Director of Public Prosecutions v Russo [2019] VSCA 129

1 On 25 May 2018, the respondent pleaded guilty to one charge of manslaughter by criminal negligence. The maximum penalty for manslaughter is 20 years' imprisonment.[1]

2 The offending occurred on 18 February 2017 when the victim, David Calandro, drove to the respondent's farm in Tatura East with his two young sons. The respondent, who was carrying a shotgun at the time, approached Mr Calandro's vehicle when he stumbled and accidentally discharged the shotgun. Mr Calandro was shot at close range through the driver's window and died as a result of a bullet wound to the head.

3 On 20 July 2018, the respondent was sentenced to 5 years' imprisonment with a non-parole period of 2 years and 6 months. In his declaration pursuant to s 6AAA of the Sentencing Act 1991, the judge stated that, had the respondent not pleaded guilty, he would have been sentenced to 7 years' imprisonment with a non-parole period of 4 years.[2]

4 The Director of Public Prosecutions has appealed against the respondent's sentence on the following grounds:

Ground 1 - The sentence imposed on charge 1, the total effective sentence and the non-parole period is manifestly inadequate in all the circumstances.

Particulars

The learned sentencing judge failed to have sufficient regard to:

(a) the nature and objective gravity of the offending and, in particular:

(i) that the offending involved the use of a firearm;

(ii) that the respondent was an experienced shooter familiar with the safe use of firearms;

(iii) that the offending occurred in front of the deceased's children;

(iv) that the respondent had knowledge of the children's presence;

(v) that the offending involved the endangerment of both children; and

(vi) that the offending occurred in the presence of family and farm workers, in what was effectively a 'workplace';

(b) the impact of the offending on all the victims and in particular, the psychological harm to both the deceased's children, and the physical injury to one of those children;

(c) the sentencing principles of just punishment, denunciation and general deterrence; and

(d) the maximum penalty for the offence.

The learned sentencing judge placed too much weight on matters in mitigation, including the following:

(e) The respondent's admissions to police;

(f) The respondent's plea of guilty;

(g) The respondent's profound remorse;

(h) The lack of prior convictions;

(i) The respondent's good character; and

(j) The respondent's excellent prospects of rehabilitation.

Ground 2 - The learned sentencing judge erred in characterising the offence as 'falling towards the lower end of the spectrum of gravity'.

5 At the commencement of oral argument, senior counsel for the Director informed us that ground 2 should be treated as a particular of ground 1. However, in the course of his argument, he recanted and argued that ground 2 should be treated as an independent ground on the basis that it was not open to the judge to characterise the offending as falling towards the lower end of the spectrum of gravity.

6 For the reasons that follow, the appeal will be dismissed.

Circumstances of the offending and plea of guilty

7 The respondent and Mr Calandro were friends and had known each other for a number of years. On 18 February 2017 at around 12:30 pm, Mr Calandro drove his sons, Anton and Flavian, and his friend Vince Vigliaturo - who was also friends with the respondent - to the respondent's farm to pick peppers. At the time, the respondent was 54 years old, Mr Calandro was 43, Anton was 9 and Flavian was 12.

8 As Mr Calandro drove his sons and Mr Vigliaturo out of the farm after collecting the peppers, his utility vehicle was chased by the respondent's dog. Mr Calandro swerved the vehicle towards the dog to frighten it away. However, the dog was struck by the vehicle and became caught under the wheel. Mr Calandro did not stop to attend to the injured dog and did not tell the respondent or anyone else at the farm about the incident.

9 A short time later, Stephen Russo, the respondent's son, discovered the dog lying in the middle of the driveway. He thought it was dead. He and the farm manager, Matthew Franken, carried the dog to the back of the farmhouse.

10 At 12:41 pm, Stephen Russo telephoned the respondent and told him that Mr Calandro and Mr Vigliaturo had run over the dog and had not stopped. The respondent arrived at the farmhouse and was told by one of the farm workers that the dog was dead or dying.

11 At 12:47 pm, the respondent telephoned Mr Vigliaturo and was very upset. He said '[y]ou fucking ran over my fucking dog. Youse didn't even fucking stop'. He told Mr Vigliaturo to tell Mr Calandro to 'come back' and look at what he had done to his dog.

12 At 12:49 pm, Mr Vigliaturo telephoned Mr Calandro and told him that the respondent had called and that the dog was 'fucked'. Mr Calandro indicated that he was just arriving at the farm.

