R v Vitagliano; R v Foskolos

[2020] NSWDC 305

District Court

New South Wales

Medium Neutral Citation:

R v Vitagliano; R v Foskolos [2020] NSWDC 305

Hearing dates:

10 – 24 September 2019 (Trial)26 September 2020 (Detention Application Hearing)21 February 2020 (Sentence Hearing)21 May 2020 (Sentence Hearing)5 June 2020 (Sentence Hearing)

Date of orders:

05 June 2020

Decision date:

05 June 2020

Jurisdiction:

Criminal

Before:

Weber SC DCJ

Decision:

Vitagliano:
(1)   The offender is sentenced to a term of imprisonment of 3 years, with a non-parole period of 1 year and 6 months.
(2) Pursuant to the provisions of section 47 of the Crimes (Sentencing Procedure) Act 1999 (NSW), the Court directs that such a term of imprisonment shall commence on 8 August 2019 and that the non-parole period shall expire on 7 February 2021, with the balance to expire on 7 August 2022.

 Foskolos:
(1)   The offender is sentenced to a term of imprisonment of 3 years, with a non-parole period of 1 year and 6 months.
(2) Pursuant to the provisions of section 47 of the Crimes (Sentencing Procedure) Act 1999 (NSW), the Court directs that such a term of imprisonment shall commence on 12 September 2019 and that the non-parole period shall expire on 11 March 2021 with the balance to expire on 11 September 2022.

Catchwords:

CRIME — Complicity — Accessory before the fact — Violent offences — Wound with intent to cause grievous bodily harm — Where the offenders organised for the victim to be “jumped” after being lured from his home

 

SENTENCING — Relevant factors on sentence — Co-offenders — Joint sentence proceedings — Objective seriousness — Parity

 

SENTENCING — Mitigating factors — Provocation – Remorse – Rehabilitation – Unlikely to re-offend – Good character

  SENTENCING — Penalties — Intensive correction orders not appropriate – Imprisonment the only option

Legislation Cited:

Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

DPP v SJK [2002] VSCA 131
Elturk v R [2014] NSWCCA 61
GAS v The Queen (2004) 217 CLR 198
Markarian v The Queen (2005) 228 CLR 357
R v KCF (2006) 167 A Crim R 475
SAT v R [2009] NSWCCA 172

Category:

Sentence

Parties:

Regina
M. Vitagliano (Offender)
V. Foskolos (Offender)

Representation:

Counsel:
Mr Paish (Crown)
Ms S. Goodwin (Offender Vitagliano)
Mr B. Barrack (Offender Foskolos)

  Solicitors:
Mr N. Johnston (ODPP)
Mr J. Corban (Offender Vitagliano)
Mr J.A. Harb (Offender Foskolos)

File Number(s):

2017/00334435;2017/00324287

Publication restriction:

None

Judgment

1. The offenders come before the court for sentence for the offence of having aided and abetted wounding with intent to cause grievous bodily harm. This is conduct contrary to the combined operation of section 33(1)(a) and section 346 of the Crimes Act 1900 (NSW) (“the Crimes Act”).

2. The offenders were found guilty of the offence by a jury on 24 September 2019, on which date I entered convictions. On that date, the Crown made a Detention Application, and on 26 September 2019, I revoked their bail.

3. The offence carries a maximum penalty of 25 years imprisonment, while the section 33(1)(a) offence carries a standard non-parole period of seven years imprisonment.

4. The submissions of the parties illuminated the fact that there is an issue as to whether the standard non-parole period of seven years imprisonment is not only applicable to the primary offence, but also to the aid and abet element of the offence. The Court of Criminal Appeal has said the issue “remains to be authoritatively determined” (SAT v R [2009] NSWCCA 172 at [56] per Buddin J, with Howie and Grove JJ agreeing).

5. In the circumstances, the Crown urged me to approach this sentencing task by taking a conservative view on this unresolved issue. That is to say, to approach sentencing on the basis that there is no applicable standard non-parole period. As that approach is beneficial to both offenders, I shall adopt it.

Agreed Facts

6. The primary offence occurred on the night between 3 and 4 October 2017. The primary offenders Mancuso and Rajasuriar wounded the victim, Ayman Said, in his car at Austral.

7. The parties were in overwhelming agreement as to the facts which must be inferred to have been found by the jury’s guilty verdict.

8. I shall set forth the relevant parts of the agreed facts from the Agreed Facts Document provided by the parties (“the Agreed Facts”). There seems to me to be little utility in attempting to summarise those facts, as the detail of many of those facts is important to the considerations underlying the sentencing task. The facts set forth in paragraphs 41 and 73 of the Agreed Facts were the subject of some dispute, and I shall return to the dispute later in these reasons.

9. The relevant parts of the Agreed Facts are as follows:

7.

The offender VITAGLIANO and the complainant’s mother, Amina Said, were once close friends. At the beginning of 2017, VITAGLIANO was living with the Said family at [redacted] Lurnea, following a breakdown in her marriage. For a number of reasons, Ms Said was not fond of VITAGLIANO’s husband.

8.

During this period Ms Said would allow VITAGLIANO to use her mobile phone to access the Facebook and Facebook Messenger applications. As a result, Ms Said had access to VITAGLIANO’s Facebook and Facebook Messenger accounts, as she did not use these applications herself.

9.

Eventually VITAGLIANO moved out of the Said family home and back into a house with her husband. Following this a dispute arose between VITAGLIANO and the Said family. At all relevant times thereafter, VITAGLIANO used mobile service number xxxx xxx 034.

10.

Prior to September 2017, VITAGLIANO was aware of the victim’s cannabis use.

11.

She was aware of his school suspensions for violence, including causing a serious injury to another child at school.

12.

On 29 May 2017, VITAGLIANO saw the victim out the front of his house swinging a machete and screaming aggressively while his mother shouted at him to stop.

