R v Strangio
[2015] VSC 566
•13 October 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2014 0053
| THE QUEEN |
| v |
| BRUNO STRANGIO |
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JUDGE: | HOLLINGWORTH J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 14 August and 13 October 2015 |
DATE OF SENTENCE: | 13 October 2015 |
CASE MAY BE CITED AS: | R v Strangio |
MEDIUM NEUTRAL CITATION: | [2015] VSC 566 |
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CRIMINAL LAW – Sentencing – Perjury – Curial perjury – Guilty plea – Sentenced to 18 months’ community correction order.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P Kidd SC (14 August) Mr M Rochford QC (13 October) and Ms T Bolton | Acting Solicitor for Public Prosecutions |
| For the Accused | Mr M Pena-Rees | Tait Lawyers |
HER HONOUR:
Bruno Strangio, you have pleaded guilty to one charge of perjury.
The charge arose out of a dispute in relation to a restaurant lease in Chadstone shopping centre. In March 2010, during a court proceeding in this court relating to that dispute, you knowingly gave false evidence, stating that you had never been declared bankrupt. In fact, you had been an undischarged bankrupt since July 2008.
The question of your bankruptcy was a matter of significance in that proceeding. It was relevant because the proceeding had been instituted by a company called Ilford Tower Pty Ltd, for which you claimed to be authorised to speak as its manager. However, an undischarged bankrupt is prohibited, without leave of the court, from managing a corporation.
You were declared bankrupt on 28 July 2008, as a result of a creditor’s petition brought by Westpac Banking Corporation. Subsequently, you had several discussions with Mr Paul Pattison, the trustee of your bankrupt estate, and his staff, about your bankruptcy. It is clear from those discussions that you were well aware of your bankrupt status, but objected to it and wanted to have it set aside. Indeed, in late 2008 you sought to appeal the sequestration order in the Federal Court; however, your application to appeal out of time was dismissed by that court.
When a person is declared a bankrupt, they remain a bankrupt for three years from the date they file their statement of affairs. You have never filed your statement of affairs and therefore had not at the relevant time, and still have not now, been discharged from bankruptcy.
In early 2009, you commenced negotiations to buy a takeaway food business called “Appetitos” at the Chadstone shopping centre. You and/or Ilford took over the running of the business around April 2009.
A number of legal disputes arose in relation to that arrangement, including whether the rent had fallen into arrears, and whether you and/or Ilford were the legal tenants of the shop.
In the end, the landlord did not accept your position and began steps to terminate your and Ilford's occupation of the shop premises.
In November 2009, you applied to VCAT for an injunction to prevent the landlord from re‑entering the premises and terminating your occupation. An interim injunction was granted, upon conditions, until the proceeding was finally determined.
Ilford fell behind in rental payments, in breach of the injunction conditions. A VCAT member consequently dissolved the interim injunction. There was a stay of execution for seven days, to enable you to appeal that decision.
You did not appeal; instead you filed a new VCAT application, seeking another injunction. On 4 March 2010, another VCAT member dismissed your new application.
That same day you appeared ex parte in this court before Beach J, seeking to appeal the VCAT decision. His Honour did not grant the relief sought by you that day.
The next day, being 5 March 2010, you sought to further argue the matter before Beach J. On that occasion, the landlord appeared with legal representation. You appeared for Ilford, with the leave of the court. You claimed to be able to speak on Ilford's behalf. In your supporting affidavit, you claimed that you were the manager of Ilford. You amended that in a later affidavit, to describe yourself as an agent of Ilford and the manager of the Appetitos business.
Before Beach J, you sought an interim injunction restraining the landlord from taking possession of the shop pending determination of a foreshadowed judicial review of VCAT’s decision. It was during the course of that proceeding that you committed the perjury to which you have pleaded guilty.
The landlord’s barrister told his Honour that you had falsely told VCAT on four occasions that you were not an undischarged bankrupt. You agreed that you had been asked about your bankruptcy status four times in the VCAT proceedings, and you admitted that on those occasions you had denied that you were bankrupt.
His Honour asked you directly if you were an undischarged bankrupt, to which you answered “no”. His Honour said that it was an important matter, and he asked you to go into the witness box and give sworn evidence about it. After you had taken an oath to the tell the truth, the following exchange occurred:
HIS HONOUR: Mr Strangio, have you ever been declared a bankrupt?---No.
Never?---Never.
That evidence was false, and known by you to be false. You were perfectly well aware that you were still an undischarged bankrupt. His Honour’s questions were clear and unambiguous. You were not, as you still assert, somehow tricked by the judge into giving a false answer.
On previous occasions, in connection with the Appetitos dispute, you had told VCAT members that you were not an undischarged bankrupt. You are not being punished by me for any false statements you made at VCAT. However, I mention them because they place the charge of perjury in its full context, and confirm that your perjury before Beach J was deliberate, not accidental.
