Director of Public Prosecutions v Sharp & Giordmaina

[2023] VCC 1535

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-21-01493
CR-21-01495

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHRISTOPHER SHARP & JUSTIN GIORDMAINA

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JUDGE:	His Honour Judge Wraight
WHERE HELD:	Melbourne
DATE OF HEARING:	4 September 2023
DATE OF SENTENCE:	14 September 2023
CASE MAY BE CITED AS:	DPP v Sharp & Giordmaina
MEDIUM NEUTRAL CITATION:	[2023] VCC 1535

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing.

Catchwords:              Guilty verdict – Common assault – False imprisonment – Rape – Delay – Young with no criminal history at the time of offending – Very good prospects of rehabilitation – COVID-19 pandemic.

Legislation Cited:      Crimes Act 1958 s 38(1); Sentencing Act 1991 ss 18, 27(2B); Sex Offenders Registration Act 2004.

Cases Cited:Cheung v The Queen (2001) CLR 1; R v Better [2003] VSCA 71; DPP v Buhagiar & Heathcote [1998] 4 VR 540.

Sentence:                  Sharp: Imprisonment for a period of 3 years, with 12 months to serve and the remainder suspended for a period of 3 years; Giordmaina: Imprisonment for a period of 6 months, wholly suspended for a period of 2 years.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms J Fallar	Office of the Public Prosecutions
For Sharp	Mr J Fitzgerald Mr B O’Sullivan	Victoria Legal Aid
For Giordmaina	Mr J Kantor	Emma Turnbull Lawyers

HIS HONOUR:

Introduction

1Christopher Sharp and Justin Giordmaina, you have each been found guilty by a majority jury verdict of:

·     one charge of common assault contrary to Common Law which carries a maximum penalty of 5 years imprisonment (Charge 1), and

·     one charge of false imprisonment contrary to Common Law which carries a maximum penalty of 10 years imprisonment (Charge 2).

2Christopher Sharp, you have also been found guilty by a unanimous jury verdict of one charge of rape contrary to s 38(1) of the Crimes Act 1958 which carries a maximum penalty of 25 years imprisonment (Charge 3).

3You each have no prior criminal history as at the time of the offending.

Circumstances of the offending

4

In sentencing you both I am bound by the principles in the case of

Cheung v The Queen.[1]

As such, I must interpret the facts in a way that is consistent with the jury's verdict.

5You were both aged 19 years at the time of the offending.

6The victim in this matter is Tildy Wilde[2]. She was aged 17 at the time of your offending.

[2] A pseudonym

7You, Christopher Sharp, met Ms Wilde in 2009 when she commenced casual employment at your family’s fish and chip shop (‘the Shop’) in Point Cook. You were her manager while she worked at the Shop. Ms Wilde was friendly with you and your family and had attended your home for various functions.

8You, Justin Giordmaina, were introduced to Ms Wilde by Christopher Sharp as a friend.

[1] (2001) 209 CLR 1.

Uncharged acts

9On Sunday 18 July 2010, Ms Wilde was working at the Shop during the day. You, Christopher Sharp, were also on duty. She walked from the front of the Shop to the back area to retrieve an item. As she walked past you, you slapped her buttocks with your flour coated hands. This left a hand print.

10About 10 minutes later, Ms Wilde walked out to the back area and you grabbed her breasts. Again, you had flour on your hands and left a hand print on her clothing. You laughed at this incident.

11Later that evening, at approximately midnight, you sent Ms Wilde a text message from your mobile phone. When she opened the message, she saw a picture of an erect penis.

Offences

12On Monday 19 July 2010, at approximately 2:00 am, you, Christopher Sharp, attended Ms Wilde’s home address. You tooted the car horn and texted her telling her to come outside. She went outside as she did not want her family to wake up due to the noise.

13You, Christopher Sharp, were driving a white van which was parked outside the front of Eagle View Place in Sanctuary Lakes. Ms Wilde observed both you and an unknown third male sitting in the front seats of the van. The passenger door of the van opened and Ms Wilde moved to the door to speak to you, Christopher Sharp.