13 After the phone call to Mr Vigliaturo, the respondent observed that the dog was not dead, but he believed it was in a lot of pain. The respondent destroyed the dog by shooting it once in the head, using a shotgun which he had loaded with two cartridges. He then carried the dead dog and the loaded shotgun to the front of the farmhouse.

14 The respondent had purchased the shotgun second-hand approximately 8 months prior, but this was the first time he had fired it. He held a firearm licence and owned the shotgun and nine other firearms, all of which were registered in his name. He had been involved with firearms from a young age and was a regular shooter with a history of being careful with firearms.

15 Shortly after the respondent destroyed the dog and had taken it to the front of the farmhouse, Mr Calandro, Anton and Flavian arrived at the farm in the utility. The respondent believed that both of Mr Calandro's children were in the utility with him. He was angry. He approached the driver's side of the vehicle holding the loaded shotgun across his body, believing that the safety switch was engaged. When he was near the vehicle he stumbled, causing the barrel of the shotgun to strike the driver's side window and discharge. The respondent did not know that the shotgun was faulty and that it could discharge without the trigger being squeezed if it was bumped hard enough. The bullet went through the window and struck Mr Calandro in the head.

16 Mr Franken called triple-zero and he and the respondent tried to assist Mr Calandro. Police arrived at 1:11 pm and ambulance paramedics arrived shortly after.

17 Mr Calandro was taken to hospital where it was determined that he had suffered brain injuries that were not survivable. He was taken off life support at 1:50 pm the next day and died at 2:10 pm.

18 Flavian, who was sitting in the passenger seat next to Mr Calandro at the time of the shooting, was injured by small fragments of glass from the window which struck him on the face, arms and legs. Surgery was required to remove the glass fragments. Anton was not physically injured. Flavian and Anton both experienced significant psychological impact.

19 The respondent was interviewed at the scene by police and was arrested shortly after. A detailed police interview was conducted later that day. The statements made by the respondent during that interview, as summarised by the judge, included the following:

1. He was holding the shotgun in the air on his shoulder and went around the front of Mr Calandro's vehicle where his foot went on top of an eggplant and it rolled forwards, whilst he fell backwards. Later, he said that, when he stood on the eggplant and slipped with his right foot, he 'rolled forward', with all his weight on his left leg, and then he went down and fell forward onto his knees.
2. The barrel of the shotgun then hit the driver's side window two times on the door and accidently discharged into the vehicle, hitting Mr Calandro.

1. When asked why he took the shotgun with him when he approached Mr Calandro, he stated, 'I just had it in my hand.'

1. He had owned the gun for about eight or nine months, but had never fired it.

m) The gun had a safety on it, the operation of which he described.

1. He had been around guns all his life, had them since he was thirteen, and owned seven or eight guns.

1. He denied that he was angry or that he was walking at a fast pace when he approached Mr Calandro.
2. When told that Mr Vigliaturo said that Mr Calandro 'swerved a bit to spook the dog', he became angry, slammed his fist on the table and said, 'So he killed the dog on purpose then? ... This changes the complete concept of how I'm thinking now ... [Mr Calandro] has put me in this situation ... What a fuckin' cunt ... .'
3. He denied that he deliberately shot Mr Calandro.
4. He conceded that, as he approached, he saw a child in the utility, which caused him to think Mr Calandro must have his children with him.[3]

20 The respondent was charged with the murder of Mr Calandro and with manslaughter in the alternative. He was also charged with injury offences concerning Flavian and an endangerment offence concerning each of Flavian and Anton.

21 On 26 February 2018, the respondent offered to plead guilty to manslaughter by unlawful and dangerous act. This was on a different factual basis to the charge to which he ultimately pleaded guilty. This offer was rejected by the prosecution.

22 On 14 May 2018, during pre-trial argument, the respondent offered to plead guilty to manslaughter by criminal negligence, which was also rejected.

23 At trial before a jury commencing on 21 May 2018, the respondent initially pleaded not guilty to all of the charges against him. Mid-trial, the prosecution conceded that an accidental discharge of the shotgun could not be excluded. By agreement between the parties, the judge discharged the jury without verdict. A new indictment with a single charge of manslaughter by criminal negligence was filed, to which the respondent pleaded guilty on arraignment.

24 The respondent was 55 at the time he was sentenced. He was born in Tatura to Italian migrant parents and has three sisters.

