R v Lagona [1998] VSC 220

11. You inflicted on your victim, Francesco Macri, a 2cm transverse stab wound to the left of the umbilicus, as well as at least one cut to the palm of his right hand. The major wound, that to the abdomen, required transport by road ambulance to Cowes Hospital and then by air to Dandenong Hospital, followed by an emergency operation. It also required eight units of blood transfusion. During the operation, Mr Macri was found to have at least 2.5 litres of clotted and unclotted blood under the abdominal cavity, bleeding from two different sites. In summary, Mr Macri sustained a stab wound to the abdomen which would have been fatal if not treated and operated upon as a matter of the utmost urgency.

14. These are the facts. There is no escaping from them. Of course they are not the only facts which are relevant in determining the appropriate sentence. Indeed I must have regard to each of the matters which the Sentencing Act 1991 requires to be taken into account. This I have done; and I shall refer explicitly to a number of them during the course of these remarks. For the present, it is, however, proper to record that by s.5(2) of the Act the court must, in sentencing an offender, have regard to, among other things, the nature and gravity of the offence, the offender's culpability and degree of responsibility for the offence, and the personal circumstances of any victim of the offence. In this context, I note that although Mr Macri's wound was at the time life-threatening, he made an uneventful recovery post-operatively, except that he contracted pneumonia which was subsequently cured by the administration of intravenous antibiotics.

17. You arrived in Australia from Sicily in November last year. You are now, I have been informed by your counsel, 34 years old. This would indicate that you were born in 1964, although according to the transcript of a record of interview between you and the police held on 2 April 1998, you told the police that you were born on 3 November 1946. I take it that the transcriber has transposed the figures 4 and 6 and that the transcript of the record of interview should read 1964.

20. You lived in Sicily until your arrival in Australia. Although your formal education ended at Year 7, you are a trained and experienced waiter and, I am informed by your counsel, have some experience in restaurant management. You have also worked as a park ranger and fisherman. You were married in Sicily and have three children who are still there with your former wife. After your divorce from the mother of your children, you began a de facto relationship with Nina Scedere, who is the sister of Rosa Macri, the wife of Francesco Macri.

23. Although your passage to Australia was financed by Rosa Macri, you came not as an immigrant but as a visitor. I understand that your visa expired last January. You nevertheless continued to work and live in Newhaven on Phillip Island where Mr and Mrs Macri run a pizza restaurant. You worked in that restaurant between your arrival in Australia and 2 April 1998, the date of the incident in which Mr Macri received his wound.

26. Your relationship with Mr and Mrs Macri was adversely affected shortly after you came to Newhaven. You received news of the death of your father in Italy. You sought the financial assistance of Mr and Mrs Macri for your return to Italy to organize your father's affairs and attend his funeral. You felt under an obligation to involve yourself in this way because you are your father's eldest son. Your hopes, however, were not realized: Mr and Mrs Macri either could not or would not provide the necessary finance.

29. Other difficulties arose. I am informed by your counsel that you understood that Mr and Mrs Macri would assist you in an application for rights of permanent residence in Australia. They did not. You also understood that you would receive $600 per week for your work in the restaurant in Newhaven. Instead, you received $300 per week and were informed shortly before the incident which included the stabbing of Mr Macri that this wage would be reduced to $250 per week. Not only that, but this reduction was proposed as the busy Easter season approached, and after you and Ms Scedere had been required to vacate the accommodation initially accorded to you in the restaurant and live instead in unsatisfactory quarters above a butcher's shop in Newhaven at a rent of $115 per week. Finally, you anticipated being given work commensurate with your experience. Instead, you were asked to do less skilled and more menial tasks.

32. The Crown has not sought to dispute these facts. I therefore accept, for the purposes of deciding upon an appropriate sentence, that they are true. I also accept that you had thereby a sense of grievance which was, in the circumstances, understandable. It is also understandable that, when the question of your salary (and, in particular, its reduction by $50 per week) became the subject of a discussion with Mrs Macri, the discussion became heated and you became angry.

