IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication
AT MELBOURNE
CRIMINAL DIVISION
Total Effective Sentence: 42 months imprisonment
Non-Parole Period: 24 months
Pre-Sentence Detention: 5 days
Case No. CR-13-01259
DIRECTOR OF PUBLIC PROSECUTIONS v
Gaetano LOMACCHIO
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JUDGE: CHIEF JUDGE ROZENES
WHERE HELD:
DATE OF HEARING:
DATE OF SENTENCE:
Melbourne
6 November 2014
4 December 2014
CASE MAY BE CITED AS:
MEDIUM NEUTRAL CITATION:
DPP v LOMACCHIO, Gaetano
[2014] VCC 2024
REASONS FOR SENTENCE
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Catchwords: Obtain property by deception – Attempt to obtain property by deception
– Burglary – Disguise as cash carrier – Sophisticated initial insider operation
– Imitation firearm as a prop – Bold and desperate offending
– Character evidence
Sentence:
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APPEARANCES:
For the DPP
For the Accused
Counsel
Ms G Coghlan
Mr M Goldberg
Solicitors
Office of Public Prosecutions
Robert Stary Lawyers
VICTORIAN GOVERNMENT REPORTING SERVICE
565 Lonsdale Street, Melbourne - Telephone: 9603 2403
!Неопредел енн ая з акл адк а, I

HIS HONOUR:
1 Gaetano Angelo LOMACCHIO, you have pleaded guilty to one charge of obtaining property by deception, two charges of burglary and two charges of attempting to obtain property by deception. You have admitted a prior criminal history consisting o f a single appearance at the Frankston Magistrates’ Court on 26 November 2002 on charges of theft and making a false report to police.
2 The facts were opened in detail by Ms Coghlan, who appeared to prosecute, and are contained in the prosecution opening, exhibit A.
VCC:MR
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4
5
In brief summary, you participated in a scheme to obtain money from banks pretending to be armed guard cash couriers. For that purpose you were dressed in clothing that closely resembled that worn by armed guard money couriers, including guns, and requested money for transfer from the various banks. There were ten such occasions. You obtained, or attempted to obtain, large amounts of cash from bank officers who were deceived or to be deceived into thinking you were part of the regular cash carrying system.
The first episode involving you was on 12 April 2012 at the Niddrie branch of the Westpac Bank where your brother charge, Salvatore, worked as a bank employee. On that day you attended at the bank with your accomplice Rocky
Bornino dressed in Armaguard uniforms which included equipment belts which appeared to hold imitation firearms. Your brother opened the door to let
Bornino in and escorted him to the secure room at the rear of the bank where he handed him $440,000 in cash. You remained outside the bank. You both left with the money. Charge 1.
On 7 August 2012 you and your mother, Katina Lomacchio, employing the same subterfuge, attempted to obtain money from the Westpac branch at
Campbellfield and then from the Westpac branch at Broadmeadows. Both attempts were unsuccessful. Charges 2 and 4. At Campbellfield the banking staff said that there was no requirement for cash transport and at
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Broadmeadows, when challenged by banking staff as to why you both had no identification, you said that you had left yours in the truck and that your mother was a trainee and did not yet have any. You both then left the bank.
A total of ten banks were targeted in the scheme. You were only involved with the three that I have referred to. On 9 November 2012 your brother and Mr
Bornino effected the scheme at another seven banks in the one day. When arrested by police on 6 December 2012 you made a no comment record of interview.
You are the last of the participants to plead guilty and be sentenced. For his part, Rocky Bornino was sentenced to a total effective sentence of three years and three months imprisonment with a non-parole period of 15 months. His involvement was in respect to eight branches but the only charge he had in common with you was the first charge for which he was received a sentence of two years ’ imprisonment. Your brother Rocco was sentenced to a total effective sentence of five years and three months with a non-parole period of three years ’ imprisonment. He was also involved in respect of eight branches and again the only offence in common with you was charge 1 for which he received a sentence of 39 months ’ imprisonment. Your mother was sentenced to a total effective sentence of 18 months ’ imprisonment, which sentence was wholly suspended for a period of 3 years. She was only involved in respect of two branches which are the same as your charges 2, 3, 4 and 5.
With respect to Mr Bornino, I made a declaration that his sentence had been reduced as a result of his undertaking to give evidence against his cooffenders. I described his assistance as “significant” and said that securing the cooperati on of offenders is unlikely to be obtained without “substantial inducements”. With respect to your brother, Rocco, it was conceded that his employment at the bank was an aggravating factor with respect to charge 1.
In sentencing him I treated his criminality as more serious than Bornino’s on the basis that he had breached a relationship of trust with his employer and
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9 that the breach was probably most instrumental in ensuring the success of that particular enterprise.
There is a further distinction between you and Bornino that needs to be noted.
