R v Tanasi [1999] VSC 553

8. These are both very serious examples of these two crimes. The background to them requires the understanding of what was happening in your life at the relevant time.

11. You came to Australia in 1966 from Sicily in what Mr Dunn Q.C., who appeared on your behalf, called a "different world", one in which there were very strong family values, ties and responsibilities.

14. You met your wife when you were 17 and she was 14. You left school early and ultimately came to Australia. In Australia you continued living and mixing within the culture in which you had been brought up. You brought up a family. You worked consistently and hard. You bought a home. Unfortunately in 1992 you and your wife divorced.

17. So far that is not an abnormal picture of a family. But what then occurred does present an unusual set of circumstances, because after your divorce your wife and you continued life to some extent as a couple. You reconciled a number of times and you lived together for periods of time of up to two years. For part of that time you lived in your former matrimonial home where your wife remained. The two of you involved yourselves in a business together of selling imported Italian products to members of your community in the country. The two of you purchased goods in Melbourne; you sold them, travelled around for that purpose, living in a caravan and at motels.

20. That continued until about the end of 1997 or early 1998. That created an unusual relationship because, as Mr Fabrizzo, on your behalf, said, you referred to each other as husband and wife. You apparently had a lot of affection for each other despite the fact that the formal ties had been broken.

23. In the early part of 1998 you went back to Italy and your former wife said that your relationship was over. Whilst you were in Italy, your brother became ill and had an operation for a brain tumour, from which he subsequently died. You looked after him for part of the time. As well as that stress, you were informed by your daughter from Australia that your wife had formed another relationship. You were obviously affected by this to the extent that you apparently had some sort of a collapse and spent some time in hospital.

26. The man with whom your wife had formed a relationship was introduced to her by the two victims of your crimes, who were in fact your friends. This was something upon which you were to focus to an extraordinary degree, which I think produced the anger which ultimately exploded in your shooting them.

29. When you returned to Australia you tried to make contact with your wife again in an attempt to restart the relationship, but your wife was not agreeable. The effect of it was that you were frustrated and angry and became depressed. You lost weight, you changed in appearance. The concern about your well-being was such that your family arranged for your visits to a doctor and other therapists. The concern was not only about your health, but obviously you were then harbouring resentment and anger, were uttering threats and were clearly not coping with the situation which had arisen.

32. On 29 September you went to the home of your victims; you were armed with a firearm. You were spoken to briefly by Mr Dinaro, but soon after that Mrs Dinaro came out and it appears that your anger was focused very much on her. In any event, you fired five shots, very seriously injuring Mr Dinaro and seriously injuring Mrs Dinaro. Apparently at least one of the shots went through Mr Dinaro and struck Mrs Dinaro. It is only through extreme fortune that Mr Dinaro did not lose his life.

35. The victim impact statements clearly show the seriousness of the injury, trauma, fear and tragedy which you inflicted on these two people whose only wrongdoing was to introduce your former wife to another man.

38. You were prepared to give yourself up to the police. When you were arrested Dr Odell, who was called, examined you, obtained a history of some of the background and found you to be depressed to the extent of not being able to be interviewed. He thought that your condition may well have been of longer duration. That, of course, is consistent with the observations of Dr Barbaro and the other people who had to deal with you in the month or so prior to this tragic event, including members of your family.

41. When you were arrested you remained in custody and have remained in custody ever since without making a bail application. You did not contest the committal proceedings. You did not cause the people involved to be cross-examined and called. You have remained in a depressed state whilst in custody.

44. In a persuasive and insightful plea, Mr Dunn, on your behalf, submitted that what you did has to be understood in the context of your condition at the time. His submissions were supported by the evidence from Mr Joblin, who explained that in your state, given your upbringing, your cultural background and the peculiar nature of this relationship with your former wife, you were not able to cope with the fact that she had now formed another relationship. Because of your depression, your actions were, in your terms, rational, in the sense that they followed a purpose and a focus on the people who you saw as having done you wrong. On any objective view, your behaviour was obviously bizarre and wrong in not being able to accept the fact that despite the ongoing relationship with your previous wife, the time had come when that was over.

47. I think the framework within which Mr Joblin saw your position is perfectly understandable and I think the whole of the circumstances in which you found yourself do provide some explanation as to why you, otherwise a

non-violent person at 56 with no prior convictions, would commit such crimes as you did. That, of course, does not mean that they are to be excused because of those explanations.

50. Mr Joblin spoke of your prognosis and your remorse. It is apparent that you have insight into the extent of the wrongdoing which you committed. The catharsis which your actions produced, in Mr Joblin's view, have removed your vindictive state of mind and your focus on the two victims. Your sister, who gave evidence, described you as being regretful and accepting of the wrongdoing which you have committed.

