R v ESPOSITO No. SCCRM-98-299 [2000] SASC 182

[2000] SASC 182

Court of Criminal Appeal: Olsson, Wicks and Gray JJ

1 OLSSON J I have had the advantage of reading, in draft, the reasons for decision published by Gray J in this matter. I agree with what he says and that the appeal must be dismissed.

2 I desire merely to add a few additional comments.

3 There can be no doubt that these crimes must be placed in the very serious category. They involved the premeditated slaying of the appellant's wife and her mother in the presence of the appellant's three young children. In the case of Mrs Esposito the appellant, over a short period of time, shot her in the groin, stomach and head. He also struck her in the face and kicked her, as a prelude to killing her.

4 Whilst the appellant was, no doubt, upset by his wife's expressed intention to terminate the marriage, there can be no suggestion that, by reason of any psychiatric or even sudden emotional condition, he was labouring under a situation of diminished responsibility at the time. The detailed arrangements for what he did and the execution of his plan on All Soul's Day, when he knew that his wife and her mother would be at the cemetery, speak volumes for the deliberateness of his actions. Those actions seem to have been simply the manifestation of anger and wounded pride.

5 These callous murders must necessarily have attracted a commencement point for the calculation of a non parole period of the order of 28-30 years. The abatement of this to allow for the appellant's plea and any other mitigating factors was appropriate.

6 Whilst it is true that, having regard to his present age, there is a possibility that the appellant may die in gaol, that cannot constitute a reason for reducing further the period which the horrific nature of these crimes demands be actually served.

7 WICKS J. I agree that this appeal be dismissed for the reasons given by Gray J.

8 GRAY J. The appellant pleaded guilty to the crimes of murder. After imposing one mandatory sentence of life imprisonment, the learned sentencing Judge fixed a non-parole period of 21 years.

9 The appellant complains that the non-parole period was manifestly excessive. It was said that an inadequate discount was given for the early plea of guilty and that insufficient regard was had to the advanced age of the appellant and other mitigating factors.

10 The victims of the crimes were Mary Esposito, the wife of the appellant, and Giuseppina Lopresti, his wife's mother. The killings took place in the West Terrace Cemetery on All Souls' Day, 2nd November 1997. Both women were at the cemetery to attend the graves of Mrs Esposito's father and grand-father who were respectively Mrs Lopresti's husband and father.

11 At the time of the crimes the appellant was aged 53 and Mrs Esposito was aged 39. There were three children of the marriage, Melissa aged 16, Gianni, aged 14 and Paolo aged 13. Mrs Lopresti, the children's grandmother, was aged 61. The children were at the cemetery and witnessed the killings.

12 The appellant came to Australia in 1956, then aged 12, from Naples, Italy. He came with his parents and sister. He attended school in Australia until aged 15, then left, and undertook odd job work including hotel work. He returned to Italy, when about 21, and served in the Italian Army. By 1967 he had returned to Australia and had decided to work at Coober Pedy as an opal miner. He continued in that occupation until his arrest. In 1980, he married Mary. Apparently after a happy start to their marriage, trouble arose between the appellant and Mrs Esposito's brother Joe Lopresti. By 1991 Mrs Esposito and the three children had returned to Adelaide to live at Trimmer Parade Seaton. From time to time the appellant returned to Adelaide from Coober Pedy to visit his family.

13 Matrimonial disharmony had been ongoing. The appellant had a history of ill temper and violence towards Mrs Esposito. His children had witnessed an occasion when she was threatened with a gun and another occasion when there was an attempted strangulation. She had previously been struck by the appellant.

14 Matters worsened and in October 1997 Mrs Esposito, with the children, left the home at Trimmer Parade and moved to a nearby unit. Mrs Esposito's solicitor wrote to the appellant advising that the marriage was at an end and seeking a financial and property settlement.

15 Upon receiving the letter, the appellant flew to Adelaide. He stayed in motel accommodation for several days, obtained his gun and hired a car. This would all appear to be in preparation for the killings.

16 The learned sentencing Judge accepted that the appellant became enraged and to some extent, deranged by reason of the matrimonial breakdown and the request for financial and property settlement. Apparently he was most concerned that he might not see his children again and wished the marriage to continue.

17 On the morning of Sunday 2 November 1997, the appellant left the motel and drove in the hire car to the West Terrace Cemetery. He knew that his wife and family would be visiting the family graves to pay their respects. He took with him his gun.

