Director of Public Prosecutions v Lociuro
[2024] VCC 1313
•26 August 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-01379
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANGELO LOCIURO |
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JUDGE: | Kelly | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 June 2024 | |
DATE OF SENTENCE: | 26 August 2024 | |
CASE MAY BE CITED AS: | DPP v Lociuro | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1313 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Intentionally Cause Serious Injury – Unprovoked Attack – Random Victim – Significant Injuries – Medical Intervention – Alcohol Dependency – mid-to-high range of seriousness – remorse – restitution – fair prospects of rehabilitation – Verdins limbs 1, 5 and 6 – Worboyes – Deterrence – Denunciation.
Legislation Cited: Crimes Act 1958; Sentencing Act 1991
Cases Cited:R v Verdins (2007) 6 VR 269; Worboyes v The Queen (2021) 96 MVR 344.
Sentence: 5 Years Imprisonment; 3 Years Non-Parole Period.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms N. Grunwald | Office of Public Prosecutions |
| For the Accused | Ms N. Giorgianni | Non Stop Legal |
HIS HONOUR:
Introduction
1Angelo Lociuro, you have pleaded guilty to one charge of intentionally cause serious injury, the maximum penalty for which is 20 years imprisonment.[1] This offence is also a category 2 offence within the definition in the Sentencing Act, and therefore a term of imprisonment is required to be imposed unless a s 5(2H) exception is enlivened.
[1] Contrary to s 16 Crimes Act 1958.
Circumstances of offending
2Your offending was summarised by the Prosecution at your plea.
3On the 5th of March 2023, your victim Ms Jia Liu was working as a masseuse at a parlour on Bourke Street in Melbourne. At approximately 2:30 pm you attended the parlour and paid for a massage.
4At the conclusion of your one-hour massage you demanded either a refund or that the massage continue. You became enraged at Ms Liu when she refused both demands. She felt threatened.
5Ms Liu then left the massage room to call a colleague for help. Shortly afterwards you left the room, naked, and confronted her. You then returned to the massage room and re-emerged shortly after having dressed yourself.
6You came to the reception area where Ms Liu was hiding from you, grabbed her hair, punched her to the face and dragged her violently to the floor. You punched and kicked her whilst holding her hair. Ms Liu tried to kick out at you to defend herself and managed to grab the black face mask from your face.
7You smashed her head through a wall and slammed her body to the ground. She lay helpless on the floor, unable to defend herself.
8You were wearing steel toe-capped boots. You kicked Ms Liu to the face with such force that her body was jolted backwards off the ground into the desk behind her.
9You fled the store out into Bourke Street. As you left, a colleague of Ms Liu’s came to the store, found Ms Liu distressed and bleeding and called 000.
10Ms Liu was conveyed to St Vincent’s Hospital where she was treated for a number of injuries. Most seriously is the damage to her left eye, caused by your kick to her face when she was defenceless on the floor.
11A statement provided by Forensic physician Dr Jason Schreiber outlined Ms Liu’s injuries as follows:
(a) Multiple areas of damage to the left eye including subconjunctival haemorrhage, corneal abrasion, hyphaema, left commotio retinae and a subretinal haemorrhage;
(b) A complex (displaced) left inner eye socket fracture;
(c) It was noted that it requires significant force to cause a fracture to the left orbit;
(d) An extraocular muscle was herniated, carrying the risk of temporarily or permanently impaired left eye movement;
12It was noted that there could be serious complications during the recovery and the potential for long term effects such as permanent vision impairment.
13On the 10th of January 2024, Dr Braden Meiklejohn provided updates in relation to Ms Liu’s injuries. He wrote that she continues to have impaired vision, her left eye had been impaired for nine months. Ms Liu required three separate surgeries, none of which were successful in closing the cyclodialysis cleft which had occurred from the blunt trauma you had inflicted upon her. He opined that there is poor prognosis for full vision recovery though there may be some recovery with future surgeries.
14You were arrested on the 8th of March and transported to the Melbourne West police station. You were interviewed by police and made admissions to the offending. You told police you had been significantly intoxicated.
Victim Impact Statement
15Ms Liu provided a Victim Impact Statement to the court. In it, she explained that she had been left physically and emotionally shattered by your attack. She said that every day feels like a daunting challenge and fear continues to grip her, knowing she escaped something that could have been worse. She says she struggles to find a sense of normalcy and she is occasionally consumed by anger and sadness. Despite this, she said she hoped for you to change and find redemption. She said she hoped you could see the pain you caused and make a commitment to never let it happen again.
Personal Circumstances
16Your personal circumstances were summarised in the report of Mr Ian Mackinnon dated 6 June 2023.
17You were born to Italian parents. You are the younger of two siblings.
18Your mother became mentally unwell and was hospitalised when you were young. When you were five years old, you and your sister were placed in a children’s home for two and a half years. This forced separation from your family was traumatic for you.
19You attended St Ambrose Primary School and Brunswick East High School, completing year 11. You had a passion for science and achieved reasonable grades in most of your subjects.
