The Queen v Natale [2019] VSC 30

2 The maximum penalty for use of an unregistered longarm of the type of shotgun that you used is two years' imprisonment. The maximum penalty for each of the other offences is ten years' imprisonment.

3 The thread uniting each of your crimes is your attitude towards a woman you knew as "Rika". Rika worked as a sex worker at Romantics, a brothel in Brunswick. You were her long-term client and, over and above the sexual services she provided, she was kind to you. You profess both a belief that your relationship with Rika transcended the purely commercial and a genuine affection for her. But, whatever the state of your subjective beliefs and feelings, you were certainly of the view that Rika had no right to end her arrangement with you.

4 Your anger and disbelief that she did so found voice in violent, criminal conduct. And this conduct speaks, appallingly, of your sense of entitlement to this woman.

5 In 2012 you were 83 years of age. Your wife was dying, and physical intimacy between you had ceased. You satisfied your libido by obtaining sexual services at brothels. You became a regular client of Romantics and, in particular, of Rika. To facilitate the scheduling of appointments, you and Rika exchanged telephone numbers.

6 Your wife died in 2015. Following this, your attachment to Rika increased. You frequently called and sent her text messages. You invited her to your home. She attended. Rika says that this was a friendly gesture in so far as she performed no services during, nor received any payment for, her visits. You told Associate Professor Andrew Carroll, who prepared a psychiatric report on your behalf, that there were many such visits, for which Rika was paid and during which you cooked and 'sexual relations' occurred.

7 You also began to habitually book an appointment with Rika at the start of her shift and wait outside Romantics for her to arrive at work. That progressed to you waiting at a nearby tram stop and walking with her to work. Rika found that both uncomfortable and unwelcome and, after a few weeks, told you that if you did not stop waiting at the tram stop, she would refuse your custom. You did cease waiting at the tram stop, but you continued to await her arrival outside her workplace.

8 In July 2016, Rika commenced a 12-month break from Romantics. That included paying little attention to her business telephone number, being the number you had. She did not give you, nor any other regular client, advance warning of her break. In December 2016, Rika checked her business telephone message bank and heard a message, then some months old, from you. In that message you said, untruthfully, that you had cancer and asked her to call you. She did call you and asked after your health. You asked where she was. She told you that she was overseas, even though she was actually in Melbourne, and asked you not to call her again before her return to work in March the following year.

9 You next heard from Rika in June 2017, when she sent you a text message stating that she would soon be returning to work. Upon receipt of that message you recommenced your habit of frequent calls and text messages to her.

10 Rika resumed work at Romantics on 4 July 2017. You made a booking to see her on that day and regularly thereafter. During these sessions you told Rika of other brothels and sex workers you patronised. Rika formed the view that you considered her to be your girlfriend, rather than considering yourself her client.

11 On 18 July 2017, during a session you had booked with Rika, she challenged your behaviour and told you that she would thereafter refuse your bookings. You responded angrily. As your anger escalated, Rika told you to leave the premises. You did not. Rather, you displayed the money in your wallet and said words to the effect of 'you know what you've got to do'. Upon her refusal to take your money in exchange for sexual services, you became angrier still and forcibly grabbed Rika. After a brief struggle, further injunctions to leave and Rika calling out for help, you finally left the premises.

12 Over the following days you sent a number of text messages to Rika, which form the basis of the stalking charge to which you have pleaded guilty. Those messages include the following statements:

Remember you've destroyed my fucking life.

I feed you for three and half years and give you such a beautiful present. You are a very fake person.

Remember I can forget you, I can't forgive you.

13 Then, at 9.15am on 21 July 2017, you drove your daughter's car to Romantics and parked about 20 metres from its entrance. You sat, nursing a double barrel twelve gauge shotgun, and waited for the arrival of Rika. You waited 28 minutes.

14 When you saw Rika approaching her place of employment, you drove the car to immediately outside Romantics. You got out. You held the gun to your shoulder, took aim towards Rika and, from a distance of about seven metres, fired the weapon. Extraordinarily, the shot pellets from the cartridge missed Rika and struck the wall behind her.