18 The children were sitting in a car waiting while the rest of the family were visiting the graves. Gianni saw a car approaching. It stopped suddenly next to him. The appellant got out and passed by saying "I'm sorry son." The appellant then ran through the cemetery. The children shouted a warning. Gianni saw the appellant pull a gun from the front of his trousers and take aim towards his grandmother. The children heard their mother screaming. Shots were fired and Mrs Lopresti fell to the ground. Shortly after, Gianni saw the appellant firing shots in the direction of his mother's feet. She was screaming and jumping.

19 Paolo was also aware of his father running past the car saying, "Sorry son." He saw his grandmother shot and then a few moments later, his mother sitting on the ground. He witnessed the appellant hitting his mother in the face with his right fist and kicking her around her chest and side. Then more shots were fired. Later examination revealed that Mrs Esposito had been shot in the groin, stomach and head.

20 These were the most brutal of crimes. They were premeditated and planned. The intentions of the appellant were clear as is evident from the remarks to his sons. The way in which the appellant shot Mrs Esposito, struck her in the face and then kicked her while she was on the ground prior to the murder were matters of extreme brutality and callousness. They amount to serious aggravation, particularly given the presence of the children.

21 The learned sentencing Judge expressed the following well justified comments:-

" In my view, these crimes are towards the upper end of the scale of seriousness. Two totally innocent women have been murdered in most terrible circumstances. Mary Esposito must have suffered enormously, if but for a brief period of time. Your children were present. They must live with this terrible scene for the rest of their lives. They have been deprived of the mother they loved and who loved them at a young age and at a time when they need her. The wider family has lost two women, whom they loved and needed. Mr and Mrs Lopresti now suffer greatly. They struggle to care for your children, as well as their own. But, it is an enormous emotional struggle for everyone."

22 The learned sentencing Judge had available to him victim impact statements from the children as well as other family members. The effect on the children has been devastating. They have all been left with serious psychological consequences which will remain with them throughout their lives. The effect upon the wider family has been profound. Much suffering has been wreaked by the conduct of the appellant.

23 The learned sentencing Judge found that the likely reason for the crimes was misplaced pride and selfishness. This might explain the crimes, but it cannot be an excuse.

24 The learned sentencing Judge had regard to the personal circumstances of the appellant. He brought into account the plea of guilty, commenting that significant credit was to be given in the sentencing process. He noted not only the saving of the expense to the State of a lengthy trial, but also that the appellant's children and other relatives were saved from giving evidence. His Honour noted and accepted the deep regret, remorse and contrition of the appellant. He took into account the steps that the appellant has taken to protect his children financially. Specific regard was had to the appellant's age, 54 years at the time of sentencing. His Honour said:

"... it [age] is a matter to be brought to account but not so as to disregard the proper notions of punishment and deterrence."

25 His Honour proceeded to impose the mandatory sentence of life imprisonment. Although the appellant had committed the two crimes of murder, only the one life sentence was imposed. A non-parole period of 21 years was fixed. His Honour said:-

"I discount the nonparole period significantly on account of what has been described as your early plea. I accept that there is little prospect of your reoffending. Taking into account all matters, I fix a nonparole period of 21 years."

26 The non-parole period was directed to commence from 3 November 1997 - when the appellant was taken into custody.

27 The duty of the Court to fix a non-parole period is regulated by the Criminal Law (Sentencing) Act 1988 (SA). Relevantly section 32 provides:-

"(1) ... where a court, on convicting a person of an offence, sentences the person to imprisonment, the court must -

(a) if the person is not subject to an existing non-parole period - fix a non-parole period;

(5) The above provisions are subject to the following qualifications:

(c) a court may, by order, decline to fix a non-parole period in respect of a person sentenced to imprisonment if the court is of the opinion that it would be inappropriate to fix such a period because of -

(i) the gravity of the offence or the circumstances surrounding the offence; or

(iii) the behaviour of the person during any previous period of release on parole; or

28 The High Court in Power v R[1] addressed the purpose of orders for non-parole as follows:-

"... to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence. ... The Act leaves the fixing of the period to the judge and so long as he proceeds judicially his discretion is not subject to any predetermined limitation. If, in a particular case, the discretion miscarries it can, in accordance with well established principles, be corrected upon appeal."

29 Power v The Queen was approved and applied in Deakin v The Queen [2]. The Court further considered the issue in Bugmy v The Queen[3]. All members of the Court approved Power v R. Although the Court were divided in the particular circumstances, on the issue of principle they were at one[4] and Mason CJ and McHugh J said at [531]:-

" Accordingly, although the fixing of a minimum term confers a benefit on the prisoner, it serves the interests of the community rather than those of the prisoner: Attorney-General v. Morgan and Morgan. In that case Jenkinson J., with whom Kaye J. agreed, pointed out that considerations relevant to the interests of the community which the imprisonment of offenders is designed to serve, as well as circumstances which mitigate punishment, will be taken into account in determining the head sentence and, again, in fixing the minimum term. At that stage the various interests of the community 'will be balanced against the advantages to the community which release on parole is thought likely in the particular circumstances to confer, and against whatever degree of mitigation mercy to the offender may claim without injustice.'