25 The respondent attended school until the end of Year 9. He then commenced working full-time on his father's farm in Tatura.

26 In 1996, the respondent purchased his own farm in Toolamba. In 1998, he bought the farm in Tatura East. At the time of sentencing, his farms no longer produced any income due to mortgage debts and a restraining order made under the Confiscation Act 1997.

27 In 1983, the respondent married his wife, Maria. They have three children, Natasha, Stephen and Damian who, at the time of sentencing, were aged 29, 21 and 19 respectively. Since 2006, their marriage has been strained and there have been periods of separation.

28 The respondent has been heavily involved in supporting the Shepparton and Tatura communities. He sponsored numerous local sporting clubs and helped establish the Shepparton Children's Soccer Academy. He also coached local soccer clubs. Some of the children he coached were from Sudan and the Democratic Republic of the Congo. He supplied these children with soccer boots and kits.

29 The respondent has been involved in fundraising for Multiple Sclerosis Australia, as well as local building projects, including a church and netball courts. He also donated produce to community groups.

30 The respondent has two prior findings of guilt for minor offences for which no conviction was recorded. The judge was right to treat them as being irrelevant to the exercise of the sentencing discretion for the offence of manslaughter.[4]

31 At the plea hearing, a key issue was the gravity of the offending. The prosecution submitted that the offending was a 'serious example of criminal negligence manslaughter' whereas the defence argued that it was 'on the lowest level'.

32 Sixteen victim impact statements were filed by Mr Calandro's family and friends. They 'reveal the terrible sense of loss and sadness suffered by all family members and friends as a result of [his] death'.[5]

33 In assessing the nature and gravity of the offence and the respondent's culpability and degree of responsibility, the judge accepted that the respondent knew that it was wrong to carry a loaded gun in a busy area where there were other people nearby and to approach an occupied vehicle with it. This was because the respondent had handled guns for most of his life and knew the basic rules of gun safety. The judge stated that, before approaching the vehicle, the respondent should have either put the gun away or made it safe by unloading it or breaking it open, or failing that, ensured the safety switch was properly engaged.[6] The judge also stated that it was unwise for the respondent to be handling the gun while angry.[7]

34 The judge accepted that the offence was aggravated by: the presence of Mr Calandro's children; the respondent's knowledge of their presence; the psychological harm inflicted upon them; the physical injury suffered by Flavian; and the endangerment of both children.[8]

35 The judge concluded that the respondent's offending was 'not on the lowest level but ... one falling towards the lower end of the spectrum of gravity'.[9] He relied on the following nine factors for that conclusion:

First, [the respondent] possessed the gun lawfully. He was licensed and the gun was registered. This was not some illegal sawn-off type of weapon that is often employed, accidentally or otherwise, in homicide cases.

Secondly, he had the gun at a place (namely, in his work utility and on the farm) where it is commonplace to have guns for legitimate purposes - such as scaring birds away from crops or destroying injured animals.

Thirdly, in the instant before the fatal conduct, he was using the gun to do something lawful - namely, destroy his gravely injured dog.

Fourthly, [the respondent] ... believed, albeit mistakenly, that the safety catch was on when he approached the utility. On the other hand, ... part of the Firearm Safety Code says this:

Note: No matter what type of firearm you use, you should be cautious when using the safety catch. In most cases, they lock the trigger or the bolt but, like all mechanical things, they are subject to wear and tear and may not work properly. The safety catch is only one of several safety precautions you should use when handling firearms.

*A safety catch only supplements safe handling.

Fifthly, [the respondent] did not make any threat, verbal or otherwise, before the gun discharged.

Sixthly, in addition to being satisfied that he did not aim the gun at Mr Calandro, I am satisfied that he did not even have the gun pointed in the direction of Mr Calandro or the car in the instant or at any point before he stumbled.

Seventhly, while the circumstances in which the gun was carried - loaded, without the safety catch engaged and near others, by a person of experience who should have known better - make out the criminal negligence, it must not be forgotten that [the respondent] stumbled and that the gun discharged by accident. It might even be said that there was a good deal of bad luck involved.

Eighthly, a second essential part of the cause of that accidental discharge was the faulty nature of the gun - namely, that it would discharge upon being bumped - about which [the respondent] knew nothing. He did not pull the trigger, whether accidentally or otherwise.

