R v Gangi [2003] VSC 221 | Case summary | Zoe

VICVSC

R v Gangi [2003] VSC 221

[2003] VSC 221

Supreme Court of Victoria|2003-06-12|Before: OSBORN J

At a glance

AI case summary

Result

procedural. Sentence: 21 years imprisonment; non-parole period fixed at 17 years; credit declared for 503 days already served [176].

Key principles

A sentencing judge must form his or her own view of facts relevant to sentencing, but that view must be consistent with the jury verdict and any adverse factual findings must be...
When a sentencing judge proposes to take facts into account adversely to the offender these must be established beyond reasonable doubt; facts relied on in favour of the offender...
Where an offender deliberately attends a likely confrontation armed with a knife, the carrying and use of that knife is an aggravating factor warranting significant punishment...
Lack of genuine remorse and post-offence deceit (for example, self-inflicted wounds to establish a false defence) are relevant to both moral culpability and risk of future...

Issues before the court

What standard applies to factual findings adverse to the offender at sentencing?
Whether the killing was premeditated murder or occurred without premeditated intent to kill

Plain English Summary

Osborn J sentenced Anthony Lou Gangi to 21 years' imprisonment (17 years non-parole) for the murder of his brother Salvatore. The judge found that Gangi deliberately went to a likely confrontation armed with a knife and stabbed his unarmed brother, that he later tried to fabricate a self-defence case by cutting himself, and that he showed no genuine remorse. The judge applied High Court principles requiring adverse sentencing facts to be proved beyond reasonable doubt, considered victim impact material and the Sentencing Act purposes, balanced mitigating factors (limited premeditation, provocation, personal background) against significant aggravation (armed presence, vulnerable victim, presence of children, lack of remorse), and fixed a substantial term to reflect denunciation, deterrence and community protection [17, 43-55, 70, 96-109, 158-176].

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Deep Dive

1,782 words · generated 25/06/2026

What happened

Anthony Lou Gangi was convicted by a jury of the murder of his older brother, Salvatore Michael Gangi, arising from an incident at the vicinity of Jukes Tavern, Fawkner, on 25 January 2002. The factual thread as found and accepted by Osborn J at sentence was that a long-standing family dispute culminated in a confrontation. The accused had previously been ejected from the family home on Mother's Day 2001, engaged in a series of property damage incidents and made threats to his brothers, events the judge found plausibly attributable to him and relevant to motive and state of mind [28-37]. On 25 January 2002 the accused attended the area of Jukes Tavern carrying a kitchen knife, anticipating a possible confrontation with Salvatore [40-43]. When Salvatore arrived and approached, he swore at, abused and pushed the accused; the accused then produced the knife and without hesitation drove it into Salvatore's left chest, a wound that proved fatal [49-52]. After the stabbing the accused fled, arranged for his de facto to pick him up and later attempted to fabricate a self-defence narrative by inflicting cuts on himself with the murder weapon; the police recovered the knife from the de facto's car [55]. A jury convicted the accused. At sentence Osborn J received psychological reports and victim impact material and after applying legal standards fixed a term of 21 years with a 17-year non-parole period, declaring 503 days already served [8, 70, 176].

Why the court decided this way

There are three interlocking strands to the judge's reasoning: (1) the applicable sentencing law and standards of proof; (2) the primary factual findings about the conduct; and (3) the balancing of aggravating and mitigating features against the statutory purposes of sentencing.

