R v Grillo [2003] VSCA 143

9. The circumstances of the offending were as follows. The appellant is a professional bricklayer and a director of a building company, Grillo Investments Pty Ltd ("the Grillo company") and is a proprietor with his wife of a retail gift shop in Noble Park. In mid-1999 Hometech Industries Pty Ltd ("Hometech"), a company controlled by Nick D'orio ("D'orio") engaged the Grillo company to undertake bricklaying work at a construction site in Donvale. The work was carried out by the appellant and two other bricklayers but subsequently a dispute arose between the appellant and D'orio as to the adequacy of the workmanship. It was claimed by D'orio that, because of defects in the bricklaying work, the Council building surveyor refused to certify the development as complete. In September 2000 the appellant carried out what he believed were appropriate rectification works, but they were not accepted as satisfactory by D'orio. The dispute about this issue continued and ultimately, in July 2001, Hometech issued civil proceedings against, inter alia, the appellant in the Domestic Building List at the Victorian Civil and Administrative Tribunal ("VCAT"), in respect of the allegedly defective work.

12. It is plain from the material that was before the sentencing judge that the appellant was incensed about the proceedings and, as a result, he contacted in

August 2001 one "Sam" Defa ("Defa"), who was then aged 21 years and whom the appellant had employed on a casual basis during the previous three years or so. According to Defa, the appellant told him that he wanted D'orio killed, but after Defa refused to do that, the appellant told him: "Forget about it then, just shoot his office window." The appellant then gave Defa a sawn-off double barrelled shotgun and an ammunition belt and instructed him on how to assemble, load and use the weapon and told him to fire shots at a window at the Hometech office in Narre Warren. The appellant apparently told Defa that once this was done, he would send a fax to the office which would contain a threat. The sentencing judge considered that the appellant hoped that such conduct would intimidate D'orio into withdrawing Hometech's legal proceedings against him.

16. Later that day, the appellant accompanied Defa to the Hometech premises for the purpose of acquainting him with the site. He asked Defa to fire at the premises on Sunday, 9 August 2001, as he planned to be in Queensland with his family and considered that this would give him an alibi. As it transpired, however, the appellant did not go to Queensland until 18 August 2001.

19. While in Queensland, the appellant telephoned Defa on 23 August 2001 to inquire whether the shooting had taken place and reacted angrily when Defa told him that he had not yet fired the shots. Defa, however, assured the appellant that he would do so before his return to Melbourne on Saturday 25 August. Although Defa intended to carry out the shooting on Saturday morning, he could not bring himself to do it. After attending a night club that night he was apprehended by the police when he was observed sitting in his van with a shotgun under his chin in the early hours of Sunday morning. When the police questioned him, he told them how he had obtained the gun and what he was asked to do with it.

22. The appellant returned to Melbourne from Queensland on Saturday 25 August 2001. On the following Monday, 27 August 2001, he attended a mediation hearing at VCAT in respect of the proceeding and decided to settle the dispute on terms which required him to pay Hometech approximately $18,000. The sentencing judge considered that, given that the settlement occurred before D'orio became aware of any threat to him or to his company, it probably reflected a genuine compromise of the issue between the parties. By that point in time, whatever motive the appellant may have had towards D'orio to get him to drop the proceedings must have dissipated.

25. On the following day, 28 August 2001, the police attended the appellant's home and his gift shop in Noble Park where they recovered a number of firearms, including a Biretta pistol, as well as other items that were the subject of charges which, at the time of sentencing, had yet to be dealt with in the Magistrates' Court. When questioned by the police about his shotgun which he had given to Defa, the appellant denied knowing Defa or of any involvement by him in the proposed shooting of the windows at the Hometech premises. The appellant was nevertheless arrested and held in custody and, as a result, spent 25 days in the cells below the Melbourne Magistrates' Court, other police lock-ups and the Melbourne Assessment Prison. Not surprisingly, he found this an extremely traumatic experience.