13.

The victim turned to VITAGLIANO and said “This is for Leo, I hate that fucking dumb cunt.”

14.

She saw the police arrive and shout at him to drop the machete on the ground. He refused to do so, and they drew their firearms and pointed them at him. He eventually dropped the machete and the police threw him to the ground.

15.

While resisting police on the ground, he punched one of the officers in the face. He was handcuffed and taken to the police station.

16.

VITAGLIANO became aware that he was subsequently admitted to the Mental Health unit at Liverpool hospital.

17.

VITAGLIANO knew that the victim suffered from mental health issues including the ability to control his anger. She knew that he was on medication to help him with his mental health issues.

18.

She knew that there were times when he did not take his medication and she knew that at those times, he was erratic and sometimes out of control.

19.

On 20 July the victim came to VITAGLIANO’s house and there was a dispute over the return of some of Amina Said’s belongings.

20.

The victim came to the side gate of the house and said to [AV] (her 15 year old son) "You better tell your mother to give us your fucking stuff back otherwise you and your mother are going to be in the ground”.

21.

The victim climbed up on the side gate and began throwing punches with both closed fists over the gate. He swung his fists in the direction of [AV]’s head.

22.

He punched [AV] twice in the head, once in the temple area.

23.

He also said “You're going to get killed, you're going to get stabbed. You better not leave the house."

24.

At 5am on 23 July 2017 the victim, dressed in black, entered VITAGLIANO’s garden and spray painted the image of a penis on the letter box. VITAGLIANO became aware of this when she watched her CCTV footage.

25.

On 26 July 2017, the victim rang the school at which [AV] was a student and pretended to be another student. He told the school that [AV] had threatened another student and that [AV] was in possession of a firearm.

26.

[AV] was strip searched at the school and the police attended.

27.

In the early morning of 1 August 2017, the victim went over to VITAGLIANO’s house and removed the garbage bins and threw garbage all across the front lawn.

28.

The next morning [AV] was standing on the footpath. The victim was in his car and wound down his window and said, "What the fuck are you looking at? You want to fight? You fucking pussy.”

29.

The victim then said to [AV], "Fuck you, I want to kill you. Come on the street and we will fight.” The victim also threatened to “gut” VITAGLIANO’s 13-year-old son, [BV].

30.

On 4 August 2017 VITAGLIANO reported these incidents to the police. The victim was arrested and charged with a number of offences.

31.

He was released and returned to continue living at home.

32.

On 31 August VITAGLIANO moved out of the house with her two sons and went to stay with her brother for a period of time.

33.

Around 24 August VITAGLIANO had window locks installed to the front of the home, deadlocks put on the back and front doors, and a lock installed on her bedroom door.

34.

VITAGLIANO stated that she received ongoing anonymous phone calls prior to 24 September. As a consequence, she changed her phone number. She produced an email to the police indicating that she had changed her number.

35.

The offender FOSKOLOS is a friend of VITAGLIANO. FOSKOLOS worked at a hairdresser/therapy business in Rockdale where VITAGLIANO would get her hair cut. They would occasionally exchange text messages in relation to hair appointments and social events. VITAGLIANO knew that FOSKOLOS occasionally cared for troubled kids with nowhere else to live. At all relevant times FOSKOLOS used the mobile service number XXXX XXX 866 (a service subscribed in her name).

36.

The co-offender RAJASURIAR lived with FOSKOLOS at [redacted] Green Valley. RAJASURIAR. At all relevant times RAJASURIAR used the mobile service number XXXX XXX 833 (a service subscribed to FOSKOLOS).

37.

The co-offender VINTER was a friend of the co-offender, DIMITRIYEVICH. VINTER was also familiar with the complainant as a result of contact they had over Facebook in June 2017, while they were both living in Oran Park. The pair corresponded for a while, however they had never met prior to the offending. At all relevant times VINTER used mobile service number XXXX XXX 683.

38.

On 24 September 2017, VITAGLIANO exchanged messages with FOSKOLOS on Facebook Messenger, during which she enquired whether her “boys” could bash the complainant. The exchange was as follows:

VITAGLIANO: Hey gorgeous remember a few weeks ago I asked for your boys to do a favour

VITAGLIANO: It’s time the flavour was delivered there some cash involved for your boys

FOSKOLOS: Do tell!

VITAGLIANO: I’ll send you what you’ll need I want this little gronks jaw broken and and his head stomped on

I want a photo so I can see [winking face emoji]

VITAGLIANO: I’m offering some cash for their services but I need that pic after it’s done

FOSKOLOS: Ok I’ll let them know .. wow this sounds like it’s gotten to breaking point [frowning face emoji]

VITAGLIANO:

He assaulted my son he assaulted my son cause malicious damage vandalism at my house he’s called my son school claiming that my son had a gun in his bag made big trouble

VITAGLIANO: I’m at Woolworths doing the shopping at the moment but I will call you to tell you more.

FOSKOLOS: Hun I’m

Just about to go movies so may talk Tuesday cause I’ll be at work all day /night tomorrow

FOSKOLOS: I’ll need pics n address of these guys or at least first last names

VITAGLIANO: K no problem we talk Tuesday I’ll send u details MWA :-*

FOSKOLOS: Hectic :-*

39.

On 26 September 2017, VITAGLIANO sent FOSKOLOS a photo of the complainant through Facebook Messenger. VITAGLIANO followed the photo with the following details

AymanSaid
[redacted]Lurnea

Drives black BMW Plate No. [redacted] don’t know the numbers Red P plates.

Message me to call u when u see

40.

Amina Said had seen these messages (as a result of being able to see VITAGLIANO’s Facebook Messenger activity on her phone) and warned the complainant to be careful.

41.

