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[2010] VSC 58
General information, not legal advice.
Supreme Court of Victoria
2010-04-08
KING J
Original judgment source is linked above.
MANSLAUGHTER - Unlawful and dangerous act - Sentence 6 years and 6 months - minimum of 4 years and 3 months
1 George Reglis, you have pleaded guilty to one count of manslaughter of Martino Ventrice on the 27th day of June 2008. This could well be described as a relatively unusual case of manslaughter, and I will detail the offending shortly.
2 The deceased man, Martino Ventrice, was born in June of 1974 at Melbourne. He had two older sisters. He attended Essendon Technical School. He left and completed a pre-apprenticeship, and then an apprenticeship course at Victoria University, as a Motor Mechanic. He had worked previously in Brunswick, but at the time of his death, he had been employed at Super Top Motors in Clifton Hill from 2000. He was not married at the time of his death.
3 You met the deceased man through a mutual friend, and it would appear that what you had in common was, that you were both users of cannabis and intravenous drugs, as well as involved in an interest in poker machines. You socialised together on a number of occasions and spent quite a bit of time in each other's company. On Friday 27 June 2008 you had arranged to meet the deceased man, in order to purchase some cannabis from him. That meeting was in the car park adjacent to McIvor Reserve in Yarraville. The deceased went to work at 9.30 a.m. and worked until about 5.30 p.m. He then, driving a motor vehicle which he had borrowed from a workmate, drove to the car park at McIvor Reserve. He parked the motor vehicle facing Francis Street. You then walked to that location, having been given a lift to the nearby shops by your brother. This was only a short walk from your home. It is clear that this was organised at some stage, on that day.
4 At 5.46 on 27 June you had used your brother's mobile phone to send a text message to Martino Ventrice stating, "It's G, ring me on" and you then provided a number. At 6.03 Mr Ventrice had in fact phoned you, which was a short time prior to the meeting with you in the car park. What occurred from that point on, in the motor vehicle, is something that is known really only to yourself and Mr Ventrice with any accuracy. What can be ascertained and not disputed is that the deceased man was in the driver's seat of the motor vehicle. You came and sat in the front passenger seat. It was a vehicle that had a bench front seat, and there was an armrest between yourself and the deceased man. It is not disputed that you brought with you a bag, which you had placed between your legs in the car. Equally, it is not disputed that shortly after you had entered the vehicle, you were holding a loaded sawn-off single barrel shotgun, and whilst you were holding it, it discharged, hitting Martino Ventrice in the chest and killing him.
5 At 6.20 p.m. you rang triple zero and requested an ambulance to attend at the car park in the McIvor Reserve. You stated that the deceased man had been shot in the chest, and the offender was no longer there, and had done a runner. You were instructed to remove the deceased from the vehicle and to commence resuscitation attempts. When the police and the Metropolitan Ambulance Service officers arrived at the scene, a short time later, that is in fact what you were doing, and the deceased was on the ground, beside the driver's door. It would appear that prior to calling triple zero, you had removed the firearm from the vehicle, after checking to see it carried no further cartridges, and placed it near a tree in the park.
6 You were interviewed by the Homicide Squad over the evening of Friday 27 June and the morning of Saturday 28 June 2008. During that interview you told the police that you had received from the deceased man, Martino Ventrice, the cannabis that you had organised, and that the deceased man told you that he had a firearm for you, which was something you had asked him if he could obtain for you, sometime previously. The firearm was in a sleeve of fabric. You said you had picked it up, it was located between the passenger seat and the centre console, in the front of the vehicle. You told the police that you slid back the sleeve and inspected the firearm, holding it in a left-handed grip across your lap, meaning that it was pointing directly at the deceased man. You said at that point you had your finger on the trigger. You told the police further, that the deceased pushed the firearm away from his direction, so it was pointing not at him, but away. You told them you had pointed the firearm back at the deceased saying, "What's this shit going to do?" and the deceased then grabbed the firearm and pushed it away again, which, according to you, caused the firearm to be pulled away from you, resulting in the trigger accidentally being squeezed by the pressure applied by the deceased, which then caused the firearm to discharge into the deceased man's chest.
