R v Iaria & Panozzo [2004] VSC 254

6. The facts which led to your crime go back a considerable way. Years ago, Richard Panozzo's family owned a tobacco farm in Mountain Creek Road, Mount Beauty. They sold it to the deceased's father when they moved to Wodonga. For some time the deceased's father conducted the farm himself but as he grew older the deceased took on principal responsibility and he worked the farm with the assistance of his younger brother, Polibio Francioli.

9. After a while the deceased and his brothers started to grow marijuana as well as tobacco, and in 1999 they grew a marijuana crop valued at between $5,000 and $10,000. By that time you, Richard Panozzo, had returned to Mount Beauty to live, sometimes with and sometimes apart from your de facto wife, Laticia Wilson, and your two children. You and Laticia Wilson smoked marijuana and you shared the habit with Polibio Francioli and, perhaps as a consequence of that association, but in any event, you became interested in the Franciolis' marijuana crop and you entered into an arrangement with them to sell the crop and to account to them for the proceeds.

12. As events turned out the arrangement proved unsatisfactory. You adopted the habit of going to the farm and helping yourself to the marijuana and taking it back to your home and weighing it and accounting to the Franciolis from time to time. But, rightly or wrongly, the Franciolis concluded that you were not paying them what it was worth. There was also disharmony at a personal level. Polibio Francioli did not get on well with Laticia Wilson. He and she were frequently and loudly abusive to each other, and as one witness put it at the trial, she had never heard Polibio Francioli and Laticia Wilson exchange a civil word.

15. It may be that you were unaware of the Franciolis' dissatisfaction. But it suited you for the Franciolis to continue to grow marijuana and for you to sell it at a profit. Consequently, after the 1999 crop had been sold, you supplied the Franciolis with some 5,000 marijuana seeds with which to grow their 2000 marijuana crop and you gave the Franciolis advice as to how to grow it in a fashion that minimised the chances of detection. It appears that you expected to be retained to sell that crop once grown and to account in the fashion adopted in the previous year. But as matters turned out that did not happen.

18. Before the crop was harvested, you agreed to sell Polibio Francioli a rifle and an aged Subaru motor car for a total price of $1,600. But you cheated Polibio Francioli on the deal. Polibio Francioli was only 18 years of age at the time and in some respects remarkably naive. He paid cash in advance for both items and you took advantage of his naivete. You supplied a weapon that was worn out and useless and you failed to supply any car at all.

21. That led to much dissatisfaction on Polibio Francioli's part and considerable enmity. Polibio Francioli complained loud and long to any one who would listen that you owed him $1,600, and during one bibulous occasion at the Mount Beauty Workmen's Club he threatened that he was planning a run through of Laticia Wilson's home to seize goods sufficient to settle the debt. On another occasion he told you to your face that your children were not worth $500; meaning that he would not hesitate to hurt them. The Franciolis also determined that they would not deal with you on the 2000 marijuana crop but sell it instead through another buyer at a better price. They told you, falsely, that they would not produce a crop the following year, because they considered that the risks of being caught were too high.

24. Joseph Iaria, you left school at the age of 16 years about ten years before the murder. You worked first as a labourer and then in a mechanical workshop and then with your elder brother in your father's fruit and vegetable business. You started by loading fruit and vegetables and after a while you began to drive a van twice each week to the Footscray wholesale markets in order to buy produce for the business. Unknown to your father, you also started to buy and sell untaxed black market tobacco as an additional source of personal income. After a while he found out about your illegal tobacco activities and he dismissed you from his service. But three months later, he relented and gave you back your job after you promised him that you would never again to be involved in illegal business.

27. Regrettably, you were quick to break your word. You got involved once more in illegal tobacco and you also started to deal in marijuana. Your marijuana customers included Laticia Wilson and Richard Panozzo and no doubt a number of others. But despite those illicit activities, by April 2000 you were significantly in debt. It was your practice to bet large sums of money at the TAB, and obviously you did not always win. You took funds for gambling from the bank account which you shared with your wife and you were fearful that she would find out about it. You owed at least $20,000 to banks in connection with your home and upon your own admission to police, you owed another $15,000 to $20,000 to several people around the town. You also owed $10,000 to your father for moneys borrowed to undertake renovations and extensions to your home and you needed more money to finish the job to accommodate your growing family.

