R v Spina [2003] VSC 296

Supreme Court of Victoria|2003-08-14|Before: SMITH J

Crime - sentence - murder - two counts - unlawful imprisonment - threat to kill - relevant considerations.

Nicola Spina has been convicted of the murder of his wife Maria Spina and the murder of his mother-in-law Giovanna Persico. He has also been convicted of unlawful imprisonment and threatening to kill his brother-in-law, Faustino Persico.

On 23 October 2001 at about 1.10 am Nicola Spina was intercepted by the police in Police Road, Mulgrave not far from his home at 31 Police Road, Mulgrave. He was driving his Toyota Land Cruiser. In the rear of the vehicle the police found the bodies of Maria Spina and Giovanna Persico.

In interviews with the police and a demonstration to the police, he acknowledged that he had in fact killed both women at his home at 31 Police Road, Mulgrave. In essence, his account to the police was that his wife had not been well and on Saturday, 20 October 2001 he had brought her mother to her at their house at 31 Police Road, Mulgrave. It is clear that his relationship with his wife was volatile at best and not happy at the time and that he did not get on well with his mother-in-law. Nonetheless, he claimed to the police that they had had an amicable day and evening and that he went to bed while his wife and mother-in-law sat up and watched television. He told the police that he had been woken at about 2.00 am by a punch from his wife. He then described to the police his resistance to his wife's attack, her calling to her mother for help, her mother arriving and joining in the attack and both of them making statements to the effect that they were going to finish him off. He claimed that in the course of the fight that occurred in the bedroom, he somehow bashed the heads of the two women into the wall and asserted that it was that which had killed them both. To the police he asserted that he had acted at all times in self defence. In light of the jury verdict, that defence was negated by the Crown. I am satisfied that the jury would have been satisfied that it was not a self-defence situation. In the case of Giovanna Persico, an elderly lady, Nicola Spina himself admitted that she could offer little resistance. The issue of provocation was left to the jury and that also was negated by the Crown. While loss of self control could not be excluded, the jury would have had no difficulty in being satisfied that an ordinary person would not have responded as the accused did to the alleged provocation.

The Crown in presenting its case argued strongly that Nicola Spina lied about not only how the fatal injuries were received but also where the injuries were suffered. It seems to me that the Crown's arguments were unanswerable. It is clear from the forensic evidence, which was not, and could not be, seriously challenged, that both women died from manual strangulation. They did suffer blows to the head and it may be that the accused did bang the head of Giovanni Persico into the wall, the major head injury in her case being consistent with impact with a flat surface. Clearly, however, his wife received at least eight blows with a blunt instrument to the head and both women bore marks on their arms pointing to them having defended themselves from blows. While the forensic evidence suggests that the two women suffered blows to their heads in the bedroom, it is also clear that Maria Spina received at least two blows to her then bleeding head in the room immediately adjacent to the bedroom and ultimately at least one of the bodies was dragged from that room.

On the basis of the evidence of the movements of Maria Spina and Giovanna Persico over that weekend, it is possible that they were in fact killed in separate incidents. But that cannot be established beyond reasonable doubt and I proceed on the basis that it was in the early hours of Sunday, 22 October 2001 that an incident occurred in the course of which Nicola Spina brutally assaulted both women and strangled them.

The scalp injuries to the two women caused a great deal of blood to fall on to the carpet and spray on to the walls. Nicola Spina did extensive work to remove the evidence of the stains but failed to completely remove them. He removed the bodies to the garage and did his best to clean up the two rooms. Later, he attempted to make contact with members of the Persico family.

On the afternoon of Sunday, 21 October 2001 he spoke to Marino Persico and invited him to come to 31 Police Road, Mulgrave for a barbecue. Marino Persico was unable to accept. Marino was a brother of Maria Spina and the youngest son of Giovanna Persico.