Sentencing law and standard of proof. Osborn J began by applying the High Court's sentencing-framework principles in R v Cheung and the authorities that adopt the strictures in R v Storey and R v Olbrich. He emphasised that a sentencing judge must form his or her own view of factual matters necessary for sentencing, but that such views must be consistent with the jury verdict and, crucially, adverse facts relied upon against the offender must be established beyond reasonable doubt; by contrast, factual matters relied on favourably to the offender need only be proved on the balance of probabilities [17, 25]. That structure governed which factual contentions he accepted and how he weighed them.
Primary factual findings. Applying those standards, Osborn J accepted beyond reasonable doubt that the accused deliberately went to the scene armed with a knife, that he stabbed an unarmed Salvatore in the left chest after being pushed and that his later account of cuts inflicted by Salvatore was false, the wounds were self-inflicted in an attempt to avoid responsibility [43, 49-55, 58]. He did not accept beyond reasonable doubt that the accused had expressly intended to kill from the moment he left the house; rather the accused went anticipating confrontation while armed, and the lethal stabbing occurred during the encounter [43, 61]. The judge also found that Salvatore had initiated the immediate aggression by approaching and pushing, a fact accepted for mitigation where appropriate [49, 61].
Balancing aggravation and mitigation. The judge weighed mitigating matters, absence of proved premeditated murderous intent, the provocation by Salvatore's approach and push, difficult upbringing, drug addiction, low intelligence and some mental-health issues, against significant aggravating factors: the deliberate attendance armed with a knife, the victim's vulnerability as an unarmed man, presence of the victim's wife and two children as onlookers, foreseeability of severe harm to the victim's family, the accused's lack of genuine remorse (including post-offence deceit), and the risk of future violence to family members [61-70, 96-109, 161-167]. He further gave weight to victim impact statements and an accompanying psychologist's report under s.95BA to amplify the grievous, traumatic effects of the killing on the deceased's family [70-81]. The statutory purposes in s.5 (denunciation, deterrence, protection and limited hope for rehabilitation) guided the final quantum: a substantial custodial term with a long non-parole period to mark community condemnation and to deter both the offender and the broader public against carrying and using knives [158-176].

Before and after state of the law

Before this decision the Court's sentencing-law framework was governed by the High Court authorities cited and applied by Osborn J. In particular:

R v Cheung set out that judges must form their own view of sentencing facts but remain consistent with the jury verdict; it stressed the judge's role in determining punishment [17].
R v Olbrich and R v Storey (adopted as authoritative in Olbrich) emphasised that adverse findings must be proved beyond reasonable doubt while favourable findings are generally open on the balance of probabilities [25].

Osborn J applied those precepts directly. The decision confirms how sentencing judges at first instance should operationalise those standards when sentencing for homicide, particularly where the accused asserts accident or self-defence inconsistent with the jury verdict. It also demonstrates the accepted use of victim impact material under s.95BA as a legitimate source for assessing aggravation.

This judgment does not alter legal principle; rather it exemplifies application of established authorities to the facts of an intimate homicide where the offender had previously threatened the victim and attended the scene armed. The "after" state is thus a reaffirmation of the Cheung/Olbrich approach to sentencing fact-finding and a concrete illustration of how aggravating factors such as carrying an offensive weapon and lack of remorse are quantified in sentencing for murder.

Key passages with plain-English translation

Paragraph 17 (Cheung principles). Court: sentencing facts are the judge's responsibility; must be compatible with jury verdict; adverse facts must be proved beyond reasonable doubt. Plain English: The judge, not the jurors, decides what facts matter for sentence, but cannot find something against the accused at sentencing unless proven to that high standard, and any beneficial facts need only be proved more likely than not.
Paragraph 43. Court: "you went to the scene ... deliberately armed, but not necessarily with murderous intent." Plain English: The offender took a knife to a likely fight, he intended to be prepared for trouble but the judge did not conclude he definitely planned to kill when he set out.
Paragraphs 49–52. Court describes the confrontation and the stabbing. Plain English: Salvatore approached, pushed and tried to get away, but the accused took his knife out and stabbed him in the chest, causing death; eyewitnesses contradicted the accused's later stories.
Paragraphs 55 and 96–99. Court: accused staged cuts on himself and tried to invent a self-defence story; his expressions of regret lacked acceptance of responsibility. Plain English: After killing his brother he pretended he'd been cut by the victim and lied to the police and to the court; this conduct shows he did not genuinely accept he had done wrong.
Paragraphs 112 and 161–167. Court: carrying and using knives in public is to be strongly deterred; the killing, in front of the victim's wife and children, aggravated the offence. Plain English: The judge wanted to send a message: bringing knives to fights is unacceptable, especially when innocent family members are present, so a tough sentence is needed to deter others.
Paragraph 176. Court imposes sentence. Plain English: The final outcome: 21 years imprisonment, 17 years before parole can be considered, with time already spent in custody counted.