30. In April 2000 the regulated price of tobacco was very low. Growers were paid in the order of only $2 to $3 per kg for poor quality product and up to only $7 to $8 per kg for good quality leaf. Black market tobacco prices were substantially higher. Contraband prices ranged from $10 per kg up to $13-$14 for top quality product and the premium over regulated prices constituted a major incentive for licensed tobacco growers to sell surplus product illegally.

33. In or about the middle of April 2000 you, Joseph Iaria, approached Peter Francioli and offered to buy eight bales of illicit tobacco at a price of $10 per bale. And after considering your offer for a couple of days he agreed to sell you the tobacco at that price. Then within a further few days, you collected the bales in a trailer borrowed from the proprietor of the local service station and you delivered it to a buyer or buyers with whom you were dealing. After paying Peter Francioli out of the proceeds, you were left with a profit of between $2,000 and $3,000 for what was in effect only a few hours' work.

36. A week later you went back to Peter Francioli and offered to buy a further 15 bales of tobacco at a price of $10 per kg and to pay as well an additional $2.00 per kg on the eight bales sold the week before. That made for a total contract price of $16,500, to which Peter Francioli agreed. While at the farm on that occasion, you also saw the 2000 marijuana crop which the Franciolis had grown with the seeds provided by Richard Panozzo and which by then they had harvested and was hanging out to dry in a disused tobacco drying shed. When you saw the marijuana you expressed enthusiasm for its quality and volume. You told Peter and Polibio Francioli that you might be in a position to buy it all at a price of $3,000-$5,000 per kg and they were receptive to your suggestions.

39. Shortly after leaving the Franciolis' farm on that occasion, you telephoned Laticia Wilson and endeavoured to interest her in some of the marijuana. She told you that she was not interested because she considered that the price was too high. But she also told Richard Panozzo about her conversation with you, and when he found out about the existence of the crop and that the Franciolis were proposing not to sell it to him, he was most unhappy. I am unable to determine whether he expressed his displeasure to you. But it is clear that he decided that he would teach the Franciolis that he was not to be trifled with.

42. On the afternoon of 5 May 2000 you drove your father's van to the Francioli farm to take delivery of the 15 bales of tobacco that you had earlier agreed to purchase at $10 per kg. You told Peter Francioli and Polibio Francioli that you would take the tobacco to your buyer and that they should meet you later at a point near some sheds close to the Mount Beauty airport where you would pay them from the moneys which you were to be paid by your buyer. As it turned out, it was necessary for you to make two trips to the buyer because of the volume of the tobacco.

45. After delivering the tobacco you cleaned all traces of it from the truck before returning it to your father in Mount Beauty and from there you drove home in your own car, a yellow Holden Torana, to your wife and children. A short time later, you left home again and drove in the Torana to a public telephone box in Tawonga South, just north of Mount Beauty, where you had arranged to meet Richard Panozzo. You and he then sat together in your car drinking beer and discussing the meeting which you were to have with the Franciolis later that evening near the airport.

48. Evidently, you wished to avoid or to delay payment of the $16,500 which was due to the Franciolis for the tobacco. The most likely explanation is that you wished to use the money to pay some of your more pressing financial obligations. But other possibilities present themselves. Just as plainly, Richard Panozzo was keen to confront the Franciolis over cutting him out of the 2000 marijuana crop and about the threats and abuse that Polibio Francioli had been directing to Laticia Wilson. In the result, after some discussion you and Richard Panozzo decided to draw the Franciolis to your uncle's farm, where you knew that no one would be home, in order to confront them.

51. In accordance with that plan, at some time shortly before 8.00 pm the two of you left the telephone box and drove in convoy in your cars to the farm. Once at the farm you, Joseph Iaria, parked your Torana in clear view close to the tobacco shed, so as to appear to be the only car present, and you Richard Panozzo parked your car in an old dairy shed to the south of the tobacco shed out of sight. You Joseph Iaria then obtained a .22 magnum rifle from the gun cabinet in the farm house, loaded the magazine with five rounds of ammunition and test fired one round from the weapon while Richard Panozzo stood by or assisted.

