your Co-Offender were making your way into Gregg's apartment your Co-Offender was in possession of this blue jacket. It appears that sometime later you came into possession of this jacket and put it on. Also located upon your person was a snap lock bag containing a small amount of cannabis. This small amount of cannabis constitutes Charge 2, possession of cannabis.
Forensic testing of the Stanley knife confirmed that the blood on the knife was Mr Gregg's blood. Forensic testing also confirmed the presence of Mr Gregg's blood on the shoelace of your left shoe.
A significant factor for me to take into consideration is that the Co-Offender pleaded guilty in the Magistrates' Court for his role in this offending. He received a sentence of 18 months imprisonment with a non-parole period of 10 months in respect of the more serious offence of intentionally causing injury based in part upon his use of the stanley knife. The Prosecutor, Mr Thomson plainly indicated that the Crown regarded Mr Kuiper as has having played a more significant role than you in the attack upon Mr Gregg. That concession is in part reflected by the fact that Mr Kuiper is to be regarded as solely responsible for the use of the stanley knife that inflicted the cuts to Mr Gregg. The Prosecutor also stated that Mr Kuiper's prior criminal history was comparable with yours in terms of his and your criminal history of violent offending. These factors led the Prosecutor to concede that parity considerations warranted you receiving a lesser sentence than the sentence that was imposed upon Mr Kuiper despite the fact that he had pleaded guilty at an earlier point in time in the Magistrates' Court. In relation to the timing of the plea and how the matters progressed I was informed that Mr Kuiper had made a successful application before a Magistrate to have his charges heard and determined summarily. You, on the other hand had made a similar application before a different Magistrate that was refused, with the result that you were committed to stand trial in this court. The Prosecutor also confirmed that although your matter was listed as a contested trial for a considerable period of time in this court, given the change in the Prosecution position in respect of the intentionally cause injury charge, I should regard your plea as being entered at the first available opportunity
Personal History and Application of the Principles in 'Verdins'.[4]
[4] R v Verdins & Ors [2007] VSCA 102.
Your personal circumstances are partly outlined in neuropsychological report prepared by Dr Sara Fratti dated 7 May 2019, that was tendered on your plea.[5] That history was expanded upon by your Counsel Mr Langton during the plea.
[5] Exhibit 2.
17.You are now 54 years old. Your family lived in Reservoir when you were growing up. You have an older brother and a younger brother and attended Cathedral College to grade 6 and then Parade College until year 10. You then went to Preston Technical College completing year 11. You left that college to commence a carpentry apprenticeship but didn't complete that apprenticeship as you were able to find work in the construction industry. By the age of 19 you were employed as a leading hand on construction sites. You then trained as an industrial cook and worked in Queensland for a time in the nineties as a cook.
18.The neuropsychological report by Dr Fratti is quite detailed. I have read it carefully and considered its contents. I will refer only to the parts of the report necessary to explain my sentencing reasons. The report was written in May 2019 and it is apparent that it was sought by your legal representative in respect of the charge of recklessly causing injury that appears on your criminal history as the most recent conviction. On that occasion you were sentenced at the Heidelberg Magistrates' Court and placed on a community based order. I was informed by Mr Langton that this past conviction related to a dispute with a neighbour. The report indicates that you had previously been assessed in 2010 and found to have a series of 'cognitive weaknesses' consistent with an acquired brain injury 'secondary to repeated head injuries in the context of assaults, likely sustained by you between 2005 and 2007'. Medical records confirmed that you have a history of seizures with multiple presentations to the emergency department in the context of substance use and 'non-compliance' with anti-epileptic medication. These medical records were dated between 2007 and 2009 and Ms Fratti states in her report, 'Mr Giuliani is currently prescribed Clonazepam to control his seizures, as well as Lyrica (300mg twice a day) to treat chronic back pain, however he admitted occasional non-compliance. He denied having any recent seizures and reported they were overall 'well controlled'.
19.The personal history in the report details that you told Ms Fratti that you used drugs from a young age to cope with witnessing domestic violence. ('My dad was bashing my mother for some time. I started using drugs to escape from that reality'). You reported commencing cannabis from the age of 10, with heavy use for five years, and commenced use of heroin from the age of 12. At the time of the report you were apparently on a dose of 50 ml of methadone. Mr Langton during the plea informed me that your prior criminal history was as a result of your longstanding drug addiction. He submitted that there were positives in that regard as during your most recent history in custody you had managed to wean yourself off methadone and your goal was to remain abstinent. I will return to that aspect of your personal circumstances later in these reasons when considering your prospects of rehabilitation.
