R v Victor David GERARDA aka Vincent TARANTINO

[2007] NSWDC 148

CITATION:	R v Victor David GERARDA aka Vincent TARANTINO [2007] NSWDC 148
HEARING DATE(S):	7th June 2007
JUDGMENT DATE:	7 June 2007
EX TEMPORE JUDGMENT DATE:	7 June 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	See paragraph [36] - [45]
CATCHWORDS:	Criminal Law - Sentence - Forms 1 - Maliciously inflict grievous bodily harm - Prohibited weapon - Maliciously damage property by means of fire - Prevent lawful apprehension - Risk to the community - Breach of bail - Breach of apprehended violence order - Assistance to authorities
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Paris [2001] NSWCCA 83
PARTIES:	Crown Vincent Tarantino
FILE NUMBER(S):	06/11/0859; 07/11/0148
COUNSEL:	S Flood (Offender)
SOLICITORS:	NSW DPP Heenan & Co

SENTENCE

1 HIS HONOUR: Vincent Tarantino appears for sentence today, having pleaded guilty, on an earlier occasion, to a number of offences contained on two indictments. The two indictments relate to separate episodes of criminality, I will deal with them in turn.

2 The first indictment has on it offences of maliciously inflicting grievous bodily harm, using an offensive instrument with intent to prevent lawful apprehension and possessing a prohibited weapon. When I sentence him for the second of those matters, he asks that I take into account three other matters, malicious damage to a petrol pump hose and two offences of assaulting police. These offences all arose in the following way.

3 The offender had been in a relationship with a woman by the name of Kerry Urlich. For reasons that I will discuss in more detail later, the offender had not told her the entirety of his earlier life, and in particular had neglected to tell her of a very important matter.

4 A dinner party was held at Ms Urlich’s home, at which two of her friends and the offender were in attendance. An argument ensued, after all of the guests had been drinking, relating to the failure of the offender to be entirely truthful with Ms Urlich about his earlier life. The male guest and the offender went outside where a struggle ensued. Ms Urlich followed them. During the course of that struggle, the offender turned and punched Ms Urlich to her face with a closed fist. This caused her to fall backwards. That forms the basis of the first count on this indictment.

5 The injuries Ms Urlich suffered were quite significant. There is a photograph tendered before me as part of exhibit A, which shows the significant extent of the harm that the offender caused to Ms Urlich. She suffered a deep laceration, about six centimetres long, which extended from the middle of her forehead all the way down to her right eyelid. There is also another laceration across her right eye, so in effect there were two large lacerations forming a “t” around Ms Urlich’s right eye. So significant were those lacerations that they required some thirty stiches during Ms Urlich’s treatment at hospital. The statement of facts records that Ms Urlich is likely to have some scarring as a result of the injuries. That much could not really be doubted, and indeed in a victim impact statement which was read today, Ms Urlich made reference to the scars that she has on her face as a result of what the offender did to her. After he struck her Ms Urlich went inside, the offender followed her and took from the kitchen a large knife. He then left.

6 Ms Urlich was taken to Royal Prince Alfred Hospital. Whilst there, the offender turned up giving a false name. Fortunately one of the nurses on duty was very much on the ball. She recognised the description which had been given of Ms Urlich’s attacker as fitting the description of the man who had turned up giving the name Brian Jones. She did a number of things, one of which was quite brave. When the offender tried to get into the area of the hospital where Ms Urlich was being treated, she stood in front of him and told him to get out. He did so. Later that morning, indeed about 6.50am, police saw the offender walking around Stanmore. They called out to him by name and he then ran away. Police followed him. When they were no more than five metres away from each other, police saw him with a large silver bladed knife in his right hand. He held the knife just below shoulder height, and pointed the tip of it towards the police officers. The fact that the offender assaulted two police officers that way forms the basis of the second and third matters on the form 1.

7 The police told him to put the knife down, but he did not. They followed him. Other police arrived at the scene, and the offender ran away. Eventually the offender ran into the Mobil Service Station on Pyrmont Bridge Road. A marked police car also came into the service station. The offender stopped next to pump six, took out the nozzle and began slashing the rubber hosing of the pump with the knife. At this stage it appears that the offender was trying to do himself harm. Senior Sergeant Ingelby called on the offender to drop the knife, but the offender responded by pointing the nozzle in his direction. This action of using the nozzle in that way forms the basis of count 2 on the present indictment. Police were able to subdue the offender by using capsicum spray. When they searched him, they found in his possession a can of pepper spray. That forms the basis of count 3 on the indictment. I should mention that the action in cutting the hose on the petrol pump forms the basis of the first matter on the form 1.

8 The offender spent one day in custody and was then granted bail. Unfortunately, he breached that bail, in a rather significant way, by the commission of further offences. They were committed on 3 September 2006. I turn therefore to the second indictment.