14You, Justin Giordmaina, and the unknown male grabbed Ms Wilde and pulled her into the van. The unknown male held her hands behind her back while she was held on his lap in the front seat. Both of you punched her to her body. (Charge 1 – Common Assault)

15You, Christopher Sharp, then started the van and drove to a location in Sanctuary Lakes which is a beached area near North Shore Drive.

16The unknown male let go of Ms Wilde and then pushed her out the passenger side door of the van. All three men exited the van and walked around to the back of the van to the sliding door. You, Christopher Sharp, opened the sliding door and told Ms Wilde to get in. You then grabbed her arm and pushed her into the van. The door to the van was then closed.

17You then pulled her leggings and underwear down to her knees. Ms Wilde attempted to pull her leggings back up but you pushed her head down and told her to ‘shut up’.

18You inserted your penis into her vagina while she was facing away from you. This act lasted approximately 15 to 20 minutes. The act caused significant pain and she was crying. (Charge 3 – Rape)

19After you had finished penetrating her, you opened the van door where you, Justin Giordmaina, and the unknown third male were waiting outside. You, Christopher Sharp, left the back of the van.

20Ms Wilde could not recall what you, Justin Giordmaina did next.

21At approximately 4:00 am, Ms Wilde was pushed out of the back of the van onto the ground. She observed a condom on the ground.

22She does not recall how she got home but remembers showering at home at approximately 5.30am. She hid the clothes that she had been wearing at the time in her bedroom.

Complaint

23Ms Wilde attended school that day. She disclosed the offending to two friends, Lottie O’Grady[3] and Declan Steward[4]. Complaints were also made to school counsellors and to Lottie O’Grady’s mother, Siobhan O’Grady[5], each of whom gave evidence at the trial.

[3] A pseudonym

[4] A pseudonym

[5] A pseudonym

24On 19 July 2010, Emma Little[6] notified community police. Senior Constable Vanessa Bate and Leading Senior Constable Craig Edwards attended at Ms Wilde’s school and spoke with Ms Wilde. Ms Wilde stated she did not want to make a formal report.

[6] A pseudonym

25On 20 July 2010, SC Vanessa Bate and LSC Craig Edwards attended the school again. Ms Wilde participated in a ‘disclosure interview’ but then informed LSC Edwards that she did not want to report the matter as she did not want her family to find out and expressed concern as to the consequences of a report.

26On 21 July 2010, Siobhan O’Grady transported Ms Wilde to the Royal Children’s Hospital. She underwent a forensic medical examination by Dr Kim Olinsky.

27At the time of consultation, Ms Wilde stated that she had abdominal and thigh pain, vaginal discomfort and had bled a small amount. Upon examination, Dr Olinsky noted that she was tender in the lower vagina area but she did not observe any objective signs of injury to the ano-genital area.

28On 27 July 2010, Ms Wilde signed a statement of ‘no further police action’. On 29 September 2010, the police investigation was marked finalised due to the wishes expressed by Ms Wilde.

29On 18 July 2019, Ms Wilde was conducting ‘night duties’ at the Geelong Police Station as a police officer. She disclosed to Sergeant Lizzie Benton[7] that she had been sexually and physically assaulted by you, Christopher Sharp, and two of your friends when she was 17 years old.

[7] A pseudonym

30Sergeant Benton notified Detective Senior Sergeant Gary Wilson of the Geelong Sexual Offences and Child-abuse Investigation Team (‘SOCIT’) of the disclosure, who in turn referred the matter to Westgate SOCIT.

31On 26 July 2019, Ms Wilde participated in a disclosure interview with Detective Senior Constable Jenna Sladek and Detective Senior Leemara Fairgrieve. She nominated both of you and an unknown third male as the offenders.

32The police investigation was re-activated. Moorabbin SOCIT advised that the clothing seized from Ms Wilde at the time of the initial complaint had since been destroyed.

