Director of Public Prosecutions v Giuliano
[2023] VCC 1646
•11 September 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-00847
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NOAH GIULIANO |
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JUDGE: | KARAPANAGIOTIDIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 August 2023 | |
DATE OF SENTENCE: | 11 September 2023 | |
CASE MAY BE CITED AS: | DPP v Giuliano | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1646 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing
Catchwords: Plea of guilty – Carjacking – Theft of a motor vehicle – Youth – Mild intellectual disability – Exceptional circumstances – Good prospects of rehabilitation - Parity
Legislation Cited: ss 5, 5(2H) Sentencing Act 1991
Cases Cited:Bugmy v The Queen [2013] HCA 37; Dabaja v The King [203] VSCA 209; DPP v Lombardo [2022] VSCA 204; Worboyes v The Queen [2021] VSCA 169.
Sentence: Community Corrections Order for a period of 2 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. Sheppard | Office of Public Prosecutions |
| For the Accused | Ms D. Dempsey | Victoria Legal Aid |
HER HONOUR:
1Noah Giuliano, you have pleaded guilty to one charge of carjacking and one charge of theft of a motor vehicle.
2You have also agreed to this court hearing and have pleaded guilty to the summary offences of impersonate police officer and drive whilst authorisation was suspended.
Circumstances of offending
3On 26 December 2021 at approximately 12:45 am, Frans Yousif was driving his blue Audi in Mickleham. You and your co-accused, Shaun Tantrum, drove a black Audi which was stolen from Richard George on 17 December of that year (Charge 2 – Theft of a Motor Vehicle). You and Mr Tantrum activated red and blue flashing lights whilst travelling behind Mr Yousif’s vehicle.
4Believing it was police, Mr Yousif pulled over. You and Mr Tantrum remained in the vehicle and identified yourself as police to Mr Yousif (Summary Charge 4 – Impersonate Police Officer).
5You and your co-accused instructed Mr Yousif to exit his vehicle, lay on the ground and place his hands behind his back. He complied with all of your instructions.
6You and your co-accused exited the black Audi, wrapped Mr Yousif’s wrists together using black duct tape.
7One of you entered Mr Yousif’s blue Audi and the other returned to the black Audi (Charge 1 – Carjacking). Both vehicles left the area in convoy and Mr Yousif began walking away with his hands bound behind his back. You and your co-accused drove both vehicles to the Mentone area.
8During the time of the offending your learner’s permit had been suspended (Summary Charge 7 – Drive Whilst Authorisation Suspended).
9On Saturday the 8th of January 2022 investigators executed a search warrant at a residential apartment complex located at 35 Childers Street, Mentone.
10The stolen black and blue Audi were seized and the police conducted a preliminary search of both vehicles, seizing various items of interest from the black Audi.
11On the 19th of January, at approximately 8:30 am, police attended your mother's address and arrested you. Your phone was seized, the contents of it analysed, as outlined in the prosecution opening.
12You were transported to the Melbourne West Police Station for interview and gave a 'no comment' interview.
13You were charged and remanded in custody and subsequently bailed on the following day.
Gravity of the offending
14The offending that you have pleaded guilty to, Mr Giuliano, is inherently serious, and that is indicated by the maximum sentences. I note that carjacking carries a maximum sentence of 15 years' imprisonment.
15Relevant to an assessment of the objective seriousness of the carjacking charge in your case include the following features of your offending: you were in company; there was some level of planning or sophistication; it occurred late at night and your victim was alone. I accept that impersonating a police officer is an aggravating feature of the carjacking but I am mindful of the need to avoid double punishment as you face a charge of impersonating police officer. Tape was used to restrain your victim but I accept that there were no overt threats or acts of violence resulting in physical injury. I also note that the vehicles have both been recovered, with the black Audi sustaining minor damage. I accept the prosecution’s characterisation of your offending as falling within the midrange of objective seriousness.
16The charge of carjacking is a 'Category 2' offence and the court must impose a custodial order unless an exemption applies - and I will return to that shortly.