What fact patterns trigger this precedent

This decision is instructive where a sentencing judge faces:

A jury conviction for homicide but disputed narratives from the offender asserting accident or self-defence inconsistent with eyewitness evidence [58].
A factual matrix of prior threats or vendetta-like conduct culminating in attendance at a likely confrontation while armed (knife) [34-43, 64].
Post-offence conduct that includes attempts to fabricate a defence or otherwise deceive investigators or the court (self-inflicted wounds, lies) showing lack of remorse [55, 96-99].
Victim impact evidence that shows acute trauma to family and children present at the scene [70-81].
Mixed mitigating features (limited premeditation, provocation, addiction, low intelligence) but significant aggravation (weapon, vulnerability, presence of children, foreseeability of family harm) where deterrence and protection dominate sentencing calculus [61-67, 167].

Practitioners should expect Osborn J's approach when the facts demonstrate armed attendance at a confrontation, deliberate use of the weapon, and a false post-offence narrative undermining remorse.

How later courts have treated it

The text of this judgment does not record subsequent appellate treatment or later judicial consideration of R v Gangi. The judgment applies established authorities rather than establishing novel legal propositions; therefore the document itself contains no material about its later reception. To know how later courts have treated R v Gangi would require search of appellate and subsequent sentencing decisions and citation databases beyond the four corners of this judgment.

Still-open questions

From the judgment's reasoning and emphasis, some issues that remain open or context-sensitive include:

The borderline between "deliberately armed" and "premeditated murderous intent": Osborn J distinguishes the two on these facts [43, 61], but finer lines are fact-dependent and can be contested in other cases where preparatory activity may be more pronounced.
Degree of proof required for gradations of adverse conduct at sentencing: while Osborn J applies the beyond-reasonable-doubt rule to adverse findings, how courts manage mixed inferences where evidence is ambiguous continues to pose difficulties in practice [17, 25].
The weight to be given to victim impact statements in homicide sentencing: Osborn J accepted the psychologist's report attached under s.95BA and allowed it to amplify aggravation [70-81], but questions remain on how to calibrate such material across cases with differing family structures and degrees of identified trauma.
Assessment of remorse: the judge inferred lack of remorse from deceptive conduct [96-102]. The line between genuine regret and legally significant remorse (affecting sentence) is often contested; this judgment illustrates reliance on conduct and pre/post-offence statements but does not exhaustively define thresholds.
Rehabilitation prospects vs deterrence/denunciation: Osborn J expressed limited optimism about rehabilitation and prioritised deterrence and protection in fixing a lengthy non-parole period [173, 176]. The tension between promoting rehabilitation (a statutory purpose) and imposing long custodial terms for deterrence remains a practical sentencing balancing act.

Practitioners should treat R v Gangi as a clear illustration of how a sentencing judge applies Cheung/Olbrich standards, how armed attendance and lack of remorse aggravate sentence, and how victim impact material figures into the sentencing weight. For appellate challenges, careful focus on whether any adverse factual findings at sentence were in fact proved beyond reasonable doubt will be central, together with scrutiny of whether the sentencing judge misapplied or misweighed the statutory purposes in s.5.

Judgment (73 paragraphs)

[1]

[2003] VSC 221

[2]

(retained for hearing, but not for the sentence plea)

[3]

Anthony Lou Gangi, you have been found guilty by a jury of the murder of Salvatore Michael Gangi at Fawkner on 25 January 2002.

[4]

Prior to making your plea you terminated the retainer of counsel who had represented you at the trial. I then granted you an adjournment to seek alternative representation, but following an adjournment of one week you requested me to hear your plea unrepresented because of an overwhelming desire on your part to finalise the matter.

[5]

You submitted to me a number of documents in support of your plea. An outline of submissions prepared by counsel, whose retainer you had terminated; the report of Mr Bernard Healey, Clinical Psychologist, dated 14 May 2003; a letter of Sister Mary O'Shannassy, Prison Chaplain, dated 14 April 2003; a 15 page handwritten statement by you as to your background and personal circumstances; a two page handwritten statement by you as to the circumstances of Salvatore's death; and a letter from the Department of Justice, dated 13 February 2002, acknowledging concerns expressed by you as to your safety in the prison system, as a result of which I understand you are in protective custody.

