DPP v Godfrey [2020] VSC 197

2 Briefly, this charge relates to your conduct following shooting death of Joshua Dipietro (the 'deceased') on 3 September 2017 as he sat in a motor vehicle outside your premises at [redacted], Rosebud. Whilst you were at the premises at the time, you played no part in the shooting and remained inside throughout.

3 It is alleged that, following the shooting of the deceased, you knew or believed that your sons Craig Williams and John Godfrey had committed a serious indictable offence and without lawful authority or reasonable excuse, you removed a CCTV recording unit from [redacted] and gave it to Craig Williams, and that, on a day shortly thereafter, you removed both live and fired ammunition casings from that address and gave them to William Scorse. You did these things for the purpose of impeding the apprehension, prosecution, conviction, or punishment of Craig Williams and/or John Godfrey.

4 Although originally charged with the deceased's murder, Craig Williams has pleaded guilty to manslaughter and John Godfrey has pleaded guilty to a charge of reckless conduct endangering serious injury. As you had knowledge of the principal offence of reckless conduct endangering serious injury, the relevant maximum penalty for the offence to which you have pleaded guilty is imprisonment for two years and six months.[1]

5 Prior to the hearing of your plea in mitigation on 6 April 2020, I received a summary of the prosecution opening in relation to your part in these matters. On the day of the hearing, I also heard submissions on your behalf and from the prosecution as to the sentence that should be imposed on you. I also received a victim impact statement from Fiona Dipietro, the mother of the deceased man, parts of which she read to the Court.

6 It is now my responsibility to sentence you for this offence.

7 I will now briefly summarise the facts and surrounding circumstances which you accept for the purposes of sentencing.

8 By way of background, you are the mother of both Craig Williams and John Godfrey. You had previously been in a relationship with David Lyons, who is the father of John Godfrey. At the time of this offence, you and Craig Williams lived at [redacted], Rosebud. He resided in a tent erected in the backyard.

9 There was an extensive CCTV system set up at the premises, consisting of eight cameras. Four of those cameras monitored the front yard and road way outside the property. These four cameras were linked to a hard drive in one of the bedrooms of the house and displayed on a monitor that was in the lounge room. The remaining cameras monitored other areas of the backyard and were linked to a computer hard drive and monitor inside Craig Williams' tent.

10 In the weeks leading up to the shooting, animosity had developed between the deceased, Craig Williams and John Godfrey. That animosity grew significantly after an incident in late July 2017 where John Godfrey made disparaging remarks about the deceased in the presence of SH. John Godfrey also hit SH in the face. SH then told others, including the deceased, what John Godfrey had said. Afterwards, the deceased and Craig Williams began contacting each other at various times, exchanging insults and threats.

11 On the morning of 3 September 2017, the day of the shooting, the deceased attended [redacted] and asked you whether Craig Williams was at the residence. When you informed him that he was not, he asked you to tell your son that he had come by. When Craig Williams returned home, you informed him that the deceased had been at the house, and he apparently became angry.

12 Shortly after 8.00pm that evening, you were inside the premises with your three younger children and Chai Gray, a friend of Craig Williams. John Godfrey entered the house to tell you that the deceased was going to be there soon and that you should get the children out of the house. You apparently handed the keys to your car to Ms Gray, and she began to prepare to take the children away from the premises.

13 Craig Williams then entered the house, holding a rifle with a torch taped on it. He instructed you to turn off the CCTV cameras. You turned off the monitor in the lounge room and then disconnected the cables to the hard drive as he supervised. He was yelling at you to hurry up.

14 At some time after 8:10pm, the deceased man and three of his associates arrived outside your premises in a motor vehicle. The driver took the vehicle slowly past the residence before performing a U-turn to park in front of your home. None of the men in the vehicle were armed.

15 Craig Williams, John Godfrey and David Lyons were standing between the side fence and a parked car in the driveway. Craig Williams and John Godfrey were holding firearms. As the deceased exited the vehicle, Craig Williams appeared from behind the car and asked who was there. The deceased identified himself. The parties began yelling, and an unidentified male voice said, 'You're gone'.