Perjury is a serious offence and carries a maximum penalty of 15 years’ imprisonment. Your conduct constituted a brazen lie, which was not committed on the spur of the moment or in a panic, but was told with some reflection. It is an example of curial perjury in court under oath, which affects the integrity of the justice system. The community depends on, and is entitled to, the proper determination of matters of both fact and law. If witnesses lie, the judicial system is compromised.
In addition, you perjured yourself for a rational purpose – you had a commercial motive, which was for your own personal benefit. Fortunately, your offence had no effect on the intended victims, being the landlord or Chadstone management, or on Beach J, who ruled against your application for other reasons.
This case can be contrasted with other types of perjury that might be viewed as more serious, for example a lie told to avoid detection of other wrongful conduct, or to cover up the criminal conduct of others, or to implicate an innocent person in wrongdoing.
When you were committed to stand trial in this court, in April 2014, an indictment was filed containing a total of 23 charges against you, all of which involved dishonesty-type offences. Severance orders were made for the charges to be heard as three separate trials.
On 26 November 2014, you first entered a plea of guilty to the perjury charge before me; however, you muttered something during the course of the arraignment. After I saw the transcript of what you had said, out of an abundance of caution and in order to ensure that you understood the charge to which you had pleaded guilty, I sought to re-arraign you on 18 December 2014. However you were argumentative on that occasion, and were not prepared to enter an unqualified plea. I gave you an opportunity to discuss the matter with your lawyers.
On 3 March 2015, when the matter came on again, your counsel conveyed your instructions that you would remain mute in respect of the perjury charge. After more protestations, you entered a plea of not guilty to perjury.
A fresh indictment was filed on 16 April 2015, in respect of what was to be the first trial. It contained the following ten charges, all of which related to the Appetitos transaction: making a false document (3 charges); using a false document (5 charges); perjury (1 charge); and obtaining financial advantage by deception (1 charge).
The trial began on 17 April 2015, and you formally confirmed your plea of not guilty to all of the charges in front of an empanelled jury. After the matter had run for 11 days before the jury, on 1 May 2015, the matter resolved. You pleaded guilty to the perjury charge, and the prosecution confirmed it would not lead any further evidence on the other 9 charges on the indictment. The jury was discharged.
This was by no means an early plea. Nevertheless, you are entitled to some discount on the sentence to be imposed upon you in recognition of your plea and its utilitarian value. Your plea has facilitated the course of justice. The community has, by your plea, been spared the time and cost of the completion of the full trial of the charge against you.
Aside from any remorse implicit in your plea, you have not shown any real remorse. You continue to dispute that you have committed perjury. You reported to Corrections Victoria staff that you felt as if you were tricked by the judge into stating that you had never been declared bankrupt. You have been described as “pre-contemplative” with regards to your offending. You have made a number of objections towards the administrative processes and rules of court, and have consistently maintained that you are a victim of a corrupt and unfair legal system.
The prosecution concedes that in this matter there have been several delays, some caused by you and some for which you bear no responsibility. It is not possible to untangle to what extent the delay might be said to be attributable to you, and to what extent it is attributable to the processes of the criminal justice system. I do, however, accept that at least some of the delay has not been due to your actions.
You were charged with the majority of the offences in September 2010. You were charged with the perjury offence in March 2011. Your application for summary jurisdiction for those matters was refused by a magistrate in September 2011. In December 2011, you obtained a stay on the decision of the magistrate, pending judicial review of the decision. It was not until August 2012 that this court dismissed the application for judicial review. You then sought leave to appeal that decision, which was refused.
You were committed in August 2012 to stand trial in this court, but you made an application to review the magistrate's order to commit you to trial. On that occasion, your application was upheld; the committal orders were quashed in September 2013.
A fresh committal hearing commenced in March 2014, at which you were again committed to stand trial in this court.
I turn now to consider your personal circumstances.
You were born in 1954 in Italy, to parents who were labourers. You have three sisters. You migrated to Australia with your family in 1964, at the age of 10, and settled in Carlton. Your family later moved to the northern suburbs. Your parents worked in “blue collar” occupations. You did not flourish academically, and left school at the age of 14 in order to help support your family.
Your mother died from liver cancer in 2009. Your father currently lives in Lalor.
You married in 1976 and have three adult children. You separated from your wife in 2007.
Although brought up in somewhat trying circumstances, you managed to build a life for yourself as a hard‑working, successful man, with a good family life, living in a nice suburb. You built up a substantial business in the construction industry.
However, things took a turn for the worse around 2005, when you began to be embroiled in various legal disputes. You became utterly preoccupied with them, spending much of your time researching points of law and engaged in numerous pieces of litigation.