[6]

I have had regard to all the matters set out in these documents, in addition to those put to me both by you and Mr Kayser on the hearing of your plea. I record that but for the fullness of Mr Healey's report I should have requested a pre-sentence report pursuant to s.96 of the Sentencing Act.

[7]

Having regard to Mr Healey's report, and the information before me as a whole, I have however reached the conclusion that I am in the position to give fair and proper consideration to your situation.

[8]

I turn then to the circumstances of your crime. The High Court has made it clear in the case of R v Cheung[1] that it is incumbent on me to form my own view as to these matters. In Cheung's case the majority of the court endorsed the following principles:

[9]

(1) Where following a trial by jury a person has been convicted of a criminal offence the responsibility of determining the punishment to be inflicted upon the offender rests with the judge and not with the jury.

[10]

(2) Subject to certain constraints it is the duty of the judge to determine the facts relevant to sentencing. Some of these facts will have emerged in the evidence at the trial, others may only emerge in the course of the sentencing proceedings.

[11]

(3) The primary constraint upon the power and duty of decision making referred to is that the view of the facts adopted by the judge for the purposes of sentencing must be consistent with the verdict of the jury.

[12]

(4) A second constraint is that findings of fact made against an offender by a sentencing judge must be arrived at beyond reasonable doubt.

[13]

(5) There is no general requirement that a sentencing judge must sentence an offender upon the basis of the view of the facts consistent with the verdict which is most favourable to the offender. However, the practical effect of the last mentioned principle may be that because the judge is required to resolve any reasonable doubt in favour of the accused then the judge will be obliged to sentence upon a view of the facts which is most favourable to the offender.

[14]

In R v. Olbrich[2] the High Court adopted what was said by the majority of the Victorian Court of Appeal in R v. Storey[3]; a judge, when sentencing, may not take facts into account in a way adverse to the interest of the offender unless those facts have been established beyond reasonable doubt. But if there are circumstances which the judge proposes to take into account in favour of the offender it is enough if these circumstances are proved on the balance of probabilities.

[15]

At the trial of this matter it was common ground between the prosecution and the defence that the events leading directly up to the killing of Salvatore Gangi may be regarded as commencing on Mother's Day 2001. On that day you were ejected from your parents home by your brothers at the request of your mother and father. You were then refused entry when you wished to come back into the home.

[16]

Following this, as you subsequently admitted to your father, you caused substantial damage to motor vehicles owned and used by your brother, Joseph, and your deceased brother, Salvatore.

[17]

Thereafter, three of your brothers including Salvatore spent some days looking for you, eventually apprehended you and handed you over to the police. You then spent six months in custody as a result of outstanding matters unrelated to the dispute with your family. During this period I am satisfied that you expressed deep hatred of your brothers to your father and made threats to revenge yourself upon them. After you were released a further spate of property damage occurred involving the fire bombing of the deceased's truck, damage to his wife's car, damage to another vehicle, and damage to the windows of your father's house. Although there is direct evidence linking you with only two of these incidents, I am satisfied beyond reasonable doubt that you did have an involvement in the infliction of at least some significant property damage after your release from custody and that the deceased man Salvatore might reasonably have believed that you were responsible for the four incidents I have identified.

[18]

As against this there is evidence from your de facto that the deceased man himself was responsible for beating your de facto with a metal pole in December 2001 and further evidence that her motor car was damaged. In addition, your de facto alleges that in 1999 the deceased sexually assaulted her. It is not possible for me to adequately evaluate the full truth of these allegations upon the basis of the evidence at the trial, but I accept it is more probable than not that at the time of the final confrontation on 25 January 2002 you believed the deceased had acted violently towards your de facto and that this contributed towards your feelings of hatred and anger towards him.