7 The specific questions and answers in the interview are as follows:
Question: What did you do with it? being a reference to the gun.
Answer: Well, when I picked it up, because I'm left-handed, I picked it up, and to the ambulance. I didn't know where - where, what happened like. Then I pulled the sleeve back. As I was looking at it, he was pointing, pointing, and he goes, "Don't fuck around, don't fuck around". I go, "What do you mean?" I go, "What's this?" I go, "What's this going to do, hasn't it got". I think I asked him if it's got, hasn't it got a safety or something like that. And he goes, "Yeah" but I can't remember what he was saying. But as he was, like he went to move it. My finger was, I was like holding it like that, right? Now as he moved it, it went off. I just, yeah, it went off, and that's when I shit myself and rang straight away. I rang the ambulance. I didn't know where, where, what happened like.
Question: Can you explain how he was touching the firearm?
Answer: Yeah, I think he grabbed it, because the first time, because I didn't see he moved it. He goes, "Don't fuck around like that". He moved it like that, and a couple of seconds later when I said to him, I go to him, I go, "What's this shit going to do anyway?" He goes, "Don't fuck around, I told you, don't fuck around like that" and he went like that, didn't push it, he like grabbed it to move it.
Question: So, he must have known it was loaded?
Answer: So, yeah, when he moved it like that, but I didn't know, he grabbed it to move it out of the way, as he pushed it, it went off. When he pulled it or pushed it, my finger was still on the thing and it went off.
9 The Crown has accepted the plea on the basis that your actions constituted criminal negligence. I must accept that and also sentence you upon that basis. As your counsel conceded, it is a high level of criminal negligence, in that the smallest child would know not to put their hand on the trigger of a gun in a confined space such as a car and point it in the direction of another person.
10 I have received five victim impact statements in this case, being one from his mother, his father, his two sisters and a brother in law. Particularly those in the immediate family talk about the pain that will never go away, the loss they feel and the loss they will always feel for their brother and son whom they loved very dearly.
11 The sentence of a court is not something that reflects the value or worth of a human being, - it deals only with punishment of an offender for a particular offence and I hope that Mr Ventrice's family understand, that whilst they may never lose their horror at the loss of their beloved son and brother, it is to be hoped that in the future they will remember him with love and affection and smiles rather than just heartache. Every person involved in offending which causes pain and suffering to human beings ought to read the victim impact statements of these different people to hopefully have some glimmer of understanding of the pain that they inflict upon the rest of the community. I will take into account the relevant parts of the victim impact statements as they have been presented.
12 You offered to plead guilty to manslaughter at the time of the committal proceedings and it was made clear that the only matter you were contesting was the charge of murder with which you were originally charged. This was a crime that demonstrated a recklessness on your part that is clearly inexcusable and has caused the loss of a fellow human being's life. That calls for strong condemnation, as our society rightly places great value upon each person's worth and expects there to be appropriate and significant punishment for the taking of human life, even when done unintentionally, but negligently or recklessly.
13 I also have to take into account your personal circumstances when determining an appropriate sentence. You were born on 16 March 1973 and you are now aged 36. At the time that you committed this offence you were living with your parents in Geelong Road, West Footscray. You are one of three children born to your parents, who are Greek. Your father is aged 62 and your mother, 57. You have an older sister, Amanda, aged 38, married with one child and a younger brother, Steve, who works in construction.
14 Your father has worked most of his adult life as a fishmonger at the Footscray Markets, apart from a short period where he had a fish shop retail business in Keilor Downs. Your father is now in semi-retirement. Your mother worked as a seamstress. You were predominantly raised by your maternal grandmother with whom you had a very close relationship.
15 You went to Kingsville Primary School and then Footscray High School, completing your VCE in 1990. You enrolled at the Footscray Institute of Technology to study accountancy, successfully completing the first year of your two year course. You did not resume second year and therefore did not complete and ultimately failed to qualify as an accountant, a matter of expressed regret that was noted by your counsel during the plea.