Sometime between 26 September and 3 October 2017, FOSKOLOS discussed the matter with her housemate, RAJASURIAR. The Crown asked the jury to infer she showed him the messages sent to her by VITAGLIANO and asked for his assistance. RAJASURIAR in turned discussed the matter with DIMITRIYEVICH.

42.

On 3 October 2017, at about 8:14pm, RAJASURIAR sent an MMS message to DIMITRIYEVICH containing the following message and photo: ‘Hey can u see if u no any girls that no this lil gronk’.

[image partially redacted]

43.

This is a photograph of Facebook Messages sent by VITAGLIANO to FOSKOLOS.

44.

DIMITRIYEVICH responded ‘Noworries’ A short time later RAJASURIAR contacted DIMITRIYEVICH a few times by phone. During these phone calls DIMITRIYEVICH became aware that arrangements were being made for the complainant to be bashed. DIMITRIYEVICH soon realised that VINTER was familiar with the complainant, so she called VINTER to recruit her to try and lure the complainant out of his house to meet.

45.

At 9:23pm DIMITRIYEVICH sent an SMS message to RAJASURIAR containing VINTER’s contact number (XXXX XXX 683), saying ‘ring my mate now and talk to her about it’. Both DIMITRIYEVICH and RAJASURIAR called VINTER and explained to her that the complainant had wronged some people and needed to be bashed.

46.

At 9:35pm VINTER sent DIMITRIYEVICH a screenshot of text messages between her and the complainant, which was forwarded to RAJASURIAR. A short while later DIMITRIYEVICH and RAJASURIAR shared a 10-minute phone call during which it is inferred they discussed a plan for the complainant to be bashed.

47.

Between 9:00 and 10:00pm, VINTER contacted the complainant a number of times via Facebook Messenger and SMS. The complainant was at home in Lurnea at the time. VINTER encouraged the complainant to come out and meet with her in Leppington under the pretext of “hooking up”. The complainant was hesitant as he was worried about getting “jumped”, given that he was aware of the messages sent by VITAGLIANO to FOSKOLOS.

48.

Meanwhile, RAJASURIAR had arranged to meet with the co-offender, MANCUSO, and an unknown male. MANCUSO was to join RAJASURIAR in the plan to bash the complainant. Around 9:50pm, the pair spoke on the phone and exchanged SMS texts, including one in which MANCUSO said: ‘i told joe if u drive he get look after lol on da way’. Shortly after RAJASURIAR sent a text message saying ‘We’re u at’, to which MANCUSO responded, ‘on way to yours 5min’.

49.

At about 10:00pm DIMITRIYEVICH sent a series of MMS messages to RAJASURIAR containing screenshots of VINTER’s message exchange with the complainant. DIMITRIYEVICH then sent a text to RAJASURIAR to say ‘Fuck this gronk’, referring to the complainant. It later became apparent that the complainant did not feel comfortable leaving his house to meet with VINTER, and was asking if they could meet the following day. During this time DIMITRIYEVICH was keeping RAJASURIAR informed of VINTER’s contact with the complainant.

50.

After 11:00pm, VINTER continued to send text messages to the complainant enticing him to come out and meet her, hinting that they could engage in sexual contact. During this time VINTER kept DIMITRIYEVICH and RAJASURIAR updated about what was happening. By about 11:40pm, the complainant had agreed to meet VINTER at Leppington Train Station. The complainant told VINTER that he would borrow his mum’s car and pick her up.

51.

At 11:44pm RAJASURIAR sent a text message to VINTER saying ‘Send ya address lol’. VINTER replied ’[redacted] Oran Park’, which is where she was residing at the time. At about 11:49pm RAJASURIAR had a short telephone conversation with DIMITRIYEVICH, following which RAJASURIAR, MANCUSO and the unknown male drove a small silver hatchback to VINTER’s house in Oran Park to pick her up, arriving shortly before midnight.

52.

About the same time the complainant left his house in Lurnea in his mum’s black BMW sedan bearing NSW registration [redacted]. VINTER sent him a text message saying that she was at Leppington Station waiting for him, having been dropped there by the unknown male driving RAJASURIAR and MANCUSO around in the silver hatchback.

53.

At about 12:14am (now 4 October 2017), the complainant arrived at Leppington Train Station. He told VINTER he was there, so she walked over to the black BMW and entered the front passenger seat, after which the complainant started driving. RAJASURIAR, MANCUSO and the unknown male followed in their car.

54.

The complainant and VINTER drove around for about 10-15 minutes. During this time VINTER was exchanging text messages with RAJASURIAR. Eventually the complainant drove to Edmondson Avenue, Austral, and parked on the shoulder under dim light approximately 50 metres north of the intersection at Bringelly Road. VINTER told the complainant that she needed to speak to a friend, after which she got out of the car and contacted RAJASURIAR. At 12:33am RAJASURIAR texted VINTER to say he was coming. VINTER then got back in the car with the complainant. Meanwhile the car containing RAJASURIAR and MANCUSO parked in a nearby street so they could approach the complainant without being seen.

55.

Shortly before 1:00am, RAJASURIAR and MANCUSO ambushed the complainant while he was seated in the laid back front passenger seat of the BMW. RAJASURIAR was carrying a silver dumbbell bar and MANCUSO had a knife. RAJASURIAR opened the front driver’s side door and struck the complainant in the head with the silver dumbbell bar. The complainant attempted to close the door however RAJASURIAR swung the dumbbell at him again, saying ‘This is for Mardi [VITAGLIANO]. You’re fucking with the wrong family!’ The complainant responded: ‘I’m 18, I haven’t done anything. Bro, I could die.’

56.

The complainant grabbed the end of the dumbbell and held onto it while RAJASURIAR punched him. MANCUSO then started kicking the complainant in the ribs on his left side. MANCUSO said: ‘Give me your wallet and your fucking keys.’ The complainant said: ‘I can’t, it’s my Mum’s car.’ RAJASURIAR then demanded the complainant’s phone.