[19]

The incident in which the windows of your father's house were broken occurred on 22 January 2002. On 25 January 2002 you attended at your father's home in order to try and reconcile your position with him. In the course of conversation you inflicted a cut upon your left wrist in order to demonstrate to him the sincerity of your denial that it was you who had broken the windows of his house. Subsequently, during the course of argument with your brother Riccardo in the garage at your father's house, you produced a knife to emphasise the seriousness of the animosity which you felt towards your brothers. This animosity had been expressed in phone calls to the deceased's family. In particular, I accept the evidence of his widow, Mrs Anna Gangi, that you did make death threats with respect to the deceased at and about the time of New Year 2002.

[20]

I am further satisfied beyond reasonable doubt that on leaving your father's house on 25 January 2002 you went to and remained in the vicinity of Jukes Tavern, Fawkner, for a period of many hours during which you anticipated a possible confrontation with your brother Salvatore. Despite the death threats which you had previously made, I am not satisfied beyond reasonable doubt, however, that you took a knife with you with the express premeditated purpose of killing. I am satisfied simply that you took the knife with you, anticipating that there could be some sort of confrontation with your brother. In other words, you went to the scene of a potential confrontation deliberately armed, but not necessarily with murderous intent.

[21]

I am further satisfied that you did have a deep antagonism towards Salvatore which was the product of an emotional state founded in distress at estrangement from your family and anger at your brother's actions.

[22]

When your brother in due course arrived outside Jukes Tavern, Fawkner, together with his wife and two of his children, he alighted from his car and approached you. I am satisfied beyond reasonable doubt that he was unarmed, but I accept that it was he who approached, confronted, abused, swore at and then pushed you.

[23]

Your brother was larger and physically more powerful than you were. The force of the push was sufficient to knock you off your feet and back against a shop window. After stumbling to the ground, you got up and drew from your trouser pocket a knife, which you then without hesitation drove into the left side of your brother's chest as he arched away seeking to avoid you. The resultant wound was fatal. The culmination of these events was witnessed by four witnesses, all of whom gave evidence inconsistent with the accounts you have now submitted to me.

[24]

After the stabbing you ran from the scene and arranged for your de facto to pick you up and take you home. The police subsequently attended your home and recovered the murder weapon from the glove box of your de facto's car. It was a kitchen knife with a serrated edge obviously capable of inflicting a very serious wound if utilised for the purposes of stabbing. On apprehension by the police you claimed that the deceased man had inflicted a series of cuts upon you and that you had stabbed him in self-defence. Quite apart from the direct evidence of your father, which was elicited by your own counsel, that one of the cuts was self-inflicted at your father's house, I am satisfied beyond reasonable doubt that your statements that your brother inflicted cuts upon you immediately prior to the stabbing were entirely false and that those cuts were self-inflicted by you in an attempt to avoid responsibility for the murder.

[25]

It is not open to me to find consistently with the jury's verdict that your brother's death was a tragic accident, as you assert in your written statements. Even if it were so open, however, on the basis of the evidence of the eye witnesses, I would reject outright the suggestion that you accidentally killed your brother in self-defence.

[26]

The following mitigating circumstances can be identified in respect of your crime as in some way explaining your behaviour or lessening your moral culpability: First, I am not satisfied beyond reasonable doubt that when you waited in Jukes Road, Fawkner, you did so with the premeditated purpose of killing or causing really serious injury to your brother. Second, it is clear that when your brother did arrive, it was he who took the confrontation up to you, abused and swore at you, and initiated violence by pushing you over. Third, your subsequent actions occurred in the context of a prior relationship of bitterness towards and estrangement from your family, coupled with hatred towards your brothers, and Salvatore in particular, as a result of your perception of your brother's actions towards you and your de facto. I accept that the failure of family relationships may produce highly emotional and irrational responses, although a response such as yours cannot in any way be condoned.

[27]

As against these matters there are a number of circumstances which must be regarded as aggravating your offence. Although I am not satisfied that you went to Jukes Road specifically intending to kill your brother or to cause him really serious injury, I am satisfied you did so anticipating a possible confrontation with the deceased man. Moreover, you did so carrying a knife with a preparedness to use such knife in any confrontation. Your brother was unarmed and vulnerable to any attack with the knife. You knew that your sister-in-law and two of her children were onlookers to the fatal confrontation and you must have known that the killing of the deceased in front of them would be doubly traumatic in its effects upon them. You knew that the deceased had a wife and three children. Indeed, you had spoken of this fact in making threats to his wife over the telephone. You knew that killing the deceased would leave his family fatherless and cause immense grief to your own parents.