Finally, while this point may more happily fit under the heading of mitigating factors, from the moment the gun discharged and he realized what had occurred, [the respondent] did all he reasonably could to assist Mr Calandro.[10]

36 The judge described the respondent's offending as involving 'a fatal error of judgment that ... only just amounts to an instance of manslaughter'.[11]

38 First, the judge took into account the respondent's full admissions to police from the outset, which formed the basis of the case against him.[12]

39 Secondly, the judge considered the respondent's plea of guilty and early offers to plead guilty to manslaughter to be of particular importance in mitigation.[13] He said that the respondent had pleaded guilty despite having 'a viable defence' to the charge.[14] He stated that in the circumstances a jury might not have found the respondent guilty of manslaughter on the basis that, whilst his behaviour was careless, it was not so grossly negligent as to amount to manslaughter. The judge said that 'to enter a plea of guilty to a charge as serious as manslaughter in the face of an arguable defence renders that plea of all the more weight in mitigation'.[15]

40 Thirdly, the judge was satisfied that the respondent had shown genuine and profound remorse.[16] The reasons for this included that the respondent assisted Mr Calandro at the scene, he was devastated when he found out that Mr Calandro's injuries were not survivable, his guilty plea, his apology (through his counsel on the plea) to Mr Calandro's children for the impact of his crime on them, and his demeanour in Court.[17]

41 Fourthly, the judge took into account the respondent's lack of prior convictions and fifthly, his outstanding previous good character. The judge was satisfied that the respondent 'has led a decent, honourable life. He has raised a family, has worked hard to provide for them, has extended support to those less fortunate and has engaged in extensive community service'.[18]

42 Finally, the judge concluded that the respondent had excellent prospects of rehabilitation and considered this to be a very important matter in mitigation.[19] He reached this conclusion by taking into account: the respondent's full admissions; plea of guilty; profound remorse; strong work history; outstanding previous character; the support network that he enjoyed; his lack of history of substance abuse or mental health issues; and the judge's satisfaction that the respondent would not offend in the same way again.

43 The judge had regard to general deterrence, denunciation, just punishment, rehabilitation and parsimony.[20] He agreed with the concession by the prosecution that there was no need for specific deterrence. The judge also stated that protection of the community was not an important consideration as he was satisfied that the respondent would not engage in similar behaviour again.[21]

44 Finally, the judge had regard to current sentencing practices, including sentencing statistics for manslaughter and an analysis of a number of manslaughter cases involving discharge of a firearm. In particular, he considered the cases of R v Osip[22] and R v Rapovski.[23]

45 In Osip, a sentence of 4 years' imprisonment, with a non-parole period of 1 year was imposed on the 21 year old offender for manslaughter by criminal negligence. He shot and killed a bushwalker in a forest area, using a licenced rifle, in the mistaken belief that he was shooting at a deer. He had no prior convictions, immediately assisted the deceased but did not plead guilty. He was found to have failed to adequately identify his target, contrary to the Firearm Safety Code.

46 In Rapovski, a sentence of 8 years' imprisonment with a non-parole period of 5 years was imposed on the 20 year old offender for manslaughter by an unlawful and dangerous act. He accidentally shot his friend while affected by methylamphetamine. The offender pointed a sawn-off shotgun at his friend's head at close range while posing for photographs like a gangster. He was not licenced to carry a firearm. He did not assist the victim and immediately fled the scene. He disposed of the shotgun and tried to leave the country the next day. He pleaded guilty, showed remorse, had a limited criminal history and good prospects of rehabilitation.

47 The judge concluded that the respondent's offending fell 'somewhere between those two instances of manslaughter' and that '[b]ut for the aggravating features flowing from the presence of and harm to Mr Calandro's two sons, [he] would have considered [the respondent's] offence closer to Mr Osip's offence on a scale of objective gravity'.[24]

48 After pronouncing the sentence of 5 years' imprisonment and the non-parole period of 2 years and 6 months, the judge said the following about the latter:

This is a relatively short non-parole period - both as a proportion of the head sentence and in absolute terms. While all factors both aggravating and mitigating have affected the head sentence and, in turn, the non-parole period, I think Mr Russo's prospects of rehabilitation are so outstanding, and that his previous good character is so strong, that it is appropriate to fix a non-parole period that is shorter than might otherwise be imposed.[25]

Parties' submissions on both grounds of appeal

49 In relation to the gravity of the offending, the Director maintained the submission made at the plea hearing that the offending was a serious example of the offence of manslaughter. The Director argued that the central matters that went to characterising the offence as such were: the respondent carrying a loaded shotgun in an area where there were other people in the vicinity; the respondent's failure to make the shotgun safe by breaking it open; the respondent approaching Mr Calandro's vehicle with the loaded shotgun in an angry state of mind; the respondent's knowledge of the presence of Mr Calandro's children in the vehicle; and the fact that the respondent was an experienced firearm owner and was aware of the risks of a firearm being discharged accidentally.