57.

RAJASURIAR and MANCUSO then started smashing the windows of the BMW. The complainant moved over to the passenger side of the car and noticed that he could see a small light. RAJASURIAR had taken out a phone and was taking photographs of the complainant cowering in the car.

58.

MANCUSO produced the knife and held it in his hand. The knife blade was about 5 inches long. He said to the complainant: ‘Give me your fucking shoes before I stab.’ The complainant complied and took off his shoes. RAJASURIAR and MANCUSO took the complainant’s Nike TN shoes, as well as his Apple iPhone 7 plus which was covered by a carbine fibre case containing $150.00 cash and his Commonwealth Bank debit card, Drivers Licence, Medicare card and St George Credit Card.

59.

The complainant saw that the car keys were still in the ignition, so he took them out and put them in his pocket. He then got out of the BMW and ran south along Rickard Road, before approaching a nearby house to raise the occupants. The occupants of the house immediately contacted emergency services. As the complainant was running away he could hear glass being shattered, which was RAJASURIAR and MANCUSO smashing the windows of the BMW.

60.

Meanwhile VINTER was standing outside the BMW during the incident. She watched RAJASURIAR and MANCUSO assault the complainant with a silver baton and knife, later telling police about the incident in an Electronically Recorded Interview. She said she felt horrible about what was happening, so she left to go and sit in the car being driven by the unknown male. The males dropped her off at home afterwards. DIMITRIYEVICH had sent her a text message saying: ‘Mad bitch X.’

61.

Police and Ambulance services eventually attended in response and the complainant was conveyed to Liverpool Hospital. The location of the BMW was made a crime scene.

The Co-offenders Mancuso, Rajasuriar, Vinter, and Demitriyevich

10. On 14 June 2019, Pickering SC DCJ sentenced the co-offenders, Mancuso, Rajasuriar, and Vinter, for their part in the primary offence, and other offences. On 21 February 2020, I sentenced the co-offender Dimitriyevich. The parties were agreed that the circumstances of the offenders currently before the court were so different from those of the other co-offenders as to render issues of parity, as between the other co-offenders and the two offenders now appearing for sentence, irrelevant. I accept that this is the case.

11. Obviously, the issue of parity between the co-offenders before me looms large, a topic to which I shall later return.

Sentencing Principles in Relation to Aiders and Abettors

12. The parties were in agreement as to the principles to be applied to offenders who aid and abet other offenders. The ultimate conclusion from the authorities, as I understand it, is that depending on the factual circumstances of any given case, an aider and abettor may be equally, or even more blameworthy than the primary offender.

13. In R v KCF (2006) 167 A Crim R 475 at 478 [10], Nettle JA (as his Honour then was) stated:

The law is that an accessory before the fact may well be regarded as more blameworthy and so receive a heavier sentence than a principal in the first degree.

14. His Honour referred to a number of cases in which the same had been held. Of note is a passage from DPP v SJK [2002] VSCA 131 at [47], which was cited with approval by the High Court in GAS v The Queen (2004) 217 CLR 198 at 209 [23]:

The notion that, as a general proposition, an aider and abettor would be expected to receive a lesser penalty is one which must be approached with considerable circumspection. Even a moment's thought would bring to mind a number of realistic scenarios in which the culpability of an aider and abettor could be properly regarded as being at least equal to, if not significantly greater than, the principal offender. A shrewd or vicious individual, for example, who incites an intoxicated or less mentally competent or otherwise vulnerable individual to act in an extreme fashion could hardly be regarded as entitled to a lesser penalty. Obviously, whether or not an aider and abettor should get a different penalty to that imposed upon the person who undertakes the commission of the offence must be determined in the light cast by all of the circumstances bearing upon the offence and the offender involved.

Objective Seriousness

15. The Crown submitted that the offenders’ specific roles and functions, the victim’s injuries, and the weight to be given to the issue of provocation were all crucial to the determination of the objective seriousness of the offending.

16. The Crown also submitted that the fact that the primary offence was committed in company was an aggravating factor (s 21A(2)(e) of the Crimes (Sentencing Procedure) Act 1995 (NSW)) (“the Sentencing Act”).

17. The offenders denied that the fact of the primary offence being committed in company was aggravating in relation to the offence with which they have been convicted. They submitted that no part of their role involved conveying either a desire, or the need for the primary offence to be committed in company.

18. In support of its contention the Crown relied on a reference to “your boys” in the electronic communications between Vitagliano and Foskolos. It said that the use of the plural indicated that the co-offenders had contemplated an assault in company.

19. I do not accept that submission. In my view, the reference to “your boys” could just as easily be read as referring to the fact that, at the time of the messages, there may have been more than one candidate who was known to Foskolos, and who might be persuaded to undertake the assault. As such, I do not find the Crown has established this aggravating factor beyond reasonable doubt.

20. As I have indicated, the Crown submitted that the injuries suffered by the victim are an important factor in considering the objective seriousness. This proposition is clearly correct. The injuries which the victim suffered include:

1. A wound to the left forehead 3cm long and deep with tendon/bone exposure;

2. A superficial laceration to the left cheek;

3. Bruising to the left parietal region;

4. Abrasion to the left forearm; and

5. Bruising to the left lateral chest/back.

21. The offenders submitted that the injuries were not in the upper end of injuries contemplated by the offence with which they are charged. This was accepted by the Crown. That said, the extent of the injuries should not be downplayed. The wound to the forehead of the victim as a result of being bashed with a barbell rod was certainly not insignificant. That said, I find that the injuries were neither sufficiently substantial to constitute an aggravating factor under s 21A(2)(g) of the Sentencing Act, nor so insubstantial as to amount to a mitigating factor under s 21A(3)(a) of the Sentencing Act.

