R v Cosseddo

IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

Thursday 25 May 2000 70012/97 REGINA v FRANCESCO COSSEDDO

1 HIS HONOUR: In stating these reasons, I will refer to Francesco Cosseddo as the offender, using the language of the new sentencing regime. 2 Following a special hearing conducted in accordance with the provisions of the Mental Health (Criminal Procedure) Act, 1990, the jury on Tuesday last, 23 May 2000, found on the limited evidence available that the offender, Francesco Cosseddo, committed the crime of murder. The victim was the wife of the offender, Maria Cosseddo. 3 The finding of the jury enlivens the application of s 23 of the Mental Health (Criminal Procedure) Act. Under s 23(1) the Court: "(a) must indicate whether, if the special hearing had been a normal trial of criminal proceedings against a person who was fit to be tried for the offence which the person is found to have committed, it would have imposed a sentence of imprisonment; and (b) where the Court would have imposed such a sentence, must nominate a term, in this section referred to as 'a limiting term', in respect of that offence, being the best estimate of the sentence the Court would have considered appropriate if the special hearing had been a normal trial of criminal proceedings against a person who was fit to be tried for that offence and the person had been found guilty of that offence." 4 Had this special hearing been a normal trial of criminal proceedings against a person fit to be tried for the offence the jury has found the offender committed, I would have imposed a sentence of imprisonment upon the offender. I am therefore required by s 23(1)(b) to nominate a "limiting term" under that sub-section. My task is to make the best estimate of the sentence I would have considered appropriate if the special hearing had been a normal trial of a person fit to be tried who had been found guilty of murder. 5 Following the verdict of the jury, the offender was taken into custody, to be detained at the hospital attached to the prison at Long Bay. However, until then the offender had been on bail since the date of his arrest on 9 August 1996. The limiting term which I nominate should therefore date from 23 May 2000. 6 The approach to be taken in arriving at a limiting term was considered by the Court of Criminal Appeal in R v Mitchell [1999] NSWCCA 120. Mitchell was concerned with a sentence imposed when the 1989 Sentencing Act regime was in place, but the principles expressed in this decision are still relevant under the Crimes (Sentencing Procedure) Act, 1999. This is because the offender may be released prior to the expiry of the limiting term, pursuant to the six monthly review procedure which will operate under the Mental Health Act, 1990. By contrast to the sentencing procedure under s 44 of the Crimes (Sentencing Procedure) Act, 1999, where the Court is required, having set the term of the sentence, to set a non parole period in respect of that sentence, "a limiting term is the period beyond which a person cannot be detained for the offence which was the subject of the special hearing. As Hunt CJ at CL said in R v Parker (1990) 19 NSWLR 177, in respect of Part XIA of the Crimes Act 1900 (the predecessor to the MH(CP) Act) at 188 '[t]hat right to release is fundamental to the whole structure of the legislation'. A person may be released prior to the expiry of the limiting term pursuant to the six monthly review procedure referred to above." (See Mitchell at para 30) 7 The next point to be noted from Mitchell is that I should, so far as is possible, have regard to normal sentencing principles in arriving at a limiting term. As to this, the court said in Mitchell at paras 35-36: "As s 23 requires that the best estimate be made of the sentence the appellant would have received after a normal criminal trial, the trial judge must have regard to usual sentencing principles. In R v Maclay the Court (Gleeson CJ, Hunt CJ at CL and Loveday J) said, at 122-123, that in sentencing under s 5 of the Sentencing Act, the sentencing judge is to give: '…appropriate weight to well-established principles of sentencing, including those which require him to pay due regard to the maximum penalty provided by the statute for the offence in question, the gravity of the objective features of the case, and all relevant subjective considerations relating to the offender, [following which the sentencing judge] is to determine what is an appropriate term during which the offender is to remain in custody before being eligible to be released on parole.' The 'well established principles of sentencing' were identified in Veen (No. 2) (1988) 164 CLR 465 at 476 to be the 'protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform'." 8 Consistently with what the Court of Criminal Appeal said in Mitchell, I must have regard to those well established principles of sentencing identified in Veen. Again, mindful of what was said in Mitchell, I consider firstly the objective features of this crime. 