50 The Director placed particular emphasis on the shooting of Mr Calandro in the presence of Anton and Flavian, the physical injuries suffered by Flavian and the psychological effects suffered by both children, as constituting aggravating circumstances.

51 According to the Director, the factors relied upon by the judge to reduce the gravity of the offending do not in fact do so. In particular, the Director submitted that whilst the respondent was in possession of the shotgun lawfully and for legitimate purposes, this must be balanced against the fact that the farm was a workplace where other people were present and were put in danger. The Director further submitted that the respondent had ample opportunity to make the shotgun safe after destroying the dog and before approaching Mr Calandro's vehicle in an angry state.

52 The Director did not cavil with any of the judge's findings of fact. In relation to the judge's observation that 'there was a good deal of bad luck involved',[26] the Director submitted that the offence of manslaughter by criminal negligence required consideration of the sequence of events as a whole rather than focusing on individual events. The Director contended that, whilst the respondent's slipping and the discharge of the shotgun may have been accidental, there was no element of bad luck associated with the respondent carrying a loaded shotgun, without breaking it open, and approaching Mr Calandro's vehicle with it. According to the Director, they were conscious acts on the part of the respondent and represented gross negligence on his part.

53 In relation to the respondent's moral culpability, the Director submitted that it was high because of his experience and knowledge of firearms. The Director also contended that the respondent's knowledge of the presence of Mr Calandro's children as he walked towards the vehicle with a loaded shotgun increased his moral culpability.

54 The Director submitted that, in the light of the above factors which informed the gravity of the offending, it was not open to the judge to characterise the offending as falling towards the lower end of the spectrum of gravity.

55 Having regard to the case comparison analysis conducted by the judge, the Director submitted that the judge placed too much weight on Osip and that the gravity of the respondent's offending was closer to that in Rapovski than Osip. In support of this submission, the Director relied on the fact that the offender in Rapovski was aged 20, had no experience with firearms and thought that the safety switch was engaged, and the discharge of the gun was accidental.

56 The Director also relied on four other so-called comparable cases, which were said to provide support for the proposition that the sentence is manifestly inadequate, and highlighted that none of the cases involved endangerment of, or injury to, children. Those cases were as follows:

(a) R v Torun:[27] A sentence of 8 years' imprisonment with a non-parole period of 5 years was imposed on the 24 year old offender who pleaded guilty to shooting his girlfriend by pointing a gun at her and pulling the trigger. He was affected by illicit drugs and had forgotten that the gun was loaded. A Crown appeal was dismissed by this Court.[28]

(b) R v D'Angelo:[29] A sentence of 8 years' imprisonment with a non-parole period of 4 years and 6 months was imposed on the 39 year old offender who pleaded guilty to shooting the deceased by firing a warning shot at him as he was trying to break into the offender's commercial premises. The offender was under the influence of alcohol and cannabis and believed that the chamber was empty.

(c) Director of Public Prosecutions v Osborn:[30] A sentence of 9 years' imprisonment with a non-parole period of 6 years was imposed on the 36 year old offender who pleaded guilty to accidentally shooting his partner by holding an unregistered handgun to her forehead while playing with it. When he pulled the trigger, he erroneously believed that the handgun would not discharge. A majority of this Court dismissed a Crown appeal.[31]

(d) R v Cicekdag:[32] A sentence of 9 years' imprisonment with a non-parole period of 5 years was imposed on the 25 year old offender who pleaded guilty to being involved in the accidental shooting of the deceased by a co-offender during an attempted enforcement of a drug debt.

57 The Director submitted that the judge placed too much weight on the mitigating factors to which he referred. According to the Director, the sentence imposed by the judge does not properly reflect the gravity of the offending and fails to act as a deterrent to others.

58 The respondent submitted that, in the light of the 'truly exceptional' circumstances of the case and the sentences imposed in other cases of an accidental shooting, the sentence imposed by the judge was 'exemplary'.