16 It is alleged that Craig Williams pointed the rifle at the deceased, who saw the gun and said words to the effect of, 'Put that away. Don't be silly'. The deceased then got back into the car and closed the door. He told the driver to drive away.

17 Before that could occur, Craig Williams fired his gun at the vehicle. A bullet passed through the front passenger-side window and struck the deceased in the left side of his head. The deceased was immediately unresponsive and slumped forward. The driver quickly accelerated away. As that happened, Craig Williams, John Godfrey and David Lyons moved out onto the street. Craig Williams continued to shoot at the vehicle as it drove away.

18 The vehicle continued along [redacted] before breaking down several blocks away. Paramedics later attended, and the deceased was airlifted to the Alfred Hospital. He died at about 4.00pm on 4 September 2017 from the single gunshot wound to his head.

19 After the shooting, your sons entered the house. Craig Williams, referring to the CCTV hard drive, said, 'Unplug that box. I'm going to need it'. You retrieved the unit and handed it to him. Shortly afterwards you and your three young children left the residence with Ms Gray.

20 Some days after the shooting, a family friend, Mr Scorse, attended the residence to ask if you needed help cleaning up. During that process, you handed him a box containing both live and fired ammunition, consisting of .22 calibre and shotgun cartridges. Mr Scorse later provided the box of ammunition to the police. It must be noted that, in relation to the fired casings, the prosecution accept there is no evidence to establish that they were directly connected to the shooting of the deceased.

21 On 5 September 2017, you made a statement to police in which you described being at home on 3 September but provided no information about the shooting.

22 You were later arrested and interviewed by police on 13 April 2018, but again professed to know nothing of the shooting that occurred. It was not until 6 September 2018, when you were arrested and interviewed for a second time, that you provided some information to police about the incident.

23 Impeding the investigation of a serious offence in the manner you did is significant offending. It occurred in the context of most serious offending by others that resulted in the death of the deceased. However, I make clear that you are not to be sentenced on any basis suggesting you contemplated or participated in that event.

24 As previously stated, the Court received a victim impact statement from the mother of the deceased, Mrs Dipietro. She read her statement to the Court herself as she previously had done during the plea hearing for David Lyons. Her victim impact statement vividly portrayed the loss that she feels and the wound that she will carry for the rest of her life. You, of course, were not directly involved in the death of her son. However, I have taken Ms Dipietro's victim impact statement into account in determining the sentence that I should impose on you to the extent that it relates to your particular offending.

25 You are now 50 years of age and, on any view, have had a difficult background, the circumstances of which were described in a psychological report of Gina Cidoni, dated 3 January 2020.

26 From a young age, you resided solely with your father as a result of your mother's psychiatric illness. As I understand it, psychiatric illness has been significant in your family history. Whilst in your father's care, you experienced physical, emotional and sexual abuse.

27 You had a limited education, which ended in year 11 when you became pregnant with your first child, Craig Williams. Then, at age 23, you gave birth to John Godfrey. Your next child, Ayla, died in an accident in 1997 at the age of four. Her death reportedly caused you to develop depression, and you made two attempts on your own life. You also reported abusing alcohol from the time of her death until 2004 when you again became pregnant.

28 You have since had three more children, now aged 16, 15 and 10 years; all of whom were living with you at the [redacted] address at the time of this incident. The 15 year old reportedly suffers from severe autism and global developmental delay. I was provided with a psychological assessment from 2017, which described him as having a moderate to severe intellectual disability.

29 You also have a very limited employment history that ceased in 1997. You are currently a full-time care giver to your three youngest children and are receiving Centrelink benefits. Although you own your residence on [redacted], you have also experienced significant instability in accommodation and, at times, have been living in your car with your three children.

30 At the conclusion of her report, Ms Cidoni diagnosed you with major depression, post-traumatic stress disorder and anxiety.

31 Bearing in mind the difficulties you have faced in your life, your criminal history is surprisingly brief. You have one prior matter in which you were alleged to have threatened a witness who was to give evidence against Craig Williams in relation to a family violence matter. There is some issue as to what exactly your conduct was but you were charged with harassing a witness. You received an adjourned undertaking from the Dromana Magistrates Court on 12 November 2009, which you successfully completed. I do not regard this as a significant matter in the circumstances.

