Director of Public Prosecutions v Guariglia

[2019] VCC 837

IN THE COUNTY COURT OF VICTORIA  Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-01224

DIRECTOR OF PUBLIC PROSECUTIONS

v

GEOFFREY GUARIGLIA

---

JUDGE:	HER HONOUR JUDGE HANNAN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	6 June 2019
CASE MAY BE CITED AS:	DPP v Guariglia
MEDIUM NEUTRAL CITATION:	[2019] VCC 837

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr. P. Teo	Office of Public Prosecutions
For the Accused	Ms. D. Price

HER HONOUR:

1Geoffrey Guariglia, you have been found guilty by a jury of one charge of aggravated burglary.  The maximum penalty for that offence is 25 years' imprisonment.  Further, you have been found guilty by a jury of one charge of common law assault.  The maximum penalty for that offence is five years' imprisonment.  Finally, you were found guilty of one charge of theft.  The maximum penalty for that offence is 10 years' imprisonment.

2The facts which found your offending are as follows; you and the victim were known to each other over a period of weeks prior to your offending in the context of you both being involved in illicit drugs and the handling of stolen goods.

3On 17 March 2016, there was discussion between you in relation to a car you wished the victim to steal for you in exchange for drugs.  He, it seems refused, and it was as a result of this refusal that you became angry and threatened to come to his house. 

4At 6.15 pm that evening, the victim was home alone.  He heard the exterior gate close and went to the front door to see what was happening. 

5He observed a male on the front lawn with a hammer and then observed you approaching his front door from the side holding a long object wrapped in a garbage bag.  He, at that time, believed it was a firearm. 

6He recognised you as 'Geoff' and said he ‘thought that you would turn up that day.’  His evidence was that he at no time invited you or your co-offender into the premises and you had no permission to enter. 

7Despite that, you and your co-offender entered the premises and instructed the victim to get on the ground.  You were, at that time, pointing the black bag at the victim like it was a rifle.  He hit the plastic bag to get it out of his face, and in the process cut his hand.  It was at that time he realised that the bag did not contain a firearm, but some kind of sharp object.  It was the victim's evidence that when the black bag was in his face, he was scared he was going to be shot.  As a result, he at all times, refused to get on the ground. 

8At some point, he took the opportunity to run out the back laundry door of the premises.  After scaling two fences, he attended at the home of a neighbour where he sought assistance.  The neighbour called 000 and police attended. 

9On re-entering his premises, the victim noted that his Hisense 50 inch TV had been stolen as well as a Lenovo laptop still in its box, together with a car stereo and speakers. 

10Any offence of this nature is serious as it relates to the charge of aggravated burglary in particular, as is demonstrated by the maximum penalty imposed by Parliament.  We all have a right to live in our community without being subjected to this type of conduct.  It must be clear that condign punishment will result in appropriate circumstances.  This offence was committed in circumstances which were undoubtedly very frightening for the victim. 

11I received a victim impact statement in relation to the matter.  I have taken it into account to the extent that it is relevant and admissible for my purposes in sentencing.  In my view, there has been a clear psychological sequel which again is unsurprising and I accept that this incident has significantly impacted upon the victim.

12You have admitted the contents of a criminal record.  You have a long history before the criminal courts commencing in 1991.  You have a substantial history of dishonesty between 1991 and 1993.  You also have a history of drug offending during that period and you were sentenced to numerous terms of imprisonment.

13You appeared before the criminal courts in 1998, in relation to drug trafficking, assaulting police and wilful damage.  You were convicted and sentenced to be imprisoned for four months. 

14On 6 December 1999 you were convicted of two charges of culpable driving.  You were sentenced to be imprisoned for a total of nine years with a non-parole period of five years and three months.  What is clear is that you have spent the majority of the last 15 years in custody. 

15In 2006, you were again imprisoned for matters of dishonesty and drug-offending. In 2007, you were imprisoned for five months' on charges of recklessly causing serious injury.  That matter was a result of you assaulting another inmate in custody. 

