R v Arico
[2001] VSC 216
•27 June 2001
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1542 of 2000
| THE QUEEN |
| v |
| ROCCO ARICO |
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JUDGE: | COLDREY, J | |
WHERE HELD: | MELBOURNE | |
DATE OF SENTENCE: | 27 JUNE 2001 | |
CASE MAY BE CITED AS: | R. v. ROCCO ARICO | |
MEDIUM NEUTRAL CITATION: | [2001] VSC 216 | |
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CATCHWORDS: Sentence – Attempted murder – Shooting of victim as a result of "road rage" – Need for general deterrence – Youthful offender – Imprisonment for 9 years with a non-parole period of 7 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr. W. Morgan-Payler SC with Mr. D. Hallowes | Office of Public Prosecutions |
| For the Accused | Mr. C. Dane SC | Cole & Magazis |
HIS HONOUR:
Rocco Arico, you have been found guilty by a jury of the attempted murder of Vincenzo Godino at Taylors Lakes on 15 July 2000. It is necessary to briefly outline the circumstances surrounding the commission of this offence since those circumstances are relevant to the sentence I must impose upon you.
At about 7.05 a.m. on 15 July 2000 two drivers, one an off duty policeman, Senior Constable Christopher Behrens, and the other, Vincenzo Godino, were travelling in Sunshine Avenue, Taylors Lakes. Each of them was approaching the large roundabout which marks the intersection of the Melton Highway and the Calder Freeway. Both observed what was a silver Commodore Senator speed through that intersection heading for the Melton Highway. It was closely followed by a burgundy-coloured Holden Statesman. The two vehicles cut across both lanes of the roundabout at a fast rate of speed. Senior Constable Behrens, believing that traffic offences had been committed, decided to pursue the vehicles for the purpose of obtaining their registration numbers. Those vehicles had entered the roundabout from Mr Godino's left and had failed to give way to him. Indeed, he had had to break and swing his steering wheel to avoid colliding with the burgundy Statesman. This resulted in his vehicle, a 1979 Toyota Corolla, skidding and spinning 180 degrees. Angered and shocked by this reckless driving, Mr Godino also gave chase. He described the purpose of his pursuit as being "to have a go at them".
By this stage the two vehicles were 600 or 700 metres further down the Melton Highway and Mr Godino's Toyota Corolla, with a top speed of about 70 kph, was no match for them. It was estimated by Senior Constable Behrens that these two vehicles were travelling in excess of 110 kph (the applicable speed limit was 80 kph) before they turned left into Sandpiper Drive. At this point, Senior Constable Behrens, who was outnumbered and by himself, disengaged from the chase. Not so Mr Godino who, on reaching and turning into Sandpiper Drive, caught a glimpse of the burgundy Statesman turning into Clematis Drive. Having temporarily lost sight of the vehicles, Mr Godino instinctively turned left into Salamander Drive. Soon after he came upon both the silver Commodore and the burgundy Statesman parked in driveways on opposite sides of the road. The Statesman was in fact parked in the driveway of 45 Salamander Drive, being the house of a friend of yours. One male was seated inside the silver Commodore and one was standing adjacent to the burgundy Statesman.
By this stage Mr Godino was travelling at about 30 kph. He drove further down the street and, having calmed down, he decided to drive on home. He executed a U-turn and drove back past the two vehicles. There were now two people standing outside the burgundy Statesman.
As he continued on down Salamander Drive, Mr Godino noticed the silver Commodore approaching swiftly from the rear with its headlights flashing. Having observed three people at the scene, and knowing his Toyota Corolla could not outspeed the silver Commodore, he became quite fearful of what might occur. Mr Godino stopped his vehicle parallel with the kerb and the silver Commodore drew up alongside it on the wrong side of the road. The passenger side window of the silver Commodore was lowered and Mr Godino recognised you, Rocco Arico, as a person who had made pizzas at the Golden Star Cafe in Lygon Street, Brunswick. Initially, his feeling was one of relief. According to his evidence, the following conversation then occurred:
"He said: 'I recognise you.'
