R v Mangione [2006] VSCA 34

1 In the early hours of Tuesday, 5 February 2002, Denis Timothy Guinta was brutally killed in the upstairs bedroom of his home. His killer was waiting for him to come home from work and then hacked him to death with a home-made sword in the presence of the deceased's wife who, just before the attack, had been half asleep in bed. The deceased, although unarmed, tried to defend himself but had no hope of doing so and died of multiple stab wounds, the most serious of which were to his chest, head and abdomen. After a trial that lasted ten sitting days, on 13 February 2004, the jury found the applicant, who is now aged 48, guilty of the murder of the deceased. After a plea in mitigation made on his behalf - in the course of which evidence was given on the applicant's behalf by character witnesses and the report of Ian Joblin, a psychologist, dated 1 April 2004, was tendered - the learned sentencing judge sentenced the applicant to imprisonment for a period of 22 years and ordered that he serve 18 years of that sentence before being eligible for parole. By notices dated 5 May 2004 the applicant sought leave to appeal against conviction and sentence. On 17 February 2006 the applicant filed a notice of abandonment in relation to the first application, so that we are concerned only with his application for leave to appeal against sentence. Ms Dalziel, who appeared before us for the applicant, limited the ground of the application to the claim that the non-parole period is manifestly excessive.

2 The circumstances relating to the offence are set out in the sentencing remarks of the learned sentencing judge and there is no need to repeat them here. Suffice it to say that the deceased was the applicant's cousin[1] and that, for some years prior to the offending, the two families had been in dispute relating to territories in which they respectively sold ice-cream out of refrigerated vans. The dispute escalated to a point where, at one stage, there were physical altercations between the deceased's father and the applicant's mother and between the applicant and the deceased. In the result, the families have not spoken to each other for some years.

3 The devastating consequences of the killing went beyond the death of the deceased. At the time of the attack, the deceased's wife was, unsurprisingly, terrified as to what was happening to her husband and was in fear that she too would be attacked. As his Honour noted, she managed to escape through the doors which led to the balcony, from which she climbed onto the roof of the garage. From there she jumped onto the bonnet of the family car, suffering a compound fracture of the ankle and breaking four bones in her right foot. She also cracked a vertebra in one of the discs of her spine. As a result, she was hospitalised for 21 days, in a wheelchair for two months and on crutches for a year. At the time of the hearing of the plea for mitigation she required a walking stick most of the time. Moreover, she was, unsurprisingly, severely traumatised by her experience that night and continued to suffer, particularly at night, from fear, real or imaginary, about her own safety. Similarly, the elderly parents of the deceased have been significantly effected by their son's death and the manner in which it occurred and the applicant's own aged parents are socially isolated and appear to have no family to care for them because of the applicant's incarceration. He is their only surviving child.

4 His Honour's summary of the applicant's personal circumstances makes it apparent that the applicant, who was born in Sicily and came to Australia with his parents when he was 12 years of age, is an intelligent person, who has a sound work record and who appeared to have a positive future. The applicant separated from his wife in 1995 and has subsequently formed a relationship. His Honour recognised that the applicant was a good son and father and noted, in effect, that he continues to have a good relationship with his children. It is also apparent from what the learned sentencing judge said that the applicant had no prior convictions and no history of alcohol or drug abuse. Furthermore, consistently with his proven work ethic, the applicant has, since being imprisoned, gained certificates in a number of disciplines, including asset management, information technology and hospitality. His Honour formed the view that the applicant has the capacity for appropriate insight.

