The Queen v Tiberi [2013] VSC 710

2 On 16 December 2013, I heard submissions on behalf of the Director of Public Prosecutions and from senior counsel on your behalf in relation to the sentence that should be imposed on you. I must now sentence you for your crimes. Pursuant to s 320 of the Crimes Act 1958, the maximum penalty for kidnapping contrary to the common law is 25 years' imprisonment. The maximum penalty for intentionally causing serious injury is 20 years' imprisonment.

3 You committed these offences as one of several involved in the kidnapping and assault of Yengo Faugere. He was later murdered. The Crown accept that you were not involved in the acts that caused Faugere's death. On 7 February 2012, Faugere's partial remains were found at a property in Manifold Road, St Leonards. They were contained in a barrel on the back of a Nissan Navarra utility parked in a padlocked garage.

4 The prosecution case against you was that you, together with Brok Seckold, Matthew Lowe and possibly others, at the instigation of Seckold, agreed in October 2011 to kidnap Yengo Faugere for reasons that will shortly become apparent.

5 At the time of the discovery of Faugere's remains Seckold, Lowe and others (but yourself not included) had been operating a series of substantial clandestine drug laboratories both at St Leonards, where the remains were found, and earlier at other locations in metropolitan Melbourne.

6 The Crown case is that the evidence establishes that Brok Seckold was the instigator and owner of a drug manufacturing business. You were a consumer of the drugs which he manufactured. Indeed, you developed a severe methylamphetamine addiction. Yengo Faugere was an associate of Seckold's from New South Wales at a time when they were both living in that State. He ultimately became the person who prepared the drugs in Seckold's drug manufacturing businesses, which was established at Canterbury in May 2011.

7 On 8 July 2011, the police discovered Seckold's clandestine drug laboratory in Canterbury. As a result of Seckold's understanding of what had occurred based on, among other things, media reports of that discovery, he concluded that Yengo Faugere had stolen a significant quantity of pure methylamphetamine from that laboratory. He also apparently concluded that Faugere had provided information to the police about the laboratory for the purpose of concealing his theft.

8 In the latter part of 2011, although Faugere had withdrawn from the drug manufacturing operations, the Crown case was that Seckold continued to suspect that Faugere was responsible for the police discovering the Canterbury laboratory and formulated a plan which you assisted to put into effect: to kidnap Faugere for the purpose of recovering the stolen methylamphetamine and also for the purpose of punishing him.

9 It is significant to note at this stage that since your plea both Seckold and Lowe have been found guilty by a jury in separate trials of the murder of Faugere. Seckold and Lowe recruited you to assist to execute the plan to kidnap Faugere. You are Matthew Lowe's cousin, and you were Seckold's friend. According to the Crown, your involvement in the kidnapping commenced two days before the deceased was kidnapped when you went with Matthew Lowe to Northpoint Car Rentals and hired a Hi-ace van, which was used in connection with the kidnapping of Yengo Faugere.

10 According to what you told your partner, Magdalena Soszynski, you were aware that Seckold wanted to kidnap Faugere and you knew why he wished to do that. You understood that Seckold believed that Faugere had stolen methylamphetamine from his laboratory. You told her that Faugere had run away and that nobody had seen him and that he had stolen some of Seckold's chemicals. You also said that he had taken some of Seckold's equipment. You told Soszysnki that he was going to be in a lot of trouble for running away and removing those items and at least insinuated that you knew Seckold was angry with him.

11 The Crown say that the agreement between you, Lowe and Seckold (and perhaps others), was, in summary, that the deceased would be kidnapped in the early hours of 20 October 2011 and he would then be driven to a rural area, in particular Mansfield, where he would be questioned about the drugs he was alleged to have stolen. You also knew that it was likely that harm would be inflicted on him. You have accepted that at that location at Mansfield serious injury was inflicted upon Yengo Faugere and that you aided and abetted the infliction of that injury by being present whilst the injuries were being inflicted on him. The serious injuries constituted by a combination of injuries consisting of bruises and lacerations to various parts of Faugere's body. The Crown say it is the combination of injuries rather than any individual injury which represents serious injury and accept that on the scale of offending, the level of injury at least is relatively low.

12 You told Soszynski that you and others had taken Faugere from his home and driven him somewhere remote and "bashed him because he was a rat". In your conversations with Soszynski, you denied that you had any involvement in the death of Faugere and said you had left the scene while he was still alive. It would appear the prosecution accept that to be true or at least are in no position to prove otherwise. You told your partner that the bashing of the deceased was severe and that he was very bloodied and bruised when you left the location.