[28]

The victim impact statements in the present case have filled out what would necessarily be inferred as the likely consequences of your offence. Namely, that your action has caused great suffering to your brother's family and to your parents and other brothers.

[29]

The role of victim impact statements was described by Vincent J in R v. Beckett as follows:

[30]

"They draw to the attention of the judge who would of necessity have to consider the possible and probable consequences of criminal behaviour not only its significance to society in general but the actual effect of a specific crime upon those who have been intimately affected by it".[4]

[31]

The victim impact statements in this case are most moving and impressive documents, which amplify the great personal suffering you have inflicted upon your brother's family and your own extended family. They confirm that your actions have had gravely traumatic effects, not only upon the innocent members of Salvatore's family, who witnessed his death, but also upon your family as a whole.

[32]

Pursuant to the provisions of s.95BA of the Sentencing Act a victim impact statement may have attached to it a psychologist's report. The report of the psychologist, Paola Piccione, attached to the victim impact statement of Anna Gangi, states:

[33]

"The family was highly traumatised after this event. They presented as suffering from post-traumatic stress disorder. The children displayed typical trauma symptoms, such as nightmares, flashbacks to the night, enormous fear, behavioural disturbances and difficulty concentrating at school, for example."

[34]

She further states that both Mrs Gangi and the children continued to exhibit trauma reaction over the time that she saw them.

[35]

A report from The Bouverie Centre has also been submitted. Such report does not fall within the terms of s.95BA and I cannot have regard to it. Nevertheless, Mrs Gangi herself describes the counselling she and her children have received at such centre, and the counselling provided at the Children's Hospital, together with the treatment she has received from a psychiatrist.

[36]

The man you killed was your oldest brother and the oldest child of your parents, Gaetano and Mariella. Salvatore was 36 when he died.

[37]

He had been married to Anna Gangi for 15 years and was the father of three children, Damien, Louisa and Massimo. It is clear that he was a loved and loving husband, father and family provider. And was also a loved and loving son and brother. You have caused immense and continuing pain and loss to those who loved him.

[38]

Despite having had regard to the victim impact statements as set out above I have not had regard to such victim impact statements insofar as they make allegations concerning your behaviour in my absence during the course of the trial. As I indicated to Mr Kayser, during the course of the hearing of your plea, I do not believe such allegations add anything to the clear picture which emerges in any event, of a man with anger management problems, who feels alienation from and bitterness, resentment, hatred and anger towards his family.

[39]

You have shown no remorse, in the true sense, for the killing of your brother. After the event you sought to set up a false defence of self defence, by inflicting cuts upon yourself with the murder weapon.

[40]

Since conviction you have expressed regret at your brother's death, to Sister Mary, Mr Healey and to this court. Nevertheless such statements demonstrate no real acceptance of responsibility for what you have done. You continue to deny responsibility for the killing and show only limited insight into the consequences to others of your actions.

[41]

In relation to the question of remorse I note what was said by Buchanan JA in R v. Asad[5]:

[42]

"It cannot be denied that a judge sentencing an offender may draw conclusions as to the existence and degree of remorse exhibited by the offender, his demeanour and in evidence. Equally, in my view, the sentencing judge can infer from lies told to him that the offender is not sufficiently remorseful to refrain from practising deceit. Remorse and the need for a sentence to deter the offender from like conduct in future are closely related".[6]

[43]

In the present case it is to be observed that the hatred you expressed for your brother, Salvatore, and the threats of death made to him, were accompanied by similar expressions of hatred and threats of death towards your brothers, Joseph and Riccardo. They too were involved in your apprehension and handing over to the police shortly following Mother's Day. It is apparent that it was this event in particular that led you to regard your brothers as dogs, deserving of the deepest hatred and serious retribution.

[44]

In my view, when these matters are coupled with your failure to express remorse in respect of your brother's killing, it is proper to conclude that there is a real risk that you may perpetrate further violence against other members of your family unless appropriately deterred from doing so. Accordingly, the issue of specific deterrence is a significant one in this case.