5 Ms Dalziel contended that the excessive length of the non-parole period is made apparent by the following matters. First, counsel submitted that in fixing the non-parole period his Honour erroneously failed to reconsider, and accord appropriate weight to, mitigatory matters that were taken into account for the purpose of fixing the head sentence. Counsel pointed out that, given the different purposes that underpin the imposition of the head sentence and the non-parole period, in fixing the latter, the sentencer is required to reconsider all or most of the matters that were taken into account in determining the head sentence. Thus, it was said, in fixing the non-parole period, factors going to mitigation and rehabilitation may well be accorded different weight by the learned sentencing judge to that given to them in determining the head sentence. In that context, reference was made to the observation of Mason, C.J. and McHugh, J. in Bugmy v. The Queen[2] to the effect that, when determining the non-parole period, the nature of the offence "does not assume the importance which it has when the head sentence is determined".[3] Counsel also said, by reference to the decision of Callaway, J.A. in R. v. Bolton & Barker[4] that, in determining the non-parole period, factors personal to the applicant are to be given additional weight. As I understand counsel's argument, it was said that his Honour's failure to carry out such an analysis is made apparent by the absence of reference in the sentencing remarks to any discrete consideration of matters referable to the non-parole period and from the failure to give reasons for setting such a long non-parole period.

6 It is true that, as Winneke, P. explained in R. v. Mulvale[5], the determination of the non-parole period requires discrete consideration of matters that bear upon the question whether the offender should be eligible for mitigation of confinement and, in turn, rehabilitation under conditional supervision.[6] But, as Callaway, J.A. said in R. v. Bernath[7], it does not mean that the discrete considerations must appear in the sentencing remarks, although his Honour went on to say that it would be helpful to an appellate court if such considerations did appear in the sentencing remarks, particularly where, at the plea for mitigation, rehabilitation played a prominent part both in the evidence and counsel's submissions. As will become apparent, in the present case, rehabilitation did not assume a prominent part in counsel's submissions during the course of the plea. Furthermore, the mere fact that the experienced judge in this case did not say in his sentencing remarks what were the discrete considerations which led to his determination of the non-parole period does not mean that he did not undertake a proper analysis of them.[8] Nor is such failure demonstrated by the length of the non-parole period because, as I explain later, I think it is within the relevant range.

7 This Court has said, on numerous occasions, that where the non-parole period is of an unusual duration, it is desirable that the sentencing judge give reasons for such a determination.[9] But it has also been made apparent that, even in such a case, a failure to give reasons does not inevitably bespeak error, although it may invite appellate scrutiny. Be that as it may, I consider that the non-parole period in this case is not unusually long when regard is had to the following matters. First, it is not the case that every non-parole period must be of a fixed percentage of the head sentence, or even within a particular range of it, and the contrary was not contended for by Ms Dalziel. Secondly, the non-parole period is fixed by reference to all relevant circumstances, including the fact that it has a penal aspect. It is the period which the sentencing judge considers that justice requires the offender to serve in gaol before there can be mitigation of punishment in favour of rehabilitation through conditional freedom.[10] These matters, in turn, bring into consideration the seriousness of the offence and the offending. That the offending was "particularly serious" (as it was characterised by the learned judge below) was not challenged by counsel at the hearing of the plea in mitigation. It was, without doubt, a chilling murder that was committed without apparent motive and without mitigating circumstances. Thus, the prospects of rehabilitation were not apparent, and protection of the community assumed importance in the sentencing disposition. Not surprisingly, none of these matters were challenged by the applicant's experienced counsel at the hearing of the plea in mitigation. Furthermore, the sentencing principles of general and specific deterrence, denunciation by the court of the offending, the need to impose just punishment and protection of the community were important sentencing considerations in this case and should not be undermined by an unduly low non-parole period.[11] And, as Callaway, J.A. pointed out in R. v. Harkness[12], the sentencing objectives to which I have referred have additional significance where, as here, the head sentence is moderate.

8 But even if it could be said that the non-parole period is unusually long in relation to the head sentence, the mere fact that his Honour did not, in terms, explain why he considered this to be appropriate, does not bespeak error. Given the matters to which I have just referred, it is plain enough from his Honour's reasons that the non-parole period was, in his view, the minimum time that justice required the applicant to serve in prison.