32 On your behalf, it was submitted that an immediate term of imprisonment is not warranted for a number of reasons.

33 First, it was submitted that your conduct was not a particularly serious example of the offence and carries a low maximum penalty. The handing over of the CCTV hard drive was done at your son's demand and, at the time, you unaware that anyone was injured or fatally shot. It is also unknown whether the CCTV cameras actually recorded the events. It was put that your offending was spontaneous and that you were acting out of concern for the welfare of your three youngest children. Further, it was submitted that, even if you had not given the hard drive to Craig Williams, he or any of the others involved could have just taken it themselves. As to the fired ammunition casings, it was submitted that they were not linked directly to the shooting of the deceased and, as stated, there is no evidence to suggest otherwise.

34 Second, it was put that you ultimately provided assistance to police. Although reference was made to the multiple statements you provided in 2017 and April 2018, as I have already mentioned, you were not always truthful. However, it was also put that you cooperated with the police investigation when they attended at your premises with a warrant in October 2017. At that time, you indicated to police where you had located a firearm the previous day as well as some other relevant items.

35 Third, counsel on your behalf submitted that you have suffered extra-curial punishment, including threats made to you during the committal hearing, shots fired at your residence in December 2018, ongoing ostracism in your community, and strict bail conditions that have limited your ability to support your sons in custody.

36 Fourth, it was submitted that your personal circumstances, as described above, indicate a very disadvantaged history. On your behalf, it was also highlighted that you have full-time care of three young children and are the only available caregiver for your son who has significant needs.

37 Counsel on your behalf next submitted that you have pleaded guilty to the appropriate charge and that your plea has a utilitarian value, which the prosecution accepts and I do as well. It is noted that you pleaded guilty to this offence quite late in the proceeding. Frankly, however, I suspect your case was somewhat overtaken by the increasing complexity involved in the case brought against your sons for the killing of the deceased. Your plea of guilty also represents an acceptance of responsibility.

38 Finally, it was submitted that the prosecution have conceded that an appropriate disposition may include a sentence other than a custodial disposition. In support of that position, counsel on your behalf put that, given the context of the charge - that is, a mother providing assistance to her sons - and the extra-curial punishment you have experienced, there is a limited need for specific deterrence. It was also submitted that the need for general deterrence should also be moderated given the objective seriousness of the offending as well as your personal circumstances. Counsel on your behalf have also put that your prospects for rehabilitation are very good and that protection of the community should not be a significant sentencing factor. I respectfully agree.

39 The prosecution submitted were that this is serious offending, and I also agree. However, it was also indicated by the prosecution that nothing in the submissions made by counsel on your behalf as to the appropriate sentence in this case was in contention.

40 In my view, in all the circumstances, it is not necessary for an immediate custodial sentence to be imposed on you. I am also of the view that your prospects for rehabilitation are good and that longer term supervision of you is also unnecessary. A financial penalty would add to your already straitened financial circumstances.

41 Therefore, on the charge of assisting an offender, pursuant to s 72 of the Sentencing Act 1991 (Vic), you will be convicted for the offence to which you have pleaded guilty and the sentence will then be adjourned for a period of 18 months. You will be released upon entering into an undertaking to comply with the following conditions:

1. You must not commit any offences and otherwise be of good behaviour during the period of the period of adjournment;
2. You must attend the Supreme Court of Victoria for sentence as and when called upon to do so during the period of adjournment; and
3. You must attend the Supreme Court of Victoria on 19 October 2021 at 9.30am.

42 You may be required to appear before this Court for reasons that include a breach of your undertaking or the commission other offences during that time.

43 You were released on bail upon being charged in these matters and have not served any time in custody on remand.

Section 6AAA

44 I declare that, but for your plea of guilty, the total effective sentence I would have imposed on you would have been a period of three months' imprisonment.

[1] Crimes Act 1958 (Vic) s 325(4)(b)(ii).