R v Rossi [2010] VSC 602

Supreme Court of Victoria|2010-12-17|Before: LASRY J

CRIMINAL LAW - Sentence - Intentionally Cause Serious Injury - Victim doused in diesel and set alight with blowtorch - Absence of previous violent convictions - Connection between psychological condition and offending - Impact of medical and psychological conditions on time in custody - Prospects for rehabilitation.

1 Giovanni Rossi, on 29 October 2010 you were found guilty by a jury of intentionally causing serious injury to Peter D'Amore on 16 April 2009. You are now to be sentenced for that offence. The jury found you not guilty of attempted murder and not guilty of attempted defensive homicide.

2 You have admitted previous convictions through your counsel and I will return to those shortly. The offence of intentionally causing serious injury carries a maximum penalty of twenty years' imprisonment.

3 This offence of which the jury found you guilty arises from an incident which occurred on 16 April 2009 involving Peter D'Amore who is the victim of this crime. A person named Kim Emery, who was also charged in relation to these matters, and Mr D'Amore had been in a relationship and had lived together for about two years with her younger daughter Aleishia. Shortly prior to the incident on 16 April 2009, however, she formed a relationship with you, having moved out of the premises she lived in with Mr D'Amore and moving to your premises at Albert Street Reservoir. Ms Emery's daughter remained with Mr D'Amore.

4 The evidence indicated that the separation between Ms Emery and Mr D'Amore was hostile, with arguments about property that she had left at Mr D'Amore's house and also about where her daughter Aleishia would live. Two days prior to the incident which gave rise to this offence, Mr D'Amore had apparently taken a mattress which had belonged to Ms Emery, to your premises and left it in the driveway.

5 On 16 April 2009 during the afternoon, Mr D'Amore went to your premises for the purpose of discussing with Ms Emery the collection of her belongings from his premises. The discussions became an argument which referred back to the incident involving the mattress. There was then a series of incidents including you and a friend of yours returning the mattress and other items to Mr D'Amore's premises after which Mr D'Amore apparently took fragile items to your house and smashed them on the driveway. The situation was becoming more and more angry.

6 In your evidence you said there had been a series of harassing phone calls from Mr D'Amore and you wanted something done about the situation so you rang the police asking them to come to the area.

7 You then approached Mr D'Amore's house. You were carrying a white bucket which contained diesel fuel and also there was a blow torch. You said in your evidence on your trial that your intention was to set fire to the mattress which was lying in Mr D'Amore's driveway. Mr D'Amore not realising that, went outside to confront you and threw a wooden plank towards your feet. There was then a fight during which you and Mr D'Amore exchanged punches and, as he described it, Mr D'Amore slipped over during that confrontation. As he got up he realised he was on fire, although he had not understood how that came to occur. His hair, back, arm and some of his clothing was on fire. Ultimately, Mr D'Amore endeavoured to obtain relief from the pain that was caused by the burns that were occasioned by getting into a shower until the ambulance paramedics arrived.

8 The jury's verdict demonstrates that they were satisfied that you deliberately threw the diesel fuel over Mr D'Amore and lit it with an intention to cause him serious injury and you succeeded. After the incident was over you immediately left the scene. You went to see Dr Godavarthy at the Darebin Community Health Centre and showed him a wound to the palm of your hand which you had sustained in the incident. He referred you to the Austin Hospital but you then went to, among places, a hotel where you had a drink which you said was to calm your nerves and then later ordered a pizza.

9 Mr Edney submitted on your behalf that this incident was not the result of a pre-planned attack and that I should conclude that you went over to Mr D'Amore's house with the intention of setting fire to the mattress, not setting him alight. Mr Edney urged me to take into account the emotional stress you were under prior to the incident taking place.

10 It was put on your behalf by Mr Edney on your plea that the injuries suffered by Mr D'Amore were not life threatening. Indeed that is true, however it should be noted that the fact that the injuries were not more serious is by no means attributable to your good management of the incident.