35. Francesco Macri was not initially involved in the argument which led to the attack upon him. By the time of his intervention, you were very angry indeed. I am informed, and for the purposes of passing sentence am prepared to accept, that the knife which you used in the attack had previously been placed in the pocket of your trousers not for that purpose but because you planned to go fishing later that day and intended to take the knife with you. You therefore had ready access to it and, being unable to control your temper, used it upon Mr Macri.

38. There is some suggestion that shortly thereafter you exhibited remorse and indeed told Mr Macri that he was like a father to you. I quote from the evidence given by Mr Macri at your committal:

"I said to my wife 'Rosa, take me to the hospital because I feel like I'm dying, I've lost too much blood.' He [meaning you, Giovanni Lagona] came over and he said to me 'Frank, Frank, I love you like my own father. My father died at your age,' and I said to him 'Put the knife away and get down on your knees with me.' I got down on my knees and he put his hand on my shoulder and I asked him why he did it. I asked him why he did it three times and he answered 'I don't know, Frank, I don't know.'"

42. I have been informed by your counsel that, at this point in the evidence at the committal, you were in tears. It was in that context that your counsel then asked Mr Macri the following question and received the following reply.

Q: "When Mr Lagona put his hand on your shoulder and told you that he loved you like a father, was he emotional, crying, like he [is] now?" A: "He - I would say that he - with me he's always been very good, very, very good, and that when he put his hand on my shoulder he looked and sounded very, very upset about what had happened."

46. This evidence strongly suggests that, immediately after inflicting upon Mr Macri the wound which might have led to his death, you were very remorseful. Even if that be true, however, you thereafter sought to distance yourself from an attack which you had made on an unarmed victim. When interviewed by the police, you denied any involvement, saying that at the relevant time you were in the pizza area while Mr Macri was in the kitchen. You continued, in answer to a police question:

"I then heard him [Mr Macri] yell and then ran. Now, who or what or how it's happened I don't know."

50. You explained the presence of blood on your clothes by saying that "if you're helping someone who's been wounded, it's normal that you would get blood on you."

53. It is not surprising that your initial account to the police of your part in the events of 2 April could not be sustained. This stabbing did not occur in some lonely spot with no one present but you and your victim. It occurred in the small kitchen of a pizza restaurant into which were crowded five people. In the end, the truth was bound to emerge, as it did.

56. Faced with the truth, you pleaded guilty. I am bound to take that plea into account. I am also bound to take into account the stage in the proceedings at which you first indicated that you would plead guilty to the present charge. This was after your committal on 22 October last.

59. I must, in addition, have regard to the nature of the offence. In this context one factor stands out as demanding particular emphasis. The resort to dangerous weapons as a means of resolving differences is totally unacceptable. You stabbed an unarmed man during the course of an argument which began between you and the victim's wife and ended, after the victim's intervention, with the infliction upon him of a life-threatening wound. There can never be any excuse for what you did.

62. On the other hand, there are circumstances surrounding this case which make it far from the worst of its kind. You had, I accept, some basis for being disappointed with, if not cheated by, Mr and Mrs Macri. Their dealings with you over wages, accommodation and the quality of the work you were asked to do gave rise to feelings of resentment and exploitation for which there seems to be some justification. I proceed, too, on the basis that yours was an unpremeditated crime; your anger suddenly rose to the point at which you should have controlled, but did not control, your reactions. At a time of heightened emotions you acted spontaneously; but you abandoned that self-control which every society is entitled to demand not only of it members, but also of its visitors.