Early in the afternoon on 22 October 2001 Nicola Spina telephoned Faustino Persico. Faustino Persico was a brother of Maria Spina and son of Giovanna Persico. Nicola Spina was hostile towards him, as he was to his mother-in-law, because he regarded them both as people who were interfering in his marriage. Nicola Spina in his phone call to Faustino Persico asked him if he could come to fix an answering machine that wasn't working. There was no answering machine. Faustino Persico arrived at 31 Police Road at approximately 3.40 pm and was invited inside into the back of the house and into the kitchen on the ground floor. After some ten minutes of conversation, apparently normal, Nicola Spina left the room and returned with a shotgun. In the events that followed, Nicola Spina used the gun to compel Faustino Persico to remain and made threats to kill him. Nicola Spina behaved in a bizarre fashion. The shotgun had a plastic milk carton over the end of the barrel and a cloth wrapped around the carton. His behaviour ranged from the highly agitated to complete silence. Faustino Persico tried for some time to talk him out of the situation by joking about things and by keeping him talking. In the course of their conversation, however, Nicola Spina demonstrated that he in fact had cartridges in the shotgun. He also pulled a "pin" which readied the gun for immediate firing. He had initially required Faustino Persico to lie on the floor to appear as if he was dead on the basis that, as he put it to Faustino Persico, he wanted his wife and mother-in-law to think that Faustino was lying dead on the floor. On several occasions Faustino Persico attempted to leave but Nicola Spina placed himself between Faustino Persico and the back door and pointed the rifle at him or into his stomach to force him to remain. On several occasions he made statements indicating an intention to kill him if he did not remain.

These events, the subject of counts three and four took place over some four hours during which time Nicola Spina and Faustino Persico did not leave the kitchen. I am satisfied, as conceded by Nicola Spina, that Faustino Persico was terrified. What his purpose was is unclear. His counsel submitted that it was simply to talk to someone. While I am satisfied that he was not acting rationally during the events in the kitchen, I am satisfied that his reasons for asking Faustino Persico to come to the house went beyond a need to talk to someone. While his objectives may have been mixed, I am satisfied that he was extremely hostile towards Faustino Persico, meant what he said to him and came close to carrying out his threats to kill with the loaded gun.

The incident came to a reasonably abrupt end when Faustino Persico purported to dial ''000" on his mobile phone and persuaded Nicola Spina that he had in fact rung the police. He had shouted out while holding the mobile phone up in the air - "This is 31 Police Road, Mulgrave I am in a hostage situation, please help." He appears to have persuaded Nicola Spina that if he allowed him to leave then and the police arrived, he, Nicola Spina, could simply say it must have been a hoax call because no one was there. His counsel pointed out, however, it must have seemed to him very probable that Faustino Persico would go to the police. This again suggests that he was not able to act rationally at that time - another reason why his behaviour would have been frightening.

Faustino Persico was allowed to leave by Nicola Spina and after doing so raised the alarm. This led the police to conduct a surveillance operation later that night resulting in the car being stopped and the bodies recovered.

I am satisfied that when Nicola Spina was arrested, he was in the process of driving with the bodies and blood stained rope and shoes and other items with a view to disposing of them somewhere. He did not, however, have any equipment with him which would have enabled him to dig a grave. What his plans were have not been revealed but plainly he was minded to try to dispose of the evidence.

Six victim impact statements have been filed. They are graphic testimony to the immense loss and the ongoing grief and pain suffered by the family of the deceased. There has been severe damage to their health.

Nicola Spina was born on 30 May 1947 and so is aged 56. He was born in Italy, arriving in Australia in the early 1960's with his parents, brother and sister. His father died in a motor vehicle accident in 1978. At the time of the offences he was employed as a boilermaker and had been employed by his then employer for several years. Prior to these offences he had been a hardworking law abiding citizen.

The prisoner to date has shown no sign of real remorse. While he has expressed remorse to the psychiatrist Dr Senadipathy, during his interview for a pre-sentence report, this was done without any emotion and expressed while at the same time maintaining that he acted in self-defence. He still has not told the truth about what happened. When interviewed by the police he did not acknowledge the grim reality that he had strangled both women. Even now, in his recent interview with Dr Senadipathy, while acknowledging he strangled both deceased, he did not acknowledge the reality of the strangulations. He stated to the doctor that trying to stabilise himself during the attack upon him he grabbed both deceased by the neck. This should be compared with what in fact occurred. The strangling in each case took at least 15 seconds to kill. Maria Spina, on the expert evidence, probably died from the shutting off of blood flow to the brain which can take 30 to 40 seconds to have effect. Giovanna Persico on the other hand appears to have been asphyxiated as revealed by existence of extreme petechial haemorrhaging in the eyes and eyelids. I accept the expert evidence that those results pointed to the strangulation continuing for longer than 15 seconds. It appears also that a rope was used in the strangulation of Giovanna Persico. This conclusion is supported by the geometric markings on her neck and by the presence of her blood on ropes including in the loop section of one of them, ropes found in the front seat of Nicola Spina's car when he was arrested. Maria Spina, on the other hand, may have been strangled with the aid of a rope but the geometric pattern is missing and her injuries are consistent, as are Giovanna Persico's with manual strangulation also being involved. In view of the size of the neck of Maria Spina and the use of the rope in strangling Giovanna Persico, I am satisfied that they were not strangled at the same time. Rather, I am satisfied beyond reasonable doubt that they were strangled in sequence, one after the other.