9 This crime was committed at the home where the offender lived with his wife and children at 10 Iris Street, Guildford and it was committed on 12 January 1995. The case presented against the offender was based upon circumstantial evidence. The police and ambulance services were alerted shortly after 5.30 pm on the evening of 12 January 1995 to attend at 10 Iris Street, Guildford, and the body of the deceased was found lying fully clothed on her bed in the master bedroom. Dr Ellis, who conducted the post mortem examination, estimated the time of death as being earlier that day, between 1.30 pm and 4.30 pm. 10 Dr Ellis did not give evidence at the trial, being absent overseas, but his statement to the police, his report under the Coroner's Act, and his evidence at the committal proceedings were admitted into evidence pursuant to ss 112 and 116 of the Criminal Procedure Act. Transcript of part of the evidence given by Dr Ellis before the Coroner was tendered by the offender and also admitted into evidence with the consent of the Crown. Dr Ellis considered, and the jury plainly accepted, that the direct cause of death of the deceased was manual strangulation. When the body was examined bruising was detected around the left eye of the deceased, on her forehead, and elsewhere on her person. It is unnecessary to describe this bruising in close detail but external examination of the neck prompted Dr Ellis to record in his formal report to the Coroner: "The right side of the neck contains a number of fine petechial haemorrhages fairly diffusely distributed covering much of the mid level of the right side. Examination of the left side of the neck reveals a linear superficial abrasion 1.1 cm long which is located 9 cm immediately below the external auditory orifice. No other abnormalities are observed on the left side of the neck." 11 Then upon internal examination Dr Ellis made the following findings in the neck region: "Examination of the soft tissues of the neck reveal a number of scattered haemorrhages at all levels. There are blotchy haemorrhages of varying sizes covering the mid sections of both sternomastoid muscles, both in front of and behind both thyrohyoid muscles as well as both sternothryroid muscles. There are also blotchy haemorrhages just over the prominence of the thyroid cartilage and over the greater horns of both sides of the thyroid cartilage. The left greater horn is fractured with some associated bruising. The hyoid bone is intact although there are a number of tiny bruises around both greater cornu. A number of small bruises are noted on the posterior surface of the larynx. There is no laryngeal obstruction and the epiglottis and the mucosal surface of the larynx and trachea are normal." 12 When asked at the committal proceedings to estimate the time it took for the strangulation to cause death, Dr Ellis was unable to be precise, stating a range from a few seconds to a few minutes. The presence of petechial haemorrhages he described indicated that death had not occurred "straight away", because if death had occurred "straight away" the petechial haemorrhages would not have occurred. 13 Dr Ellis, at the committal proceedings, considered the amount of force required to cause death. He said that the physical force required to cause the bruising of the neck would not have been "enormous". The bony fracture of the left greater horn would have required somewhat greater force, but allowance had to be made for the age of the deceased, and the doctor said: "Given that the deceased was not a young lady, therefore the voice box may be a little bit more brittle so may break more easily." 14 The offender at all times denied having caused the death of his wife, and the evidence does not reveal precisely whereabouts or in what circumstances the crime was committed. The offender consistently maintained that he had found his wife's body in the laundry when he returned home from Fairfield, but the verdict of the jury makes it clear that version of events was rejected. There were no signs of a struggle found in the laundry or elsewhere in the house and there was no other pointer to precisely where the killing took place. 15 This much however has been proved: that the offender caused the death of his wife by manual strangulation and that he did so either intending to kill her or at least intending to cause her grievous bodily harm. I must heed the gravity of these objective features. 16 The maximum penalty for the crime of murder is, of course, imprisonment for life. 17 The offender was born in Italy on 8 July 1930 and he came to Australia in 1966. He married the deceased in 1968. The deceased was born on 3 April 1932. There were three children of the marriage, all of whom lived with their parents at 10 Iris Street, Guildford prior to their mother's death and all of whom gave evidence at the special hearing. The family lived at Iris Street for some ten years before the deceased died, but it is plain from the evidence that for many years the offender and the deceased had led separate lives. The offender washed and cooked for himself, dining alone. Indeed, it would seem from the evidence of the children that the offender and the deceased rarely communicated except to quarrel. There were numerous quarrels but none of the children ever saw their father use force on their mother. Through the evidence of the children, a number of topics emerged as matters about which quarrels occurred:

(i) there were quarrels over the offender's religious beliefs once he became a Jehovah's Witness in about 1988. The deceased, who apparently had been brought up a Catholic, apparently did not approve of the offender's religious activities;

(ii) there were quarrels about money and the deceased's use of electrical appliances and the associated cost;

(iii) the offender wanted the deceased to go out to work and this prompted quarrels. 18 The above list is not exhaustive. 19 It may be that there was some argument on the day this crime was committed which led to its commission, but neither the children of the marriage nor any neighbour heard any quarrel on that day and I must not speculate. I am unable to find on the evidence why the offender committed this crime. 20 I must take into account in the offender's favour that he has no prior criminal convictions. 21 I must also take into account that the offender is now seventy years of age. The significance of age of an offender being sentenced was considered in R v Holyoak (1985) 82 A Crim R 502 where Allen J, with whose judgment on this point the other members of the court agreed, said at 507: "It is, of course, clear that a sentence imposed upon an offender when he is of such an age that, should he not die in gaol, he will have little worthwhile life left after his release is likely to bear more heavily upon the offender than a similar term imposed upon a younger man who can look forward to a worthwhile life after release… It simply is not the law that it never can be appropriate to impose a minimum term which will have the effect, because of the advanced age of the offender, that he well may spend the whole of his remaining life in custody… What, however, is appropriate by way of full-time custody…must be considered in the light of the impact upon public perception of a gaol sentence imposed upon a man of such advanced years upon whom the sentence would bear the more heavily because of his very age and the real risk that he will never walk free." 22 The only evidence of life expectancy which was placed before the Court was evidence which Dr Ellard gave this morning that if the offender's mental condition continues to deteriorate he may only survive for five years. If there is no such deterioration the life expectancy of the offender is unlikely to exceed the limiting term which I feel compelled to make in this case, after making due regard for the offender's age. 23 I turn to consider the offender's mental condition. The Crown has submitted that there is a paucity of evidence as to the mental condition of the offender, both presently and at the time of the commission of the crime. 24 The offender was found to be unfit to plead by Hulme J in proceedings in this court in May 1999 and hence the special hearing. It has been established both by evidence that was given by Dr Ellard, to which I shall make further reference, and by evidence given by Mr Villari, the offender's solicitor, that there has been some deterioration in the mental condition of the offender since 1995. I accept that this is so. 25 A number of assessments were made prior to the fitness to plead hearing last year. Dr Milder examined the offender in April 1999. Neurological examination was normal but the doctor recommended a number of tests and these included an MRI of the brain. That showed some brain atrophy. Reporting on the significance of this test, Dr Milder wrote on 27 April 1999: "Cerebral atrophy and enlargement of the entire ventricular system suggest a developmental insult or dementia. As the former is associated with cognitive impairment and the latter with cognitive decline, it is entirely possible he is unfit to plead." 26 Dr Ellard was also qualified in April 1999. The doctor was the author of three reports, the first of which was dated 15 April 1999. At that time Dr Ellard, whilst recording that the offender felt much persecuted, could not diagnose a psychotic illness. He felt that the offender's disorder of communication was partly due to psychological disorder and partly due to a conscious desire not to get himself into trouble. Dr Ellard went on to say at that time: "Were a court to find him guilty of the act of which he has been offender, then it would be difficult from a psychiatric point of view to offer a very securely based opinion that he is mentally ill but it is beyond doubt that his ability to reason well is impaired." 27 After Dr Ellard had seen the MRI report concerning the offender's brain, he expressed the opinion that the test addressed in that report had confirmed his tentative view "that his obvious intellectual dullness is at least in part due to some cerebral damage." 28 Dr Ellard gave evidence before me on an application that the special hearing be stayed. When he gave evidence on that application, which application was unsuccessful, Dr Ellard remarked upon what he perceived to be a deterioration in the condition of the offender since 1995, judging from the video of the interview which the police conducted on 13 January 1995. 29 Dr Ellard gave further evidence this morning. When Mr Joseph put assumptions to the doctor based upon the evidence at the special hearing, Dr Ellard opined that the dementia from which the offender now suffers was well advanced before 12 January 1995. It is Dr Ellard's opinion that the cerebral atrophy is indicative of a developmental insult and dementia. 