13 The Crown accept that after some injuries had been inflicted on Faugere you left the scene and played no further part and had no further involvement in the fate of Yengo Faugere. After you left, the deceased man was murdered by Seckold and the others who remained, including Matthew Lowe.

14 The Crown conceded that at the time you left the scene where Faugere was being assaulted there were not any permanent injuries inflicted on him or any life threatening injuries inflicted on him at that stage. However, the very concept that you became involved in an agreement for this young person to be kidnapped so that he could be questioned and punished in a physical way goes to demonstrate the seriousness of your criminal conduct. The kidnapping and the assaults in which you aided and abetted occurred because you were willing to help Seckold in particular to protect his unlawful and extremely detrimental drug enterprise. Whether or not the injuries that you aided and abetted were particularly serious, the overall criminal conduct that you took part in is extremely serious.

15 On 24 July 2012, you were interviewed about the disappearance of Yengo Faugere by members of the Victoria Police Homicide Squad. You responded to the questions they asked you about whether you had an involvement in that disappearance with the answer "no comment".

16 Finally, on the basis of the manner in which the Crown put its case, I must sentence you on the basis that the evidence does not permit a conclusion that you actually inflicted any injuries on Yengo Faugere.

17 Two victim impact statements were presented before the Court. The first is from Florence Pinto, dated 6 November 2013. This woman is the mother of Yengo Faugere and has been thoroughly distressed and traumatised by the death of her son. As she points out in the course of her statement, her son was shown no mercy, even after it was clear that he was innocent. It turns out that he had stolen no drugs from Brok Seckold or members of his enterprise. The traumatic impact of the death of Yengo Faugere on his mother will be with her for the rest of her life.

18 In addition to that, a victim impact statement has been filed by Emile Faugere, who is the brother of the deceased man. The impact has been significant for him also, and these impacts are constant and long lasting.

19 I have taken both of these victim impact statements into account in the sentence that I will impose on you.

20 You are aged 26, and you are a young man who has had every opportunity in your life so far, and as a result of your willingness to participate in the consumption of illicit drugs you have been willing to throw those opportunities away.

21 I have been told that you come from a very close family and many members of your family were present at court on 16 December 2013 for the purpose of supporting you.

22 You had a successful education at both primary and secondary level, including at De La Salle College in Malvern, and you completed your VCE in 2005. As part of your secondary education you travelled overseas to China. Your chosen trade was as a carpenter and you commenced an apprenticeship which you have almost completed save for some formal examinations. In sport, you have been very active both at school and outside; you are obviously an accomplished footballer and cricketer. A high point in your sporting activities included being selected in the Under-18 VFL North Ballarat Football Club and then later in 2010 playing some games in the VFL for the Casey Scorpions and hoping, perhaps, for an AFL career.

23 I am told that you had been a very good son and a conscientious member of the family, but your contact with Brok Seckold was the beginning of the end of your success in life. It led you to experiment with drugs from ecstasy and then into methylamphetamine. You had started to experiment with drugs at the age of 17, and by the age of 21 your drug use had become very intense. You described to the psychologist, Patrick Newton, an intense state of euphoria followed by a more intense "rebound" depression when withdrawing from the drugs. You developed a very serious addiction indeed.

24 You are now suffering some level of depression and anxiety as a result of your current time in custody and concerns that you feel about the future. As Mr Newton says, you are in a period of enforced remission from the addiction to methamphetamine.

25 Mr Newton diagnosed your condition as "severe methamphetamine use disorder", pursuant to the criteria in DSM-V. That condition is now in early remission because you are in a controlled environment. Mr Newton says there is a compelling need for you to receive structured drug counselling and education. I strongly agree with that sentiment.

26 I have been provided with a large number of references from members of your family and friends of your family. They are an impressive collections of testaments to your positive qualities. You have stunned your family with your conduct. Fortunately for you, they all continue to believe in you, and in the references they have urged me to conclude that your prospects for rehabilitation are very good because your conduct is so out of character with the person they know. They urge me to sentence you in the knowledge that when you are released from custody you will return to a supporting and loving family. Several of your family and friends have visited you in custody. That must be a sobering experience for them. Those who know you and are participants in the building industry have made it clear that on your release work will be provided for you.