33On 22 August 2019, Ms Wilde made a formal statement to investigating police.

Further investigation

34Investigating police compiled a photoboard regarding the third unknown male person. On 10 January 2020, Ms Wilde was unable to identify the third offender from this photoboard.

35Investigating police compiled a different photoboard and on 20 April 2020, Ms Wilde identified you, Justin Giordmaina.

Arrest

36On 15 July 2020, both of you attended at the Werribee Police Station and were arrested. You, Justin Giordmaina, made a ‘no comment’ interview to the allegations and denied having any involvement. You, Christopher Sharp, made ‘no comment’ to the allegations.

Nature and gravity of the offending

37I will turn first to the false imprisonment and common assault charges.

38The circumstances that relate to the false imprisonment charge are that you both, together with a third co-offender, attended at the gate of the housing estate near to the victim’s house at approximately 2:00 am. After tooting your horn and texting the victim, she came to the van in order to avoid her family being awoken. She was then forced into the van against her will. What then followed was an ordeal that would have undoubtedly been a terrifying experience for her.

39Once in the van, the victim was physically assaulted by both of you until the vehicle was parked at the location where the rape was committed by you, Christopher Sharp. In my view, the false imprisonment charge in relation to you, Justin Giordmaina, ended once the victim was pushed into the back of the van by you, Christopher Sharp. The act of pushing the victim into the back of the van and the closing of the door is a continuation of the false imprisonment by you, Christopher Sharp, before the commencement of the conduct the subject of the rape.

40As to the common assault charge, while not at the high end of the scale, in all the circumstances it is still, in my view, serious offending.

41Turning specifically to the rape charge in relation to you, Christopher Sharp. Your defence at trial was that you did not deny that sexual intercourse took place in the back of the van, and rather the complainant was consenting. You gave evidence at your trial and while you denied the false imprisonment and assault charges, your version in relation to the sex largely corroborated the complainant’s version in relation to the general location of where the act took place in the van and the nature of the act as described by the complainant – that is, sexual intercourse from behind. Your version however was that she was an active participant. You said you used a condom and the complainant said she saw a condom on the ground outside the van.

42Ms Fallar, who appeared on behalf of the prosecution at the trial and plea, highlighted the circumstances she submitted should be taken into account in assessing the gravity of your offending: that the victim was young and vulnerable and that you were her employer; that the offending occurred in the middle of the night; that once in the van, that you pulled the victim’s underwear down and kept pushing her down while penetrating her; that the victim felt pain and discomfort,  stating that she felt ‘ripped and torn’; and that during the rape you commented that she should ‘sound like she’s enjoying it’. I accept these matters as relevant in assessing the gravity of your offending.

43In all the circumstances it is self-evident that your conduct can only be described as a relatively serious example of rape.

Victim impact statement

44A victim impact statement was prepared by Ms Wilde which she read at the plea. Ms Wilde describes how this incident has shaped every aspect of her life. She states that she lost her innocence, hope, self-esteem and self-worth, destroying her ability to trust people.

45She details how she kept this incident secret from her friends and family to protect them, which fractured her relationships and caused isolation.

46Ms Wilde also describes the psychological toll your offending has taken on her. She details how your offending has caused her mental health to suffer significantly and how her subsequent diagnoses of depression, anxiety, Complex Post-Traumatic Stress Disorder and Borderline Personality Disorder continue to impact her life. She has since begun a career as a police officer, but this in itself has been a retraumatising process. She states that the ongoing effects of this incident have hindered her career progression and financial position.

47I have taken the content of the victim impact statement into account.

Personal circumstances

Christopher Sharp

48Christopher Sharp, you were born in 1991 and were aged 19 years at the time of your offending. You are now 32 years old.

49You are the youngest of four children. Your father worked as a logistics manager for several large companies and your mother worked as a cook in aged care facilities until she ceased work to undertake domestic duties. During your childhood, your family moved frequently as your parents also built and sold several homes. Your family settled in Point Cook when you were approximately eight years old. You report that you had a happy childhood, playing local football and fixing cars. You had a close relationship with your brothers and father but report that you were not emotionally connected to your mother. Your father died in 2019 after a long battle with cancer and your mother died unexpectedly in 2021.