15 It is hard to imagine the terror Rika must have felt at that moment, but her ordeal at your hands was not over. As she ran towards the front door of the brothel, you followed her and, once again with the shotgun at shoulder height, aimed and fired towards her. That shot, too, narrowly missed Rika. It instead struck the door frame.

16 You returned to your daughter's car and fled the scene.

17 After you left Romantics that morning, you telephoned your daughter and told her you had shot a woman in Brunswick and that you were planning to shoot yourself. You also telephoned a colleague of Rika who was, at the time of the telephone call, with two members of the Victoria Police investigating the earlier shooting. That call was recorded and during it, you made a threat to kill that colleague.

18 You told Rika's colleague that Rika had 'fucking destroy[ed]' you. When asked why you took a gun to Rika, you replied 'because she is not with me anymore'. You then asked the colleague to come to your house, but not to tell the police. You said, 'come to my place, hey. Don't do stupid things because I fucking shoot you'. Rika's colleague asked if you would kill her. You replied, 'don't tell police you come to my place. If you do that, I fucking shoot you'. The colleague then gave the telephone to one of the police officers to whom you repeatedly stated that Rika had made you jealous and destroyed you. You called Rika a bitch and a liar.

19 At the time of this call, you were driving on the Calder Freeway. The police officer attempted to convince you to stop driving and speak with police in person. You pulled into the emergency lane and shot yourself in the stomach with the shotgun. Police attended immediately and you were transported to the Royal Melbourne Hospital for treatment.

20 A search of your car and clothes revealed the unregistered double barrel shotgun in the boot of the car. It contained one spent and one live cartridge. One further spent cartridge was found in the car. Eight live cartridges were found in your jacket.

22 Obviously, your conduct in twice aiming and discharging an unregistered shotgun towards Rika from merely metres away is a very serious example of reckless conduct endangering life. A shotgun is a spreading weapon. The fact that Rika was not hit by any shot pellet does not, in the circumstances of this case, reduce the degree of danger posed by your conduct.[1] Your actions were considered, deliberate, targeted and public.

23 Your offending with respect to the offence of stalking is, in my view, of lower gravity, given it was confined, both in time and nature. But you made a threat to kill, taking the specific form of shooting, in the immediate aftermath of twice shooting at Rika. The victim was her colleague. Notwithstanding that she was then with police, those circumstances made your threat potent. I find this offending to be serious.

24 There were no victim impact statements tendered in this matter. But, that does not indicate that your crimes have had no impact upon their victims. Indeed, as your counsel conceded, properly in my view, Rika could not have been anything other than terrified by your actions. She has chosen to not make a formal victim impact statement because she does not wish to risk the revelation of her true name.

25 But Rika is not the only victim of your crimes. Obviously Rika's colleague also suffered your threat to kill. Further, however, your violent, aggressive, and life-threatening behaviour towards Rika must have sent a ripple of fear throughout the ranks of sex workers. Each and every such worker has the right - at any time - to refuse the custom of a would-be client, even one who had hitherto been a regular client or even a friend. That decision, however disappointing or anger-inducing or affronting to the ego of the would-be client, should not carry with it the risk of any retaliation, let alone an attack with a loaded firearm.

26 Your shocking, self-centred behaviour will be felt most by Rika, and also by her colleague whom you threatened, but it represents an actualised danger and is, therefore, an ongoing, tangible disquiet to all sex workers.

28 You are now 89 years of age, having been born on 2 October 1929. You were 87 years of age when you committed these offences. You have no prior convictions.

29 You were born to farming parents in Calabria, Italy, the second of seven brothers. Your formal schooling ended when you were 11 years old, when your school was closed consequent upon the German occupation during the Second World War. Thereafter, you worked on the family farm.

30 You emigrated to Adelaide in 1956 and were joined by your first wife two years later. You had three children. When the youngest child was one year of age, your wife suicided. You met and married your second wife shortly after the death of your first wife. Together you had two children.