16 The area you pursued at that stage was kickboxing. You had commenced kickboxing whilst still at high school, as well as soccer, which was another sport at which you were particularly accomplished. Your counsel informed the Court that during the late 1980s, there had been interest in organising kickboxing competitions, particularly in relation to multicultural teams and that you would represent Greece in those competitions. You had some six amateur bouts in which you were successful. The interest in relation to kickboxing waned in the 1990s and it was no longer a viable career. You were unable to pursue a successful career in soccer and, accordingly, you went to work full time in your father's fish and chip shop, at the age of 19 or 20.
17 In 1992, the business closed and you went overseas to Greece for a holiday. Whilst on holiday in Greece, you were riding a motorbike and crashed. You spent some weeks in hospital, with what is described as recurring headaches and closed head injuries and you have, as a result, a residual disability with your memory. You also bear a large prominent scar across your forehead and down the bridge of your nose.
18 You returned to Australia and it was shortly after that, that your grandmother died. You managed to obtained some employment, firstly as a console operator at a petroleum station for 12 months, then you worked for a year at the chemical refinery company in Williamstown and subsequently, three years at your cousin's café as a kitchen hand and cook. That café closed when you were aged 26.
19 Since that time, you have had very much intermittent work. Your counsel said that you had difficulty in holding down employment and submitted that a lot of that had been to do with your descent into drug use. You described to your counsel losing your way at the time of the death of your grandmother, when you were aged 22. As indicated, you lost your grandmother when you were aged 22, which would have been in 1995.
20 In 1996, you became a heroin user. Initially you smoked heroin but ultimately you became an intravenous user of heroin. In the late 1990s, you received rehabilitation counselling from a Dr Jagoda and ultimately, after a residential drug detoxification in Moreland Hall, for approximately one week, you were weaned off the heroin, but you continued as a polydrug user of other substances, including cannabis and amphetamines.
21 You first met your wife, Maria, in 1995 and you married in 2001. You have a son, Eric, who was born in 2002 and is aged approximately eight. You and your wife separated in 2002, after approximately only one year of marriage, as a result of your behaviour and your drug dependence and you returned to live with your parents. It would appear that you and your wife remained very close, despite that situation, and there were some expressions of hope before this Court of a reconciliation. I must say, it seems to me quite unlikely, that in 2010 you are likely to reconcile, having separated in 2002.
22 You are most fortunate in that she has brought your son Eric to visit you every week whilst you have been in custody, at both the MRC and Port Phillip.
23 Your heroin usage resumed, as indicated, and you continued using until 2006, when you attended outpatient rehabilitation in St Kilda.
24 You met the deceased man, Martino Ventrice, in 2005 through friends that you both knew through the drug scene, and you became relatively close associates. Together you would share and supply each other with cannabis on a regular basis.
25 There was a text message that was referred to in the Crown opening, and it would appear, by the way the Crown have put their case before me, that it has no relevance and I do not intend therefore to discuss it.
26 You have been previously convicted in courts in respect of a number of offences in the past including intentionally or recklessly causing injury:
27 I received in evidence a number of character references written on your behalf, as well as hearing evidence from a number of persons who came and gave evidence before me, including:
• George Konstas, a solicitor who had a great deal to do with you when you were a young child and a teenager.
• Mr Harry Misogtes, director of a homebuilding company, he is a family friend and has a child the same age as you. He described you as a hard worker, trustworthy and one who does community work within the Greek community. He says that you are a very good father.
• Mr Mick Picos, a tow-truck driver, also gave evidence. Mr Picos is also your godfather who could give only limited evidence not having had a great deal to do with you over the last few years.
I have read the character reports and I will take them into account.