59 In relation to the gravity of the offending, the respondent contended that the combination of the nine factors that the judge took into account, as set out at [35] above, significantly reduced the objective gravity of the offending and made it exceptional in cases of accidental shooting manslaughter. He contended that the Director's arguments that these factors did not reduce the objective gravity, or that the judge placed too much weight on them, should be rejected.

60 The respondent argued that the Director's submission that the factors relied upon by the judge do not in fact reduce the gravity of the offending, was made without there being any dispute as to the factual findings made by the judge. The respondent contended that once it is accepted that the judge's findings of fact were reasonably open, it is difficult to argue that the judge's analysis of those facts leading to his conclusion that they reduced the gravity of the offending, was not reasonably open.

61 Regarding the presence of and harm to Mr Calandro's children as an aggravating factor, the respondent highlighted the judge's finding that he was not satisfied that the respondent was aware of any risk of psychological harm to the children, as he accepted that '[the respondent] did not believe that there was any risk that the gun would discharge'.[33] The respondent noted that this finding was not challenged on appeal.

62 The respondent argued that the Director's submission that his offending is closer to that in Rapovski than Osip, cannot be accepted as Rapovski is significantly different to the present case. The respondent pointed to the circumstances of Rapovski in support of this argument, including that the offender in that case: was under the influence of methylamphetamine at the time of the offending; deliberately pointed the gun towards the deceased and pulled the trigger; and immediately fled the scene, disposed of the gun and tried to leave the country the next day.

63 The respondent also relied on a number of so-called comparable authorities. In addition to Torun, D'Angelo, Osborn and Cicekdag, which are discussed above, those cases were as follows:

(a) R v Reynolds:[34] A sentence of 6 years' imprisonment with a non-parole period of 4 years and 6 months was imposed on the 52 year old offender who shot his de facto wife by deliberately aiming a firearm at her when he was too drunk to handle it properly. He was charged with murder but was found guilty of manslaughter instead. He had offered to plead guilty to manslaughter prior to the empanelment of the jury.

(b) R v Raccanello:[35] A sentence of 5 years' imprisonment with a non-parole period of 3 years was imposed on the 39 year old offender who shot his wife after taking a dose of methadone and Xanax tablets. As with the offender in Reynolds, he was charged with murder but was found guilty of manslaughter instead, having offered to plead guilty to that offence at an early stage.

(c) R v Nguyen:[36] A sentence of 6 years' imprisonment with a non-parole period of 4 years was imposed on the 46 year old offender who pleaded not guilty to accidentally shooting his 15 year old step-son while he was affected by alcohol.

(d) Director of Public Prosecutions v Barnwell:[37] A sentence of 4 years' imprisonment with a non-parole period of 2 years was imposed on the 25 year old offender who pleaded guilty to accidentally shooting his friend whilst play-acting with a weapon that he did not know how to operate.

(e) Director of Public Prosecutions v Sypott:[38] This Court dismissed a Crown appeal against a sentence of 5 years' imprisonment with a non-parole period of 3 years that was imposed on the 56 year old offender. He pleaded guilty to accidentally shooting his former partner during a struggle for the rifle he was carrying. O'Bryan AJA, with whom Vincent JA and Smith AJA agreed, described the sentence as 'at the low end of the range of sentence appropriate for the crime'.[39]

(f) R v Helal:[40] A sentence of 5 years' imprisonment with a non-parole period of 3 years and 6 months was imposed on the 23 year old offender who pleaded guilty to being complicit in the accidental shooting of the deceased by a co-offender. The offender and three co-offenders broke into a crop house occupied by the deceased with the intention of stealing cannabis. A co-offender used a handgun to intimidate the deceased and accidentally shot him while tying his hands behind his back.

(g) R v Stratton:[41] A majority of this Court upheld the 29 year old offender's appeal against sentence and resentenced him to 9 years' imprisonment with a non-parole period of 7 years. He pleaded guilty to accidentally shooting the deceased after entering his home in the early hours of the morning.

(h) Director of Public Prosecutions v Phillips:[42] This Court upheld a Crown appeal and resentenced the 30 year old offender to 9 years' imprisonment with a non-parole period of 7 years. He pleaded not guilty to murder but was found guilty of manslaughter instead. He shot the deceased with an unregistered rifle - for which he did not have a licence - after they were involved in a physical and verbal altercation. Nettle JA, with whom Maxwell ACJ and Buchanan JA agreed, stated that 'were it not for double jeopardy, the sentence and non-parole period would be considerably higher'.[43]

(i) R v Smith:[44] A sentence of a 5 year bond was imposed on the 21 year old offender who pleaded guilty to shooting a hunting companion whom he had mistaken for a deer.