31 You undertook building work upon your arrival in Australia, but you injured your back in a severe industrial accident in 1957. You were unable to work for some years before returning to the workforce in factory roles. You and your family moved from Adelaide to Cobram in 1969. Ultimately, your back problems forced your retirement, at the age of 50, in 1979.

32 In 2006 you bought a property in Taylor's Lakes, but continued to reside in Cobram. However, your wife's illness precipitated your move to Taylor's Lakes in 2013, to facilitate her Melbourne-based treatment for cancer. She died of that disease in April 2015. Your youngest son had also died from cancer, in 2005.

33 The report of Associate Professor Carroll details your medical history. Your physical health is consistent with what might be expected of a man your age and you are appropriately medicated for your conditions, which include hypertension, cardiovascular disease, diabetes, osteoporosis and pulmonary fibrosis.

34 You experience suboptimal neurocognitive function, termed Mild Neurocognitive Disorder by Associate Professor Carroll, or Mild Cognitive Impairment ('MCI'), by Dr Sara Fratti, a clinical neuropsychologist who also prepared a report on your behalf. Dr Fratti says that both testing and collateral history suggest the presence of a significant decline across a number of your cognitive functions. While there is no present evidence of dementia, Dr Fratti opines that it is a 'likely possibility' that your MCI will progress to a dementing condition.

35 It is necessary to consider carefully the evidence about your state of mental functioning at the time of your offending.

36 Associate Professor Carroll said that as part of your Mild Neurocognitive Disorder you would experience some 'subtle deterioration in higher order executive cognitive functions, such as impulse control, consequential thinking and emotional regulation.' He continued:

It is likely that such subtle neurocognitive impairments made some contribution towards [your] evident poor emotional regulation in the days following the events of 18 July 2017. The combination of heightened emotional arousal due to the anger and distress of perceived betrayal, and suboptimal 'higher order' cognitive functioning (that ordinarily would allow processing of emotional turmoil, and prudent control of behavioural responses) is likely to be relevant to the uncharacteristically violent response that evidently occurred.

(italicised emphasis in original; bolded emphasis added)

[T]he onset of MCI is not sudden and tends to develop over many years. It is therefore quite possible that [you were] suffering from MCI at the time of [your] offending. Having said that, [your] descriptions of the events including [your] reported 'memory gaps' at the time of offending are certainly not consistent with the subtle patterns of cognitive change seen in MCI and are likely attributable to an extreme response secondary to acute psychological stressors (eg [your] anger towards Rica (sic) due to being rejected and 'betrayed').

[Your] MCI does not preclude [you] to understand the wrongfulness of [your] actions however it may have some connections to [your] conduct. It is possible that [your] deficits in reasoning, executive skills (eg, impulse-control, response inhibition, polarised thinking and concrete response style) and speed of processing coupled with [your] acute psychological distress at the time of the offending likely affected [your] ability to efficiently and readily think through the potential consequences of [your] actions.

(italicised emphasis in original; bolded emphasis added)

38 Based on this evidence, your counsel contended that the Verdins[2] principles were engaged to moderate both your moral culpability and the applicability of general deterrence in the sentencing matrix. On the other hand, prosecuting counsel contended that there was an insufficient evidentiary basis to establish the existence of a mental impairment at the time of your offending or in effect, at least, as to how any mental impairment operated so as to diminish your capacity to reason appropriately.

39 In order for the principles in Verdins to have application in the sentencing exercise in the manner relied upon, it is necessary to establish a 'realistic connection' between the impairment to mental functioning and your moral culpability or the need for general deterrence. That is, the impairment must have caused or contributed to the offending or be causally linked.[3] As the Court of Appeal has stated, this causal connection is demonstrated where

the mental impairment affected the offender's ability to appreciate the wrongfulness of the conduct, or obscured the offender's intent to commit the offence, or impaired the offender's ability to make calm and rational choices or to think clearly at the time of the offence.[4]

40 Here, it is your ability to think clearly and make calm and rational choices that is said to have been impaired. However, in my view, the reports of Associate Professor Carroll and Dr Fratti do not support that finding.