9 On it are two offences: one of maliciously damaging property by means of fire, the property being that of Ms Urlich; and the second an offence of using an offensive instrument, namely a Molotov cocktail, with intent to prevent his lawful apprehension. Again there are matters on a form 1, which are to be taken into account when dealing with the second of those matters to which I have just made reference: a common assault upon Ms Urlich; two assaults on police officers; possession of a small quantity of cannabis; and malicious damage of Ms Urlich’s property.

10 There was an apprehended violence order in force which amongst other things prevented the offender assaulting Ms Urlich, and prevented him also from going within 500 metres of premises where she was either residing or working. Despite the order, the offender contacted Ms Urlich on 3 September 2006. He made a number of calls to her. Initially she did not answer them, but eventually she did so. He asked to see Ms Urlich and after some time she agreed with his request. Some time later he turned up at Ms Urlich’s house, brushed past her when she opened the door and entered the premises. He smelt of alcohol and went straight to the fridge where he took two beers out. This led to Ms Urlich, not unnaturally, saying that if he wanted to continue drinking he would have to leave. The offender ignored her request, he wanted her to sit on the lounge so that he could talk to her, and so he physically put her there. Ms Urlich was, by now, quite uncomfortable with what was going on and she made an excuse to leave the house. She went out to the backyard to hang up the laundry. Whilst she was there the offender went up to her and tried to hug her. Ms Urlich made it quite clear that she did not want to be touched, but he persisted and she was knocked to the ground. The offender then just stood over her. That assault is the first of the matters on the form 1.

11 Ms Urlich went into the house, indeed she went into the bathroom to think about what had occurred. When she came out she found the offender blocking her access to the front and back door. She asked him to move and she then left the house, because she wanted to get away from the offender. Over the next half an hour she asked him to leave her house but he refused, and so she contacted police. They attended a short time later. Ms Urlich gave them keys to the front door. When they approached they saw the offender standing at the end of the hallway. He was holding a bottle with a cloth wick in it in one hand and a lighter in the other. When police identified themselves, the offender replied “I don’t give a fuck, fuck off, or I will light it”. As he was saying that, he was flicking the lighter on and off. When told the police wanted to talk to him, he said “get the fuck out, or I’ll light it up”. Police drew their firearms and instructed the offender to drop the bottle. In response he lit the wick and threw it at police. This action forms the basis of count 2 on the present indictment. The bottle struck the wall in the hallway, causing the wall to catch fire, although the bottle did not break. That damage forms the basis of count 1 on the indictment.

12 The police withdrew a short distance, but then returned and attempted to extinguish the fire. The offender said “get the fuck out, I don’t give a fuck, let it burn.” He left the hallway and came back a short time later with a large kitchen knife, which he placed down the front of his pants. By that means, he assaulted the two police officers whose names are mentioned in matters two and three of the form 1.

13 Then followed a siege, indeed that was the term the offender used to describe what he did. Eventually negotiators were unable to raise the offender and police forced their way in. They found the offender unconscious. They also found a huge amount of damage had been occasioned to Ms Urlich’s premises. She refers to the damage and the effect it has had upon her, in her victim impact statement. In particular she refers to the fact that the offender has damaged items which he knew were of particular sentimental value to her, namely her paintings. There was also a very large quantity of blood spread throughout areas of the house. It seems that the offender had injured himself, cutting an artery during the course of his time in the house, and he had bled extensively on items of Ms Urlich’s, so much so, that he eventually fell unconscious due to loss of blood.

14 These offences are serious indeed. It is a fundamental rule in sentencing that the objective gravity of an offender’s conduct has to be reflected in sentences imposed for that conduct. That is a constraint, which must be firmly borne in mind, when I consider the appropriate sentences for these matters.

15 Let me now deal with one particular issue, which has been subject of some discussion. It is to be noted that the two counts on the second indictment arise from the same physical action of the accused, that is he threw the Molotov cocktail, which both damaged part of Ms Urlich’s home and also was intended by the offender to prevent his lawful apprehension. When the damage caused by the Molotov cocktail is compared to the damage which the offender has occasioned by other means, it is somewhat surprising to see on the indictment that the crown has chosen to put the malicious damage by fire as a separate count, with a much more serious malicious damage by other means on the form 1. True it is that the maximum penalties for maliciously damaging something by fire and malicious damaging something by other means, are different, but even a cursory consideration of the facts in the present case would reveal the inappropriateness of putting the more serious offence of malicious damage other than by fire on the form 1, while the comparatively minor damage caused by the Molotov cocktail is on the indictment. I repeat that it is the same physical action which has led to both offences on the indictment, and I must be careful not to double count in those circumstances.