54. You next called the Franciolis on your mobile telephone. You told them that there had been some difficulties in getting the money for the tobacco, although the difficulties had now been resolved, and that they should drive straight away to the farm and meet you there in order to settle up. You told them that they would see your car parked to the side of the shed near the light in the shed and that they should park their car next to it and move into the shed to meet you. You said nothing of the fact that Richard Panozzo was with you or that Panozzo would be at the farm when the Franciolis arrived. Both of you then hid in darkness to await the Franciolis' arrival; Iaria holding the rifle, loaded and cocked ready for action.

57. Some five or six minutes later the Franciolis arrived in Peter Francioli's car and after parking next to the Torana they walked into the shed to a position under the light as they had been told. They waited in the shed for the next five or ten minutes, uncertain as to Joseph Iaria's whereabouts, although apparently assuming that you had been detained. But when you failed to appear, Peter Francioli left Polibio Francioli to wait under the light and moved back to his car outside the shed in order to get his mobile telephone. Then as Peter Francioli sat in his car presumably looking for his mobile phone, you Joseph Iaria moved unseen in darkness from your hiding place in the shed around in a semi-circle behind Peter Francioli's car and up to and beside the open driver's door where he sat.

60. What happened then is not altogether clear. This much however is established beyond reasonable doubt: you Joseph Iaria yelled at Peter Francioli to "get down you fuckwit" or to "get down you fucking dog", and then or at the same time hit Peter Francioli in the mouth, most probably with the barrel of the rifle but possibly with the edge of the butt; causing a fracture of his upper left jaw, a torn frenulum and abrasions to his upper and lower lips. You next fired one shot at him but it missed and lodged in the A pillar of the car. You then immediately re-cocked the weapon and fired a second shot at him as he sat slumped over and that round hit him, entering his body at the top of his back to the left of his spine and travelling down through his left lung and into his abdomen until it came to rest in his spleen.

63. Although mortally wounded by the shot, Peter Francioli called out loudly to his brother Polibio to "get the fuck out of here" and on hearing that call, Polibio Francioli moved rapidly further into the shed to a dark hiding place just inside the far north east corner. Richard Panozzo, you also responded to that call. Upon hearing it you emerged from your hiding place, yelling: "who the fuck is there" and "kill them, kill them both". At the same time you, Joseph Iaria, dropped the weapon, possibly revolted by what you had just done with it, and then ran into the shed in the direction of Polibio Francioli, yelling repeatedly as you ran: "Polibio, Polibio, we must help Pete". Peter Francioli, although mortally wounded, also ran from the car into the shed, presumably in search of cover, but you, Richard Panozzo took up the rifle whence Iaria had dropped it and you chased after Peter Francioli through the shed until he collapsed at the north-eastern corner of it, in effect drowning in blood which was escaping from his punctured lung.

66. Joseph Iaria, you exited from the north of the shed and circled around on the western side in order to finish up where you had started. Richard Panozzo, you also finished up back on the western side of the shed, although I am unable to determine the route by which you got to that point. Polibio Francioli also exited from the shed near to where his brother had fallen and then ran across paddocks to the east to a nearby property where he raised the alarm. Then realising that Polibio Francioli had got away and that other people were soon likely to arrive, both of you loaded Peter Francioli's body into the boot of the his car in order to remove it from the farm.

69. Richard Panozzo, at that point you took off immediately in your car for your parents' home near Wodonga, leaving Iaria to sort out the mess. You, Joseph Iaria, drove Peter Francioli's car out of the farm and a short distance up the Bright Gap road to a secluded spot where you attempted to set the car alight with a sock rammed into the petrol tank filler neck. When it failed to ignite you ran back down the hill to the farm to collect your car and the weapon. From there you drove to the Mount Beauty pondage, into which you threw the weapon, and from there you drove back to your wife at home, where you showered and washed your clothes in order to remove gun shot residue and the deceased's blood.