You now live alone in a caravan park in one of the southern suburbs in Melbourne. You are no longer married and have become estranged from your children. Recently, you have managed to connect with at least one of your sons, who was present in court during your plea hearing.
Mr Ian Mackinnon prepared a psychological report on your behalf. He diagnosed you as suffering from a mixed anxiety and depressed mood disorder. However, your counsel rightly conceded that there is no evidence that those conditions played any role in your offending, or could be relied upon as reducing your moral culpability.
Mr Mackinnon confirmed that you hold multiple misconceptions about your legal history and current predicament, and have an inflamed sense of having suffered injustices. In order to fully rehabilitate, and to remove or reduce the risk of re‑offending, you need to seriously address these issues.
You have some prior relevant criminal history, particularly involving business dealings.
In 1994, you were dealt with on one charge of offering a bribe, for which you were ultimately fined without conviction.
In 2009, you were charged with using a carriage service to harass. For that offence, you received a $500 fine and a good behaviour bond of 12 months without conviction. You committed the perjury offence whilst you were still on the good behaviour bond.
In 2010, you pleaded guilty to, and were sentenced for, two charges, being extortion with a threat to inflict serious injury, and extortion with a threat to kill. The charges arose out of a failed property transaction, which led to you making threats against the other parties to the transaction (as well as lodging numerous caveats and being involved in legal proceedings). A County Court judge imposed a total term of imprisonment of 11 months, which was fully suspended. The County Court matter is not a prior conviction, as it occurred after the current offending. Nevertheless, it remains relevant to your prospects of rehabilitation.
At the end of your plea hearing on 14 August 2015, I ordered that a pre‑sentence report be provided by Corrections Victoria. I received that report on 30 September 2015.
The report assessed you as being a suitable candidate for a community correction order. The report stated that you would benefit from engaging in mental health treatment to address your various mental health concerns, and help you come to terms with your grief and feelings of injustice. It also recommended that you participate in a Salvation Army Positive Lifestyles Program, which is available at the Rosebud Justice Service Centre, and that you would be suitable for some types of community work taking into account your medical conditions.
Some of the medical reports which you have provided to courts in the past, in an attempt to justify your non-appearance at court hearings, have been totally inadequate. I am referring in particular to GP reports that were one or two sentences long, and lacking in proper detail or explanation of the alleged medical complaint relied upon by you. If at any time in the future you assert that, for medical reasons, you are unable to comply with your community work or counselling commitments under the community correction order, I do expect that you will produce proper evidence to Corrections staff in order to support that assertion.
It is also important that you seriously undertake counselling to address your misplaced attitudes towards the courts and the legal system, in order to reduce the risk of further re‑offending.
The prosecution submits, and I accept, that this offence requires a penalty falling within the mid‑range for the offence of perjury. The prosecution also accept that it is open to the court to impose a community correction order, either alone or combined with a term of imprisonment or a fine.
I regard a community correction order as the most desirable outcome in this case. One of the reasons for that is that it will provide you with an opportunity, through counselling, to address some of the underlying problems which have led to your persistent and ongoing conflicts with the court system. I regard that as being beneficial, both to the community and to yourself.
There is a need for general deterrence. The judicial system only operates effectively if people tell the truth. People must be deterred from deliberately lying to the courts.
There is also a need for just punishment and denunciation of your conduct, both of which can be met by the community correction order that I propose to impose.
Balancing as best I am able the competing considerations laid down in the Sentencing Act 1991, and having regard to the matters I have just discussed, for the offence of perjury I sentence you to undertake a community correction order for a period of 18 months from today’s date.
In addition to the usual conditions of such an order under s 45(1) of the Sentencing Act, the following additional conditions apply. I will now read out to you from the second part of the order that you have signed:
(a)You must perform 300 hours of unpaid community work.
(b)You must undergo mental health assessment and treatment, as directed.
(c)You must engage in any program that addresses factors related to your offending behaviour, as directed.
(d)You must submit to supervision, monitoring and management, as directed by the Secretary.
(e)You must reappear before the court for review of the compliance of this order on 12 April 2016 and 12 October 2016.
(f)Corrections Victoria must provide to the court a report as to your progress and compliance with the community correction order, no later than one month before each of the dates on which you are to reappear before the court.
In coming to my decision, I have relied on the recommendations in the pre‑sentence report, which confirm that the above conditions are appropriate for you.
Prior to reading out these sentencing remarks, I explained the conditions of the community correction order to you, and you consented to the order and signed a copy of it in court.
If you breach the terms of the community correction order, you will be brought back before me for breach proceedings. Depending on the nature of the breach, at that stage I may order that you receive a sentence of immediate imprisonment.
I declare pursuant to s 6AAA of the Sentencing Act that, but for your plea of guilty, I would have sentenced you to two months’ imprisonment and a 24 month community correction order.
Finally, for the record, I note that there is no pre‑sentence detention.
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