It seems that something caused Nicola Spina to erupt into uncharacteristic violent aggression towards his late wife and late mother-in-law. The Crown cannot establish that the killings were planned. At the same time there is no satisfactory evidence to explain what in fact occurred that caused him to act at that time in the way he did. I reject his account of being viciously attacked in his sleep. The injuries which he said that he received during this allegedly violent attack were trifling in the extreme when viewed in isolation and nothing when compared to those suffered by the two deceased.

Nicola Spina acted with extreme violence, a violence that appears to be completely out of character with his life as an adult up to that point. We do not know precisely what happened. There were tensions and stresses in the relationship. He had increasingly withdrawn from contact with his wife's family and they with him. He was not liked by his wife's family. He and his wife argued. While in the early years of their marriage she had left him a number of times, she had returned. Neither was prepared to leave the marriage. Both appear to have shared the desire to accumulate assets. On the basis of statements he had made to Faustino Persico an issue appears to have arisen with his late wife about the withdrawal of money from their bank account. Apparently she was angry about his withdrawal of $30,000 and he was angry about her withdrawal of $5,000 or $8,000. It seems neither was prepared to leave the marital relationship for fear of having to let the other have a share of the assets that they had acquired. In addition, the late Maria Spina was concerned about the promise she said she had made to God about her marriage. Whether the accused was also concerned about that is not clear. I am also satisfied that in the months leading up to the fatal events, the late Maria Spina had become very depressed about her life and the marriage and rightly or wrongly had started to fear her husband.

Mr Spina relies upon a report supplied for him by Mr Joblin the forensic psychologist. Mr Joblin interviewed Nicola Spina and obtained from him a detailed history of his life and, particularly, of his relationship with his wife and members of her family. These relationships appear to have been very difficult. Nicola Spina reported that he married the late Maria Spina on 14 September 1974 but that the marriage was satisfactory for only two years. Problems arose partly from the unsuccessful attempts to have children but also from the close involvement of Giovanna Persico in Maria Spina's life and also Maria Spina's close involvement in the lives of Marino and Faustino Persico. It appears that on several occasions Mrs Spina went away for some days only to subsequently return. Without going into great detail about past events within the relationships, it is sufficient to refer to Mr Joblin's conclusions which were that Nicola Spina developed a serious degree of suspicion about the attitude of his wife's family towards him and became exceedingly paranoid. His assessment is that Nicola Spina began to interpret actions and discussions by her and her family as a basis of dislike and hatred and as evidence of their wish to kill him. He referred to suggestions from Nicola Spina of statements about his mother-in-law wanting his wife to stab him while he was asleep and discussions of his wife changing her will. He reports that Nicola Spina began to believe the difficulties he had with his wife, her siblings and his mother-in-law centred around trying to get rid of him so that the family could have access to their properties and wealth. Mr Joblin had no doubt that Nicola Spina developed a "pervasive and suspicious attitude" towards others - in particular his mother-in-law and his wife's brothers. Mr Joblin said that there was in his opinion an issue about whether or not his attitudes became paranoid delusions but said that certainly he had developed "persistent persecutory ideas". He had ideas that others were attempting to control his behaviour and his life and had these paranoid ideas for some considerable time.

Dr Senadipathy, forensic psychiatrist at the St Vincent's Correctional Health Service Port Phillip Prison has supplied the Court with a psychiatric report. He records a similar account of the history of the relationship between Nicola Spina and his late wife and Nicola Spina and her family. He also reports that the issue of childlessness was a major issue for him and his wife and her family. Mrs Spina apparently had two miscarriages and was then unable to conceive. They then attempted IVF and at one point Maria Spina was pregnant with twins. One however died in the uterus and the other had to be terminated to save the life of Maria Spina. Dr Senadipathy records that this caused both of them considerable emotional distress. Nicola Spina also claims that Giovanna Persico, his mother-in-law, denigrated him and made him feel that he was not man enough to father children and was ignorant because of his lack of education. He refers also to Nicola Spina feeling that his wife became too involved in the upbringing of her youngest brother Marino and later in the late 1990's was too involved in counselling him in the problems he was then having in his marriage.

The attempts to have children and the miscarriages plainly caused major emotional problems for Nicola Spina and his wife and Dr Senadipathy notes that these problems were exacerbated because they were surrounded by an extended family in which there were many children.

To Dr Senadipathy, Nicola Spina complained that following the death of his father-in-law, Giovanna Persico became dependant on and dominant of his wife and made him feel marginalised in their relationship. He described feeling that his wife persecuted him and that her family, dominated by the mother-in-law, Giovanna Persico, controlled his wife. He said that it had come to the stage that he would have liked his wife to leave him because it would be peaceful for him without being attacked by her and the family.