72. Each of you thereafter told a succession of lies in an attempt to escape liability for what you had done. Joseph Iaria you gave police five different versions of what had happened. In the early versions you created elaborate fantasies involving fictional characters called "Steve the Leb", "Rob from Wodonga", and another unnamed man who you said had come out of the back of Rob's van, and you blamed those fictional characters for the murder. In the third and fourth versions of the story which you gave police you said you were not sure how the killing had happened, apart from the fact that the gun had gone off when Peter Francioli made a rapid move and you panicked. Then in the final version which you gave to police, which you concocted after you had been arrested and were in custody for some weeks, you said that you had seen Richard Panozzo kill the deceased by firing two rounds into the car where he was sitting.

75. Richard Panozzo, you told a different set of lies. To begin with you told police that you had never been to the farm and knew nothing of what had gone on and you attempted to create a false alibi that you got home to Wodonga during the first quarter of a televised football match. Later when the false alibi began to unravel, and you had to admit that you had been at the farm, you lied to police that your only purpose in being at the farm was to buy marijuana, and that you had had no idea who else would be at the farm, and that when the shooting occurred you had been down in the dairy shed and saw nothing of what had gone on. Later it was revealed in the course of an intercepted telephone call that you had with your mother after being arrested and incarcerated, that you were at the farm and you knew exactly what had gone on.

79. This is a serious case of murder, with serious aggravating circumstances. Each of you is responsible for the killing of an unarmed man, in the course of an illegal activity, in execution of a plan to draw him to the farm and confront him and for the purpose of which you armed yourself with a loaded multiple shot rifle.

82. Joseph Iaria I regard the jury as having found you guilty as the shooter of the round that killed the deceased. I reject the argument made on your behalf that one cannot be satisfied beyond reasonable doubt that you were the shooter and thus that the jury may have convicted you only as an aider and abettor or under the doctrine of extended common purpose. In essence the argument was that Professor Steven Cordner's evidence rendered untenable the possibility that the deceased ran wounded, with the speed and for the distance that he was said to have run, from his car to the point of his death, and that the failure of police to find an expended shell case near to the position where it was supposed that his car had been parked on the west side of the tobacco shed meant that it was impossible that you cocked the weapon and fired a second shot after hitting the A pillar with your first shot. Upon analysis, the argument breaks down at a number of levels.

85. To begin with, I take the effect of Professor Cordner's evidence to be that it was possible for the deceased to have run wounded for the distance and at the speed with which he travelled from his car to the point of his death.

88. In the second place, you were experienced in the handling of firearms and it was you who selected the murder weapon from a range of firearms available in the gun case in the farm house. It is of inescapable significance that out of the range which was available you chose the only weapon fitted with a magazine and thus the only weapon with the capacity for rapid fire of more than one shot. Your own weapon was available but it did not have a magazine and it is clear that you rejected it for that reason. Moreover, it was you who loaded and test fired the weapon and then cocked the weapon in readiness for the arrival of the Franciolis.

91. In the third place, evidence given by people living close to the farm, including in particular that which was given by the witness Mrs Bowie, established that two shots were fired in rapid succession only seconds apart at the time when you admitted that you were standing near to the deceased's car door. And there is nothing objective to indicate that any further shots were fired within the shed or outside near to where the deceased fell.

94. Finally, the way in which you behaved immediately after the shooting and when interrogated by police bespeaks acceptance on your part that you were the shooter. Your second and third interviews, including the taped reconstruction and the conversation which you had with the undercover policeman, Pat Austinn, are all consistent with and at times come very close to out and out admissions that you fired two shots, and the way in which you behaved in throwing the weapon into the pondage, in lying as to its whereabouts, and in cleaning yourself and your clothes, bespeak a consciousness of guilt that it was you who was the shooter.

