Antoniazzi, D.C. v The Queen

CATCHWORDS

Criminal law - manslaughter - appeals against severity

sentence and non-parole periods

- non-parole period

disproportionate to head sentence

- probable release under

remission scheme

- date of commencement of sentence when prisoner

in custody from date

of arrest

Parole of Prisoners Act

Prisons (Correctional Services) Act

Criminal Code (NT)

- S. 405

Rich & Bourke v R - (Federal Court unreported

- 7/9/81)

R v Eckardt (1971) 1 SASR 347

Bain v R 47 ALR 472

Power v The Queen (1973) 131 CLR 623

.-,

David Car1 Antoniazzi and Norman Brent	Smi ti v The Queen
Nos. NTG 18 and 19 of 1984

-1

.! 4

Muirhead, Morling	& Wilcox JJ
Darwin
7, 10 May 1985

IN THE FEDERAL COURT OF AUSTRALIA NORTHERN TERRITORY DISTRICT REGISTRY GENERAL DIVISION

No. NTG

18 and 19 of 1984

ON APPEAL FROM

THE

SUPREME COURT OF

THE

NORTHERN TERRITORY

OF AUSTRALIA

S.C.C. Nos. 289-290 of 1983

BETWEEN:

DAVID CARL ANTONIAZZI

Appellant

AND :

NORMAN BRENT SMITH

Appellant

AND :

THE QUEEN

Respondent

Coram:	Wuirhead, Morling, Wilcox	JJ
Date:	7 , 10 May 1985
Place :	Darwin

MINUTES OF ORDER OF THE COURT

The Court orders as follows

1. The Appeal by the appellant David Car1 Antoniazzi be allowed and the sentence set aside. In lieu thereof the appellant is

sentenced to imprisonment with hard labour for

6 years such

sentence being deemed

to have commenced on 27 August 1983.

The appellant will not be eligible for parole until he has served 2 years of this sentence.

2. The Appeal by the appellant Norman Brent Smith be allowed and the sentence set aside. In lieu thereof the appellant is sentenced to imprisonment with hard labour for 9 years such

sentence being deemed to have commenced

on 27 August

1 9 8 3 .

The appellant will not be eligible for parole until he has

served 4 years and

6 calendar months of this sentence.

3 . The matters be remitted to the Sheriff of the Supreme Court

of the Northern Territory to attend execution

of the

sentences herein imposed.

mui850108

IN THE FEDERAL COURT

OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY

GENERAL DIVISION

No. NTG 18 and 19

of 1984 ON APPEAL FROM THE

SUPREME COURT

OF THE

NORTHERN TERRITORY

OF AUSTRALIA

S.C.C. NOS. 289-290 of 1983

BETWEEN:

DAVID CARL ANTONIAZZI

Appellant

AND :

NORMAN BRENT SMITH

Appellant

AND :

THE QUEEN

Respondent

Coram:	Muirhead, Morling, Wilcox	JJ
Dated:	10 May 1985
Place :	Darwin

REASONS FOR JUDGMENT

The appellants' appeal against the severity

of sentences

imposed upon them in the Supreme Court

of the Northern Territory

on the 13th June 1984. The appeals have been consolidated and

heard together, the respective sentences arising out

of the same

circumstances. As matters have developed the issues are narrow

and the challenges relate principally to those portions

of the

sentences in which the learned trial judge fixed what are

colloquially referred to as 'non-parole' periods, being the terms

of imprisonment the appellants are required to serve before

becoming eligible for parole release. Questions also arise as to

the commencement dates

of the sentences.

The appellants, originally jointly indicted for murder,

pleaded guilty to manslaughter punishable by a maximum sentence

of imprisonment for life. The Crown accepted such pleas

satisfaction of the indictment. The appellant Smith (Smith)

entered his plea

on 9th March 1984, the appellant Antoniazzi

(Antoniazzi) on 18th May 1984. The trial Judge directed that

pre-sentence reports should be prepared and these were

In due

course submitted. Submissions were made in mitigation

penalty. The appellants were sentenced on the 13th June 1984.

Antoniazzi was sentenced to imprisonment with hard labour for

years. His Honour directed the sentence should operate as from

18th May 1984, (being the date

he had pleaded to the indictment)

and further directed that he would not be eligible for parole

until he had served

3 years of that sentence.

Smith was sentenced to imprisonment with hard labour for

years dating from

9 March 1984 (the date he pleaded to the

Indictment) and it was directed he would not be eligible for

parole until he had served

5% years of that sentence.

Neither appellant has pressed the appeal against the head

sentence but each has submitted that the non-parole period	was in
the circumstances excessive. We should mention that the

appellant Smith does not complain of disparity between the

sentence imposed

on him and that imposed upon Antoniazzi.

No challenge being made against the head sentence, a

following brief resume

of the facts will suffice. The charges

followed the fatal shooting

of George Oswald at his home in

Darwin on 26th August

1983. Smith, who

was at the time a

passenger in a car owned and driven by Antoniazzi, fired the

fatal shot from a

- 2 2 calibre rifle. Smith had earlier worked

for Oswald and had openly and bitterly claimed that the deceased

had owed him money for some time which he refused to pay.