In assessing Nicola Spina's mental state, Dr Senadipathy said that he spoke coherently and was friendly, polite and co-operative. He expressed remorse for what had happened but this was done without any expression of emotion. He was still convinced in his thinking that the killing was accidental and occurred whilst trying to protect himself. He was convinced that his mother-in-law had the intention to kill him by stabbing. He denied, however, hearing voices or having any sense of being controlled by external powers.

In his conclusions Dr Senadipathy noted that the history and clinical presentation indicated that Nicola Spina "harboured persecutory thoughts and feelings about the wife and her family". After referring to his belief that the mother-in-law advocated murdering him he said that the history also indicated that his wife and mother-in-law contributed to "this sense of paranoia from their attitude towards Mr Spina". He concluded that the history and clinical presentation favoured a diagnosis of "a chronic paranoid disorder incorporating his wife and her family with the mother-in-law being the key person". In oral evidence he said that the disorder was at the lower end of the spectrum of psychosis. He suggests that Mr Spina is probably a victim of shattered dreams despite working hard to achieve them. He thought it probable that he and his wife had great difficulties accepting their childlessness and that it was probable that both suffered considerable emotional problems that had not been addressed. He comments that instead Mr Spina became "trapped in paranoid thinking about whom to be blamed". The mother-in-law was involved in their problems and contributed to the conflicts. He went on

"He was blamed and they were not able to trust each other, thus the development of the chronic paranoid state."

After referring to the fact that there was no evidence of aggression or anti-social behaviour outside the family setting, a history of stable employment and good relationships with employers and work mates and with his own family, he commented that Mr Spina did not incorporate anyone other than his mother-in-law and to a lesser extent his wife in his paranoia. He expressed the view that he did not, therefore, see him as a potential danger of committing further violence. In those circumstances he expressed the opinion that it would be appropriate to consider a parole period.

Both Mr Joblin and Dr Senadipathy in assessing the prisoner relied heavily on the information he gave them. As the prosecutor has pointed out, the prisoner lacks credibility. Should their opinions be accepted? I have come to the conclusion that they should. The events give their opinion credibility. Their opinions explain the extraordinary behaviour of a law abiding 56 year old in killing his wife and his mother-in-law in a sudden outburst of extreme violence. They also explain his subsequent bizarre and irrational behaviour with Marino and Faustino Persico and with the bodies.

Counsel for the Crown submitted that a term of life imprisonment should be imposed and no minimum sentence or non-parole period fixed. Counsel submitted that the murders of the two women were so grave that life imprisonment was required. Further, counsel submitted that there was no remorse whatsoever shown. It was submitted that at the trial the defendant maintained the defence he had advanced to the police when it plainly had no merit. Counsel also submitted that having regard to the gravity of the two murders and his age, a non-parole period should not be fixed.

In relation to counts three and four, the Crown submitted that what occurred were bad examples of false imprisonment and threatening to kill.

Counsel for Nicola Spina did not argue against the fixing of terms of life imprisonment on each of the murder charges. He directed his submissions to the issue of a non-parole period, arguing that one should be fixed. Counsel submitted that in assessing the gravity of the murders, there was little evidence of pre-planning or sophistication and that this was consistent with a sudden violent loss of temper. He submitted that in all probability a billiard cue had been used and the Crown could not exclude the possibility that the murders were opportunistic. Counsel argued that in light of the experts' assessments of Nicola Spina's mental state he was less suitable as a vehicle for general deterrence. Counsel submitted that it was appropriate to set a non-parole period having regard to the fact that his client had no criminal history, a long history of acrimony between the parties and the worsening of the circumstances of the prisoner as he became more withdrawn and divorced from the family, a problem which no one had addressed. Counsel also drew attention to the expert evidence about the prisoner's state of physical health indicating that he has a degenerative bowel condition and that that is something that should be taken into account. Counsel submitted that at this stage of his life to receive a life sentence with no non-parole period would be a very harsh sentence. On the question of remorse, counsel submitted that the prisoner did show remorse when apprehended and pointed to the evidence of his highly emotional state at that time. The issue was the extent of that remorse. He submitted that having regard to the prisoner's age and health and the difficulty of serving the sentence, the sentence would be a heavy penalty.

On the issue of the prisoner's state of health, I note that the Crown submitted that the state of health was not significant so far as sentencing is concerned because his conditions can and is being treated while he is in prison with medication.