11 The medical evidence presented on your trial provided differing perspectives on the extent of the injuries suffered by Mr D'Amore. Dr Eck gave evidence that Mr D'Amore suffered non-superficial, or partial thickness burns to five percent of his total body surface area. Dr Tang concluded that Mr D'Amore suffered burns to fifteen percent of his body. Ultimately it would appear that Mr D'Amore suffered burns to more than five percent of his body, but those of the more severe type can only be correctly identified as having been inflicted on five percent of his body.

12 Your conduct on this occasion arose out of your desire to take the law into your own hands. As you would now realise, you would have been far better off, having rung the police, to wait for their attendance. You and the rest of the community must understand that if you take matters into your own hands and serious injury results, as in this case, the consequences will be substantial.

13 Peter D'Amore has filed a Victim Impact Statement. In that statement he describes the continuing effect of the injuries that he suffered. His left ear is damaged and his hearing in that ear is affected. He has also suffered a traumatic response to the incident which has affected his ability to go about his life. He is worried about being attacked and his use of alcohol has increased. Mr D'Amore says that he lost six months of work after the incident.

14 I have taken the statement of Mr D'Amore into account in the sentence that I will impose on you.

15 You are 53 years of age and have lived in Melbourne for almost all of your life. You have one child from a marriage which has now dissolved. Your relationship with your family has been marked by difficulties some of which have been resolved. I note that you were supported in your trial by your sister Rosetta Rossi and that your mother was also present on your plea. You have lived with both women in the time leading up to your trial.

16 You have worked in a variety of occupations and have occasionally had difficulty maintaining employment. In the years before this offence you worked consistently for a removalist company and obtained stable accommodation until you sustained an injury to your Achilles tendon in 2008 which prevented you from working any further. The consequent loss of your employment did not help your state of mind. Indeed many of the people who have provided written references in support of you have referred to the effect that your loss of employment had on you. After your release on bail on 1 March 2010 until your trial you found employment and worked regularly.

17 As I have earlier mentioned, Mr Edney produced a number of written references on your behalf which I have read. Members of your family have provided written testimonials about you and they been significantly affected by these matters and will continue to be so affected by your imprisonment. Also, all of the authors make it clear that they hold you in high regard and that your conduct on this occasions was completely out of character with the person they know. This material also supports the contention that you were a conscientious worker. Upon your release, you will have significant support.

18 I am also told by Mr Edney that you have small nodules of asbestosis in your lungs which will potentially change and require significant treatment.

19 Apart from those matters, evidence was given during your plea by Mr Henry Briffa who is a psychologist and who has been treating you for a depressive disorder and anxiety since October 2008. He described that, as part of your symptoms, there were difficulties in you controlling your anger and that certainly seems consistent with what occurred on 16 April 2009. Mr Briffa saw you regularly and was pleased with your improvement and the treatment terminated not long before the end of March 2009. Your treatment ended at that time at your instigation, you having made such suggestions several times as you felt you no longer required the treatment. In a letter later written to Mr Briffa you said that in this incident you felt provoked and had lost control. Mr Briffa described your depressive illness as having cyclothymic features, which he explained were elevations and depressions of mood although lacking the features which would result in a diagnosis of bipolar disorder.

20 Mr Briffa began treating you again after this incident in March of this year after your release on bail. Your treatment was initially in weekly consultations, which became fortnightly. Mr Briffa gave evidence before me that as the treatment continued he again saw improvements in your state of mind and levels of anger and your depressive disorder. Mr Briffa recommended ongoing psychotherapy and monitoring of your mood states.

21 On your behalf Mr Edney submitted that Mr Briffa's evidence indicated a link between your psychological state and your offending in this matter on the balance of probabilities. Mr Edney did not make any submissions about your psychological state bearing on your ability to serve time in custody, however Mr D'Arcy, on behalf of the prosecution, conceded that there was some evidence that your condition would make your time in custody more difficult. Mr D'Arcy however submitted that there was insufficient evidence for me to form any concluded view on the link between your condition and the offending, and that there may have been a number of explanations for your offending, such as drug taking.