Clearly he harboured a grudge which bordered upon obsession. The

two appellants were camped together near Darwin working in what

appears to have been an unsuccessful crabbing venture. On the

day of the shooting the men had consumed alcohol. Smith having

borrowed a rifle

for the purpose of firing shots at the

deceased's home (where he knew the deceased and his family

resided) persuaded Antoniazzi to drive him to the home in

question. Smith had the notion, which the trial judge

categorised as "muddled" that such an action and no doubt the

threat it constituted, would in some way persuade the deceased to

pay the monles he claimed. Antoniazzi agreed to take part

in he

venture. The car, with number plates concealed, was slowly

driven past the deceased's home and the first shot

was fired

which entered a window and lodged in the opposite wall. The car

was driven again past the home and a further shot was fired which

struck the,deceased in the head. He had come outside his

dwelling to investigate the first shot and he soon died as a

result of the injury inflicted. The Crown accepted that nelther

man had an intention

of shooting the deceased and accepted that

the rifle was not aimed at him. The plea

of guilty to

manslaughter was accepted on the basis that the deceased died as

a result of

an unlawful and dangerous act, there being no

intention to kill

or cause grievous bodily harm. The learned

trial judge stated that he found Smith's conduct "reckless

in the

extreme" and very rightly he regarded the matter seriously. He

found that Antoniazzi, who

e classified as "a solitary withdrawn

man" had fallen under Smith's influence. Bearing in

m m d the

relative situations of the men, the fact that it was Smith's plan

and that it was he who fired the shot, the discrepancy in

sentences was readily understandable.

In his remarks

on sentence the learned trial judge made no

reference to the factors which influenced him in fixing the

periods during which the appellants would not be eligible for

parole.

Section 4(1) of the Parole of Prisoners Act provides:-

" Where a Court sentences an offender to a term of

imprisonment of 12 months or longer ... it shall specify

a lesser term

of imprisonment during which the offender

so sentenced is not eligible to be released on parole in

pursuance of this Act.".

Sub-section ( 3 ) imposes a discretion in the court not to

apply the provisions

of sub-section ( 1 ) if it conslders "that the

nature of the offence and the antecedents

of the offender

do not

warrant the specifying of the lesser term

of i prisonment...".

It is common ground, that in the Northern Territory,

pursuant to a determination made under the Prisons (Correctional

Services) Act 1980 the ordinary prisoner earns

a remission of one

third of the maximum length

of his sentence. Thus a prisoner

sentenced to

9 years imprisonment can reasonably expect to be

released after serving 6 years, a prisoner sentenced to 6 years

imprisonment may expect release after serving 4 years.

It is well established that in fixing a non-parole period

the court should ensure that it is duly proportioned to the head

sentence in a manner which will encourage the prisoner to seek

parole and secondly, which will ensure that the parole scheme (an

objective of which

is to safeguard the community) is such as to

provide prospects

of rehabilitation and integration

of the

prisoner within the community. A non-parole period, too closely

approxlmating the date

of probable release, after taking

remission of sentence into account, is unlikely to achieve these

objectives (See Rich

& Bourke v R (unreported declsion

of the

Full Court

of the Federal Court delivered

on 7th September 1981);

Bain v R 47 ALR 472

@ 475; R v Eckardt (1971) 1 SASR 347

@ 351 et

seq 1).

In Power v The Queen (1973) 131 CLR 623 at

628, the High

Court stated "In a true sense the non-parole period is a minimum

period of imprisonment to be served because the sentencing judge

considers that the crime committed calls for such detention" but

that does not intrude upon those authorities which require a

balance to be maintained to ensure that the parole system may be

utilised effectively.

Against the background

of these principles

we turn to

consider the sentence imposed upon Smith. He had been taken into

custody on

27 August 1983 and there he remained until sentence.

This was back dated to

9 March 1984 and thus he had served over

months as a remand prisoner (without entitlement to remission)

before the 9 year sentence was imposed. His Honour had power,

pursuant to s.405(2) of the Criminal Code to order "that such

imprisonment shall be regarded as having commenced on the day

which he

was arrested or on any other day between that day and

the day on which the court passes sentence".

As we have said His

Honour fixed the date

of the plea of guilty as the appropriate

commencing date. Smith could therefore anticipate release with

remissions in March	1990 whereas the non-parole period will
expire in September	1989 only 6 months earlier. Bearing in mind

the substantial sentence and the term served before sentence we

consider the learned trial judge's determination

of the

non-parole period was not conslstent with the principles briefly

referred to above and cannot stand as it fails to give due effect

to the place

of parole in the sentencing process.