41 Both those experts qualify their opinions with the words 'likely' and 'possible', while at the same time saying that even if your likely or possible impairment was operative, it may have had some, unquantified connection to your conduct. While the evidence of Dr Fratti, in particular, establishes that MCI develops over time, there is no evidence from which to conclude over how much time this development occurs, its rate of progression, or even if that rate is uniform, either generally or in your specific case. As a consequence, I find that the connection between any MCI, even if it existed in July 2017, and its impact upon your offending to be speculative, at best.

42 Further, the fact that your decision to fire a shotgun towards Rika was abhorrent does not mean that it was not reasoned. That is, I do not accept that because your behaviour was violent and uncharacteristic, it must therefore have been the product of some irrational or disturbed thought process. Your words and actions have a consistent logic. You felt disrespected by Rika and decided to take vengeance. As you told Rika's colleague on 21 July 2017, you shot at Rika because she was not with you anymore. As characterised by Associate Professor Carroll, Rika's decision to refuse your custom was a 'significant blow to [your] self-esteem' and made you feel 'indignant, rejected and betrayed'.

43 Your counsel also contended that the Verdins principles were engaged with respect to prison being ill-equipped to deal with your needs should you descend into dementia, the burden that imprisonment would place on you as compared with a prisoner without MCI, and that a custodial environment is likely to lead to a deterioration in your mood and functioning. Prosecuting counsel contended that these matters could be taken into account without being labelled Verdins considerations.

44 In contradistinction to the evidence with respect to any MCI or its operative effect in July 2017, the reports of both Associate Professor Carroll and Dr Fratti do establish that you presently suffer MCI and severe depression. I accept, and take into account, that your current condition will make a prison sentence more onerous and may exacerbate that condition.

45 As I have already stated, in the immediate aftermath of your offending on 21 July 2017, you shot yourself in the stomach with the shotgun. You were taken immediately to hospital. You have had various surgeries and now have a stoma. Complications have arisen.

46 In a plea made, most ably, on your part, your counsel relied upon your injury and its ongoing consequences as being punitive in so far as they serve as a permanent savage reminder of your offending. In Barci and Asling[5] the Court of Criminal Appeal held that even where an offender brought his or her injuries upon him or herself, if they were directly resultant from the commission of the crime itself 'they must fairly be regarded as constituting some punishment' for the criminality.

47 In that case, Barci had been shot by police when attempting to flee. He received a very severe injury to his shoulder and chest wall, which left a permanent and significant disability. The Court referred to two other cases. In Lawless[6] an offender received a discounted sentence vis-à-vis his co-offenders as a result of being seriously injured 'in the course of being arrested'. In Fletcher[7] one offender 'during the actual commission of the crime, while the action was still on' accidently blew his own foot off.

48 In your case, your injury was not sustained during the course of your offending nor was it directly resultant of it. Rather, it was a self-inflicted wound made, by choice, in response to your own actions.

49 Nonetheless, I take into account the ongoing pain and discomfort you experience as a result of that injury, as well as your other, age-related health issues.

50 Your counsel submitted that you are remorseful for your actions. He pointed to various matters including your distress upon hearing that you had harmed Rika, the statements you have made to your children and to Associate Professor Carroll and Dr Fratti, the manner in which the committal hearing was conducted, your self-harm and your guilty plea.

51 I accept that you are distressed by the harm you have caused Rika.

52 Notwithstanding that your actions and utterances exhibit a sense of entitlement to the services and, perhaps, even the affection of Rika, I am satisfied that you held a measure of affection for and attachment to her. This is demonstrable from the content of the text messages that passed between you. And I accept that the exclusive focus on the ballistics evidence at the committal, at which time you faced a charge of attempted murder, was a decision at least partially motivated by sparing Rika the ordeal of giving evidence.