Victim impact
17Mr Giuliano, your victim, Mr Yousif, provided a Victim Impact Statement and in that statement he speaks about the impact of your offending. He states that
'The memory of that night plays over and over' in his head, and he poignantly describes the feelings of helplessness and vulnerability that he experienced at that time.
18He speaks of the pervasive and profound effect of your offending. He states:
'I wish I could go back to the way things were before the carjacking, but I know that's impossible, the emotional scars run deep and I don't know if I'll ever fully heal from this trauma. The world feels like a much darker and scarier place now and I'm struggling to find my place in it again.'
19I take into account the impact of your offending on Mr Yousif.
Plea of guilty
20Your plea of guilty was indicated at an early stage and it does entitle you to a substantial discount in sentence. It has had a significant utilitarian value and has avoided the necessity of a trial, its value is heightened in accordance with what we refer to as the Worboyes principles.[1] Your plea of guilty also indicates your willingness to facilities the course of justice and to accept responsibility.
[1] Worboyes v The Queen [2021] VSCA 169.
Youth
21You were 19 years of age at the time of your offending and you are now 20, turning 21 in a couple of weeks. Your youth is an important sentencing consideration. Youthful offenders do not have the same degree of maturity, insight, judgment or self-control. In your case, in addition, as observed by Carla Lechner, psychologist, your 'psycho-social immaturity has resulted in a substantially diminished ability to regulate your behaviour in comparison with the norm for a person of that age.' She considered that you impressed as cognitively, socially and emotionally immature with a limited ability to engage in consequential and reflective thinking.
22As the Court of Appeal very recently stated:
‘Rehabilitation for young offenders remains an important aspect of sentencing. There can be no doubt that the protection of the community and the interests of the community more generally are best served by rehabilitation and support’.[2]
[2] Dabaja v The King [203] VSCA 209.
23I accept that in your case prison is likely to be counter-productive and that someone like you would be more vulnerable and susceptible to negative influences in such an environment.
Personal history
24Mr Giuliano, in terms of your background you are the youngest of four children. Your parents separated when you were young, about 18 months, after offending by your father against two of your siblings was discovered. He was subsequently charged and jailed. You have had no contact with him.
25After your father’s arrest, your family moved around regularly and you experienced periods of homelessness. Your mother worked full time and your grandmother helped to look after you. She struggled with her own mental health and addiction issues. Your older brother suffered from ADHD and also began using drugs in his teens and was violent in the family home. These dysfunctional circumstances are well documented in the material provided to the court, along with the difficulties and challenges faced by your mother at the time in dealing with this high level of stress and conflict. Your brother has since addressed his drug issues and is now a strong support to you. You also have a good relationship with your other siblings.
26Your mother re-partnered when you were around eight or nine years of age and your relationship with your stepfather has improved over time.
27When you were 11 years of age you were diagnosed with ADHD. You attended Frankston Secondary College for Year 7 but dropped out. You were then enrolled in and attended Berendale School, which is a school for students with mild to moderate intellectual disabilities, but only attended for a short period before disengaging from education at the young age of 13.
28When you were 12 you started using cannabis. From the age of 14 you had access to and abused codeine and Valium. From the age of 16 you started using MDMA and then methamphetamine. Your methamphetamine use escalated after the murder of a close friend in September of 2021. In her reference your mother refers to your drug use as an attempt to 'self medicate away all of [your] feelings and trauma.' She states, 'He once said to me that it is the only time he feels normal.'
29Notwithstanding, or in spite of your challenges and disadvantages, you have a relatively good work history. At the age of 16 you commenced working as a butcher. You completed your first year of a pre-apprenticeship at Chisholm TAFE for Building and Construction. You have worked for Patrick Walker since 2019 on a when needed basis. Mr Walker provided a reference, confirming that you had worked for him and describing your positive contributions. In 2021 you worked for 12 months for Landtrak, earth moving and machine operating. Your drug use caused you to lose this job after returning a positive sample on a random drug test in August 2021.
30At the time of your offending you were unemployed, had been excluded from the family home and were using methamphetamine daily.