20You commenced working for your uncle at the age of 17. You have maintained steady employment as a labourer and truck driver for most of your adult life.
21You told Mr Mackinnon that you remained close to both parents. Your father died of cancer in 2001 and your mum of dementia in 2018. You reported that your drinking became a problem following the death of your father. As a result, you have alienated close friends and family. You describe watching your father deteriorate. You remained by his side until he passed away. You have apparently been attending alcoholics anonymous since your offending. You have ceased engaging in any other AOD treatments.
22You have had a few desultory relationships, but you have never married and you do not have any children.
Gravity of Offending & Moral Culpability
23Ms Giorgianni submitted on your behalf that your offending ought to be classed as mid-level, noting that it was brief and unplanned.
24It was, of course, vicious and devastating to Ms Liu. There is a marked disparity in size and build between the two of you. She was defenceless against you and working alone. You rushed at her, grabbed a fistful of her hair and struck her repeatedly to the face. Your blows were delivered at close quarters and were full-blooded. They hit their target. You aimed for her face. Their effect was rendered nastier by the fact that she was incapable of bracing herself or evading you because you held her head with your left hand and struck it with your right. When she fell to the floor you continued to strike her face. You kicked her twice when she was on her back. The second kick left her immobile on the floor. You turned your back and left her there.
25Ms Liu suffered considerably due to your attack and through the three surgical procedures she underwent to repair the damage you caused. Despite them, she has been left with permanently reduced vision in her left eye.
26You trained in kick boxing in your late teens and practiced that sport until 2020. You would have known from that training how to inflict damage on an opponent. You targeted Ms Liu’s face and you kicked her in the eye. You were steady on your feet and you worked with purpose.
27Ms Giorgianni submitted that you were heavily intoxicated. She acknowledged that your self-induced intoxication is not mitigatory. As noted, the CCTV footage does not disclose any impaired physical functioning on your part.
28The objective gravity of your offending is in the mid to upper-mid range.
Remorse
29It was submitted that you have shown remorse in your interview with Mr Mackinnon and through a letter addressed to the court.
30You told Mr MacKinnon during your interview that:
“I wish I could turn back the clock. I feel bad for the girl, she didn’t deserve it. And I feel sad for me, because it reflects the state of my mind.”[2]
[2] Report of Mr Ian MacKinnon dated 6 June 2023, 7 [77] (‘MacKinnon Report’).
31Mr Mackinnon writes that you are genuinely remorseful and ashamed of your offending.[3]
[3] Ibid, 8 [91].
32I also read the letter you addressed to me. In it, you express regret for your behaviour and exhibit some insight into what it must have felt like for Ms Liu to experience the ordeal to which she was subjected. You also demonstrate some insight into the causes of your offending and what you need to do to ensure you never reoffend. You plead with me to postpone your sentence so you can raise $20,000.00 to compensate Ms Liu. I did as you asked. You have raised $5,500.00.
33I accept that this demonstrates your willingness to take some responsibility for your actions. That said, there was a self-serving and wheedling tone to your letter which struck a discordant note. I note you have not reached out to Ms Liu to apologise to her by, for instance, providing a letter to the Informant through your solicitors.
34I was also provided with a letter from you this morning. You seek to have your sentence postponed for six months so you can raise more money. That is not going to happen, obviously.
Prospects of Rehabilitation
35You have maintained steady employment for most of your life. You have a minor and irrelevant criminal history. Mr Mackinnon writes that you do not have an inherently anti-social or criminal character and that you do not pose a high risk of further offending.[4] These pro-social and protective factors augur well for your rehabilitation.
[4] Ibid 6 [74].
36Your AOD counsellor Ms Gala Alvarado writes that your attendance and engagement with addiction therapy between the 28th of August and 18th of December last year was positive.
37However, Mr Mackinnon’s supplementary report notes that you told him you continue to drink, although at a low level.[5] You also informed him that you ceased engaging with your counsellor and at the time of the report were not undergoing any form of treatment.[6] This withdrawal from engagement is concerning. You remain a high risk of recidivist alcohol abuse. Your alcohol abuse is linked to this violent offending.[7] If you continue to drink you continue to pose a threat of repeat offending. You have not stopped.
[5] Supplementary Report of Mr Ian MacKinnon dated 11 April 2024, 1-2 [6], [14] (‘Supplementary Report’).
[6] Ibid [16].
[7] Mackinnon Report (n 2) 7 [75].
38Your prospects of rehabilitation need to be assessed in this light. Mr MacKinnon believes that you are at risk of falling back into heavy levels of alcohol abuse inclusive of blackouts. He notes that spontaneous offending is then a possibility again.
39He writes that if you are to have any realistic hope of making enduring rehabilitative progress, you should either “construct” a comprehensive treatment and support regime inclusive of individual counselling, AA meetings and possibly pharmacotherapy such as Antabuse or you should seek a residential rehabilitation program for an extended period.[8] Instead, you have disengaged from Uniting and you have resumed drinking.
[8] Supplementary Report (n 5) 2 [17].
40Your prospects of rehabilitation are fair.