22 It would seem likely that this conduct was to some degree a product of your difficulties in controlling your anger. You had sought assistance from Mr Briffa and were well aware that this was an aspect of your personality that required control. I do not consider your moral culpability to be significantly reduced. Your depressive disorder may have had some link to your conduct on this occasion but in my opinion general deterrence remains an appropriate purpose for punishment in this case albeit that it is slightly moderated. Mr D'Arcy for the Crown accepts, as do I, that your depressive disorder will make your sentence more onerous and I take that into account.

23 In relation to your prospects for rehabilitation, Mr Edney submitted on your behalf that you had made significant progress in your mental state in the time between the grant of bail in March this year and being remanded into custody upon verdict. Furthermore, he informed me that you obtained employment in July this year, that you complied with all bail conditions and that there is no suggestion that you have re-offended. Mr Edney further relied upon your re-engagement with Mr Briffa evidencing your desire to be rehabilitated. You are currently taking antidepressant medication, however are not undergoing any counselling in custody. Mr Edney submitted that I ought to consider imposing a longer than usual non-parole period given your strong supports, employment prospects and the unlikelihood of your re-offending.

24 I will impose an appropriate non parole period. Given the support you have from friends and family I think your prospects for rehabilitation and not further offending are reasonably good.

25 Your prior convictions number some 54 offences from fifteen court appearances. They span a period from 1975 until 2007. Some of those convictions are for motor car offences but a number of them are for offences of dishonesty, possession of weapons and some drug offences. They also include failing to answer bail and failing to comply with an intensive corrections order. Significantly, and in your favour, your prior convictions do not include any offences of violence. You only appear to have been sentenced to immediate imprisonment on one occasion but on several occasions in 1975, 1986, 1997 and 2001 orders were made by Courts which gave you an opportunity to avoid imprisonment and improve your rehabilitation prospects. At the age you are now, you need to realise that if you keep offending, your opportunities for a useful life in the community will reduce dramatically.

26 Your record does not do you much credit and I hope this matter will be the last instalment.

27 I am satisfied that you went to Mr D'Amore's house with the intention of burning the mattress which then lay in the driveway. I am also satisfied that you were highly agitated and that once confronted with Mr D'Amore's presence in that area you determined to injure him seriously with the fuel and blow torch in your possession. You may well have been provoked by the emotion of the situation which had been developing during that day and earlier.

28 So far as the injuries to Mr D'Amore are concerned, there is no question about their seriousness. Whilst there is some variation in the medical evidence about the percentage of full thickness burns they were at least five percent of the total body area and may have been greater than that. Mr D'Amore himself in his Victim Impact Statement has described the serious consequences of those injuries for him.

29 This is a serious offence. To have doused a person in diesel fuel and then set him alight with a blow torch, whatever the emotion of the situation, is conduct which the Court must condemn. Both general deterrence and specific deterrence are relevant sentencing factors.

30 The prosecution identified a range of sentences which it was submitted were appropriate for the circumstances of this case. That range was for a head sentence of between eight and ten years' imprisonment and period before eligibility for release on parole between six and eight years. Mr Edney submitted that was an excessive range with reference to, among other things, current sentencing practices and comparative sentences. He also pointed out that though the injuries were serious they were significantly less serious than has occurred in other cases. There is merit in those submissions and in my view the range put forward by the prosecutor is excessive in the circumstances of this case.

31 In all the circumstances, given your age, your medical conditions and your prospects for rehabilitation, in my opinion the appropriate sentence for this matter is that you be sentenced to be imprisoned for a period of seven years. I order that you serve at least four years before being eligible to be released on parole. I strongly recommend that to the extent that you require support and assistance in relation to your depressive disorder in custody, that be made available to you in addition to the medication you require.

32 I declare that your pre-sentence detention is 370 days and that that period be reckoned as having been served as part of part of your sentence.

33 I direct that these declarations and their details be entered into the records of the Court.

34 I have made the forensic and disposal orders sought by the prosecution and not opposed on your behalf.

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