50You attended three schools in your adolescence before completing your primary education at Point Cook Primary School. You then attended Salesian College until Year 11 and completed Year 12 through a TAFE VCAL program. You obtained certificates in panel beating, spray painting, motor mechanics, auto electrical, first aid and alcohol service. You also obtained your forklift and scaffolding licences. You describe yourself as an ‘average’ student.

51You began working at your parent’s fish and chip shop when you were 13 years old. After completing VCAL, you worked in cabinet making and scaffolding before obtaining your Advanced Certificate in Scaffolding and becoming a field supervisor. You began a scaffolding business with your brother in early 2013 that ultimately failed, reportedly because of your brother’s dishonesty with the finances. The failure of this business strained your relationship with your brother, as well as your mother, who took your brother’s side. You did not speak to your family for six months thereafter.

52You commenced a relationship with your current partner, Ms Kim Iles, when you were 18 years old. Your mother disapproved of this relationship. You lived with Ms Iles and her family when you were 19 years old and began to work in their family business. You formed a strong relationship with her parents, particularly her mother. You reported that she felt more like a mother to you than your own biological mother. In 2012, Ms Iles mother was diagnosed with lung cancer and after her health deteriorated rapidly, she unexpectedly passed away in 2013. You and Ms Iles worked hard to maintain the family business, particularly as Ms Iles’s father struggled with his grief. In 2014, you and Ms Iles separated, and you had a daughter with another woman shortly thereafter. Your daughter has since been diagnosed with Attention Deficit Hyperactivity Disorder, Autism Spectrum Disorder and has a global mental developmental delay and is currently receiving support through the NDIS.

53During this time your mental health also began to decline, and you turned to methamphetamine use to cope. You began to use illicit substances daily and began to criminally offend soon after.

54Your prior criminal history postdates this offending and is not insignificant, including being sentenced to terms of imprisonment, most notably a term of 6 years in relation to an armed robbery dealt with in this jurisdiction in 2017.

55Prior to your incarceration in 2017, you and Ms Iles reconciled and she became pregnant with your first child together. Your children motivated you to rehabilitate and you subsequently engaged with various substance use prevention programs, undertook regular urinalyses and completed further certifications while in custody. You gained trusted employment positions and became a mentor to other prisoners. Letters from support persons at Port Phillip Prison at the time of your incarceration, which were tendered on the plea, opined that your exemplary behaviour afforded you leave to work in sheds outside of the prison. You also received day release towards the end of your sentence including visits with your partner and children, and with your father who was in hospital at the time receiving cancer treatment. In May 2019, you were transferred to the Judy Lazarus Transition Centre to complete the transitional program. In the five months you resided there, you accessed work and education opportunities in the community and obtained regular leave prior to your release. You were granted parole in October 2019 and continued a high level of compliance in the community. You and Ms Iles also had another daughter, who will turn three years old in September.

56A few days after your release, your father was transferred to palliative care and subsequently died. Your mother unexpectedly died less than two years later from heart complications.

57A psychological report by Alison Mynard, clinical psychologist, dated 3 June 2023, opines that while you were prescribed antidepressants and Valium for depression and anxiety in 2014 and again when charged with this offending, you do not currently have a psychological or psychiatric diagnosis. She noted that while you have some symptoms of an adjustment disorder with anxiety and depression traits, it can be attributed to the uncertainty surrounding the matters currently before this Court. Ms Mynard reports that you may have suffered from Complicated Bereavement Disorder caused by the high levels of grief and depression you felt when Ms Iles mother and your parents passed away, which caused you to rely on illicit substances and anti-social behaviour to cope, however you have reconciled with their loss and surrounding grief. She also reported that your risk of reoffending is low and your rehabilitation prospects are very good.