[45]

There are also significant questions of general deterrence and protection of the community arising with respect to your behaviour. The court and the community which it represents cannot accept the carrying and use of knives in public places with a preparedness to inflict serious injury. It is necessary for the court to say to you, and others like you, that in the event that a knife is utilised in circumstances such as those which led to your brother's death then a penalty must be imposed to condemn the carrying and use of a knife, and to deter the future carrying and use of knives as offensive weapons.

[46]

I turn now to your personal circumstances. You were born on 3 January 1969 and are now 34 years old. You are the third son of Gaetano and Mariella Gangi, being younger than Salvatore and Joseph, and older than Riccardo and Gino.

[47]

You were born in Myrtleford but grew up in the Coburg/Fawkner area. You have recorded a tense and violent family situation whilst growing up. Although I note that your family appears to have remained relatively close up until Mother's Day 2001, and even thereafter your father sought to support you by visiting you in gaol and meeting you one on one.

[48]

Moreover, as you yourself have pointed out, this is your first conviction for an offence involving one of your family.

[49]

It is clear that you had some trouble at school, attending at least two primary schools and three high schools before leaving school at 16 after Year 10.

[50]

You have a very limited employment history, which probably results from both your problems with heroin and other drugs, and the time you have spent in prison. It is significant that one of the main work experiences you have had was working with Salvatore, doing tiling and marble work.

[51]

You have a de facto wife, Donna Frost. It is apparent that this relationship is ongoing and that Ms Frost continues to provide you with love and support. It also appears that this relationship motivated you to stop using heroin.

[52]

You have a long prior history of drug use, particularly amphetamines and heroin. It is clear that drug addiction has detrimentally affected your life and, in particular, has resulted in or contributed to an extensive history of past offending. You have a history of past offences going back to 1987. Looking at this history, it is apparent that since February 1987 you have appeared before the courts at least once every year, except 1997.

[53]

The psychological report tendered on your behalf makes it clear that during the 12 year period to November 2001, you had spent in excess of eight years in prison. The majority of your offences were property, driving and drug offences. However, I note that there are at least two instances of violent offending. In addition, on one occasion, a burglary, you were carrying a knife; while on the occasion of assault with a metal pole, you were carrying a bayonet. These convictions corroborate the direct evidence at your trial of a propensity to carry knives.

[54]

It might also be observed that while the more than 140 convictions for offences of dishonesty which you have amassed may be explained in large part by drug addiction, they nevertheless also demonstrate a pervasive and persistent dishonesty, entirely consistent with your post offence conduct in this matter.

[55]

Mr Healey's report records that you have suffered injuries both in a go-cart and motor vehicle accident. You have also suffered injuries in assaults. He reports that intellectual testing revealed a full scale IQ of 78, placing you at the upper end of the borderline range, where 92 percent of your age would do better. He says that it is not possible to dismiss the possibility of higher level cerebral impairment associated with blows to the head.

[56]

I must say that my own observations of your ongoing capacity to respond to the course of the trial, and your capacity to communicate during the course of your plea, suggest to me that your capacity to function intellectually is not necessarily as limited as Mr Healey's report suggests. Nevertheless, Mr Healey also reports that your powers of delayed recall are reduced and that personality testing is indicative of depression, anxiety and paranoid elements. I certainly accept that you do suffer from depression, anxiety and elements of paranoia.

[57]

It is also clear on the evidence before me that you suffer from low self esteem and from great sensitivity to the apparent perception by your family of you as a failure and as a black sheep. In this regard, I note that you explained to me the circumstances of the assault with a metal pole, of which you were convicted, in the following terms:

[58]

"Now, this did happen, yes, but this was a person who was a drug user and had many prior convictions and was a person about one and a half my size. That's all I can say about that, Your Honour. It's not like I hit somebody whose, you know, got a good job, running a company, paying tax, you know. You know, we're talking about another person similar to myself, let's say."

[59]

Further, and most significantly, the whole series of events following Mother's Day 2001, demonstrate a continuing problem with anger manager and a potent mixture of paranoia, hatred and distress on your part, concerning your relationship with your family and your brothers in particular.