97. Richard Panozzo I regard the jury as having found you guilty of the murder as a participant in the arrangement to use a loaded firearm to confront the deceased and either kill him or inflict really serious injury on him or as an aider and abettor. I treat both as equally serious[1]. I reject the argument advanced on your behalf that one cannot be satisfied that it was you who called out "kill them, kill them both" and who chased after Peter Francioli with the loaded weapon after Iaria had dropped it. In my opinion the evidence was overwhelming that you and Iaria were the only persons present apart from the Franciolis and that it was not Iaria who yelled out and chased. It therefore had to be you, as the jury undoubtedly found that it was.

101. Joseph Iaria, you were born on 26 October 1973 and at the time of the killing you were 26 years of age. You had moved with your parents and brothers to the Mount Beauty area when you were three years of age and you were brought up and educated there. As has already been noticed, you left the local secondary school at the end of Year 10, and after a time in other occupations you began to work in your father's fruit and vegetable business. Apart from the three month period in which you were suspended for illegal tobacco trading, you worked continuously in the business until the time of the killing.

104. At the time of the killing you were living with your wife and children in Mount Beauty. But that relationship is now at an end. Your wife gave evidence at the trial and disclosed before giving evidence that she has recently instituted proceedings for divorce.

107. I am not sure whether the cause of your crime was greed or desperation over your financial position, or a combination of both. Either way, however, it is plain that you made a calculated decision to use a loaded multiple-shot firearm to confront Peter Francioli in order to avoid paying him or to delay paying him the $16,500 due on the illegal tobacco deal just done, and that you did so with the intent if need be to kill him or to inflict really serious physical injury upon him. There can be no other explanation for arming yourself with a test-fired, loaded and cocked multiple-shot weapon of the kind which you selected from the range which was available. Thereafter you lied to escape conviction; even going so far in the end to say falsely that you had seen Richard Panozzo fire two rounds into the car and kill the deceased.

110. By your crime you have deprived a young man of the best years of his life, you have taken him away from his fiancee and his child and you have brought misery and dismay to the members of his family as well as to your wife and children and your father and your family. It is an offence which warrants condign punishment.

113. You have in your favour that you have no prior convictions except for one offence of exceeding .05 in 1995. I observe, however, and I count against you that before the murder you engaged undetected but repeatedly in illegal trading in tobacco and you also dealt in marijuana. I also count against you the many lies that you told in order to avoid detection and conviction. Contrary to the submissions made on your behalf, I do not accept that those lies were informed solely or even predominantly by revulsion or a sense of shame about attempting to cover up the shooting by burning the deceased's body. Your demeanour during the videotaped record of interview and re-enactment may suggest that you were distressed. But from what I can make of it, it was distress brought about by fear of the position in which you had placed yourself, rather than by any sense of shame or remorse for the crime you had committed.

116. I accept, as was put by counsel on your behalf, that human emotions are seldom if anything but mixed. Therefore the possibility of remorse as well as self preservation cannot be excluded. I am bound to say, however, that if your remorse were genuine I should have expected to see signs of a greater acceptance of responsibility and of contrition for what you had done than was apparent in any of the records of interview or from other evidence.

119. I take into account that for a time the burden of your incarceration was especially heavy upon you, because you were placed in a secure prison unit in protection from mid-2000 until earlier this year. That occurred because of threats made against you by some other inmates who believed, incorrectly in fact, that you had given evidence against Panozzo. Fortunately, however, that has now come to an end. And while the risk of harm can never be excluded, it has lessened over the years and now you are back in mainstream.

122. I have as well read the report of Dr Lester Walton, psychiatrist, of 13 June 2001 of his examination of you of 11 June 2001 and the report of Mr Bernard Healey, clinical psychologist, of 8 January 2002 of the examinations conducted by him of you on 6 and 8 January 2002. Those reports show that you are of average intelligence and that you suffered depression and anxiety as a consequence of your position.

125. I have had regard to the evidence of Mr Jessup of Bright and Mr Randle of Tawonga South which was given before Cummins J on the last occasion that you were sentenced, and to the report of Ms Liz Cooper, the co-ordinator of the Drug and Alcohol Services Division, Western Health, at Melbourne Assessment Prison of 23 May 2001, which refers to the role that you have played as a peer educator.