31In terms of your background, Mr Giuliano, I accept that it was one marked by significant disadvantage and trauma through your exposure to family violence and emotional and physical abuse dynamics. You were exposed to significant upheaval and instability arising as a result of your father’s offending and it has had a persisting and pervasive impact. As your mother states in her letter, the effect of this on the family 'was catastrophic, we lost our home, family and community and it followed us everywhere…Noah witnessed the impact and effect it had on all of us. He suffered a lot of trauma being witness to his siblings' mental health struggles which included multiple suicide attempts over time.'
32Correspondence of the Royal Children’s Hospital of 19 December 2013 also notes in respect of you:
'This 11 year old student … was referred because of aggression, verbally and physically, primarily in the home environment, associated with a history of a major depressive episode in the context of parent-child relationship difficulties and a marked family history of violence and emotional and physical abuse dynamics.'
33I accept your counsel, Ms Dempsey's submission, invoking the principles of Bugmy’s case, that the effects of childhood deprivation do not diminish with the passage of time and that it is relevant in a general sense to an assessment of your moral culpability.[3]
[3] Bugmy v The Queen [2013] HCA 37.
Cognitive functioning and mental health
34As already noted, you were previously diagnosed with a mild intellectual disability, learning difficulties and ADHD, and that is confirmed in the Whitney Johnson report.
35In March 2022 you were re-assessed by clinical neuropsychologist and your full‑scale IQ was placed between 71-81 which is in the borderline range. You therefore do not have an intellectual disability but you still present with relevant cognitive difficulties, including impaired ability to engage in complex information processing and genuine limitations in your capacity for conceptual thinking. Neuropsychologist, Amy Dluzniak, also noted with respect to behavioural elements of executive function, that there was some evidence of impulsive responding and hyperactivity. You demonstrated difficulties with higher level complex attention, mild impulsivity and hyperactivity. She considers that you continue to meet the diagnosis of ADHD, combined type. You continue to report significant day-to-day difficulties with hyperactivity behaviour, impulsivity attention, which were evident during her assessment.
36Ms Dempsey on your behalf submits, and I accept, that due to your cognitive deficits the need for general deterrence should be sensibly moderated as you are not an appropriate medium.
37In terms of your mental health, at the age of 11 you were referred to the Royal Children’s Hospital and assessed in the Child Psychiatric Unit in 2014. At the time you were diagnosed with mild ADHD. Your mother reported having witnessed a history of major depressive episodes and difficulties in managing your depression. Following this referral you were case managed by the Alfred Children and Young Mental Health Service Youth Outreach Team for several years.
38You have had previous episodes of suicide ideation and attempts from a very young age. Most recently in July 2022 you were engaged with Alfred Child & Youth Mental Health Services after experiencing feeling suicidal.
39When you were assessed by clinical psychologist, Ms Lechner, in September 2022 you presented with a range of symptoms of depression at a clinical level. She considered that you presented with Major Depressive Disorder and that this was a factor that contributed to poor judgement and decision making as well as poor impulse inhibition. This is consistent with the assessment of Ms Dluzniak.
40I accept Ms Lechner’s assessment of you as a vulnerable young person with complex issues and fragile mental health. She states, 'There are multiple factors that potentially impact on, and inhibit' your rate of development, this rendering you to have a substantially diminished ability to regulate your behaviour in comparison to same-age peers. These include your history of neurocognitive compromise from infancy, your ability to evaluate the risks involved in the behaviour leading up to your offending, including your capacity to evaluate the potential consequences, appears impaired when compared with age cohorts.
41Further, Ms Lechner opines that:
'in light of [your] depressed mood and psychological immaturity, [you are] likely to find it extremely difficult to cope with the rigours of a prison environment … and may become a suicide risk.'
42In terms of Verdins principles, your counsel submits that all six limbs were enlivened. On the evidence before me, I accept that there should be some reduction of your moral culpability. Your poor mental health and limited cognitive abilities contributed to poor judgement and decision making as well as poor impulse inhibition but I note that you were also abusing the drug ice at the time, which no doubt would have further compromised your functioning. I accept that your conditions may have a bearing on the kind of sentence that is to be imposed and that general and specific deterrence should be moderated, to an extent. I also accept that prison would weigh more heavily on you and that there is a serious risk of it having a significant adverse effect on your mental health[4].