22. The victim, Ayman Said, has provided a helpful victim impact statement which outlines the physical and psychological effects which the assault has had on him. In relation to the latter, the offenders reminded me that the victim had suffered from pre-existing psychological problems, dating from before the attack. I accept this, but do not see any need to attempt to determine issues of causation in relation to the psychological effects of the assault in this sentencing judgment. Suffice to say that the assault was not insignificant, and must have been terrifying. It has had a lasting impact on the victim.

23. The Crown submitted that the request by the offender Vitagliano for a photograph of the victim taken after the assault amounted to conduct constituting gratuitous cruelty for the purposes of s 21A(2)(f) of the Sentencing Act, and thus an aggravating factor.

24. I do not accept that this is the case. The authorities make clear that gratuitous cruelty, in this context, refers to the infliction of pain, as an end in itself. It must be part of the infliction of the injury. The request for the photograph, unpalatable as it was, was an act which post-dated the assault. As such, I have not taken this matter into account as constituting the aggravating factor of gratuitous cruelty.

25. Certain other factors potentially relevant to the objective seriousness of the assault should also be mentioned. In addition to the Crown’s submission as to the fact of the offences being committed in company, with which I have previously dealt, the following were other aggravating factors which were potentially relevant, namely;

1. The use of a weapon; and

2. The fact that the assault was accompanied by a robbery.

26. At the end of the day, I did not understand the Crown to be relying on these matters, but for more abundant caution I should note that I do not consider these matters to have been established as aggravating factors in relation to the offences before me. I take this view as there is no evidence that either was within the contemplation of the offenders.

27. I should also note that the attack which actually took place, constituting the primary offence, was less brutal than that contemplated by offenders, namely, the chilling edict of the offender Vitagliano that “I want this little gronk’s jaw broken and his head stomped on”. Such an assault, had it been carried out, could be expected to have visited graver injuries than were in fact inflicted on him. In the worst case, they could have been fatal.

28. This is relevant to the offender Foskolos’ dispute in relation to agreed fact 41. Ms Foskolos accepts that the jury verdict must necessarily infer a finding of some form of communication from Foskolos to Rajasuriar, but submits that the nature and content of that communication has not been established. More specifically, she submits that it has not been established beyond reasonable doubt that she showed Rajasuriar the phone messages requesting the bashing. I accept that that is the case, and as such, I do not find beyond reasonable doubt that the text messages concerning the breaking of the victim’s jaw, and the stomping of the victim’s head, were conveyed by Foskolos to Rajasuriar.

29. It is convenient to here deal with the offender Foskolos’ second dispute in relation to the Agreed Facts, namely; her objection to paragraph 73. Paragraph 73 is set out as follows:

[73]   Police seized FOSKOLOS’s mobile phone and the Crown put to the jury that they found that it contained pictures of the complainant taken at the time of the offence (the pictures taken by RAJASURIAR), as well as a conversation with VITAGLIANO requesting the pictures.

30. The offender Foskolos’ objection to that paragraph of the Agreed Facts was in reality an objection in relation to timing. Ms Foskolos disputed that the pictures of the complainant were on her phone at the time that the police seized it, as set forth in paragraph 73 of the Agreed Facts. She admits however, that at one stage the photos were on her phone, and that she conveyed them to Vitagliano. I do not consider this distinction to be important.

Offenders’ Backgrounds

31. The issue of provocation, and its potential availability to the offenders, looms large in the sentencing task. In order to deal with it, I shall first provide some background as to the offenders.

The offender Vitagliano

32. The offender Vitagliano is a 48 year old, married woman. She was born in Wagga Wagga. She married her husband, Leo, in 1977. They remain married. They have two sons: [AV], aged 19 years; and [BV], aged 14 years.

33. Upon leaving school Ms Vitagliano trained as a hairdresser, in which occupation she worked for 13 years. She then worked as a bookkeeper up to the time of her incarceration.

34. During her childhood the offender’s older sister contracted meningitis, from which she sadly died. The death of her older sister at an early age led to some form of breakdown in the family relations. It led to her mother becoming very depressed. The offender was only two and a half years of age at that time.

35. The offender Vitagliano relied on a report of Dr Richard Furst, a forensic psychiatrist, dated 11 May 2020. Its contents were not the subject of any dispute by the Crown; indeed the Crown in its submissions described the report as “helpful”, and indicated that it accepted the report.

36. Dr Furst’s report records that the offender Vitagliano first experienced the onset of depressive symptoms in 2005. This occurred in the post-natal period immediately following [BV]’s birth. He reports that she experienced further episodes of depression in the following years, which episodes lasted anything from a few weeks to a few months. Dr Furst says that the depressive episodes were not recognised or diagnosed at the time.

37. The offender reported to Dr Furst a history of more severe depression, which was triggered by her marital separation in October 2016. This period of depression continued into the period of the traumatic events involving her neighbour, Ms Said, and the victim, Ayman Said, as set forth in the agreed facts.

38. Dr Furst opines that the offender’s depression continued throughout 2017, and was associated with high levels of anxiety and apparent post-traumatic stress disorder.

39. The offender told Dr Furst that she and her two sons were traumatised by, and were fearful of the victim, Ayman Said. These feelings were exacerbated by the fact that they were alone. Her husband was living elsewhere at the time, as this was a period of separation between the two.

40. Dr Furst reports that the offender gave him a history of feeling very emotional and “on edge” in 2017, crying all the time, being very anxious, having high levels of nausea, withdrawing from others, struggling for sleep, and having nightmares as a daily occurrence. These nightmares involved violent themes, such as: the victim breaking into her house, her house being set on fire, or the victim placing her sons in suitcases, and stabbing them. She also had flashbacks of the traumatic events and threats involving the victim, which had occurred in the previous months.

41. Dr Furst also reports that in this period of depression the offender sought to self-medicate by drinking alcohol excessively, and using cocaine. She apparently had no previous history of substance abuse prior to that time.