128. There is now before me too, which was not before Cummins J, evidence that since you were gaoled you have devoted yourself to a continuing course of education and improvement with the goal of readying yourself for work and life in society after your release. It augers well for rehabilitation in the long term.

132. Richard Panozzo, you were born on 31 May 1966 and at the time of the killing you were 34 years of age. Your family resides in the Wodonga area and you have two brothers, both successfully employed. Another brother was killed in a motor accident in 1990.

135. You were educated at a leading provincial school and showed ability as a sportsman but although you studied until year 12 you failed to obtain your HSC. After leaving school you worked for Esso in Wodonga and then for McEwans, the hardware merchants, in several capacities for about two years. You worked then in Falls Creek for some seven or eight years and then in Aspen, Colorado and Florida in the United States, before returning in 1990 to run a canteen called the "Boiling Billy" in the cattle sale yards in Wodonga.

138. It has been said on your behalf that you were profoundly affected by two personal tragedies. The first was the death of your younger brother in 1990. The other occurred on 31 December 1993, through no fault of yours, when a vehicle you were driving struck two persons and killed them. The circumstances of the accident and its interaction with the death of your brother three years before are set out on p.3 of the report of Mr Joblin's report of 24 January 2002. It is reported that your life deteriorated significantly and that you suffered post traumatic stress disorder and later depression. Dr Baylis, a general practitioner, treated you for severe depression in January 1999 and between 19 August 1999 and 3 December 1999, and Dr Alan England, psychiatrist, of Albury examined you and found you to be in a depressed mood in December 1999. After prescription of medication, however, Dr England reported that by January 2000 your condition had improved significantly.

141. More recent reports tendered on your behalf attest to continued improvement since you were incarcerated. In a report of Dr Diane Neill, consultant psychiatrist, dated 12 January 2004 it is said that your present and recent mental state is considerably improved from the absolute low you felt after the breakdown of your relationship with Laticia Wilson in 1997-8. It is noted that whereas you were prone to alcohol and substance abuse before incarceration, your psychiatric condition arising from the 1993 accident has now stabilised although you will require long term psychiatric treatment. In Dr England's opinion you have a biological vulnerability by virtue of your family history and pre-morbid personality compounded by the accumulative effects of the events of the past 10 to 15 years. But a report of Dr Eugenie Tuck of 30 June 2004 records that there are now no overt symptoms of psychiatric illness and that you are sleeping better and coping well on your present medication

144. I have already referred to your relationship with Laticia Wilson and to your children. The relationship ended in August 1999 but you continued to have feelings for her and of course for your children. As I noticed earlier in these remarks, your feelings towards Laticia Wilson and your concern for the safety of your children were causes of your involvement in the murder of Peter Francioli. But they were not the only cause. I count as no less significant your wish to get even with the Franciolis for cutting you out of the 2000 marijuana crop for which you had provided the seeds and to demonstrate that you were not to be trifled with.

147. I take into account in your favour that you do not have any significant prior convictions and that you hold a position as head of billet in prison which is a one of trust and responsibility. It augers well for your prospects of rehabilitation. I note too that you have undertaken several computer courses and an anger management course since your incarceration and I regard those as further positive indicators for your prospects of rehabilitation.

150. Finally, I have given consideration to the submission made on your behalf that your psychiatric condition weighs against the sentence to be imposed upon you because of the reduced need for general and specific deterrence in the case of a prisoner who is affected by a psychiatric condition albeit falling short of insanity[2]. But in the end I reject that submission. Serious psychiatric illness falling short of legal insanity may be relevant to sentencing where, for example, a person suffering from such an illness is not an appropriate vehicle for general deterrence[3]. But the sorts of cases in which that has been held to be so have involved a prisoner suffering either from schizophrenia or a schizophrenic-type illness which obscured the mental intent to commit the crime with which he was charged. Authority makes plain that it is not appropriate to fasten on the words "recognised psychiatric disorder" and then, without reference to the symptoms and consequences of that disorder, contend that purposes of general deterrence have no part to play in the sentencing process. A psychiatric condition may reduce or eliminate general deterrence as an appropriate purpose of punishment, but it depends upon the nature and severity of its symptoms and its effect upon the mental capacity of the accused. Here it is not suggested and in any event I do not consider that your mental condition affected your capacity to determine the nature or quality of the act which you committed or lessened your ability to determine that it was wrong. Nor do I regard your present condition as being so severe as to make it inappropriate to impose upon you the sentence which would otherwise be imposed. In my opinion, your mental condition does not lessen the need for general or specific deterrence which a crime of the seriousness which you committed undoubtedly warrants.