[4] Verdins [2007] VSCA 62
Section 5(2)(H)
43As I have already noted, carjacking is a 'Category 2' offence. The court must impose a custodial order unless an exemption applies. On your behalf it was submitted that on the balance of probabilities:
(a) At the time of committing the offence you had impaired mental functioning, being your long-standing depression exacerbated by the death of your friend and loss of employment. This was causally linked to the offending in that it contributed to your poor judgment and decision making as well as poor impulse inhibition at the time of committing the offences - s5(2)(H)(i).
(b) Further, you currently suffer from an impaired mental functioning that will result in you being subject to substantially and materially greater than the ordinary burden of imprisonment - s5(2)(H)(ii).
(c) Also, it was submitted there are substantial and compelling circumstances that are exceptional and rare that justify not making an order of imprisonment - s5(2)(H).
44Both prosecution and defence accept that in your case the exception under s5(2)(H)(e) is enlivened, based on a combination of circumstances, including:
a) Your youth;
b) Your background of disadvantage and trauma;
c) Your lack of prior criminal history;
d) Your poor mental health and cognitive limitations and resulting vulnerabilities.
45In determining whether there are substantial and compelling reasons, I have taken into account the relevant considerations as outlined in s5(2)(HC)(a) through to (c). I have also had regard to s5(2)(i) and Parliament's intention. I accept that the factors relied upon combine powerfully in your case and that they constitute substantial and compelling circumstances. I also find that in combination they are 'exceptional and rare' and justify not making an order of imprisonment.[5]
[5] DPP v Lombardo [2022] VSCA 204.
46For completeness, I indicate that I do accept, on further reflection, that s5(2)(H)(c)(i) and (ii) apply – that is, I am satisfied on balance that your impaired mental functioning was causally related to the offending and that it would result in you being subjected to a greater burden of imprisonment, as provided for in the sections. The reports provide support for these findings, as I have already canvassed in my reasons. Given my findings, however, in respect of s5(2)(H)(e), I will not canvass this in any further detail.
Prospects of rehabilitation
47In my assessment of your prospects of rehabilitation, Mr Giuliano, I take into account that you are young, that you have no prior criminal history, that you have family support, stable accommodation and employment. In all the circumstances and viewed against your background of considerable hardship, I accept that you are resilient and capable and that you have good prospects of rehabilitation.
48Since your offending you have made positive efforts towards your rehabilitation. In 2022 you worked as a machine operator for six months for JB Recruitment. In early 2023 you were employed as a labourer through labour hire company Fast Labour. Currently you are employed to operate earth movers through Eire Work Solutions.
49Throughout your adolescence you also played AFL at Chelsea Seagulls and in 2023 you joined a Keysborough group and have played a few games.
50You also presently live with your mother and stepfather in Hampton East and you are in a positive and motivating relationship. Your stepfather's letter describes you as 'decent' and 'hardworking' with a 'strong family network.' Your brother, Riley, also refers to the positive changes you have made. He states, 'I have seen Noah has found a new path, a positive path with an eagerness for change, a change in not just work ethics but core beliefs and character traits.'
51It is important that you maintain your commitment to being drug free. Your mother states that you now acknowledge the effects of your drug use and that you have taken steps to stop using. Ms Dluzniak considers that there is potential for your weaknesses in your executive functions to improve. She recommends further treatment for your ADHD. She strongly advises you to abstain from drug use to 'maximise [your] cognitive development over [your] early 20s'. She offers further recommendations as to how best to support you in treatment. I consider ongoing treatment for your mental health and drug abuse issues will assist you generally and it will also assist you in further developing your insights and victim empathy.