You replied: 'From where?'
He said: 'The Golden Star. You used to make
pizzas there. I can't recall your name.'
You said: 'Rocky. What's yours?'
He said: 'Vince.'
You said: 'Vince who?'
He said: 'Vince Godino. Remember I used to come in
there with my friends, have some coffee and play
some pool.'"
According to Mr Godino, you then queried: "So what's the problem?" He responded: "Well, your mate almost ran me off the road back there." You replied: "So what do you want to do about it?" and Mr Godino responded: "Well, I wanted to put his head through the windscreen."
The evidence of Mr Godino was that at this stage you turned your body towards him, lifted your arm and commenced to fire a pistol at him. Mr Godino was effectively trapped in his vehicle with his seatbelt on. Bullets entered and exited each of Mr Godino's forearms. He was also struck on the right elbow, shoulder and abdomen. After the shooting commenced, he had tried to lie down but this manoeuvre was partially thwarted by his seatbelt.
The forensic evidence revealed a pattern of four bullets in the area of the driver's door handle roughly in line with where the upper body of the seated driver would be situated. The bullets had been fired from a relatively powerful 9 mm pistol and three of them had passed through the door and into the interior of the vehicle. A further bullet had nicked the driver's window sill, and yet another had penetrated the rear driver's door.
During the shooting Mr Godino feared that at any moment he would be dead. When the firing ceased he heard the Commodore car wheels screech as you accelerated from the scene. He immediately sat up and noted a portion of the registration number of the silver Commodore "POY".
Although seriously injured and bleeding profusely, Mr Godino managed to steer his vehicle left into nearby Clematis Drive. While unsuccessfully attempting to obtain help from a neighbour, he observed you drive past him and was terrified that you were going to finish him off. In the event, no further shots were fired by you.
Ultimately, Mr Godino was taken into the driveway of a good Samaritan, Mr Louis Vella, who rendered assistance to him and arranged for ambulance and police to be called. During this time you again drove by and Mr Godino was able to confirm the letters POY on the number plate.
Subsequent police inquiries revealed that a silver Commodore Senator, POY-077, was the only vehicle of that colour and type bearing the prefix POY. The registered owner was a Carl Williams, who lived about one to one-and-a-half kilometres from the scene of the shooting. Carl Williams was a colleague of yours and was arrested with you at the Melbourne airport on 17 July 2000. An examination of his vehicle by forensic experts located a fired 9 mm cartridge case in the front passenger side door pocket and biological material from the steering wheel of the car produced a DNA profile which linked you to the vehicle.
On 24 July Mr Godino identified you from a photoboard of 12 young males as the person who shot him, although he had not seen you for some seven or eight years at a time when he frequented the Golden Star and observed you making pizzas.
Evidence was called on your behalf from an uncle and business partner that you did not make pizzas; whilst the Crown called a police officer, Senior Sergeant Benedetti, who had been a local sergeant stationed at Brunswick at that time, to depose that he observed you behind the cafe bar in the Golden Star Cafe serving customers and at tables.
I think it highly likely that the jury would have accepted the prosecution evidence but even on the evidence of your own witnesses, you and your father were visitors to the Golden Star at the relevant period. Significantly, both Mr Godino and, indeed, Senior Sergeant Benedetti identified you as you appeared in 1992 from a Brunswick Technical School class photo produced by your counsel in the course of the trial.
In all the circumstances that I have enumerated, the jury were satisfied that you were the shooter. You chose, as was your right, to place no evidence before the jury about your movements on the morning of 15 July.