42. Following her arrest, and after being granted bail on 22 December 2017, the offender sought the care of Dr Mark Milic, a psychologist, and Dr Bisht, a psychiatrist.

43. Dr Furst ultimately expressed the view that the offender meets the criteria for diagnosis of the following mental disorders, namely:

1. Major depressive disorder;

2. Post-traumatic stress disorder; and

3. Substance abuse (alcohol and cocaine).

44. Dr Furst stated that the substance abuse disorder was now in remission.

45. His ultimate conclusions are in the following terms:

Ms Vitagliano has asserted that she acted in self-defence at the time of the offence in question before the Court. Although her actions were found by the jury to constitute the criminal offence of being an accessory before the fact to wounding with intent to cause grievous bodily harm, the motivations behind her criminal actions were clearly designed to protect herself and her two sons from real and/or perceived danger.

In my opinion, the circumstances Ms Vitagliano found herself in and her mental state in the months up to and including October 2017 is of great psychiatric significance. In this respect, I note Ms Vitagliano had separated from her husband in the latter months of 2016, felt vulnerable, had apparently been threatened and intimidated on a number of occasions by the victim, and that her sons had also been targeted.

Furthermore, Ms Vitagliano was far from emotionally stable at the time of her offending, experiencing severe depression, severe anxiety and other symptoms of post-traumatic stress disorder. Core symptoms of severe depression include difficulty concentrating, difficulty making decisions and negative perceptions. Core symptoms of anxiety and PTSD include over-estimation of risk, causing and maintaining fear of negative events happening and triggering autonomic [physical] reactions in the body that also have a highly unsettling effect. Therefore, I am of the opinion that Ms Vitagliano’s misguided attempts to protect herself and her two sons were driven by the combination of the overwhelming circumstances she found herself in, coupled with the emotional and cognitive distortions of her severe depression, severe anxiety and PTSD, mitigating against the seriousness of her actions.

I note that there was some delay between the threatening/disturbed conduct of the victim and the actions of Ms Vitagliano in sending a text message to her co-accused. However, her severe depression, severe anxiety and her symptoms of PTSD were continuing in that period, including the likely cognitive impairment/cognitive distortions associated with her depression and PTSD described above.

In my opinion, those distortions included Ms Vitagliano over-estimating the risk posed to herself and her family, failing to adequately weigh up the potential consequences of criminal conduct, and failing to adequately appreciate the benefits and/or protective value of relying on authority figures, including the NSW Police Force, ultimately leading to her poor decisions at the time in question and her criminal offending as an accessory before the fact to wounding with intent to cause grievous bodily harm.

46. Dr Furst set forth recommendations regarding the offender’s future treatment, both on the basis of the availability of treatment within the custodial setting, and also a treatment plan for the period when the offender was on parole.

47. I requested that a copy of Dr Furst’s report be provided to Justice Health.

The offender Foskolos

48. The offender is a 45 year old woman and the mother of 2 sons, aged 27 and 21 years of age. She is now widowed. Prior to her incarceration, she worked as a hairdresser, indeed it was in that role that she became first involved in the planning of the offending.

49. The offender Foskolos has led a life with more than its share of difficulties. She reported to Dr Sathish Dayalan, a forensic psychiatrist, that she was subject to child sexual abuse at the age of eight years by a family member. This appeared to be ongoing. Ms Foskolos kept that fact a secret until she reached adulthood, when she disclosed it to her sister and her mother. She was further traumatised by the fact that her mother had a tendency to disregard and downplay what she had reported.

50. The offender had her first child at between the ages of 17 and 18. Initially, she lived with her husband’s family, which family environment was characterised by high levels of domestic violence. This violence was largely targeted towards her mother-in-law, who eventually committed suicide.

51. As the relationship with her husband progressed, he in turn became physically abusive toward her. She was forced to move out of the house which they shared, but the physical abuse by her husband continued when he visited her. This violence escalated after the birth of her second child. This domestic violence came to include violence towards her eldest son. Confronted with this escalation of violence, she ended her relationship with her husband.

52. Ms Foskolos’ eldest son in turn began exhibiting violent, antisocial behaviour. This first occurred when he was 14 years of age. He was subsequently diagnosed with schizophrenia. Ms Foskolos’ son became violent towards both her and her younger son, and ultimately she had no other alternative but to have him live with her ex-husband. This unfortunately led to a situation where her son seriously assaulted his father, causing him to be hospitalised.

53. The distress experienced by these events apparently led Ms Foskolos’ husband to attempt suicide, which attempt was unsuccessful, but left him with severe brain injury. His brain injury involved some degree of personality change which led to him being less violent, but childlike. Ms Foskolos felt responsible for his welfare thereafter.

54. In 2017, Ms Foskolos’ eldest son was incarcerated.

55. The offender Foskolos reported to Dr Dayalan, that at the time of the offending she was highly distressed as her eldest son had been incarcerated only two weeks prior to the offence. She was concerned about how he would survive in gaol, given his attitudes. She believed that he was at a high risk of being assaulted in custody. Dr Dayalan reports that Ms Foskolos was also concerned about the welfare of her husband.

56. Dr Dayalan expressed the view that repeated adverse and traumatic experiences from her early stages of life probably predisposed Ms Foskolos to developing prominent anxiety and depressive symptoms in the context of stressful situations. He opines that at the time of the offences Ms Foskolos was highly distressed by the incarceration of her son, and very concerned about his risk of being assaulted within the custody. She was also concerned about the welfare of her ex-husband. As events transpired, her son was seriously assaulted while in jail, and her husband committed suicide, though these events post-dated the offending.