58Several character references were tendered on the plea from your friends, family and employer, many of whom have attend court to support you. They describe you as a reliable, family-orientated and trustworthy person who regularly contributes to the wider community. They note your dedication to your family, friends and neighbours, and your willingness to volunteer within the community.  Your partner, Ms Iles, details her reliance on you to support your family and the pride she has seeing you rehabilitate since your custodial sentence. She is concerned that your time in custody will disrupt your relationship with your young children and how she will support the family without you.

Justin Giordmaina

59Justin Giordmaina, you were born in 1990 and were 19 years old at the time of the offending. You are now 32 years old. You are the eldest of your family, having in essence grown up as an only child until your sister was born when you were 11 years old. You also have a younger brother.

60You grew up in Altona and had a loving and supportive childhood. You enjoy a close relationship with your parents, siblings and members of your immediate and extended family. Your mother was born in Australia and your father was born in Malta. Your mother suffers from severe anxiety which affects her ability to undertake daily activities. Your parents operated a florist shop in Point Cook, working early and long hours most days during your childhood. Consequently, you spent a lot of time with your maternal grandparents and developed a close relationship with them. Your grandfather passed away 20 years ago, and your 87 year old grandmother currently resides with your parents.

61You attended Westbourne Grammar until Year 11, and then commenced a cabinet making apprenticeship. You worked as an apprentice for four years but left. You then had your own car detailing business and then worked at Toyota and in brick cleaning. You currently work as a corker and sealer which you have done so for the last four and a half years.

62You have been in a stable relationship with your current partner for seven years. You have two children from this relationship, two sons under the age of three, and a stepdaughter who is nine years old. These proceedings have placed stress your relationship as you are the financial provider of the family.

63You began using illicit substances in your early 20s, regularly using amphetamines at age 22 which progressed to smoking methylamphetamine. You had several sessions with an alcohol and drug counsellor at the age of 20 but did not have any other substance misuse treatment.

64You attribute your drug dependency to your association with negative peers and the death of your uncle in 2016, who you viewed as a ‘second father’. You report that you used illicit substances to ‘forget everything’. You hid the extent of your dependency from your parents, but your use caused your other relationships and business ventures to deteriorate, with you eventually having to sell your car detailing business because of it. You report that you stopped using methylamphetamine when your first son was born and now abstain from alcohol and drugs all together. You also no longer associate with peers who are a negative influence on you.

65You attribute your drug dependency as a catalyst to your previous unrelated criminal offending, which postdates the offending currently before this Court. You admit the prior matters shown on your criminal record and have not offended since the last entry on November 2018.

66A psychological report prepared by Ian Mackinnon, consultant psychologist, dated 30 June 2023 was tendered on plea. Mr Mackinnon opined that you are not suffering from any diagnosable psychological or any substance use disorders. Mr MacKinnon is of the view that you are not inherently violent or antisocial and that you do not pose any significant risk of offending against females or anyone else in the community.

67Several character references were tendered on the plea from your friends, family and employer. They describe you as a caring, hard-working and respectful father, friend, brother and son. Your employer, Charles Gaffero, opined that you are a model employee and are a trustworthy and reliable person. Your partner, Charday Vidot, said the prospect of your incarceration has caused significant stress on your relationship noting that you are the sole financial provider for your family. Your parents and sister believe that you are committed to overcoming your past mistakes and supporting your family.

Sentencing considerations

68There are a number of matters that are common to both of you.

69Delay is relevant in this instance in a number of ways. As noted, the offending occurred some 13 years ago. There has been further delay since the charges were laid in July 2020 as a result of the pandemic. The delay is also relevant in that at the time of the offending you were both 19 years of age with no prior criminal history, a matter I will address further below. The prosecution concede that the delay in this case is not attributable to either of you and I take it into account in mitigation.

70Turning specifically to your youth. If you were both sentenced near the time of the offending, you would be treated as young offenders by definition, and with no prior criminal history, the principles in relation to young offenders would have been given full effect.[8] As such, your age and consequently your prospects of rehabilitation, would feature prominently in the sentencing discretion above other sentencing principles.