64 The respondent contended that the cases to which he referred tend to suggest the following:

(a) sentences in the range of 8 to 11 years' imprisonment have been imposed in cases of unlawful and dangerous act manslaughter where a firearm was deliberately pointed at the victim and the trigger was activated by the offender. These cases also generally include some other aggravating factors, such as the offender being affected by illicit drugs or alcohol, or fleeing the scene and failing to assist the victim;

(b) sentences in the range of 6 to 7 years' imprisonment tend to be imposed in cases where there are features such as the offender being under the influence of alcohol, where there was a history of domestic violence or other offending, or where the offender's evidence was not accepted; and

(c) sentences in the range of 5 years' imprisonment to a good behaviour bond tend to be imposed in cases where a firearm was discharged as a result of inattention and was not deliberately pointed at the victim.

65 The respondent submitted that, having regard to the above cases, the present case was truly exceptional because it did not involve him pulling the trigger or pointing the gun at Mr Calandro. The respondent also relied on the absence of aggravating features that were present in many other cases - such as the offender being under the influence of drugs or alcohol or playing with a firearm - in support of his characterisation of the present case as exceptional.

66 The respondent contended that the only acts on his part which enabled the offence to be made out were his approaching Mr Calandro's vehicle with a loaded shotgun which he had failed to break open. According to the respondent, the context in which these acts occurred support the judge's characterisation of the offence as 'falling towards the lower end of the spectrum of gravity' and indicate that the sentence he imposed was correct. The contextual matters upon which the respondent relied were: he did not pull the trigger; the shotgun discharged when he slipped and the shotgun made contact with the window of Mr Calandro's vehicle; and he believed that the safety catch was engaged.

67 In our opinion, whilst the sentence of 5 years' imprisonment and the non-parole period of 2 years and 6 months imposed by the judge are very lenient, they are not manifestly inadequate.

68 Further, we are not satisfied that the judge's conclusion that the respondent's offending fell towards the lower end of the spectrum of gravity was not open to him in the rather unusual circumstances of this case.

69 We agree with the Director that a number of factors contributed to the seriousness of the respondent's offending. The respondent created a real risk of serious injury or death by carrying a loaded shotgun on a farm near family members and employees and, in particular, by approaching Mr Calandro's vehicle. The judge correctly recognised that the offending was aggravated by the presence in the vehicle of not only Mr Calandro but also his two young sons.

70 We also agree with the Director that the respondent's moral culpability was heightened by the fact that, despite his knowledge of how to use firearms safely due to his long experience with them, he did not adopt basic safety precautions that were readily available to him. Those precautions included putting the firearm away, unloading it or breaking it open. The respondent had ample time to adopt such precautions between the time he shot his dog and the time he approached Mr Calandro's vehicle. The respondent's moral culpability was exacerbated by his knowledge that Mr Calandro's young sons were present in the vehicle. It was self-evident that they, as well as Mr Calandro, were at risk of serious injury or death in the event of an accidental discharge of the shotgun. Further, the respondent's anger towards Mr Calandro for running over his dog clouded his judgment and increased his moral culpability.

71 Whilst the above factors inform the gravity of the respondent's offending and his moral culpability, as well as a consideration of where the offence fell within the spectrum of seriousness, they have to be viewed in the context of the significant countervailing circumstances upon which the respondent relied. The key countervailing circumstances were that the shotgun discharged without the respondent pulling the trigger and only did so because he slipped, resulting in the shotgun making contact with the window of Mr Calandro's vehicle. Moreover, unbeknown to the respondent, the shotgun was faulty. He believed that the safety catch was engaged and had no reason to believe that the shotgun could be discharged without the trigger being pulled.

72 We do not agree with the judge's description of the respondent's offending as 'a fatal error of judgment that ... only just amounts to an instance of manslaughter'.[45] If this description were correct, the offending would have fallen at the lower end of the spectrum of gravity rather than, as the judge found 'towards the lower end'.