On the question of the sentences to be imposed on the murder charges, count 1 and count 2, I am satisfied that in all the circumstances life sentences are appropriate. In any event, as noted above, Nicola Spina has not sought to argue against the imposition of such sentences. This is understandable from a practical point of view. As a matter of principle, while the murders of Maria Spina and Giovanna Persico cannot be shown to have been pre-planned, they were brutal and constitute a grave example of the crime of murder. He physically assaulted them. They tried to defend themselves. Having gained the ascendancy he strangled one and then the other.

Addressing other issues, as noted above, he has shown no genuine remorse. As to deterrence issues, and the protection of the community I am not as sanguine as Dr Senadipathy as to whether Nicola Spina constitutes a potential danger to anyone else in the community. What causes me concern is that he has continued to show no preparedness to acknowledge fully what occurred or to address any of the underlying problems. Further his antipathy was not restricted to his mother-in-law and wife. It extended to Marino Persico and Faustino Persico in particular. It is troubling that after the murder of his wife and mother-in-law, he attempted, unsuccessfully, to invite Marino to a barbecue. He then successfully invited Faustino Persico to the house where he was threatened with a loaded shotgun, threats to kill were made and he was held at gun point, off and on, for some four hours. While accepting that something caused Nicola Spina to snap, a concern remains that the combination of circumstances that led to that event remain unresolved and both Marino and Faustino Persico contributed, in the mind of Nicola Spina to those circumstances. Thus personal deterrence, as well as general deterrence, remain significant matters and do so notwithstanding the assessment of his mental state.

In my view life sentences for these two crimes are warranted and there is insufficient in his personal circumstances to justify the mitigation of such a penalty.

In relation to counts 3 and 4, the maximum penalties in each instance are 10 years imprisonment. The circumstances of these two counts constituted significant breaches of the law and if separate sentences were to be imposed I would consider a term of 4 years imprisonment on each count. Having regard to the sentences to be imposed on count 1 and 2, it is inappropriate to depart from the statutory requirement that the sentences be served concurrently.[1] I note that the issue of whether the serious offender provisions have application has not been canvassed.

I turn to the issue of a non-parole period. The Sentencing Act 1991 s 11(1) requires the fixing of a non-parole period unless the Court considers that the nature of the offence or the past history of the offender make such a period inappropriate. In my view the nature of the offences and Nicola Spina's past history do not make the fixing of a non-parole period inappropriate. I refer to my earlier comments on the offences and Nicola Spina's history.

A non-parole period is fixed as the minimum period of imprisonment to be served having regard to all the circumstances of the offence. A purpose of fixing a non-parole period is to assist the prisoner's rehabilitation.[2] Having regard to the offences committed in this case, the age of Mr Spina and his lack of remorse, it can be strongly argued that there is no indication for fixing a non-parole period, notwithstanding his prior good history. He has, however, moved a little towards acknowledging what he did. He has now acknowledged that he did strangle the two deceased and he has spoken of remorse although showing no emotional response. He has also acknowledged in substance what he did to Faustino Persico. It also needs to be borne in mind that there are public benefits that can flow from the fixing of a non-parole period. One is that the prisoner is likely to be better behaved while in confinement and will have a real incentive to reform and is, therefore, more likely to retain basic self-respect and have some real prospect of rehabilitation. It has been said also that the provision of a time at which a prisoner may be released on parole enables the parole authorities to address issues that can arise on compassionate grounds - for example, where a person has become eligible for release on parole and is terminally ill.[3] It should be emphasised, however, that if a non-parole period is provided, the punishment imposed on the prisoner remains one of imprisonment for life. If at the expiration of any non-parole period, the prisoner's attitude and behaviour are unchanged the prisoner cannot normally expect any prospect of being paroled.[4]

Taking all relevant circumstances into account it seems to me that it would be appropriate to fix a non-parole period of 25 years. It will, in my view, best address relevant sentencing purposes. I am well aware of the fact that fixing such a non-parole period will have the result that Mr Spina will be approximately 80 before he becomes eligible for consideration for parole. Each year of the sentence represents a substantial part of the life that remains to him and, depending on his health, the non-parole period may well prove in any event to be a life sentence. That, however, cannot be avoided. At the same time the possibility of him living beyond his 80th year cannot be discounted and so it cannot be said that that sentence would destroy any reasonable expectation of a useful life after release.

To conclude, sentences of life imprisonment will be imposed in respect of counts 1 and 2. Sentences of four years imprisonment will be imposed on each of counts 3 and 4. A non-parole period of 25 years should be fixed.

[3] Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525 and The Queen v Shrestha [1991] HCA 26; (1990-91) 173 CLR 48.

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