28 There is also a report from Mr Geoffrey Cummins, psychologist, dated 23 November 2009. In that report he stated at page 5:
In my opinion at the time of offending he was not only psychologically dependent on cannabis (cannabis dependence DSM IV-TR) but he was also then suffering from a chronic adjustment disorder with mixed disturbance of emotions (depression, anxiety, hurt and frustration) and conduct (DSM IV-TR code). In my opinion this adjustment disorder was triggered in his early 20's when he realised he was foolhardy in not having completed his tertiary accounting studies and this adjustment disorder was then exacerbated when he decided he could no longer pursue a career in kickboxing/soccer. In my opinion he had been grappling with chronic feelings of depression over many years. In my opinion he has most probably also been suffering from a dysthymic disorder, being a depressive disorder one level of severity below that of a major depressive disorder. In my opinion this disorder also had its genesis in his early adult years. In my opinion he has been using alcohol, heroin and cannabis to "self-medicate" in relation to his chronic feelings of depression.
In my opinion his prospects for long-term rehabilitation are favourable and particularly if he remains drug free and if there is eventually a reconciliation with his wife. In my opinion he presents as having quite a dependent personality style and at interview he admitted to having a very dependent relationship with his wife even though they are now officially separated.
29 With the greatest of respect to Mr Cummins, I have to say, I find his diagnosis not of any great assistance. An adjustment disorder triggered in your early twenties, when you realised that you had not completed your tertiary accounting studies, I find a nonsense and will not act upon it.
30 In relation to what he says about your prospects for rehabilitation, I do not share his optimism for your future. You were 34 at the time of this offending, you had been using heroin and cannabis and amphetamines and associated other drugs for a very substantial period from at least the age of 22, with some short breaks. That does not give me great confidence for your future being drug-free.
31 The level of recklessness involved on this occasion also causes me grave concern, as to your ability to think clearly and rationally. I do not believe there is a great hope of reconciliation with your wife after this length of time, despite your friendship. Thus, I certainly do not have the same level of confidence in your prospects of rehabilitation as Mr Cummins does. In your favour, however, I do take into account that you have pleaded guilty to this offence and that you offered to plead guilty at an early stage. Further, that you did what you could to assist the deceased man shortly after he was shot, and that you did not flee, but sought assistance for Mr Ventrice. I accept that the majority of your prior convictions are old and not of great relevance to the offending, but you do not come before this Court as a person who is entitled to rely upon his good character.
32 You are clearly cared for by other members of the community, and they think well of you and your family. In your favour, you equally have a good and caring relationship with your separated wife and child, which will hopefully give you some prospect for the future.
33 I accept that you have some prospects of rehabilitation, but as indicated, unlike Mr Cummins, I do not consider them to be very high prospects of rehabilitation, but there is hope. You need to obtain employment, stop using drugs, and become a contributing member of our community. Against all of those matters there needs to be a balance of the community need for a just and appropriate punishment, a reflection of the criminality for which you are to be punished, which is, as the defence and the Crown concur, at the lower end of the scale of punishment for manslaughter. I have read the authorities to which I have been referred, including R v AB (No 2)[1]; DPP v Marcus William Phillips[2]; DPP v John William Sypott[3]; and, R v Robert John Osip[4].
34 In relation to the issue of general deterrence and specific deterrence, I am of the view that there needs to be some specific deterrence applied to you. Whilst I accept you are remorseful, you do need to understand and be reminded that your gross criminal negligence has resulted in the loss of Martino Ventrice's life. Equally, while this may not be the most common of offences, general deterrence still clearly has a part to play, to remind people of the sanctity of human life and the degree of care that must be taken in handling any form of firearm, particularly in a close area in the vicinity of people. This is indeed an appropriate vehicle for giving such a warning.
35 In imposing sentence, I have attempted to balance all of those factors to which I have previously referred and impose a just and appropriate penalty.
36 You will be convicted and sentenced to be imprisoned for a period of six years and six months on the count of manslaughter. I direct that you are to serve four years and three months before becoming eligible for parole.
37 I declare, pursuant to s.6AAA that the sentence I would have imposed, but for your plea of guilty, would have been a sentence of eight years with a minimum of five years and nine months
38 I declare you have served 650 days pre-sentence detention, not including today and that such detention is to be noted in the records of the Court.
40 Application for retention of forensic sample 464ZFB(1) is granted.
R
Reglis [2010] VSC 58
(2008) 18 VR 391