28. The appellant's background circumstances are these. He was born in Calabria, Italy, on 18 June 1961, as the fourth of seven children of his family. His childhood was a strict but happy one, and at the age of 13 he moved to a town in northern Italy where he completed his education at the age of 14. He then went to work in a factory in order to provide financial assistance to his family. In 1980 the appellant came to Australia to visit his sister and decided to stay. Shortly thereafter he met and married his present wife. He learned the trade of a bricklayer, formed the Grillo company and, through it, worked as a bricklayer-subcontractor for approximately 12 to 13 years. Largely because he damaged his back while working as a bricklayer, the appellant developed an alternative source of income in the form of a gift shop that he and his wife opened in Noble Park. Thus, at the time of his offending, the appellant operated both his bricklaying company and the gift shop business.

31. The appellant's marriage seems to have been a happy and stable one and they have three children, the youngest of whom were still at school when he was sentenced. It seems clear enough that his arrest in relation to this matter caused him deep embarrassment within his own family and his wider circle of friends and acquaintances to the extent that he moved from his home rather than suffer the shame of seeing his neighbours who were aware of the police raid.

34. The material before the learned sentencing judge shows that the appellant felt genuine remorse, including a great deal of shame, for his actions and that his time in custody was a horrific experience for him and caused considerable emotional stress to him and his family. The appellant has no prior convictions, has enjoyed, as I have said, a sound family life and has, throughout his life, displayed a solid work ethic. He was well liked in his community and participated in its life and contributed to it. The material before his Honour also showed that the offending was uncharacteristic of the appellant and that the prospect of re-offending was minimal.

37. At the hearing of the plea in mitigation, the prosecutor opened the facts to his Honour, but made no mention of the appellant's statement to Defa that he wanted D'orio killed. Nor did the prosecutor tell the judge that the appellant intended to follow up the shooting of the windows of the Hometech premises with a fax that threatened D'orio. The appellant's counsel, after addressing his Honour about the appellant's personal circumstances and other related matters, submitted that, in the circumstances, it was appropriate to structure a sentence that did not call for the incarceration of the appellant. As the sentencing judge later noted in his sentencing remarks, to his surprise, the Crown also submitted that a wholly suspended sentence would not be outside the range of appropriate sentencing dispositions. It is apparent that the prosecutor did not regard the conduct as amounting to an attempt to pervert the course of justice. At no stage during the hearing of the plea in mitigation did his Honour say that such a sentencing disposition was out of the question so that he considered that the appellant's conduct amounted to, or should be seen as amounting to, an attempt to pervert the course of justice. Yet when he came to sentence the appellant, his Honour did so on the basis that any sentence that would not require him to serve a term of imprisonment would be highly inadequate because of two serious aggravating factors. The two factors were these. One was the method that was chosen by the appellant to inflict criminal damage, namely, the shooting at a window of the premises when there was a risk of injury to those who may have happened to be inside the premises at the time. His Honour said that, notwithstanding that the damage was to be carried out on a Sunday, there was no guarantee that the premises would be unoccupied. In any event, said his Honour, people working in the premises during the week would be justifiably concerned because of the incident even if they were not present when the criminal damage was caused.

40. The second aggravating feature of the offending which his Honour considered to be most serious was the appellant's motive for inciting Defa to cause criminal damage, namely, to intimidate D'orio into dropping or reducing his VCAT claim against the appellant. The learned sentencing judge effectively said that this amounted to an attempt by the appellant to pervert "the system of justice that this society lays down for resolution of those issues and to substitute a system of victory to the intimidator". In the circumstances, his Honour said, any sentence that did not require the imposition of immediate incarceration would be quite inadequate as it would not reflect the seriousness of the offending. That is why, the judge said, he declined to grant the appellant bail at the conclusion of the hearing of the plea in mitigation on 8 November 2002 pending the imposition of sentence (on 15 November 2002).