27 Your counsel placed particular reliance on the fact that you pleaded guilty and did so at an appropriately early opportunity. You did spend some period of time in custody charged with murder but ultimately that charge was not proceeded with. There is a utilitarian value to your plea in that the community was not put to a further trial, but the more significant aspect of your plea of guilty is that I am willing to accept that it is represents a degree of remorse on your part for what has occurred. As I earlier noted, Brok Seckold stood trial for the murder of Yengo Faugere as did Matthew Lowe. Both were convicted. Although you were present for the kidnapping of Yengo Faugere and for part of what occurred after he had been taken from his home in Maribyrnong, you were not a prosecution witness in either of those trials. No explanation for that was offered by either the prosecutor or counsel on your behalf. Beyond noting it in this context I cannot draw any further conclusion about it.

28 As I indicated during the course of sentencing, I accept that your conversion from a functioning member of a close family with talent for sport and for your adopted trade of carpentry converted itself into a catastrophic life as a result of your consumption and addiction to methylamphetamine. Having said that, it is also important for me to say to you that drug addiction provides no justification for the purpose of sentencing[1] and does not mean that a lower sentence will be imposed. Your decision to begin to use drugs, particularly the methylamphetamine coming from Seckold, was voluntary. You must remain personally accountable for the decisions you have made.

29 Your offending is very serious and the objective gravity of what you did is significant. You made choices which you must have known were extremely bad choices. Those choices included your willingness to associate particularly with Seckold who is obviously a person with little or no regard for the law and who regarded himself as entitled to exact punishment on Faugere. For a time at least you supported that idea. You assisted in the hiring of a vehicle to be used for the purpose of committing the offence. Further, once Faugere had been kidnapped, you were willing to participate as an aider and abettor in circumstances where he was completely outnumbered and unable to defend himself, leaving him bloodied and bruised. That conduct is close to the height of cowardice. It is conduct which requires me to give prominence to general deterrence in sentencing you. The community must be dismayed at this kind of retribution being exacted on someone because of some perceived misconduct in an illicit drug business.

30 However, I take into account that you were a follower of Seckold rather than an instigator. Also, you have no criminal record. You are 26 years of age and thus relatively young. I do accept that your prospects of rehabilitation are positive, although subject to the qualification, as Mr Newton has made clear in his report, that your abstinence from methylamphetamine is under an enforced regime because you are in custody. As he says, your "capacity to transfer this abstinence to a community setting remains untested". He points out, and it is very important, that you have a need for drug education and counselling to equip you with the skills in relapse-prevention and harm-minimisation. Such treatments should commence, in my opinion, as soon as possible and prior to your release. It will also need to continue for some time after your release. You should acquire, as Mr Newton said, a clear focus about the risks and dangers of drug use and develop an insight into the consequences of participation in the drug world whether as a consumer or trafficker or enforcer or both.

31 As I have already noted, the maximum penalty for intentionally causing serious injury is 20 years' imprisonment pursuant to s 16 of the Crimes Act 1958. The maximum penalty for the common law offence of kidnapping is 25 years. These maximum penalties are a clear indicator from the Parliament as to how seriously such offences should be treated.

32 Having given weight to your plea of guilty, a degree of remorse, your lack of prior convictions, the support of your family and your relative youth, I have concluded that in all the circumstances a sentence should be imposed on you which will cause you to reflect carefully on your conduct and what led to it. If, on your release, you commit further offences anything like these you can expect to be very severely punished.

33 The sentence I impose on you will be as follows. On the count of kidnapping, you will be sentenced to be imprisoned for a period of 4 years. On the count of intentionally causing serious injury, you will be sentenced to be imprisoned for 2 years and 6 months. I direct that 12 months of the sentence imposed on count 2 be served cumulatively with the sentence on count 1.

34 The result will be a total effective sentence of 5 years. I direct that you serve a period of 3 years and 6 months' imprisonment before you become eligible to apply for release on parole.

35 I declare your pre-sentence detention at 515 days, including this day and direct that that be reckoned as time already served and entered in the records of the Court.

36 Pursuant to s 6AAA of the Sentencing Act, I indicate that but for your plea of guilty the total effective sentence that I would have imposed upon you would have been a period of 7 years and 6 months' imprisonment with a minimum term of 5 years and 6 months' imprisonment.

37 I have made the order for retention of a forensic sample pursuant to s 464ZFB(1A) of the Crimes Act 1958 sought by the Crown and not opposed on your behalf.

[1] See for example R v Koumis [2008] VSCA 84.