30 The evidence of Mr Villari, who has been acting for the offender since late 1997 or early 1998, was that the offender had, on his observation, deteriorated in the last one and a half to two years. Mr Villari has visited the offender's home, being the former matrimonial home, and from his description of it in more recent times, which description I accept, it is clear that in recent times the offender has, at least recently, been living in filthy conditions. 31 Dr Schibeci is a psychologist who assessed the offender over three interviews in April 1999. He conducted a number of tests which indicated that the offender had low intelligence, that he had problems with visual processing, that he had reasoning difficulties, attention and perception problems, learning difficulties and that he was low on verbal and visual memory. The psychologist concluded that the results of the psychological tests were consistent with the presence of brain damage. 32 Absent any contemporaneous expert evidence, it is difficult to determine how the offender was functioning mentally at the time he murdered his wife. The jury considered, but rejected, the defence of diminished responsibility. This, to my mind, is understandable, particularly since there was no expert expression of opinion that the offender's mental condition in January 1995 prevented him from forming a rational judgment or from distinguishing right from wrong. Nor was there any expert evidence as to whether the offender's capacity to exercise will power to control his physical acts in accordance with sensible judgment was impeded at that time. Dr Ellard today gave evidence that in his opinion there was some impairment of the offender's ability to control himself by January 1995 but Dr Ellard was unable to determine the extent of such impairment. 33 It seems to me that the offender probably had the brain atrophy before he murdered his wife and that this probably impaired his intellectual functioning in those areas which Dr Schibeci identified in 1999, although to a lesser degree in 1995 than in 1999. I should add that one of the tests which Dr Schibeci carried out disclosed that the offender was no more hostile than the rest of the population and that, indeed, the offender produced a very low score on that hostility test. Nevertheless, Dr Schibeci said that that test result gave no indication of the offender's ability or inability to control himself either emotionally or physically. I consider however, accepting as I do Dr Ellard's evidence to this effect this morning, that the offender's mental functioning was impaired in January 1995 so as to reduce his ability to control his actions, but, of course, I do not find that such impairment substantially diminished his mental responsibility for what he did. Indeed, the jury determined that it did not when the jury was not satisfied that the defence of diminished responsibility was established. 34 I have regard to the offender's mental condition as I assess it to have been when he committed this crime. I consider in his favour that the element of deterrence is to be given less weight because of that condition than if he had no mental handicap, but the element of general deterrence cannot be ignored altogether on my assessment of this offender person. 35 There has been considerable delay between the commission of this offence and the proceedings which have culminated in the need for me now to nominate a limiting term. The offender was not arrested until 9 August 1996 and it was not until May last year that the fitness to plead hearing took place. Doubtless the offender has experienced much anxiety having this matter pending for so long, although as his mental condition has continued to deteriorate, as I am satisfied it has done in the course of the past five years, the extent of the anxiety may have been blunted somewhat. However Dr Ellard said that whilst the anxiety as to the pending trial has not contributed to the extend of the offender's dementia, the fact that there is dementia is a circumstance that has rendered the offender less capable of coping with his anxiety. That I take into account with all relevant considerations referable to the delay which has occurred. Mr Joseph submitted that at this stage, having regard to all the evidence which is now before the Court, it would be appropriate for me to stay these proceedings, but I do not accept that submission. 36 The Crown provided sentencing statistics for my assistance. One has to be cautious in heeding sentencing statistics and regard always has to be paid to the particular features of the case under consideration. However, what these statistics do show is that in a sample of sixteen cases the lowest full term imposed was fourteen years and that in only thirteen percent of cases. 37 I have considered Mr Joseph's thorough submissions and the features of this case, both objective and subjective, and I now proceed to nominate what I regard as an appropriate limiting term as required by s 23(1)(b) of the Mental Health (Criminal Procedure) Act. The limiting term I nominate is fourteen years, to date from 23 May 2000. 38 In accordance with the requirements of s 24 of the Mental Health (Criminal Procedure) Act, I refer the offender to the Mental Health Review Tribunal and, pending notification of the determination of the Tribunal pursuant to s 24(3), I order that the offender be detained in the hospital attached to the Correctional Centre at Long Bay. **********

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