57. Dr Dayalan expressed the opinion that at the time of the offences, the offender was experiencing anxious ruminations, insomnia, impaired concentration, low energy levels, increased irritability, and a pervasive sense of being on edge. He explained that these symptoms indicated a generalised anxiety disorder. Dr Dayalan expressed the opinion that:

…given the behaviour that constituted the charges occurred while she was experiencing heightened anxiety, it is quite probable that this psychiatric condition has contributed to her poor judgment and impaired ability to carefully consider the consequences of her offending behaviour.

Provocation

58. The Crown accepted that notwithstanding the jury’s verdict necessarily carried with it that self-defence was not available to either offender, nonetheless factors relevant to provocation of the offenders could be potentially relevant in the sentencing process as going to the offenders’ moral culpability. The Crown summarised the events possibly constituting provocation as follows:

1. The dispute over the returning of property, during which the Victim punched the Offender’s son twice to the head and threatened to stab him;

2. An incident in which the Victim spray painted a penis on the Offender’s mailbox;

3. An incident in which the Victim falsely reported that the Offender’s son had a gun at school, for which the son was strip-searched;

4. An incident in which the Victim spread garbage on the Offender’s front lawn; and

5. A verbal exchange between the Victim and the Offender’s son in which he stated that he wanted to kill him, and that he would “gut” the Offender’s other son.

59. Of these incidents constituting possible provocation, the Crown accepted that the first and the last were not trivial, and as such those facts were capable of being taken into account as mitigating factors pursuant to s 21A(3)(c) of the Sentencing Act.

60. The Crown further submitted, however, that the other events which I have set out above, namely (b), (c) and (d), even taken as part of a whole course of conduct, do not amount to provocation sufficient to engage the section

61. The Crown also contended that the offender Vitagliano’s actions in response to the provoking acts were disproportionate to the perceived threats which she confronted, and that the provocative quality of the provoking incidents should be taken to have dissipated over time. In this regard, the Crown correctly submitted that this was not an example of what might be thought to be typical provocation which involves an offender responding instantly to an aggression. Nonetheless, the Crown did accept some degree of provocation was available as a mitigating factor in relation to the offender Vitagliano.

62. The Crown’s position in respect of the offender Foskolos was different from that which it took in relation to the offender Vitagliano. This was so, it submitted as the position of the two offenders in relation to the provoking incidents was different. The provoking incidents qua Ms Vitagliano were immediate, experienced by her, and involved potential threats to both her, and her sons. The events of provocation in relation to the offender Foskolos, the Crown submitted, were too remote to be capable of being brought into account. It submitted that the offender Foskolos sat at a “degree removed from the situation and the provocative acts which could not have operated on her mind to the same extent as they operated on the mind of the co-offender (Vitagliano), to whom the events represented threats to her sons.”

63. I think it is fair to characterise the Crown’s position in relation to the offender Foskolos as being that her provocation was vicarious, by which I mean that the events of provocation were relayed to her both verbally and by electronic means by the offender Vitagliano.

64. The Crown submitted that the participation by Foskolos in the sad events which unfolded could not be justifiably described as being an act by her which was in response to any events of provocation.

The Offender Vitagliano’s Submissions on Provocation

65. The offender Vitagliano in this regard relied heavily on the report of Dr Furst. His opinion, as I have indicated, was accepted by the Crown. The thrust of the submission of Ms Vitagliano was that the acts alleged to constitute provocation cannot be coolly dissected as the Crown contends, but rather need to be considered in their totality, and especially having regard to the likely effect of the totality of the provoking conduct on the mind of the offender.

66. It was submitted that the combined effect of severe depression and PTSD was such as to severely impair her decision-making. The submission proceeded that the tendency of a person afflicted by these psychiatric disorders to “replay” worrying events over and over again in their mind, can have a tendency to lead them to further misjudge the reality of the threats which confront them, and lead them to poor decision making.

67. One only needs to contemplate the sheer insanity of what the offender Vitagliano did in response to the threats which she perceived herself to be under, to agree with Dr Furst’s opinion. The response which she arrived at, namely, of ordering a bashing, which could have been fatal, and doing so by written electronic communications which were retained, and to some extent communicated to the victim’s mother, simply beggars belief. It certainly bespeaks significantly impaired decision making.

68. Thus I accept that, in respect of the offender Vitagliano, the events of provocation viewed in their totality, in her mind, were sufficient to constitute a mitigating factor. Further, I am of the view that her mental condition, as described by Dr Furst, considerably lessens her moral culpability in relation to the offending.

The Offender Foskolos’ Submissions in Relation to Provocation

69. The offender Foskolos submitted that she was aware of the threats which Vitagliano perceived to herself and her family. She submitted that she knew how scared the offender Vitagliano was, and that she (Foskolos) was aware of the danger that the victim presented to Vitagliano’s family. In her interview she told the police that the offender Vitagliano was “terrified” and was “very scared, was very intimidated, and that her boys and her were living in fear of this man.” She also points to the text messages which she sent to the offender Vitagliano, which stated inter alia “…this sounds like it’s gotten to breaking point”.

70. It was submitted on her behalf that in the context of submissions on provocation, that an intention to defend another is capable of operating to reduce objective criminality. It was further submitted in this regard that the motive for the assaults was extremely important in assessing the offender’s moral culpability.

71. I do not accept that this is the case. I accept the submissions of the Crown in relation to provocation concerning Foskolos. I do not believe that what I have described as “vicarious provocation” is a mitigating factor available to her. While I accept that Foskolos was herself under considerable stress at the time of the events in question, I do not believe that her decision making process were so severely impaired by her psychological state that she was unable to perceive that her role in this lamentable tale was not an appropriate response to the events which had been relayed to her by her friend, the offender Vitagliano.

72. I do consider, however, that the opinion of Dr Dayalan should be accepted, and that the offender was at the time of the commission of the offence suffering from psychological impairment of the type which is appropriate to be brought into account as a factor lessening her moral culpability.