9 It was also contended for the applicant that his Honour's failure to deal in his sentencing remarks with the applicant's prospects of rehabilitation shows that he did not give sufficient weight to that important factor. But, as I have said, the matter was not pressed below and the applicant's prospects in that regard are not apparent. I mention for completeness that, in any event, to the extent that there was material before the court on this issue, it is plain enough from what I have said earlier[13] that his Honour recognised in his sentencing remarks matters that went to the issue of the applicant's prospects of rehabilitation. In the circumstances, however, I consider that his Honour did not err in the manner contended for by the applicant's counsel.

10 Counsel also sought to rely, in a manner not specified, on the contents of the letter from the applicant to the Court dated 15 February 2006 in which he essentially seeks to re-argue the plea in mitigation in so far as it concerns the non-parole period. It is plain enough that the letter does not disclose sentencing error. Rather, it sets out the sad circumstances of his elderly parents, who are in poor health, socially isolated and, in the applicant's absence, have no family member to care for them. The applicant argues in the letter that there is no benefit to the community in having him serve a long non-parole period and that his parents and society would be advantaged if he were given the opportunity to have an earlier release date. Relevantly, as I have said, no part of the letter demonstrates sentencing error. It may be accepted, as no doubt his Honour did, that, by reason of the applicant's incarceration, his parents will experience difficulties of the kind set out in his letter. Regrettably, it is the experience of the Court that all too often the offender's family and other innocent people close to him or her suffer by reason of the imposition of an immediate custodial sentence. The Court is not unsympathetic to that situation, but unless exceptional circumstances are shown, the law does not ordinarily reduce what is otherwise a proper sentence by reason of the impact that imprisonment has on those close to the offender. It is plain enough on the authorities[14] that the plight of the applicant's parents as I have summarised it does not constitute such special circumstances. In any event, it was not alleged that the matter was put to his Honour and that he wrongly failed to have regard to it.

11 It was next said by counsel that the non-parole period is, on its face, plainly excessive and thus bespeaks sentencing error. This Court has said on many occasions that whether the impugned sentence is manifestly excessive does not admit of much elaboration and essentially translates into the question: is the sentence outside the range of sentences that were reasonably available to the sentencing judge? Importantly, the question for this Court is not whether it would have imposed a lesser sentence, but whether the sentence imposed is within the range of sentences properly available to the sentencing judge. It is the sentencing judge who has the responsibility of determining the appropriate non-parole period and this Court can only interfere in that regard if there was specific error in the sentencing disposition, or if the error is manifested by a non-parole period that is plainly outside the relevant range. It is apparent enough that, in arriving at the non-parole period, the learned sentencing judge in this case had regard, as he was required to do, to the seriousness of the offence and to the gravity of the offending conduct, the applicable sentencing principles and the personal and other relevant circumstances of the offender.

12 The offence of murder is the most serious offence in our criminal calendar, in respect of which Parliament has prescribed life imprisonment as the maximum penalty. This is a reflection, I think, of the community's paramount concern for the sanctity of human life and its total abhorrence of it being taken away deliberately with malice aforethought. The offending conduct here was not only incomprehensibly brutal, but it was cowardly. As his Honour said, it was a planned assassination of an unarmed victim who must have been taken by surprise by his attacker. It has had, as I have noted, devastating consequences for a number of people, namely, the deceased's wife and others close to him as well as those close to the applicant. Importantly, there are very few mitigating factors that operate in the applicant's favour other than his personal circumstances to which I have referred. The applicant has shown, as I have said, no remorse for the offending. Furthermore, the sentencing principles of specific and general deterrence, denunciation by the court of the offence, the need to impose just punishment and the protection of the community were of considerable importance to the determination of the length of the non-parole period.

13 Ms Dalziel has said everything that could be said in the applicant's favour, but in the circumstances I consider that the non-parole period is within the relevant range. I would dismiss the application.