53. You have two adult children, one who lives in Perth, a son, and a daughter. The son has apparently broken contact with you, but your daughter has resumed her contact with you and so has your sister.

56. I accept that given your background and the tragedy of this situation that you feel a degree of regret, remorse and shame. I think those matters are relevant mitigatory considerations and ones which may point to a reasonable prospect of rehabilitation.

59. Apart from the psychological pressures and the other stress factors which operate upon you, apparently you are not in general good health and I am told that your elderly parents, one of whom is unwell in Italy, are very much a concern for you because you fear you may not see them again.

62. Putting all those matters together, Mr Dunn submitted that you have, to a degree, been punished for what you have done, and there is, no doubt, substance in that.

65. As far as the crimes themselves are concerned, there is really not very much by way of mitigation, given the fact that you obviously made threats, your anger was directed towards these people and you went there armed and then fired at them in the way I have described.

68. There are, however, mitigatory factors in a number of other respects. One factor I have already dealt with which arises from the background and your mental state and inability to cope with the situation in which you found yourself. Unfortunately, there are many people in this community who are subject to great frustration because of break-ups of relationships and normally the fact that they are not able to accept that is not much of a mitigatory factor, particularly if they act out their anger.

71. Your case is somewhat different. You were faced with this difficult to cope with psychological situation of the continuing on and off relationship where, on the one hand, you had expectations of your wife, and the relationship, as it continued, must have fuelled such expectations to some extent.

74. On the other hand, you, like everyone else in this community, which is made up of people from various cultures and backgrounds, must understand that you cannot impose or express your will by committing crimes because you cannot cope with a particular problem. In your case the problem was psychologically a difficult one and, as I said, the explanation for your extraordinary behaviour, given your background, lies probably in the combination of the stresses upon you as well as the inability to cope with this ongoing relationship.

77. This is not a case, as Mr Dunn conceded, in which the component of general deterrence can be significantly removed. But I think it is true to say that the extent of your confusion and psychological pressures does provide some understanding and, to a degree, mitigation of your acts. You are not, as Mr Dunn described you, a violent, bad person, but one who was not able to cope with the situation in which you found yourself.

80. Your sister has given evidence that your hope is that when you are released you will go to live in Italy in Bologna where you have family and where you have employment opportunities. That would reunite you with your parents and I am sure that is something that has played on your mind.

83. In all, Mr Dunn submitted that there are sufficient mitigatory factors in this case to reduce substantially the punishment which would otherwise be imposed for a person who commits crimes as serious as these.

86. Mr Kayser, who appeared for the prosecution, pointed out that in dealing with matters personal to you, the court cannot overlook the fact that these were very serious crimes. One of the victims was lucky to survive. You came to their home armed with a weapon. You had uttered threats. You were angry and focused your anger on two people who did no more than introduce your ex-wife to another man, and you set out to punish them for that. I think those are appropriate observations, but, of course, they must be seen in the context of the reality of what was happening at the time.

89. I think general deterrence is of significance in your case, probably more so than specific deterrence, given Mr Joblin's evidence. And the court cannot in any way be seen to condone the action of someone who takes out their anger and frustration, even in the state when they are confused, on people in the circumstances in which you did.

92. In balancing those considerations, and being as merciful as one can be given the seriousness of your crimes, I also take into account the fact that you have pleaded guilty and that you did not put the people involved through any further trauma than was already inflicted; that you are 56 years of age; that you have no previous convictions and no history of violence; that you appear to have accepted responsibility and shown regret and remorse; that you have had health problems. More particularly that you were at the relevant time under a lot of pressure from different sources, but particularly your inability to cope with the relationship as it developed and the irrational behaviour which you demonstrated over a period of time when you came back to Australia.

95. But for those factors the sentences that I would have had to have passed upon you would have been much higher. In all the circumstances, I think the appropriate sentences in your case are as follows:

98. On the first count, a sentence of five years imprisonment; on the second count, a sentence of three years imprisonment.

101. I think this is a case in which some accumulation is appropriate. I order that one year of the sentence on the second count be served cumulatively upon the sentence on the first count, making a total effective sentence of six years imprisonment.

104. I think, given your present position, your prospects of which Mr Joblin spoke and your sister spoke, your family situation and your intention to live overseas when you are released, this is a case in which a relatively low non-parole period should be fixed. I fix a period of three years before which you will not be eligible for parole.

107. I declare that 436 days have already been served pursuant to this sentence and order that this declaration be entered in the court records. I make the orders to which you have consented under s.464ZF for the provision of an intimate sample, which in your case will mean a blood sample. Should you withdraw your consent, police may use reasonable force to obtain such a sample. I also make the orders sought by the Crown for forfeiture of the firearm and ammunition and a disposal order.