65. There is a suggestion, put to me by your counsel as no more than that, that you were aware that Mr Macri was something of an expert in self-defence, including karate, and that this influenced you in your decision (albeit that the decision was spontaneous, or almost so) to make use of your knife. I discount this suggestion. It was not one upon which much reliance was placed on your behalf. More especially, it does not seem to me to amount to a mitigating circumstance even if it did not detract (as it does) from the proposition that you acted on the spur of the moment. One does not pull a knife on someone in response to knowledge or a belief that that other person is capable of defending himself or herself.

68. I take into account the evidence given on your behalf by Nella Surace and the letter written on your behalf by Father Luciano Rocchi. Your influence on Dominique Surace appears to have been wholly beneficial and you are to be commended for that. Father Rocchi's letter is some further substantiation for the proposition that you have, while in custody, embarked upon a process of self-improvement. I note in this context that you have taken lessons in English and have become involved in other programmes within the prison. I also have regard to the fact that you present as a person of good character, no prior convictions being alleged.

71. This brings me back to the point I have emphasized elsewhere in these remarks. When all that can be said on your behalf has been said, the fact remains that you inflicted on an unarmed man a life-threatening injury by stabbing him with a knife. This behaviour cannot be tolerated. Its occurrence must be met with a sentence which, among other things, will deter you (and perhaps, more particularly, others) from committing offences of that character and which will manifest the denunciation by the court of that type of conduct. In my opinion, if you are to be punished to an extent and in a manner which is just in all the circumstances, you should be imprisoned for a period of two and a half years. I fix 20 months as the period during which you are not eligible to be released on parole. I declare that the period to be reckoned as already served under this sentence is 260 days and I direct that there be noted in the records of the court the fact that this declaration was made, and its details.

(Discussion ensued regarding an application under s.464ZF of the Crimes Act).

75. Giovanni Lagona has pleaded guilty to an offence under s.16 of the Crimes Act 1958, that is that he did without lawful excuse intentionally cause injury to another person. Such an offence is, by the application of Schedule 8 of the Act, defined in s.464ZF of the Act as a "forensic sample" offence. The effect is that by s.464ZF(2) a member of the Victoria Police may, after conviction, apply to the court for an order directing the convicted person to undergo a forensic procedure for the taking of a sample from any part of the body. The court may on such application make the order. Such an order involves an intrusion upon the person of the male or female who is the subject of the order. For this reason it should never be made as of course although the danger is that the police will apply as a purely routine matter and pressure will be placed upon the courts for a routine response.

78. Clearly, however, Parliament recognized that the question whether or not an order should be made should not be answered without a careful examination of the relevant issues. If this were not the case, Parliament would not have placed upon the courts the obligation, once an order is made, to give reasons for its decision and cause a copy of the order and the reasons to be served upon the person in respect of whom the order is made.

81. I have been asked pursuant to s.464ZF to make an order that -

"pursuant to s.464ZF(2) of the Crimes Act 1958, you be directed to undergo a forensic procedure for the taking of an intimate sample in accordance with subdivision 30A of Part (iii) of the Crimes Act 1958."

85. No evidence has been put before me in support of this application. I do not know, therefore, on what particular basis or for what particular purpose the application is made. I do not know how intrusive the procedure is likely to be or whether it is claimed that any particular social utility will be advanced if the procedure is undertaken. In this context I note that if Mr Lagona is deported after he has served his term of imprisonment, the fact that an intimate sample has been taken from him will not be of any benefit to the Australian community.

88. On the other hand, Mr Lagona may wish to provide a sample in order to enhance his prospects of avoiding deportation. I cannot say whether the fact that a sample has been taken would influence the immigration authorities, but it may. If Mr Lagona wishes to undergo the procedure in the hope that it will benefit him in this way, I will make the order. Otherwise, in the absence of any evidence in support, the application should in my opinion be refused.

91. Having now sought from Mr Lagona through his counsel an indication of his attitude towards the application, I have been told that Mr Lagona wishes to return to Italy at the first available opportunity. In these circumstances it seems to me that, there being no evidence of any utility in the requirement that the sample be taken, I ought to decline the application. It is therefore refused.