The conversation at the scene of the offence deposed to by Mr Godino suggests that the description by Mr Godino of the driving of the burgundy Statesman and of his reaction to it was the immediate catalyst for you shooting him. The situation may have been exacerbated, as your counsel suggested, by the pursuit undertaken by Mr Godino and his twice driving slowly past the two vehicles involved in the initial incident, but any provocation which you may have regarded as emanating from Mr Godino was minuscule.
What is clear from the jury verdict is the finding that at the time you fired the six shots from the handgun in the direction of Mr Godino's body, you intended to kill him.
I accept the submission by your counsel that the shooting was not premeditated.
I also note that there is no evidence that you were suffering from any mental instability at the time.
The offence you have committed is an extremely serious one. The courts have a duty to denounce the use of lethal weapons such as handguns in the perpetration of illegal acts. The use of such weapons against fellow road users constitutes a new and deplorable dimension to such illegal conduct. The introduction of this additional level of danger to those driving on our roads will not be tolerated. The courts also have a responsibility to deter others who might be minded to resort to lethal weapons as a perceived problem-solving technique whether those problems are encountered on the roads, in domestic situations, or in the myriad of other circumstances where human conflict arises.
Not surprisingly, this shooting has had a devastating effect upon Mr Godino (and his family). Apart from the trauma of hospitalisation and treatment, the physical aftermath of the injuries sustained is a weakness in both hands and an inability to fully extend the right elbow, wrists and fingers. Additionally, there is an incapacity to lift heavy objects.
The ongoing emotional trauma experienced by Mr Godino was clearly apparent in this court. Its manifestations include fear while driving, flashbacks, panic attacks and a loss of confidence. A psychological report from a Ms Kaylene Evans describes Mr Godino as having symptoms consistent with post-traumatic stress disorder. He is currently in receipt of counselling.
There are matters personal to you, Rocco Arico, which I must also take into account in determining the appropriate sentence. You are presently 22 years old. You have two sisters and you were born into a hard-working Italian family. Indeed, you continue to enjoy the wholehearted support of your family.
Your secondary education was undertaken at Brunswick Technical School, which you left at the age of 15 having completed Year 10. Thereafter, you worked for 12 months with your father at a restaurant called Dante's in Sydney Road before the family commenced operating Johnny's Green Room in Carlton. You have assisted in that business for about the past six years.
Taken at face value, that history would indicate that you have a capacity for hard work. I have no information as to any other interests or pastimes you may have pursued.
You have admitted prior convictions incurred at the Melbourne Magistrates' Court in May 1998. These were for destroying or damaging property; failing to answer bail; possessing a drug of dependence; possessing an anti-speed measuring device; and two counts of common assault. I do not have any details of the circumstances of these offences but I note that the penalty was a fine totalling $1,200, which does not overall suggest a high level of seriousness.
You do not, given your defence to this charge, have the benefit of any remorse, but I accept that the conduct of your defence was such as not to involve any gratuitous denigration of Mr Godino.
On the material before this court you may be said to have the ability to rehabilitate yourself. Your counsel spoke of an upbringing within the family circle which had resulted in your being an immature 22-year-old who had masked that aspect of your character by bravado. That may well be so. In any event, I specifically take into account, as I am required to do, your relative youth and the weight to be given to rehabilitation in that circumstance. Those factors alone save you from the imposition of a heavier sentence. That having been said, the offence you have committed is a grave one.
Balancing as best I can the sentencing principles enunciated in the Sentencing Act, including denunciation, specific general deterrence and rehabilitation, I have concluded that the appropriate sentence is that you be imprisoned for a period of nine years. I fix a period of seven years before you become eligible for parole. Further, I declare that the period to be reckoned as already served under that sentence is 346 days, inclusive of today's date. I declare that there be noted in the records of the court the fact that this declaration is made and its details.
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CERTIFICATE
I certify that this and the 6 preceding pages are a true copy of the reasons for sentence of Coldrey, J. of the Supreme Court of Victoria delivered on 27 June 2001.
DATED this 27th day of June 2001.
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