Other Mitigating Factors

73. Both offenders gave evidence of their remorse, which evidence demonstrated an insight into their offending and the consequences of that offending for the victim and his family. The Crown accepted the genuineness of their statements of remorse, as do I.

74. Both offenders have had no prior criminal convictions. This fact entitles them to some degree of leniency.

75. The fact of their prior good character also permits a finding that their offending constitutes an aberrant act in what otherwise have been blameless lives, which I so find.

76. To my mind, this also leads to a conclusion that both offenders enjoy good prospects of rehabilitation, and have a low risk of reoffending.

Conclusions on Objective Seriousness

77. The issue of provocation can be relevant to both an assessment of moral culpability and the objective seriousness of the offending (Elturk v R [2014] NSWCCA 61 at [12], William v R [2012] NSW CCA 183 at [38]).

78. Taking all of the matters of which I have earlier referred into account, that is to say: the role of the offenders, the injuries, and the issues of provocation, together with the aggravating and mitigating factors, I am of the view that the objective seriousness of the offending for both offenders ought to be assessed as falling slightly below the midrange.

Parity

79. My conclusion as to parity between the offenders requires a balancing between the roles of the two offenders in the offending, and their respective moral culpability. The latter deriving from my findings as to provocation and the undisputed evidence their respective mental states at the time of offending.

80. As to the offender Vitagliano, her role in the sorry events was greater than the offender Foskolos’. Vitagliano instigated the events which transpired, at the risk of stating the obvious, but for her decision making this lamentable tale would never have unfolded. Foskolos’ role, though important and indeed essential, was secondary to Vitagliano’s role.

81. The situation in respect of moral culpability is to some extent reversed, due primarily to the fact that provocation looms larger as a factor in considering the offender Vitagliano’s moral culpability, than it does with respect to the offender Foskolos.

82. Balancing these factors as best I can, I consider that broad considerations of parity in the circumstances dictate that same sentence be imposed on each offender.

Intensive Correction Order

83. Both offenders submitted to me that the appropriate manner in which to deal with the matter would be by way of imposing an intensive correction order.

84. The Crown opposed such an order, and I unhesitatingly agree that the interests of justice could only be served by a period of full-time custody. The offenders’ actions were serious, and if their plan was literally carried into effect, could have resulted in severe brain injury, or a fatality. The actions of the victim, about which the offender Vitagliano complained, were, at her instigation, already being dealt with by the courts at the time of the offending.

85. Notwithstanding the impaired judgement and decision making of the offender Vitagliano, her response simply should never have occurred. The offender Foskolos had the opportunity, and the duty, to dissuade the offender Vitagliano from the course of conduct which she proposed. She did not.

86. I accept that, given the circumstances of the offending and their respective psychological states to which I have referred, neither offender is an appropriate vehicle for general deterrence. I also accept that given their otherwise blameless lives, their ages and their remorse, they are most unlikely to reoffend and thus are not appropriate vehicles for specific deterrence. That said, the actions of the offenders are actions which warrant the Court’s resolute denunciation.

87. As such, I am of the view that no sentence other than a full time custodial sentence is appropriate, and so find for the purposes of s 5 of the Sentencing Act.

Special Circumstances

88. The offenders raised various matters which they contended were relevant to special circumstances. The principle matters were:

1. That this is the offenders’ first time in custody;

2. That there is community benefit in an extended period of supervised time on parole, which will enhance their prospects of rehabilitation;

3. The existence of the COVID-19 virus pandemic was said to be relevant in at least two ways:

1. First, it was submitted that the fear that the virus might enter the prison system, from where it was likely to quickly spread, was a very real fear for the offenders. They pointed to their inability to adequately protect themselves from the virus, should it enter the prison system. This fact, they submitted, made the period of custody to which those fears applied, more onerous for them than otherwise would be the case; and

2. Secondly, the offenders also pointed to the fact that the restrictions on visitations, imposed by Corrective Services in an attempt to ensure that the virus does not spread to the State’s prisons, made their imprisonment more onerous for the period of these restrictions.

89. As I put to their counsel, these matters are matters which are likely to be experienced by all prisoners, thus raising the issue as to whether these were matters appropriate to be taken into account in the sentencing process of the individual offenders.

90. The offenders’ submission in response to that suggestion was that if the balance of the non-parole periods which the Court may impose were relatively short, this would have the consequence that the added hardships of imprisonment constituted by the COVID-19 would constitute a hardship incurred for a greater proportion of their total incarceration, when compared to the effects of such hardships in relation to offending which called for a greater period of incarceration.

91. It was thus argued that this would have the effect that their incarceration would be disproportionally harsher than otherwise would be the case.

92. I did not understand the Crown to dispute the offenders’ submissions in relation to special circumstances. I accept them, and shall sentence accordingly.

Sentence

93. In arriving at the sentences which I am about to pronounce, I have brought into consideration the matters going to objective seriousness, aggravating and mitigating factors, and moral culpability which I have set out above, and I have attempted to carry into effect the instinctive synthesis described by McHugh J in Markarian v The Queen (2005) 228 CLR 357, at [51].

94. Mardi Vitagliano,

1. You are sentenced to a term of imprisonment of 3 years, with a non-parole period of 1 year and 6 months.

2. Pursuant to the provisions of section 47 of the Crimes (Sentencing Procedure) Act 1999 (NSW), I direct that such a term of imprisonment shall commence on 8 August 2019 and that the non-parole period shall expire on 7 February 2021, with the balance to expire on 7 August 2022.

95. Voula Foskolos,

1. You are sentenced to a term of imprisonment of 3 years, with a non-parole period of 1 year and 6 months.

2. Pursuant to the provisions of section 47 of the Crimes (Sentencing Procedure) Act 1999 (NSW), I direct that such a term of imprisonment shall commence on 12 September 2019 and that the non-parole period shall expire on 11 March 2021 with the balance to expire on 11 September 2022.

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Decision last updated: 17 June 2020