20.Ms Fratti administered a number of psychological tests in order to assess your neuropsychological condition and relevant factors relating to your offending. Under the heading of 'Premorbid Intellectual ability' she wrote: 'Based on educational and occupational history and performances on test considered to be relatively resistant to neurological change, Mr Giuliani was estimated to be in the Average range, premorbidly'. She also stated that you demonstrated 'intact abilities (i.e. Average range or above)' and that 'Mr Giuliani's cognitive profile indicates an overall improvement of his cognition and in particular of his executive functions since his last neuropsychological assessment in 2010…In general, his overall thinking skills are as good most (sic) people of his same age in the general population.'
Under the heading of 'What if any, the relationship between Mr Guillain's ABI (if any) and the offending?' Ms Fratti wrote:
I.'According to the above results, Mr Giuliani's ABI and related mild residual deficits are not expected to affect his ability to understand the wrongfulness of his actions and are not significant enough to suggest any impairment in decision – making capacity. Despite symptoms of irritability and low frustration tolerance were noted, these were not frankly abnormal and there was no evidence of a disinhibition or of a dysexecutive syndrome on testing. He actually performed as well as people his same age in the general population on tests of self-monitoring and impulse control. However, testing is performed in a controlled environment, free from distractions and potential triggers. It is possible that in real – life situations, particularly in times of stress and if under the acute effects of substances, Mr Giuliani's elevated anxiety, coupled with his reduced speed of processing would have impaired his ability to make calm and reasoned decisions in a short time frame. In my opinion, other long-term factors other than the ABI may have played a causal contribution to the alleged behaviours. For example, his longstanding personality features, maladaptive coping mechanisms and lack of positive strategies to respond to stress may have contributed to Mr Giuliani's offending behaviours'.
22.In relation to whether your psychological conditions would make imprisonment more burdensome for you Ms Fratti opined that: 'The prison setting tends to lend itself to improved functioning in individuals suffering an ABI as it can limit the impact of impulsivity, frustration and decreased motivation'. However she also expressed the view that a prison setting can be detrimental to individuals mental health if not addressed with appropriate support and your current mental status makes you 'vulnerable and fragile and therefore close monitoring is necessary'.
23.The Defence submitted based upon this report that principles 1, 5 and 6 of Verdins were enlivened. In relation to principle 1 (reduced moral culpability for the offending) emphasis was placed upon the sentence in the extracted paragraph above referring to the possible impairment of your ability to make calm and reasoned decisions in a short time frame. In relation to principles 5 and 6 (the finding that imprisonment may weigh more heavily upon you than others and that imprisonment would have a significant impact upon your mental health) emphasis was placed on the reference by Ms Fratti to you being 'vulnerable and fragile' and thus requiring close monitoring.
The Prosecution submitted that Ms Fratti's report did not provide a sufficient evidentiary foundation for the application of any of the principles of 'Verdins'. I agree with the Prosecution submission. Ms Fratti's assessment of your impaired ability to make calm and reasoned decisions it qualified by reference to situational factors as well as being expressed with a degree of uncertainty. It is also expressed in the context of considering a different offence where you told Ms Fratti that you were acting in self-defence. In my view there is nothing in the report of Ms Fratti that provides evidence that could satisfy me to the requisite standard that your neuropsychological deficits could be said to be causally connected to your offending or to impact upon the assessment of your moral culpability.
25.I am also not satisfied that your psychological condition enlivens principles 5 and 6 of Verdins. Again the possible interrelationship between your psychological condition and imprisonment is expressed as possibilities that may or may not eventuate. However, I do take account of the fact that you are somewhat psychologically vulnerable and that I should bear this in mind in considering the impact that gaol will have upon you. Your ABI and your overall psychological condition must be taken into account in consideration of an appropriate period of imprisonment.
Prior Criminal History and Prospects of Rehabilitation.
26.You have an extensive criminal history that records your first court appearance on 16 December 1986 for possession of drugs including amphetamine and cannabis. You would have just turned 19 years of age at this time. The history indicates that in 1989 when you were approximately 21 years of age you received a gaol sentence in respect of various dishonesty offences including burglary and theft as well as two counts of assault causing injury. Your criminal history runs to some 22 pages, recording approximately 40 court appearances up to 7 June 2019 when you were placed on a Community Correction order in respect of the offence of recklessly causing injury to a person I was told was your neighbour. It is an aggravating feature of the offending before me that the assault upon Mr Gregg occurs some 17 days after you were placed on that Community Correction Order.
27.It is apparent that the bulk of your prior convictions are for offences of dishonesty however you do have a number of prior convictions for assault and have received gaol sentences for such offending in the past. In 2011 you were dealt with by the County Court in respect of recklessly causing serious injury and other assault charges and received a total effective sentence of 3 years 2 months with a minimum to serve of 24 months.
28.As far as your prior criminal history is concerned it can be legitimately taken into account in assessing your moral culpability for the offences before me and may inform the weight to be given to considerations like specific deterrence and to your prospects of rehabilitation. However, your prior criminal history cannot be given such weight as to lead to a disproportionate sentence for the offending before me as to do so would amount to you receiving double punishment for past offences.