[8] R v Better [2003] VSCA 71, [12].

71However, despite the fact that this offending occurred some 13 years ago and that you were both young offenders at the time, general deterrence still has a role to play in the sentencing discretion together with denunciation of your conduct. This was serious offending over an extended period against a vulnerable young women.

72Turning to your prospects of rehabilitation more specifically, it is clear in relation to both of you that from 2014 you each began to interact with the criminal justice system, both battling with drug addiction and associated offending. Nonetheless, it appears that in recent years you each have settled in the community, are committed to your families, and are genuinely moving on with your lives. In relation to each of you, your risk of reoffending has been assessed as low.

73In relation to you, Justin Giordmaina, it was submitted that although a term of imprisonment may be warranted for your offending, a community correction order would in the circumstances be able to meet the relevant sentencing considerations, or in the alternative, a term of imprisonment, wholly suspended.

74As to you Christopher Sharp, it was submitted on your behalf that a combination sentence would be an appropriate disposition. I rejected that submission.

75In my view a term of imprisonment is warranted in each case.  However, I am also of the view that in all the circumstances, the applicable sentencing considerations are able to be met by the imposition of a wholly suspended term of imprisonment in relation to you, Justin Giordmaina, and a partially suspended term of imprisonment in relation to you, Christopher Sharp. While rape is defined as a ‘serious offence’ in the version of the Sentencing Act applicable at the time, it is only in circumstances where the court is contemplating a wholly suspended sentence that exceptional circumstances must be established.[9] While suspended sentences have now been removed as a sentencing option, I note what the Court of Appeal said in relation to the utility of suspended sentences in DPP v Buhagiar & Heathcote:[10]

Whilst the purpose of the criminal law is to bring wrongdoers to justice for the protection of the community and whilst that protection must be borne in mind as primary and paramount, there are cases where a judge may reach the view that suspension of a sentence is appropriate, not because it would be less unpleasant for the offender, but because it may be productive of reformation, which offers the greatest protection to society. A suspended sentence of imprisonment is not an unconditional release or a mere exercise in leniency. Rather it is an order made in the community's interest and generally designed to prevent re-offending. In deciding whether to suspend in whole or in part a term of imprisonment a judge is deciding whether, in all the circumstances, the offender should have the benefit of a special opportunity for reform, to rebuild his own life, or to make some recompense for the wrong done, or should have the benefit of the mercy … or for some other sufficient reason should have this particular avenue open to him, provided the conditions of the suspension are observed.

[9] Section 27(2B).

[10] [1998] 4 VR 540, 547 per Batt and Buchanan JJA (citation omitted).

Sentence

76Mr Sharp and Mr Giordmaina, would you please stand.

77On Charge 1, common assault, you are each convicted and sentenced to 2 months imprisonment. On Charge 2, false imprisonment, you, Justin Giordmaina are convicted and sentenced to 6 months imprisonment and you, Christopher Sharp are convicted and sentenced to 8 months imprisonment. In relation to you, Christopher Sharp, on Charge 3, rape, you are convicted and sentenced to 3 years imprisonment.

78In relation to you, Justin Giordmaina, the total effective sentence is 6 months imprisonment which will be wholly suspended for a period of 2 years.

79In relation to you, Christopher Sharp, the total effective sentence is 3 years imprisonment which will be partially suspended. I direct that you serve 12 months imprisonment with the remainder of the sentence being suspended for a period of 3 years.

80Pursuant to s 18 of the Sentencing Act, in relation to you, Christopher Sharp, I declare that 136 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.

81I am required to warn each of you that if you commit any offence punishable by imprisonment, whether in or outside of Victoria during the period of suspension, you will be brought back to this court to be dealt with.  In that circumstance, unless you are able to provide exceptional circumstances, the sentence will be restored and served.

82Pursuant to the Sex Offenders Registration Act 2004, as Charge 3 is a Class 1 offence, you, Christopher Sharp, will be required to comply with reporting obligations for a period of 15 years.