16In 2010, you were again imprisoned for matters of dishonesty.  Your most recent prior convictions for my purposes were in 2016 for possession of controlled weapons and cannabis, in relation to which you were fined.  There are, however, also subsequent matters that I have been made aware of.  While they are not prior matters, they inform what is required in terms of rehabilitation.  I note in particular there was a prison assault which resulted in you being sentenced to a term of imprisonment. 

17You are now aged 47.  You are the youngest child of a sibship of four.  You report a positive home life with two hard-working parents who strived to give their children the best they could.  None of your family have had any involvement in the criminal justice system. 

18You had difficulties at school which included disciplinary issues.  Your parents sent you to boarding school where you were tragically the victim of sexual abuse, resulting in you running away on numerous occasions and returning home, only to be sent back again.  It was thought at that time that you had simply become uncontrollable.  You did not disclose the abuse, as is common, at that time, and you were made a ward of the State aged 12.  You remained in residential care until you were transferred to a Youth Training Centre at 14. 

19At 16 you moved to the Gold Coast where you remained for about five years, engaging in manual labour including spray painting.  You returned to Melbourne to reside with your family and you have continued to reside with them since your early 20s when you were not in custody. 

20You suffered multiple injuries as a result of the incident which founded the charges of culpable driving.  However, I do not accept the injuries were as reported by you.  I accept the contents of Mr Jackson's report in this regard, noting that he obtained relevant medical records.  You report that it was only in hospital that you learned you had killed the two pedestrians in Essendon and you report feeling suicidal as a result of what you had done. 

21It was not clear if there were residual effects of this incident or combined drug use and cognition issues.  It was for this reason that I adjourned the matter so your lawyers could obtain a neuro-psychological report which I shall turn to in due course.

22After your release from custody in about 2015, there was a period of stability when you met a woman named Sonia and commenced a relationship with her.  She encouraged you to complete a construction course and she assisted you in finding employment at the Bulla Quarry.  You worked there full-time and it appeared at that stage that rehabilitation had commenced.  You were indeed still working there at the date of this offending but by this stage it seems, you were using ice which was the context in which you met the victim.  Your life was spiralling. 

23Since your return to custody, you are visited by your mother, father and partner and you plan to reside with your parents upon your release.  I note that they attended court upon your trial and plea in support of you. 

24You have now been in management in custody for the last 15 months as a result at least in part, of an attack upon another prisoner who you said you had been told was going to attack you.  As I have already noted, that matter resulted in a further term of imprisonment and while I accept your conditions are more onerous than those of the average prisoner, the reality is your circumstances are of your own making and must be viewed through that prism. 

25That said, I note in more recent times that you have completed some education, two certificates were tendered this morning, and it is to be hoped, perhaps, that there may be some review of your circumstances in the near-future.

26As regards your substance abuse history, you report smoking marijuana, aged 11 or 12.  By your mid-teens, you were addicted to heroin which has been your life-long issue.  The only times you have been able to achieve abstinence has been during periods of custody and at times, at least briefly in the community with the support of Sonia.

27In 2016 and prior to this offending, as I have noted, you had commenced using ice.  The spiral was predictable.  You have experienced a number of overdose incidents which have required medical intervention.

28I received a report from Dr Aaron Cunningham, dated 21 March 2019.  He says you presented with significant impairment of verbal reasoning in the lowest one per cent.  He opines that there is a strong indication of an intellectual disability and he recommended assessment by Disability Services. 

29Dr Cunningham says that you meet the criteria for PTSD in relation to your past traumas, including sexual abuse, your culpable driving matter and violence you have witnessed in custody.

30Dr Cunningham opines that your functioning increased your vulnerability and susceptibility to negative peer influence.  He says your time in custody has perpetuated your behaviour deficits and your intellectual impairments had not been assessed.

31On a positive note, Dr Cunningham says the gains you made during your last period in the community were, in his view, significant.