Verdins
41It was submitted by Ms Giorgianni that your mental health diagnoses enliven the principles in Verdins,[9] namely that imprisonment would be particularly burdensome for you. I accept that your disorder means that your depression and anxiety will be elevated to “unmanageable levels”,[10] thus making prison more burdensome for you than a prisoner without these conditions. I have moderated your sentence acknowledging the operation of limbs 5 and 6 of Verdins. So much so was conceded by the Prosecution at your plea.
[9] R v Verdins (2007) 6 VR 269 (‘Verdins’).
[10] Mackinnon Report (n 2) 9 [94].
42Although it was not raised at your plea, there appears to be sufficient evidence to also enliven limb 1 of Verdins such that your moral culpability is reduced.
43In his June 2023 Report, Mr Mackinnon stated that:[11]
In my opinion, at the time of the offences, Mr Ibrahim [sic] was suffering with the following major diagnosable psychological disorder[s]:
i. MIXED DEPRESSIVE & ANXIETY DISORDER (MDAD) [WHO ICD-11 6A73
ii. SUBSTANCE ABUSE DISORDER (SAD) [WHO ICD-11 6C4Z].
[11] Ibid 7 [80]-[81].
In my opinion, Mr Locuiro’s MDAD and SAD made significant contributions to his offending by degrading his ability to reason and make sound judgement, lowering his ability to apply consequential thinking, lowering his frustration tolerance levels, making him more impulsive, confusing him and distorting his perception of events and diminish his awareness of his moral and community responsibilities.
44Your mental impairments appear to have been operative at the time of your offending such that your moral culpability for this offending is slightly reduced.
45Mr MacKinnon writes that you are likely to have been suffering from anxiety and depression since childhood due to your placement in institutional care. He observed that you suffer from an intense fear of abandonment and that you “self-medicate” with alcohol to deal with your chronic distress. You describe instances of intoxication where you have passed out on roads and streets. Your drinking worsened sharply during the pandemic when you lost your job. I have been provided with a bundle of discharge summaries relating to hospital admissions for injuries suffered when “blackout” drunk.
46The extent to which your moral culpability is reduced needs to be tempered by the role played in your offending by your self-induced intoxication. There is of course considerable interplay between your intoxication and your Substance Abuse Disorder. I note your account of the offending to Mr Mackinnon:
Mr Lociuro reported to me that his memory for the offences was poor and fragmented. However, he believed that, prior to committing the offences, he had been drinking at home and consumed the equivalent of three standard bottles of wine. Mr Lociuro could not recall undressing himself or assailing Ms Liu.
In this context, it appears that Mr Lociuro was heavily intoxicated at the time of the offences.[12]
[12] Ibid 7 [82]-[83].
47Your self-induced intoxication, as noted elsewhere, is not mitigatory. The presence of your condition, however, is. You are entitled to some, slight reduction in moral culpability reflecting the engagement of limb 1 of Verdins.
Guilty Plea
48You pleaded guilty following a sentence indication and you have spared your victim the ordeal of giving evidence. You are entitled to a reduction in of your sentence to reflect the utility and administrative saving of your guilty plea.
49Although the sun has almost set on it, I am prepared to give you a slight Worboyes discount.[13]
[13] Worboyes v The Queen (2021) 96 MVR 344.
Sentencing Principles
50Section 5 of the Sentencing Act 1991 provides that the only purposes for which you may be sentenced are:
(a) To punish you in a manner and to an extent which is just in all of the circumstances;
(b) To deter you or others from committing similar offences in future;
(c) To facilitate rehabilitation;
(d) To manifest the denunciation of your conduct;
(e) To protect the community; or
(f) A combination of two or more of these purposes.
51Ms Grunwald on behalf of the Crown submitted that a custodial sentence ought to be imposed that begins on the day of sentence.
52Ms Giorgianni conceded that a term of imprisonment with a non-parole period was within range. She did not seek to argue that any exceptions were enlivened under s 5(2H).
53Brutal and cowardly attacks on innocent members of the public must be denounced. The community needs to know, if it doesn’t already, that attacks on vulnerable women working alone which include kicks to a prone victim on the ground will be punished by imprisonment.
54I accept that you are unlikely to commit this kind of offence again, although you continue to drink and that fact coupled with your disengagement from counselling makes you more vulnerable to drinking heavily and reoffending spontaneously when severely intoxicated. Specific deterrence has a limited role to play. Community protection has some work to do, but again, I do not believe that you will pose a grave risk to the community upon your release. It is unusual in my experience to find a man in his fifties committing an offence as savage as this one. There is nothing in your background to suggest you are predisposed to violence, let alone violence against women.
Sentence
55Mr Lociuro please stand.
56On charge 1, Intentional Cause Serious Injury, you are convicted and sentenced to 5 years. I fix a period of 3 years before you are to be considered for parole.
57Pursuant to s 6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty I would have imposed a sentence of 6 years with a non-parole period of 4 years.
58A Compensation Order and a Disposal Order have been sought by the Prosecution. They are unopposed. I order that compensation be paid as sought in the draft order and the items listed in the schedule of the Disposal Order be disposed of.
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