73 We agree with the respondent's submission that the circumstances of the present case are very different from the circumstances of other cases of manslaughter involving the discharge of a firearm. No other case to which we have been referred involved a firearm discharging without the offender pulling the trigger. This important difference limits the assistance that can be obtained from the sentences imposed in other cases. Moreover, many of the cases upon which the respondent relied were decided prior to 2010 and do not reflect current sentencing practices.[46] The respondent's categorisation of the cases - as summarised at [64] above - is too high level and simplistic to provide any meaningful guidance.

74 The judge focused on two so-called comparable cases, Osip and Rapovski. He found that, but for the aggravating features flowing from the presence of and harm to Mr Calandro's two sons, the present case would have borne a closer resemblance to Osip than Rapovski. He ultimately imposed a sentence that was closer to that in Osip.

75 There is a risk that, if a sentencing judge focusses on two so-called comparable cases to the exclusion of other cases which inform current sentencing practices, the judge may inadvertently create a false choice between the two cases in the exercise of the sentencing discretion. However, in the present case, the judge stated that he took into account all the cases that the parties referred to him, as well as additional cases which he listed in a footnote. Accordingly, we are not satisfied that the judge was unduly influenced by the sentence in Osip. The fact that the sentence of 5 years' imprisonment which the judge imposed was higher than the sentence imposed on the offender in Osip indicates that the judge took into account the differences between the two cases.

76 We reject the Director's submission that the judge placed too much weight on matters in mitigation. The mitigating factors in the present case - particularly the respondent's admissions to police, guilty plea, genuine remorse, strong prospects of rehabilitation, acceptance of responsibility, ongoing family support and previous good character, and the absence of any prior convictions - were very powerful and warranted significant weight.

77 We now turn to the non-parole period of 2 years and 6 months' imprisonment. As the judge acknowledged, at 50 per cent of the head sentence of 5 years, the non-parole period is relatively short, both as a proportion of the head sentence and in absolute terms.[47] It is certainly a very lenient non-parole period. However, we are not satisfied that it is manifestly inadequate. Having regard to the judge's assessment of the gravity of the offending and the strength of the mitigating circumstances which the respondent called in aid, it was open to the judge to fix a non-parole period of 2 years and 6 months' imprisonment.

78 As we have already stated, the sentence of 5 years' imprisonment and the non-parole period of 2 years and 6 months imposed by the judge are very lenient. We would have imposed a higher sentence and fixed a longer non-parole period. But that is not a proper basis for allowing the Director's appeal. In order for us to do so, we must be satisfied that the sentence and the non-parole period were wholly outside the range of sentencing options open to the judge. Due to the unique circumstances of this case, we are not so satisfied. Those unique circumstances will necessarily limit the assistance that this case can provide in future cases.

79 For the above reasons, the appeal will be dismissed.

[1] Crimes Act 1958 s 5.

[2] R v Russo [2018] VSC 395 [206] ('Sentencing remarks').

[10] Sentencing remarks [127]-[135] (citations omitted) (emphasis in original).

[13] Sentencing remarks [151]-[156].

[17] Sentencing remarks [158]-[164].

[20] Sentencing remarks [183]-[188].

[22] [2000] VSC 225 ('Osip').

[23] [2016] VSC 706 ('Rapovski').

[26] See [35] above.

[27] [2014] VSC 146 ('Torun').

[28] Director of Public Prosecutions v Torun [2015] VSCA 15.

[29] [2014] VSC 522 ('D'Angelo').

[30] [2017] VSC 535 ('Osborn').

[31] Director of Public Prosecutions v Osborn [2018] VSCA 207.

[32] [2017] VSC 781 ('Cicekdag').

[34] (Unreported, Victorian Court of Appeal, Winneke P, Brooking JA and Ashley AJA, 28 May 1997 ('Reynolds').

[35] [2001] VSC 258.

[36] [2001] VSC 278.

[37] [2002] VSC 280.

[38] [2004] VSCA 9 ('Sypott').

[39] Sypott [2004] VSCA 9 [29].

[40] [2007] VSC 135.

[41] [2008] VSCA 130.

[42] [2009] VSCA 68 ('Phillips').

[43] Phillips [2009] VSCA 68 [44].

[44] [2012] VSC 314.

[45] See [36] above.

[46] In Vincec v The Queen [2018] VSCA 18 [58], Weinberg JA observed that sentences for all forms of manslaughter have increased significantly in recent years. He also observed that the most recently available sentencing snapshot for manslaughter published by the Sentencing Advisory Council indicates that the average sentence for that offence is currently between about 7 and 9 years' imprisonment.

[47] See [48] above.