32I received a neuro-psychological report from Mr Martin Jackson dated 23 May this year.  Mr Jackson opines that you have a full scale IQ at 67, in the extremely low range but Mr Jackson opines that you do not have an intellectual disability, given that there is no clear evidence of major impairments in your adaptive behaviour.  He does, however say that your performance on tests of new learning, memory, and high-level attention potentially suggest an ABI which he says may be related to a hypoxic brain injury from the overdose of heroin, however he also noted that the overdose incidents, as reported, were not serious and there was no real support for this in the medical records. 

33Mr Jackson expressed some surprise that Dr Cunningham had not diagnosed a borderline personality disorder.  In his view, your presentation was an almost classic borderline personality disorder.  He recommended further psychological assessment in relation to this issue. 

34Mr Jackson says that from a neuro-psychological perspective, you have a cognitive profile which would almost certainly be associated with an increased risk of reoffending and that you cannot really see a different way of doing things unless you are shown.  He also notes your drug use in the context of this assessment. 

35Mr Jackson opines that it is likely that the combination of personality disorder, neuro-psychological impairment to the areas of executive functioning, including impulse control and substance abuse, all contributed to your offending behaviours.  He says this is in the context of a probable borderline personality disorder and substance abuse.  He says you have little capacity to manage your behaviours in the community and that you will require what he described as on-going strong supports.  While the picture perhaps looks bleak, the community must, in my view, still pursue your rehabilitation and I am sentencing you on that basis. 

36I note that in custody you are a billet and peer-educator and assist other prisoners with issues including risk of self-harm.  You told Mr Jackson that you have been prescribed Seroquel as a result of what you described as slashing-up, but that medication was ceased a few months ago.

37It is relevant that your family and partner remain supportive of you, which is positive in terms of your rehabilitation.  Your prospects however, would have to be described as guarded at best, based upon factors including Mr Jackson's assessment in this regard.  That is, unless meaningful changes can be achieved.  In the absence of such change, in my view, it is likely that you will remain in the revolving door of custody in the foreseeable future. 

38Totality must, in my view, be given weight in the sentence I will impose this day.  You have now been in custody 693 days of which 300 days are relevant as PSD in relation to this matter.

39As well as matters personal to you, I must have regard to relevant sentencing considerations.  I am not satisfied that there has been a significant causal connection established such as to engage the principles as enunciated in Verdins.  I do however think that it is clear that your deficits impact upon your ability to engage meaningfully in rehabilitation and this has had a role in your ongoing offending. 

40It is not as simple as to say that specific deterrence has not worked, but I think it is clear that, from your point of view, there needs to be targeted ways that you are supported when you are eventually released into the community.  You must be given some real prospect of breaking the cycle which is in the community's best interests and I think the Parole Board have a significant role to play in that regard.

41General deterrence must necessarily be given significant weight in matters such as this, as the type of offending has very real consequences for members of our community.  We all have a right to the safety and sanctuary of our homes, a right which you significantly compromised.  As I have said, the message must be clear and consistent, that appropriate punishment will result in such circumstances. 

42In your case, I think specific deterrence must also be given weight, having regard to your criminal history.  Your sentence must manifest the community's denunciation of your conduct and impose just punishment. 

43You are convicted and sentenced as follows;

44Charge 1, aggravated burglary, convicted and sentenced to be imprisoned for three years.

45Charge 2, common law assault, convicted and sentenced to be imprisoned 12 months.

46Charge 3, theft, convicted, sentenced to be imprisoned 12 months.

47I order that six months' of sentence upon Charge 2 and six months of the sentence upon Charge 3 be served cumulatively with the sentence upon Charge 1 and upon each other, making a total effective sentence of four years. 

48I direct that you serve two years and eight months before becoming eligible for parole. 

49I direct that 300 days be reckoned as served.  I make the disposal order in terms of the draft to which you have consented. 

50Thank you counsel, is there anything arising?

51MR TEO:  No, Your Honour.

52MS PRICE:  No, Your Honour, may it please the court.

53HER HONOUR:  Thank you very much.  Mr Guariglia can be taken downstairs.  Thank you. 

‑ ‑ ‑