16 It was suggested that the relationship between the matters on the second indictment and the form attached to it were the result of negotiation. That may well be the case, but the crown bears the ultimate responsibility of deciding what charges to bring against an accused person. In this case it has chosen to bring inappropriate charges.

17 Let me now deal with the offender’s subjective matters and in particular a matter I alluded to earlier. The offender had a happy childhood, free from any form of neglect or trauma and he did well at school, completing his higher school certificate. He was a successful sportsman as well. He then took up an apprenticeship as a carpenter. He did not complete that, but got involved in security work in the nightclub industry. He was working at the Black Market nightclub one night in 1997 at a time where rival motor cycle clubs were intent on inflicting harm on each other. That particular night, three men were murdered at the club where the offender was working. He was one of the first to see the three bodies. He has described to others and he described to me in court today the appalling scene which confronted him when he went to check on the three deceased.

18 After that, the offender cooperated with the authorities, despite realising, as he must have, that by doing so he was creating a risk, and a significant one, to his personal safety. The offender made statements to police and they conducted an electronically recorded interview with him. He then gave evidence for the prosecution, although not in the trial proper. It is not suggested that at any stage the offender did anything other than tell the truth, both in court and to police officers. He was not called in the trial proper because shortly before he was to give evidence, he attempted to commit suicide. There was another set of proceedings relating to the same murders and the offender did not give evidence in those proceedings.

19 The consequences for the offender as a result of what occurred in 1997 have been the subject of a great deal of evidence and submissions this afternoon. The offender was on the witness protection programme for a while, and lived a fairly itinerate lifestyle. Occasionally his true identity would be made known to those around him and he would be forced to leave where he had settled, in order to ensure that those who would do him harm could not find where he was.

20 The offender is quite conscious and indeed naturally conscious of the fact that he was assisting the authorities to act against an organisation members of which may, and indeed probably would, do him harm if they knew where he was.

21 Shortly before the first of the offences that appear on the first indictment, the offender believed that he saw two men in a laneway near Ms Urlich’s home and that one of them mentioned something about a gunman being there soon. Whether that actually occurred or not I do not need to determine I am satisfied that the offender believes that it did occur. There is a great deal of evidence from various psychiatrists, sometimes contradictory, but I am satisfied that the preponderance of the evidence suggest that the offender has on occasions been mentally unwell, and that on occasions he has been psychotic. It may well be therefore that the presence of the two men and what the offender overheard is a hallucination, or it may be that he is accurate. Again it does not matter, because I am satisfied that the offender genuinely believes that the two men were there, and that they made the threat that I have spoken about.

22 It is saying too much to say that the offender’s life fell apart after the events of 1997. Certainly it is not possible to say that he was a law abiding citizen before then. In 1993 he was dealt with for an offence of malicious wounding and sentenced to a significant period of imprisonment, but for a person who has been mentally unwell, the fact that he has been forced to adopt an iterate lifestyle has meant that he has been less able to access treatment than would otherwise be the case.

23 I raised for consideration question of whether s 23 of the Crimes (Sentencing Procedure) Act applied to a situation such as this, where the offender gives assistance to the authorities well before he commits the offence for which he is to be sentenced. I do not believe that s 23 does apply in those circumstances, but that is a matter of categorisation only, because the matters that are relevant to the exercise of a discretion under s 23 are relevant in any case. In particular, the fact that the offender cooperated with the authorities in a timely and accurate way is suggestive of his character. He is the sort of person who is prepared to assist the authorities, even at the risk of harm to himself. Also relevant is the circumstance that the offender will do his time in custody harder, because it is most likely that he will be spending the entirety of his sentence on some form of protection, and it is most likely that that will involve more time in his cell, less ability to access counselling and the other matters which usually flow from the fact that a person is doing their time on protection.

24 One of the problems in the present case concerns the different views put forward by different psychiatrists who have examined the offender. The offender himself has not made it any easier by telling Dr Greenburg for example, that he had never been seen by a psychiatrist, when that is clearly not the case. In such circumstances, it is difficult to make any positive conclusions about the offender’s mental illness. I cannot see that it contributed to the particular offences for which the offender is to be sentenced, nor can I see that it will mean that the offender will do his time in custody harder because of his mental illness. It does not automatically follow that a person receives a shorter sentence because of mental illness, and indeed in this case, the reason for that is demonstrated by Associate Professor Menzie’s conclusion that the offender remains a risk to the community, as was demonstrated by the most recent events for which the offender has to be sentenced.

25 Of course the effects of an offence upon the victim of it are a very important consideration when determining an appropriate sentence. In this case Ms Urlich has suffered significantly. There was the physical injury to her face, there is the lasting scarring, there is the financial loss occasioned by the offender damaging her property and on top of all of that there is the emotional harm that Ms Urlich has suffered.