29.Your counsel conceded that given your prior criminal history and long term drug use related to that offending your prospects of rehabilitation should be assessed as 'guarded'. I agree with that characterisation. Your counsel submitted that despite your prior convictions and history of drug use you have some support that offers some hope for the future. A letter from an agency by the name of AQA Victoria was tendered that indicated that you received support through the National Disability Insurance Scheme (NDIS).[6] The letter stated that you have access to support co-ordinators who could assist you with a variety of day to day living skills and challenges. Your counsel Mr Langton during the plea indicated that through this service you were assisted in obtaining accommodation. He indicated that should your period of actual imprisonment be no longer than 6 months from the date of your most recent remand in November 2021, it was likely you would be able return to an apartment that this service had been instrumental in helping you to acquire. Mr Langton also submitted that it would benefit both the community and yourself if your sentence incorporated a period on parole in which your current abstinence from drugs could be monitored. I accept this submission and have formed the view given your ongoing struggle with drug addiction that there is some benefit in the prospect of you being monitored on parole for a period after your release.
30.It was also agreed between the parties during the plea that as of today's date you have served 60 days of pre- sentence detention in respect of this offending as well as another 87 days in relation to charges that are yet to be determined. The 60 days will be reckoned as already served in relation to the sentence that I impose but I also indicate that I have moderated the sentence that I will impose in consideration of the 87 days that you have served in relation to the undetermined charges in accordance with the principles of sentencing outlined by the Court of Appeal in R v Renzella [1997] 2 VR 88.[7]
Victim Impact Statement.
31.Mr Gregg's victim impact statement makes it plain that as a result of this offending his now living in a state of anxiety. His reference to the crime bringing him hurt from people that he never had problems with before indicates a sense of betrayal and a breach of trust.
32.It must be most concerning for a person confined to a wheelchair to let people into his home, only to then be assaulted by those people.
Sentencing Principles.
[6] Exhibit 2.
[7] R v Renzella [1997] 2 VR 88.
In my view, this is a serious example of the offence of common assault. There are a number of aggravating circumstances. The victim is confined to a wheelchair and is confronted by two able-bodied men in his own home where he is entitled to feel safe. Although the assault upon Mr Gregg was not of a long duration it involved wheeling him into his bathroom and assaulting him despite his repeated requests for you both to get out of his apartment. It is quite understandable that the placement of the shower curtain on the bathroom floor must have caused Mr Gregg to be gravely concerned about what you two planned to do to him.
34.Your conduct must be denounced by the court and both the principles of specific and general deterrence are relevant sentencing considerations.
35.Another relevant consideration is parity between the sentence imposed upon you and that imposed upon your co-offender. It is agreed between the parties that you should receive a lesser sentence than your Co-Offender.
36.Your counsel pointed out that Mr Gregg himself described you at times during the assault as being like a 'passenger, not doing a lot'. Your Co-Offender pleaded guilty to an offence that carries a maximum penalty of 10 years' imprisonment whereas you are pleading guilty to an offence that carries a maximum of five years imprisonment. Nevertheless, there is no dispute between the prosecution and the defence that the circumstances of your offending warrants a period of imprisonment.
37.Although your plea was entered approximately 30 months after the offences were committed, given the way your case was resolved it is appropriate that I regard your plea of guilty as having been entered at the first reasonable opportunity. It was also recognised that your plea of guilty entered in the period of the pandemic entitles you an additional amelioration of your sentence for two reasons. First, the plea relieves the backlog of trials unfortunately experienced by this this court because of the pandemic. A plea entered in that circumstance carries with it additional utilitarian benefit. Second, periods of imprisonment suffered during the pandemic are generally more harsh because of restrictions imposed within the gaol system in an effort to combat the virus. I take into account that these restrictions were in place during your more recent incarceration and are likely to be encountered when serving the sentence I impose today.
38.Mr Giuliani, having carefully considered all the matters in this case and weighed the various sentencing considerations, I sentence you as follows:
I.On charge 1, common assault, you are sentenced to 12 months' imprisonment. I order that you serve 5 months of that sentence before being eligible for parole. Pursuant to s 18(4) of the Sentencing Act 1991 (Vic) I declare that the 60 days that you have been in custody be reckoned as time already served under the sentence passed today and I direct that this be entered into the records of the court.
II.On charge 2, of possession of cannabis, you are convicted and fined $150.00
39.Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), I declare that had you not pleaded guilty I would have sentenced you to a total effective sentence of 17 months' imprisonment with a period of 10 months to be served before being eligible for parole.
40.I also by consent grant the disposal order dated 7 February 2022 relating to the 11 items specified on that order as drafted by the Crown pursuant to S 78(1) of the Confiscation Act 1997.
41.Are there any other orders I that I need to make, counsel?
MR THOMSON:
42.No, Your Honour.
HIS HONOUR:
43.Thank you, I'll adjourn the court.
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