[60]

You are now confronted with the ruin of your own life. You are currently on anti-depressant and epilepsy medication and I accept that you are, as Mr Healey says, seriously distressed at the prospect of further loss of liberty, loss of relationship and loss of hope and fulfilment in life. I also accept the statement of Sister Mary, that you are a much more distressed and pensive person than you were prior to your brother's death.

[61]

Having regard to all of the above matters I have reached the following conclusions. It is incumbent upon me to express the condemnation of the community with respect to your conduct and to punish you to an extent and in a manner which is just in all the circumstances. The court has a duty in the imposition of an appropriate sentence to uphold the sanctity of human life and to deter persons who by resorting to violence destroy such life. There must never be any doubt about the commitment of the community and the court, through which it speaks, to reflect the importance of human life through the imposition of substantial penalties, where an offender kills another member of the community with murderous intent and without lawful justification or excuse.

[62]

There are a series of circumstances which must be regarded as aggravating your offence. The most significant of these are that you went to the possible confrontation with your brother armed with a knife; that your brother was unarmed and despite his greater size, vulnerable; that you killed your brother, aware that his wife and two of his children were innocent onlookers; that the consequences of the trauma created by Salvatore's death upon his own family and your own extended family were foreseeable by you and have been and will be severe and that although you have expressed regret at your brother's death and are clearly distressed at its consequences, you have never accepted responsibility for it or expressed remorse in the true sense.

[63]

On the other hand, there are some circumstances which can be identified as partly reducing your culpability. As I have said, I am not satisfied that when you waited in Jukes Road Fawkner, you did so with the premeditated purpose of killing or causing really serious injury to your brother. It is clear that when your brother did arrive, it was he who took the confrontation up to you, abused and swore at you and initiated violence by pushing you over, and that your actions occurred in the context of a prior family relationship of bitterness, estrangement and hatred, which you believed included violence by the deceased towards your de facto.

[64]

Other relevant considerations are as follows: The circumstances preceding your brother's death, and in particular, the death threats made by you to your brothers Joseph and Riccardo make it necessary to make clear to you and others that vendetta is not an acceptable way of life within this community, and to impose a sentence which deters you from the real risk that you may perpetrate further violence against other members of your family when released. Likewise, there is a necessity to protect the community and to deter both you specifically and the community generally from the practice of carrying knives, and in particular, from the practice of carrying knives when confrontation of a potentially aggressive sort is anticipated.

[65]

Turning to your personal circumstances: I am prepared to accept that you were confronted with unhappy difficulties in your childhood and upbringing. Nevertheless, it is apparent that your adult life has for many years descended to drug abuse, protracted criminal behaviour, pervasive dishonesty and occasional violence. I accept that you are of relatively low intelligence and that you have suffered the consequences of injuries, including head injuries and drug abuse.

[66]

Tragically, it seems that you had commenced to make a more positive life for yourself with your de facto at the time of the events in 2001 which ultimately led to the fatal confrontation with your brother in January 2002. I have no doubt that you do now suffer from anxiety and depression and that you will not find a further custodial sentence easy, particularly if it is served in protective custody as you have requested. Unfortunately, I also hold only limited hope that such a sentence will result in your rehabilitation, but I will set a non-parole period which seeks to provide an effective framework for your re-entry into the community.

[67]

Mr Gangi, having regard to the above matters and to the purposes set out in s.5 of the Sentencing Act 1991, I sentence you to a term of 21 years' imprisonment for the murder of Salvatore Michael Gangi. I fix a non-parole period of 17 years. I declare pursuant to s.18(4) of the Sentencing Act 1991 that you have already served a period of 503 days in custody. Would you remove the prisoner.

[68]

[1] [2001] HCA 67; (2001) 209 CLR 1

[69]

[2] [1999] HCA 54; (1999) 199 CLR 270 at 280

[70]

[3] (1998) 1 VR 359 at 369

[71]

[4] [1998] VSC 219 (unreported 20 August 1998)

[72]

[5] [2003] VSCA 3

[73]

[6] Ibid - see footnote 8 at paragraph 14