154. In the end and despite everything which can be said and has been said in favour of each of you, the fact remains that each of you is responsible for an horrendous crime. Both of you went to the farm with the intention of confronting the Franciolis and ultimately you undertook that confrontation with a loaded firearm selected for its ability to fire more than one shot rapidly. The jury has found that one of you did so with the intention of killing Peter Francioli or at least inflicting really serious physical injury on him and that the other of you was there either as a participant in the criminal enterprise or as an aider and abbetter. The fact of the matter is that each of you thereby caused the death of Peter Francioli and thus that by your actions you deprived him of the better part of his life and imposed untold misery upon his wife to be and the other members of his family; as their victim impact statements attest.

157. On the last occasion that each of you stood trial for the murder of Peter Francioli and were convicted, you were each sentenced to 20 years' imprisonment with a non-parole period of 16 years. Your convictions and sentences were later set aside because of a view that the jury had not been properly constituted. Now, however, each of you has been tried and convicted again, and on substantially the same evidence as before. In my view the sentences now to be imposed upon you should be substantially the same as before.

160. Your offences are grave offences. They call out for condign punishment and sentences adequate to express the Court's denunciation of your wrong-doing. The sentences to be imposed upon you must deter others from similar conduct and deter each of you from offending again. Having regard to the nature and gravity of your offences, current sentencing practices, the culpability and responsibility of each of you and the personal and other considerations to which I have referred, I come to the view, like the judge who sentenced you on the last occasion, that it is appropriate to impose a sentence on each of you of 20 years' imprisonment.

163. I differ, however, to some degree, as to the period which each of you ought serve before becoming eligible for parole. There is evidence before me which was not before Cummins J which persuades me that the prospects of the complete rehabilitation of Joseph Iaria are significantly better than could have been envisaged on the last occasion. By your attitude and dedication to study since incarceration you have demonstrated that you have the will and ability to return to society in a worthwhile capacity. In my judgment your achievements in that regard and your prospects of complete rehabilitation make it appropriate that you should serve only 15 years of imprisonment before becoming eligible for parole.

166. The considerations which apply to Richard Panozzo are different. You have not applied yourself in the same way that Joseph Iaria has done and that may be because of the psychiatric condition by which you are said to be afflicted. On the other hand your condition has now stabilised and improved to the point that I do not consider was foreseeable at the time of the last trial. Given the responsibility which you have demonstrated in prison as head of billet, and the improvement in your mental condition recorded in the most recent medical reports tendered on your behalf, I consider that upon the evidence as it now stands it is not necessary that you serve more than 15 years of imprisonment before you too should be considered as eligible for parole.

171. Joseph Iaria, I sentence you for the murder of Peter Francioli to twenty (20) years' imprisonment. I fix a period of fifteen (15) years as the period you must serve before becoming eligible for parole. I declare that the period to be reckoned as already served under the sentence is 1554 days inclusive of today's date and I direct that there be noted in the Court's records the fact that the declaration has been made and its details.

175. Richard Xavier Panozzo, I sentence you for the murder of Peter Francioli to twenty (20) years' imprisonment. I fix a period of fifteen (15) years as the period you must serve before becoming eligible for parole. I declare that the period to be reckoned as already served under the sentence is 1534 days inclusive of today's date and I direct that there be noted in the Court's records the fact that the declaration has been made and its details.

[1] See DPP v SJK [2002] VSCA 131 esp. at [46]- [48], affirmed on appeal at [2004] HCA 22.

[2] R v Tsiaras [1996] VicRp 26; [1996] VR 398 at 400-401 cf R v Yaldiz [1998] VR 376 at p.383; R v Gemmill [2004] VSCA 72 at [87]