He pleaded guilty to a series of charges of aggravated burglary, seemingly founded on the fact that each time he entered a bank he was armed and had an intent to commit a relevant offence. I expressed some concern about this charge at the time and I have been informed by the prosecutor at the previous instance that the Director of Public Prosecutions, in response to my concerns, has not charged you with those offences but with burglary charges on occasions where you crossed into a secure part of the bank. One might say that one technical and superfluous offence has been replaced with another.
In any event, what I propose to do is what I did in the case of Bornino and that is to make any sentence I impose on the burglary charges wholly concurrent with the substantive charges of obtaining or attempting to obtain property by deception, as the case may be.
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10 Notwithstanding the distinctions, I am otherwise conscious that in sentencing you I must take into account the sentences imposed on the others. The law requires a sentencing judge to have regard to the principle of parity amongst co-offenders. The principle that like offences and like offenders receive like penalties is integral to the maintenance of public confidence in the criminal justice system. You will understand that the undertaking to give evidence by
Bornino along with the other factors, which I have already referred to, must produce a different sentence for you. So too does the role played by your brother in charge 1 produce some different sentencing considerations. I clearly must consider the sentence imposed on your mother with respect to the charges other than charge 1. Viewed separately it is difficult to distinguish your involvement from hers in those charges, but she had not participated in charge 1 whereas you had. On that charge alone it is to be observed that whilst you are to be distinguished from your brother having regard to his
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VCC:MR particular relationship with the bank, there is not that much to distinguish your conduct from that of Bornino or for that matter your brother. The scheme was to utilise your brother’s special position in the bank. You participated in that scheme and played the role accorded to you. Sometimes it is said that, say in the case of the bank robbery, the driver waiting in the getaway car or the lookout plays a lesser role than the person who confronts the teller with the gun, but that is because the person with the gun exposes all to the greater risk, and is the person who terrorises the public. I am not sure that in cases such as that where the scheme contemplates that very thing happening that the getaway car driver should receive any lesser sentence. In your case I am satisfied that standing guard as you did outside the bank was no lesser event than that played by Mr Bornino and for that matter by your brother, if one puts to one side the aggravating fact that he was an employee.
11 Mr Goldberg, who appeared for you submitted that I take the following into account by way of mitigation:
(a) That you played a subordinate role in relation to charge 1, that you only received $20,000 from the transaction and contributed no special skills.
(b) That your participation in the Broadmeadows and Campbellfield offending, charges 2 to 4, were “prompted by Rocky Bornino” and that you desisted thereafter.
(c)
(d)
That you have pleaded guilty, albeit not until the door of the court, and that the plea has utilitarian value and is indicative of remorse.
That you suffer from anxiety and that your time in custody would be more burdensome.
(e) That you have no prior convictions and are otherwise of good character. A bundle of character references, exhibit 3, was tendered
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(f) as was a letter from you, exhibit 4, in which you expressed remorse, embarrassment and shame for your offending.
That your prospects of rehabilitation were positive as was demonstrated by the fact that you had successfully completed a
Community Correction Order imposed upon you for the possession of steroids.
(g) That two years and three months had elapsed since the last offending.
(h)
(i)
That your mother would suffer further hardship if you were incarcerated.
That I consider giving you a suspended sentence.
12 In her report of 25 October 2014, exhibit 2, Ms Elizabeth Gunn, psychologist, said that you were feeling increasingly anxious about your upcoming trial, that you feared being incarcerated and having been bullied at school you feared that you would be bullied in prison. She also said that you were worried about your family and were remorseful. No formal diagnosis was made other than that you were increasingly anxious.
VCC:MR
13 For the reasons I have already mentioned and in the absence of any other evidence I do not accept that your role was subordinate in the sense that you were less culpable than the others. Your brother ’s culpability was aggravated by the fact that he was in a position of trust but there was nothing on my view which separates your culpability from that of Mr Bornino. I have now sentenced each of the offenders and I think it fair to observe that so far each has blamed the other and there is no satisfactory explanation for who was the initiator and who reaped what benefit. It is not unusual in cases such as this and I am not surprised that each has sought to minimise their role. As was pointed out in the prosecution opening at paragraphs 16 to 19, a listening device recorded discussions between you and your brother discussing further
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offending with better preparation.
14 Your plea was not offered until the very last minute and thereby occasions delay attributed directly to you. I am prepared to give you a benefit for its utilitarian value. By pleading guilty you have avoided the necessity of a trial and the cost associated with it.