26 The crown tendered photographs of the state of her home after the offender had ransacked it for some six hours. He appears to have been intent on doing as much damage to Ms Urlich’s property as he could. He was also well aware of the emotional connection that Ms Urlich had to her paintings and would have been aware that she would feel deeply the consequences of the offender damaging those paintings. Those matters are significant in assessing the objective gravity of the offender’s conduct.

27 The offender was obviously on bail at the time he committed the second set of offences, which is a matter of significant aggravation. On top of that there was a breach of the apprehended violence order, which I have earlier mentioned.

28 The offender pleaded guilty upon arraignment in the District Court. He may have thought it was tactically wise to have not pleaded guilty at the Local Court whilst matters were investigated, in particular his mental state at the time of committing the first offences, but the fact remains that the utilitarian benefit of a plea, upon arraignment in this court, is not as great as if the offender had pleaded guilty at the Local Court. I will discount the sentence that I would otherwise of imposed by twenty percent to reflect the utilitarian value of the offender’s pleas.

29 I mentioned the offender’s assistance to the authorities as being relevant to my assessment of his character. There are other good aspects of his character. In particular Mr Gambin gave evidence about the offender’s work with an organisation that Mr Gambin runs called “Just Enough Faith”. There is a lot that can be said in the offender’s favour through his work with that organisation.

30 The offender expressed his remorse today in court. He indeed said that he was sorry that he was not able to express remorse to Ms Urlich, who at that stage was not in court. It has to be said that it would have been easier to accept the offender’s expressions of sorrow had he not attempted to tell a psychiatrist, amongst others, that he was not responsible for the injury to Ms Urlich’s face, but, although it is belated, I am satisfied that the offender’s expressions of remorse are genuine.

31 Quite clearly I am not able to find that there are good prospects of rehabilitation. Much will depend on what happens to the offender whilst he is in custody and whether he is able to deal with the issues that he agrees need to be dealt with.

32 One common feature of the two sets of offences is that the offender was trying to harm himself on both occasions and that some of the offences he committed, in particular those acts of aggression towards police, were committed because the offender just wanted to be left alone so that he could harm himself. There are some similarities between this case and the case of R v Paris [2001] NSWCCA 83 dealt with in the Court of Criminal Appeal some years ago. This is not a case where the offender set out to harm the police because he merely wished to do so.

33 The police are to be congratulated at the restraint that they showed towards the offender’s actions. Despite all of the aggression that the offender showed towards them and despite the danger that they were clearly in, they responded in a measured way and put themselves at risk, rather than harming the offender. They are to be congratulated because they have done an excellent job.

34 The question arises as to whether the sentences should be imposed cumulatively, concurrently or a mixture thereof. The crown says that there are three separate acts of criminality. The first involving Ms Urlich on the first indictment, the second involving police, on the first indictment and the third relating to those offences on the second indictment. I am going to treat things a bit differently.

35 I regard the use of the Molotov cocktail to resist apprehension by police as a separate act of criminality because I have to take into account when sentencing the offender for it, the quite unrelated, but very serious actions of the offender in damaging Ms Urlich’s property. I therefore propose to impose concurrent sentences for the matters on the first indictment, with partial accumulation for the two matters on the second indictment. I have applied the principle of totality, so that overall I consider that the effective period of imprisonment is appropriate given the offender’s many offences.

36 The orders I make are these. For count one on the first indictment, that being the offence of maliciously inflicting grievous bodily harm, the offender is sentenced to imprisonment. I set a non-parole period of two years to commence on 2 September 2006, and a balance of term of one year.

37 For count one on the second indictment, that is the malicious damage by fire, the offender is sentenced to imprisonment. I set a non-parole period of two years to commence on 2 September 2007, and a balance of term of one year.

38 For count two on the second indictment, that is the use of offensive instrument matter, the offender is sentenced to imprisonment. I set a non-parole period of one year to commence on 2 September 2008, with a balance of term of two years.

39 For the remaining matters, they are counts two and three on the first indictment, the offender is sentenced to imprisonment. I set a fixed term of two years, commencing 2 September 2006, they are fixed terms because of the other sentences, I have all ready announced.

40 Thus the effective period of imprisonment is a non-parole period of three years, with an additional term of two years, making a total sentence of five years. It will be obvious that I have found special circumstances, they relate to the primarily to the offender that is serving his sentence on protection.

41 HIS HONOUR: Now Mr Tarantino, do you admit that you are guilty of this offence, that you contravened an apprehended a domestic order, between 10.30am and 10pm on 3 September 2006 at Stanmore?

42 OFFENDER: Yes I do your Honour.

43 HIS HONOUR: All right, thank you. You admit that you knowingly contravened that order do you?

44 OFFENDER: Yes your Honour.

45 HIS HONOUR: I therefore sentence you to a fixed period of imprisonment of six months to commence on 2 September 2006 for that matter.

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