Parity
52The parity principle is relevant in your case, as discussed at the hearing. Your co accused, Mr Tantrum, was sentenced on 22 August 2023 to a total effective sentence of six years' imprisonment with a non-parole period of three years and nine months. I accept that there are significant differences between your circumstances and those of your co-accused, justifying a disparity in outcomes. As the higher courts have stated, equal justice requires identity of outcomes in cases that are relatively identical. It requires different outcomes in cases that are different in some relevant respect. Your co-accused was 10 years older than you, had a significant prior criminal history, entered a plea of guilty to other serious charges, carrying mandatory sentencing provisions, and did not have the same mitigatory factors that you are able to call upon in mitigation. Therefore, the disparity in the sentence that I am about to impose can be explained by the important differences that I have just referred to and that are canvassed in greater detail in my reasons.
Sentencing principles
53The basic purpose for which a court may impose a sentence are punishment, general, specific deterrence, rehabilitation and protection of the community. As I have already stated, I regard your youth as an important consideration in the instinctive synthesis and rehabilitation as a primary sentencing purpose. And I have also taken into account obviously the findings I have already made as to your mental health and cognitive limitations in the application of these principles.
54I take into account the sentencing guidelines referred to in s5 where relevant to your case. I have also had regard to the current sentencing practices for the offences to which you have pleaded guilty. Of course, each case turns on its own particular facts. The sentence I impose must reflect the gravity of your offending and also the mitigating factors advanced on your behalf.
55In your case, both parties submit that a community corrections order is capable of reflecting the various sentencing objectives. As your counsel submits, a Community Corrections Order can be used to rehabilitate and to punish, it can give weight to denunciation, deterrence and promote a young offender's rehabilitation.
56Taking into account all of the circumstances in your case and the principles of parsimony, proportionality and totality, I am satisfied that a disposition, other than imprisonment, is capable of adequately addressing each of the sentencing principles and purposes that arise in your case.
57I had you assessed for a community corrections order, you were assessed as suitable. The MHARS report assesses you as having a 'moderate mental health impairment' and recommends psychiatric review. The Community Corrections Order report assesses you as suitable with a number of conditions.
58Mr Giuliano, if I could ask you to stand now please.
Sentence
59Weighing up all of those factors that I have referred to, on all charges you are convicted and sentenced to a community corrections order of two years with the following conditions:
(a) Supervision;
(b) Treatment and assessment for mental health;
(c) Treatment and assessment for drug and alcohol;
60And I am imposing a work condition and I am imposing that you complete 100 hours of work. I am offsetting 80 hours of work against treatment. I am doing that because of all of the relevant factors in your case.
61So 80 hours that you do towards treatment, working on your drug issues that do need to be addressed and mental health issues, will be taken off the work hours. Do you understand?
62OFFENDER: Yes, Your Honour.
63HER HONOUR: Now there are core conditions also that apply to any community corrections order and they will be clear in the document that is going to be printed out in a moment, and I will ask Ms Dempsey to just go through those with you. You will sign that document and by signing it you indicate that you are consenting to the order. Do you understand?
64OFFENDER: Yes.
65HER HONOUR: And are you prepared to consent to the order?
66OFFENDER: Yes.
67HER HONOUR: A s6AAA declaration is difficult, I must say in your case, but on the basis that the exceptions are enlivened, if you had not entered a plea of guilty I can indicate that I would have required you to serve an immediate term and I would approximate that would have been in the order of some 10 months, combined with a community corrections order.
68So by pleading guilty and taking responsibility for what you have done you have saved yourself prison time.
69Pursuant to s89(4) I am required - it is mandatory that I interfere with your licence. I was told today that you do not have a licence and will not have one until 4 July 2024 in any event. Totality considerations are relevant here, along with considerations that concern your youth and my assessment of your prospects of rehabilitation, and my assessment that a licence will probably further enhance those prospects. So what I am proposing to do is I will suspend you from driving and I will do so for a period of three months, and that is going to commence as of today. You can take a seat, thanks.
70Counsel, is there anything further that is required of me in terms of – just remind me, Mr Sheppard, any ancillary orders or anything of that nature?
71MR SHEPPARD: No ancillary orders.
72HER HONOUR: Counsel, thank you for your assistance, we will adjourn.
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