15 In sentencing you brother and mother I said:
“To repeat what I said at the sentencing of Mr Bornino, your offending was serious, motivated by greed, reasonably well planned, brazen and, if successful, would have reaped substantial reward. It was aimed at a high net worth target, a bank. As it was, with respect to charge 1, you deprived the bank of some $440,000.00. That episode was particularly well planned and executed. It was a sophisticated operation. The deceptions were clever and whilst the success in the first theft was, as I have said, no doubt substantially contributed to by the fact that you, Rocco Lomacchio, worked in the branch and were able to facilitate the offence, it is clear that if the timing was right and the bank staff were a little inattentive the scheme had the potential to be quite successful on the subsequent occasions. Whilst the concerted and repetitive conduct in August and November was mainly unrewarding and was somewhat opportunistic, it was nevertheless persistent, desperate, bold and motivated by greed. In each instance there was an outside chance of harm. As I said in the discussion with counsel, whilst you were not in a position to cause harm to anyone, someone intervening for the bank might have resorted to real weapons with unfortunate consequences for you or some innocent bystander.
”
16 Those observations apply equally to you.
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17 Emboldened by the success of the first episode and in the absence of both Mr
Bornino or your brother, you embarked upon two further attempts, this time in the company of your mother. It is hard to understand as I said in sentencing
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her what role she played or how she came to be involved. I stated in justification for suspending her sentence that I felt that that but for the involvement of you and your brother it is unlikely that she would have become involved. That may have been a somewhat generous and unwarranted observation on the evidence before me in that case. The hypothesis that you were sucked into this by Mr Bornino is equally without substantiation.
18 By way of background Mr Goldberg said that both directly and indirectly you were exposed to family violence at the hands of your father and had effectively little by way of support from him after your early teenage years.
You completed primary school but did not complete your tertiary education.
You were employed in various insurance offices from 2003 and in 2008 in an attempt to reconcile with your father went to work for him in a dredging business. You then married and purchased a house but the work with your father came to an end in 2008 and you went into a franchise courier business.
You began thinking that you had prostate cancer and became stressed. You had begun using steroids and human growth hormones. The business failed in 2012. You turned again to your father but to no avail. You had met Mr
Bornino at the local gym where you worked out and were introduced to supplements.
VCC:MR
19 The character references speak of your offending being out of character, of you having strong family commitments, that you are remorseful and ashamed, a good husband and father, caring and generous. There are references to your troubled childhood, financial difficulties, substance abuse and exceptional hardship. You have been supportive of your brother’s family. In your letter to me, exhibit 4, you spoke of your shame and remorse. You have lost your house because you couldn’t keep up with the payments and now live with your mother, wife, children and sister-in-law. Exhibit 5 was a bundle of medical reports. I accept that each member of your family is in some way vulnerable and each will suffer by you being imprisoned and that the family
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hardship will increase the burden of your incarceration.
20 I take into account your plea of guilty. It was offered at the very last opportunity and hence does not and cannot be expected to receive a discount similar to that given to your brother Rocco, or for that matter to your mother when she was sentenced. You have a limited but nevertheless relevant prior conviction. As I said in sentencing your brother and mother, this offending was part of a chain of events and had its genesis in charge 1, which informed and encouraged the subsequent offending in which you participated without the involvement of either Bornino or your brother and brought to play assistance by your mother. The offending was serious and calculated albeit ultimately amateurish in its execution insofar as the events of 7 August are concerned.
You are fortunate that you did not continue beyond that date. I distinguish your culpability from that of you brother in respect of charge 1. His offending was aggravated by the fact that he was an employee of that branch. On the other hand he is entitled to a greater discount for his earlier plea of guilty as is your mother with respect to charges 2 to 5. I accept that you have reasonable prospects of rehabilitation and that you are not likely to offend in this way again. Specific deterrence need not play as significant a part in the sentences as it otherwise would.
21 The basic purposes for which a court may impose a sentence are punishment, deterrence (both specific and general), rehabilitation, denunciation, and protection of the community. In sentencing, I must have regard to a range of matters such as the seriousness of the offence, your culpability for it, your personal circumstances and those of the victim if any. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that as far as possible offenders are rehabilitated and reintegrated into society.
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22 I was asked to consider giving you a sentence which avoided immediate custody. I have come to the firm view that such a sentence would be
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inappropriate having regard the purposes I have just stated and in particular having regard to the seriousness of the offending, your involvement, the lateness of your plea and the sentences imposed on your co-offenders.
23 Please stand, Mr Lomacchio.
24 You are convicted on each charge and sentenced as follows. On charge 1 to
36 months ’ imprisonment. This is the base sentence. Then on each of charges 2 and 4 to 4 months ’ imprisonment and on each of charges 3 and 5 to
21 months ’ imprisonment. I direct that 3 months of the sentence imposed on each of charges 3 and 5 be served cumulatively upon each other and upon the sentence imposed on charge 1 making a total effective sentence of 42 months imprisonment and I direct that you serve 24 months before becoming eligible for parole. I declare that 5 days be reckoned as served.
25 Section 6AAA of the Sentencing Act requires me to state the total effective sentence and the non-parole period that I would have imposed had you pleaded not guilty and been convicted. Had you been convicted after a trial, I would have sentenced you to 46 months ’ imprisonment with a non-parole period of 34 months.
26 I make the forfeiture and disposal orders in the terms sought, noting they are consented to.
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