Once this is accepted, it follows that the considerations which the sentencing judge must take into account when fixing a minimum term will be the same as those applicable to the setting of the head sentence. Obviously, the weight to be attached to these factors and the way in which they are relevant will differ due to the different purposes behind each function"

"But in the end the minimum term is to be fixed because all the circumstances of the offence require that the offender serve no less than that term, without the opportunity of parole: see generally King C.J. in Reg. v. Robinson.[5]".

31 The Court further considered the issue in The Queen v Shrestha.[6] Brennan and McHugh JJ said [60-61]:-

"Before turning to these matters, it is desirable to recall that an eligibility-for-parole order is part of a sentence, and the discretion which is exercised in framing an appropriate sentence in a given case calls for an evaluation of all the relevant circumstances and a consideration of all the sentencing options which are available to the sentencing judge. It is one thing to identify sentencing principles which must govern the imposition of a sentence, to appreciate in some instances the priority of one principle over another (as to which, see Veen v. The Queen [No. 2] [1988] HCA 14; (1988) 164 C.L.R. 465) and to attribute the appropriate weight to matters which must be evaluated for the differing purposes of determining a head sentence and determining a non-parole period. See e.g., Bugmy v. The Queen [1990] HCA 18; (1990) 169 C.L.R. 525. It is another thing to attempt an artificial division of the indivisible process of determining the appropriate sentence to be imposed."

"All of the considerations which are relevant to the sentencing process, including antecedents, criminality, punishment and deterrence, are relevant both at the stage when a sentencing judge is considering whether it is appropriate or inappropriate that the convicted person be eligible for parole at a future time and at the subsequent stage when the parole authority is considering whether the prisoner should actually be released on parole at or after that time. Thus, in Power v. The Queen [1974] HCA 26; (1974) 131 C.L.R. 623 at p.629, Barwick C.J., Menzies, Stephen and Mason JJ drew attention to the fact that the legislative intent to be gathered from the terms of the parole legislation applicable in that case Parole of Prisoners Ordinance 1971 (A.C.T.), s. 4 was to provide for possible mitigation of the punishment of the prisoner only when the stage is reached where 'the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence.' "

32 The High Court considered the Criminal Law (Sentencing) Act 1988 (SA) in Inge v R[7]. In their joint judgment, Gleeson CJ and Gaudron, Hayne and Callinan JJ said at [4]:-

"Under the Criminal Law (Sentencing) Act 1988 (SA), in a case such as the present, the judge may fix, or decline to fix, a non-parole period. (Criminal Law (Sentencing) Act 1988 (SA) ss 32(1)(a) and (b), 32(5)(c)). Such a period is the minimum time which the offender must serve in prison before being eligible for release on parole. If a sentencing judge fixes a non-parole period in the case of a person serving a sentence of life imprisonment, at any time after the expiration of that period the offender may be released on parole if the arole Board makes such a recommendation to the Governor, and the recommendation is accepted. (Correctional Services Act 1982 (SA) s 67(6)). If that occurs, the offender will continue on parole for a recommended period of between three and 10 years, at the expiration of which the sentence will be taken to have been wholly satisfied. (Correctional Services Act 1982 (SA) ss 67(6), 70). The combined discretionary powers of the sentencing judge, to fix a non-parole period, and the Executive, to release a prisoner on parole, together with the statutory consequences of release on parole, mean that the proposition that the penalty for murder in South Australia is mandatory life imprisonment is an incomplete statement of the true position. Of course, fixing a non-parole period does not mean that parole will be granted, either at the expiration of that period, or at all."[8]

The decision of Bugmy v R was approved in the following terms at [6]:-

"The principles which inform the exercise of a judicial discretion in fixing a non-parole period were considered in Bugmy v R, ((1990) [1990] HCA 18; 169 CLR 525; 92 ALR 552) a case of murder, and of a prisoner who had originally been subject to a mandatory sentence of life imprisonment. They direct attention to matters which include the rehabilitative purpose of parole, the need to protect the community, and the difficulty of predicting, a long time in advance, the facts which may affect a judgment as to whether parole should be granted, refused or postponed."