43. The appellant appeals against the sentence on three grounds which the Registrar ordered on 28 February 2003 to be substituted for those contained in the Notice of Application for leave to appeal against sentence filed on 22 November 2002. I turn first to ground 2, which claims that his Honour wrongly sentenced the appellant as if for the offence of attempting to pervert the course of justice without warning the appellant of his intention to do so. I put to one side for present purposes whether what the appellant did could amount to the crime of attempting to pervert the course of justice given the elements of this offence as they were explained by Brennan and Toohey, JJ. in R. v. Rogerson[1]. I do so because what is relevant for present purposes is that, as I have said, the learned judge sentenced the appellant on the basis that a most significant aggravating feature of the offence was his attempt to pervert the "system" of justice.

46. Mr Priest, who appeared before us with Mr Croucher for the appellant, argued under cover of this ground that his Honour failed to give the appellant the opportunity to meet his view that the conduct in question amounted to an attempt to pervert the course of justice and that this was a "most significant aggravating feature" of the appellant's offending behaviour. Thus, counsel said, procedural fairness was denied to the appellant and consequently, his Honour's sentencing discretion miscarried. In support of this submission counsel referred to R. v. Duong[2] and to R. v. Li[3].

49. In her comprehensive submissions, Ms Pullen for the Crown argued that the appellant was sentenced for the offence of inciting to commit criminal damage and that his Honour's reference to the appellant's attempt to pervert the system of justice was no more than a comment by the judge upon the appellant's motive for his conduct. In my view, however, the sentencing remarks make it plain that his Honour's reference to the appellant's attempt to pervert the system of justice was much more than a comment about motive. His Honour effectively characterised the appellant's conduct[4] as "an attempt to pervert the system of justice" and emphasised that "this was a most significant aggravating feature". Given the manner in which the plea in mitigation was conducted, there was nothing that would have reasonably caused the appellant's legal advisers to anticipate that his Honour would so characterise the appellant's motive and conduct. As Ms Pullen has correctly pointed out in her submissions, the Crown highlighted to the sentencing judge in some detail a range of aggravating circumstances surrounding the offending, but none of them included the characterisation of the appellant's motive as an attempt to pervert the course of justice. Importantly, it was not suggested by the Crown that the motivation behind the appellant's conduct was an aggravating factor or that his offending should be seen as an attempt to pervert the course of justice. Furthermore, and as I have already mentioned, the judge did not raise this issue with the appellant. It is true that, ordinarily, counsel is required to anticipate and deal with all matters that might be relevant to the sentencing disposition, and it is also the case that the judge is not bound by what either party, or both parties, might say as to, inter alia, what are the aggravating circumstances of the offending. Similarly, a judge is not required to give the party the opportunity to comment on every circumstance which he or she considers to be against its interests where it has not been canvassed during the hearing of the plea in mitigation. But circumstances may arise where procedural fairness[5] requires that the party against whom the judge intends to take into account a significant adverse factor be given the opportunity to persuade the judge to the contrary or to put the matter in its context and thus ameliorate its detrimental impact.

52. In R. v. Downie and Dandy[6], Callaway, J.A. said[7]: "A judge is not debarred from taking a consideration into account in sentencing, even adversely to the prisoner, because it was not raised on the plea, but failure to mention an important consideration may breach the audi alteram partem rule." Furthermore, in Chow v. Director of Public Prosecutions[8], Kirby, P., said[9]: "... circumstances may exist where a failure on the part of a judge to disclose matters of concern, or a course of conduct contemplated, will [itself] amount to a departure from the rules of procedural fairness. ... There is [a] fine line between excessive and unjudicial intervention (on the one hand) and candid disclosure of matters of concern to invite response (on the other)." And as Winneke, P. said in Li[10]: "[I]t is inappropriate for a sentencing judge to aggravate a sentence by reference to facts of which he has knowledge, (and which are not a matter of notoriety) without first giving to the accused, or his counsel, an opportunity to meet and counter such facts by appropriate submissions or otherwise. ... Procedural fairness requires no less."