53 However, I find that your expressions of remorse are less than complete, hedged as they are with a tone of indignant justification. You dispute Rika's allegation of assault on 18 July 2017, instead telling Associate Professor Carroll that on that day, the immediately prior client of Rika had returned to the room and she told him not to worry about you, as you were just 'an old man'. You expressed feelings of jealousy, anger, diminishment and betrayal. You stated that Rika had 'tricked' you. You used similar words to Dr Fratti, saying that Rika 'disrespected' you and that the allegation of assault was a 'total fabrication'.

54 And, on 25 July 2017, some four days after the incident, you yourself explained the motivation for your self-harming behaviour to a psychiatry team at the Royal Melbourne Hospital as being because you did not want to go to gaol. The notes of that consultation, as referred to in the report of Associate Professor Carroll, record your feelings of anger towards Rika, but none of your remorse.

55 However, you have pleaded guilty to these offences. In addition to its utilitarian benefit, your plea of guilty has spared witnesses, particularly Rika and her colleague, the ordeal of a trial. And I accept that this is indicative of remorse.

56 In short, I accept that you have, to a certain extent, demonstrated remorse.

57 The sentence I pass must give significant weight to both general deterrence and denunciation.

58 Your offending behaviour is riddled with a sense of self-importance and entitlement to control the exercise of choice by a woman whom you paid to provide you with sexual services. Even if you did believe that you were in some kind of relationship with her and hold, as I accept you did, some measure of affection for her, she had a perfect right to end that relationship in the expectation that you would respect that decision, irrespective of any wound to your feelings or ego.

59 Your multiple use of a shotgun in a public place at short range was cowardly and dangerous. Rika must have been nothing short of petrified. Your behaviour is denounced by this Court.

60 Both your counsel and prosecuting counsel submit that factors of specific deterrence, rehabilitation and protection of the community are of little moment in the sentencing exercise given your antecedents, age and health. I agree.

61 Your counsel submitted that given your age and the nature of your offending, a non-custodial disposition was not outside the range of sentencing options. I disagree. You are an old man, but you were an old man when you committed these offences. A custodial sentence is the least possible sentence available in all the circumstances.

62 Nonetheless, I take into account your advanced years and your health issues in the manner already explained. I consider your plea of guilty, along with the other matters discussed, to be indicative of a measure of remorse, as well as indicating a willingness to facilitate the course of justice and providing a utilitarian benefit. I take into account your health difficulties, both physical and mental in the manner explained.

63 I accept that the circumstances do warrant a shorter than normal non-parole period.

64 I have had regard to current sentencing practices.

66 Balancing, as best I am able, the competing considerations laid down in the Sentencing Act 1991 and having regard to the matters I have just discussed, for the offence of reckless conduct endangering life (count 2), I sentence you to four years' imprisonment. This is the base sentence.

67 For the offence of stalking (count 1), I sentence you to one year's imprisonment. For the offence of use of an unregistered longarm (count 3), I sentence you to six months' imprisonment. For the offence of making a threat to kill (count 4), I sentence you to two years' imprisonment.

68 One month of the sentence on count 1 and five months of the sentence on count 4 will be served cumulatively with the sentence on count 2. That equates to a total effective sentence of four years and six months' imprisonment. You must serve a minimum of eighteen months before being eligible for parole.

69 I am required by s 6AAA of the Act to indicate what sentence I would have imposed but for your plea of guilty. I would have imposed a total effective sentence of six and a half years' imprisonment with a non-parole period of three and a half years.

70 I make both the Firearms Forfeiture Order and the Disposal Order in the terms sought by the Crown.

[1] Counsel for Natale referred to DPP v Majok [2017] VSCA 135, [43]-[49], wherein there is a discussion of authority with respect to the legal characterisation of the death of a victim where an offender faces a charge of reckless conduct endangering life as illustrating the reality of danger created by the offender's conduct.

[2] [2007] VSCA 102; (2007) 169 A Crim R 581.

[3] DPP v O'Neill [2015] VSCA 325, [74] (Warren CJ, Redlich and Kaye JJA).

[5] (1994) 76 A Crim R 103, 111 (Southwell, Hampel, Hansen JJ).

[6] Unreported, Court of Criminal Appeal, Vic, 16 May 1989.

[7] (1980) 4 Crim LJ 244.