It is not necessary to examine Smith's antecedents in any

detail. He was 28 years of age when sentenced and no prior

convlctions were alleged against him. The learned trial judge

was not satisfied that he exhibited genuine remorse and support

for such doubts is to be found in the pre-sentence report. He

hails from New Zealand and he faces the possibility

deportation upon release. Nevertheless there

was no material

before the learned trial ludge to indicate that Smith would not

respond to the conditions

of his parole release nor

f course had

His Honour determined pursuant to

s.4(3) of the Parole

Prisoners Act that parole was inappropriate. In view

of the

length of the sentence imposed it is not unlikely that Smith

would decline parole and the obligations and supervision it

imposes so shortly before his ordinary release date. His

reception back into the community without supervision after

serving a long term would not be In the interests of the

community.

In the case of the appellant Antoniazzi other issues fall

for consideration. He also had been

in custody since 27th August

1983 and his sentence was backdated to commence

on 18th May 1984

being the date he pleaded guilty to manslaughter. We are

somewhat perplexed

in both cases why the date

of plea should be

so utilised. Antoniazzi had been indicted

on a charge of murder

and bearing in mind the lesser part he played

in the matter it

was but to be expected that the legal issues surrounding his

position required careful consideration and advice. We have been

told that such considerations explain the fact that he did not

plead to the indictment in March on the same occasion as Smith's

plea. With respect to the learned trial judge

w are of the

opinion that there are dangers inherent in utilising the date of

plea as the commencing date of sentence in the case of a man who

has been in custody for months.

It is not necessary for us to

expand on this issue, but the date of such a plea may in part

depend not only upon the opportunity to obtain advice but also

upon the opportunity to plead, a matter which may be influenced

by the state of court lists and upon the presentment by the Crown

of the indictment itself. Nor is it desirable that a prisoner in

custody should be induced to plead hastily in the knowledge that

an early plea of guilty may shorten tlme in custody. These

difficulties can be eliminated in such a case by backdating the

sentence and the calculation

f the non-parole period to the date

the prlsoner is taken into custody. This ensures that statutory

remissions apply, that all time in custody truly forms part of

the sentence, that prisoners unable to obtain ball are not

that fact disadvantaged and,

of some importance, that prlsoners

themselves understand that all time served has actually been

taken into account.

Antoniazzi also had no prior relevant convictions. He was

40 years of age at the date

of sentence and the pre-sentence

report, which

was not challenged indicates he is a person

inferior intellect, a man who had a difficult upbringing and

whose academic skills were below average. Until about 1980 he

had a reasonable but sporadic and diverse employment record. For

some years before his arrest he had been unemployed devoting his

time to the care

of his aged and practically blind mother, a

situation which

was brought to an end by the intervention

welfare authorities not long before the offence was committed.

Clearly he was a man with few friends, inclined to drink heavily,

who readily responded to his association with Smith and who,

especially on the day in question when he

was drinking heavily,

was likely to agree to Smith's requests for assistance to recover

1 3

the money Smith alleged was owing by the deceased. In his case

there was no doubt as to his genuine and continuing remorse.

did not plan the offence, but nevertheless the part he played was

substantial as the learned trial judge indicated by imposition

such a substantial sentence. In the circumstances the sentence

of imprisonment of 6 years when added to the months he had

already previously spent in custody

was a severe sentence but it

was not in itself beyond the limits of the learned trial judge's

discretion. His Honour stated he had taken into account the fact

the appellants had been in custody since August

1983 but the

"rounded" sentences imposed do not illustrate the allowance made.

In fixing the non-parole period

of 3 years we consider ,

with respect, the learned trial

~udge

failed to make full

allowance for Antoniazzl's somewhat pathetic background and life

style and to the fact that he is unlikely to offend again,

especially if subject to supervision and assistance on parole.

Accepting that the fixation

of the non-parole period is

integral part of the sentence

we consider that the

3 year perlod

failed in the circumstances to make due allowance, not only for

Antoniazzi's subordinate role, but for his background and

prospects of rehabilitation.

In respect

of the appeal by Antoniazzi there will

be an

order that the appeal be allowed and the sentence be set aside.

In lieu

we impose sentence in the following terms, utilising to

the full in

so doing the provision

of Section 405 (2) of the

Criminal Code. The appellant Antoniazzi is sentenced to

imprisonment with hard labour for

G years; the sentence being

deemed to have commenced on 27th August

1983.

The Court directs

that this appellant will not be eligible for parole until he has

served 2 years of that sentence.

In the case

of the appellant Smith there will be an order

that the appeal be allowed and the sentence set aside. In lieu

the appellant Smith is sentenced to imprisonment with hard labour

for 9 years, that sentence being deemed to have commenced

on 27th

August 1983.

The Court directs that the appellant will not be

eligible for parole until he has served	4 years and 6 calendar
months of that sentence.

In both cases,

of course, the assessment

of the non-parole

periods will also commence as from 27 August

1983.

c e r t i f y t h a t t h i s

and

t h e

111

p r e c e d i n g

pages are

t r u e c o p y

L-he

r e z s o n s

f o r

j udgmen t

he re in

of I h e i r Honour,s

INorling,

Xi l cox and

Muirheai- JJ

A s s o c i a t e

Datcd

[1985] FCA 280

7 May 1985