55. In my view, given that, at the hearing of the plea in mitigation, the relevant submissions by the Crown and the appellant centred around the gravity of the conduct which constituted the elements of the offence of inciting Defa to cause criminal damage to the victim's property - no mention being made in that context by the judge or the parties to the appellant's motive for the offending conduct, let alone the intended consequences of it on the victim's prosecution of his civil claim against the appellant - it could not be reasonably said that the appellant's counsel should have foreseen that his Honour might adopt the approach which is now impugned and deal with it in the course of his submissions. Had his Honour raised the issue, the appellant's counsel may have persuaded his Honour that neither the appellant's motive nor his conduct amounted to an attempt to interfere with the system of justice but rather, were an ill-conceived or irrational attempt by him to obtain retribution or vengeance for D'orio's institution of the proceeding. At least counsel may have cautioned the judge against sentencing the appellant on the basis that he attempted to pervert the course of justice.

58. Thus, I consider that, putting to one side whether his Honour sentenced the appellant for the offence of attempting to pervert the course of justice contrary to Newman and Turnbull v. R.[11], the appellant was deprived of procedural fairness in the sentencing process and, consequently, his Honour's sentencing discretion

miscarried. It follows that the sentencing discretion is re-opened and is to be exercised by this Court. In the circumstances it is not necessary to deal with the appellant's other grounds of appeal.

62. In the context of re-sentencing the appellant, I consider that the offence and the offending were serious examples of their kind, but I am also of the view that the appellant has shown genuine remorse for his ill-conceived course of conduct, that there is no realistic prospect of his re-offending, that he has undergone significant punishment on account of his incarceration and that, subject to this episode, he is a person of good character. Consequently, I would sentence the appellant to a term of imprisonment for two years and suspend its operation beyond the imprisonment he has served.

66. I agree, for the reasons given by Chernov, J.A., that this appeal should be allowed. I also agree in the sentence which he proposes.

The appeal is allowed. The sentence imposed by the trial judge is quashed. In lieu thereof this Court orders that the appellant be sentenced to a period of two years' imprisonment. We direct that the whole of that sentence beyond the period which the appellant has served to this day in custody be suspended for a period of two years from today.

Mr Grillo, the Court has the power under the Sentencing Act of this State to suspend such period of the sentence of imprisonment imposed upon you for a period not exceeding three years. That means that you are entitled to be relieved of the custodial portion of the sentence beyond that which you have served to today, and that is what this Court proposes to do. What I want to tell you is this. The suspension order, if you agree to abide by it, will operate from today for a period of two years into the future. If you breach that suspension order by committing another offence, either within this State or outside this State, which is punishable by imprisonment - do you understand that? - that will breach the suspension order. You will be taken back for that breach and ordered, probably, to serve the remainder of the suspended sentence together with any other sentence you might get on the breaching offence. Do you follow that? It really means you have to be of very good behaviour for two years until this order expires. This Court has confidence that you will do that. Are you willing to enter into such a suspension order?

85. The final part of our order is that we declare that the appellant has served 309 days of the sentence which we have imposed and we direct that the declaration and its contents be entered in the records of this Court pursuant to s.18 of the Sentencing Act.

[1] [1992] HCA 25; (1992) 174 C.L.R. 268 at 280.

[2] [1998] 4 V.R. 68 at 77-78 per Kenny, J.A.

[3] [1998] 1 V.R. 637 at 642-643 per Winneke, P.

[4] The judge seems to use the terms "motive" and "conduct" interchangeably - see pp.31-32.

[5] This elementary rule applies to civil and criminal proceedings - see, for example, R. v. Wise [2000] VSCA 169; (2000) 2 V.R. 287 at 294 per Ormiston, J.A. with whom Brooking and Chernov, JJ.A. agreed.

[6] [1998] 2 V.R. 517.

[8] (1992) 28 N.S.W.L.R. 523.