33 The time that the appellant must spend in prison is to be proportionate to the gravity of the crime and must satisfy the punitive, deterrent and preventative purposes of punishment It is well accepted that multiple murders are within the category of murders calling for the longest non-parole periods - The Queen v Stewart[9]. It was not suggested that the learned sentencing Judge failed to have regard to any relevant factor or took into account any irrelevant factor. Counsel for the appellant accepted that the learned sentencing Judge had given consideration to all relevant factors. The appellant's complaint is that too much weight was given by the learned sentencing Judge to matters of punishment and deterrence and too little to matters personal to the prisoner.

34 It was said that the learned sentencing Judge approached the fixing of the non-parole period as though it were a head sentence and not a non-parole period. I reject this submission. All relevant matters including the public interest and matters personal to the appellant were specifically addressed.

35 It was suggested that the learned sentencing Judge failed to have regard to the combined effect of matters personal to the appellant. In my opinion, this submission cannot be made out. In his careful remarks, the learned sentencing Judge, having identified the relevant considerations, expressly stated that he took them all into account.

36 During submissions, complaint was made that to reduce a non-parole period on account of a plea of guilty was an error of law. However during reply this submission was abandoned, and to the contrary, it was suggested that there should have been a greater reduction than that which it was inferred had been made.

37 It has been said by this Court that a sentencing Judge should identify the amount of any reduction made in respect of a plea of guilty. Although there was no precise indication of the extent of reduction in this case, the learned sentencing Judge made it plain that he was giving significant credit on account of the pleas. The range of reductions in regard to pleas of guilty are commonly of the order of 20-25 per cent which would allow for a starting point of 26 to 28 years. Although it would have been desirable to have the extent of the credit identified, I am satisfied that the learned trial judge gave appropriate credit. I do not consider that a starting point of a little less than 30 years to be inappropriate in the circumstances.

38 It was said that the learned sentencing Judge failed to have regard to the contemplation and likelihood of the appellant's death in custody. This submission is flawed. As was conceded, the appellant's normal life expectancy would not lead to the likelihood of death in custody.

39 It was submitted that the learned sentencing Judge considered that matters of punishment and deterrence outweighed any consideration of age. I reject this submission. The learned sentencing judge did not treat any particular factor as outweighing or being predominant to any other factor. To the contrary, as I have already noted, His Honour said:-

"... it [age] is a matter to be brought to account but not so as to disregard the proper notions of punishment and deterrence."

40 It is well settled that age may operate to mitigate sentence. It is a relevant matter to be considered in the fixing of a non-parole period.[10]. Courts can have regard to the advancing years of an offender as a relevant factor in the sentencing process. King CJ confirmed this in The Queen v Hunter[11] when dealing with a 74 year old offender:-

"A sentencing Judge cannot overlook the fact that each year of the sentence represents a substantial proportion of the period of life which is left to him."

41 Age cannot be used to justify the imposition of an unacceptedly inappropriate sentence; proper regard must be had to the punitive, deterrent, retributive and rehabilitative aspects of punishment - R v Miller[12]; R v Bazley[13] and R v Crowley[14].

42 The learned sentencing Judge gave proper, adequate and careful consideration to the appellants age.

It is not the function of this Court to review the exercise of a sentencing discretion unless it reflects an error of principle or results in a manifestation of injustice. Neither has been shown here. I would go further and express my view that, in the circumstances of this matter, the non-parole period fixed by the learned sentencing Judge was entirely appropriate. This appeal must be dismissed.

1 [1974] HCA 26; (1974-75) 131 CLR 623

2 [1984] HCA 31; (1984) 58 ALJR 367

3 [1990] HCA 18; (1989-1990) 169 CLR 525

4 See R v Shrestha (19911992 [1991] HCA 26; 173 CLR 48 at 62

5 (1979) 22 SASR 367 at 370

6 supra [1991] HCA 26; (1991-1992) 173 CLR 48 at 62

7 [1999] HCA 55; (1999) 166 ALR 312

9 (1983-84) 35 SASR 477 at 478

11 (1983-84) 36 SASR 101

12 [2000] 206 LSJS 313

13 (1992-93) 65 A Crim R 154

14 (1991) 55 A Crim R 201

[1974] HCA 26; (1974-75) 131 CLR 623

[2] [1984] HCA 31; (1984) 58 ALJR 367

[3] [1990] HCA 18; (1989-1990) 169 CLR 525

[4] See R v Shrestha [1991] HCA 26; (1990-1991) 173 CLR 48 at 62

[5] (1979) 22 SASR 367 at 370

[6] supra [1991] HCA 26; (1991-1992) 173 CLR 48 at 62

[7] [1999] HCA 55; (1999) 166 ALR 312

[9] (1983-84) 35 SASR 477 at 478

[11] (1983-84) 36 SASR 101

[12] [2000] 206 LSJS 313

[13] (1992-93) 65 A Crim R 154

[14] (1991) 55 A Crim R 201