Director of Public Prosecutions v Mannici
[2022] VCC 575
•28 April 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
Case No. CR-21-01963
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PAOLO MANNICI |
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| JUDGE: | HIS HONOUR JUDGE MURPHY |
| WHERE HELD: | Melbourne |
| DATE OF PLEA: | 27 April 2022 |
| DATE OF SENTENCE: | 28 April 2022 |
| CASE MAY BE CITED AS: | DPP v Mannici |
| MEDIUM NEUTRAL CITATION: | [2022] VCC 575 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | E. Rutherford | Office of Public Prosecutions |
| For the Accused | T. Alexander | Nelson Brown Legal |
HIS HONOUR:
1.Mr Paolo Mannici, you have pleaded guilty to one charge of possession of an unregistered general category handgun, maximum penalty 600 penalty units and/or seven years' imprisonment and one charge of reckless conduct endangering life, maximum penalty 10 years' imprisonment.
The Circumstances of the offences
2.The circumstances of the offences which occurred on 9 December 2020 were set out in the prosecution opening which was read in open court on the plea yesterday. Your offending arises out of a commercial or business dispute, with the complainant Mr Pascoe, who operates a rubbish removal business. You are the owner of a commercial lot in the suburb of Ravenhall. The lot had been used over many years for storage and it accumulated a large amount of building rubble and rubbish.
3.You were proposing to develop the lot and engaged the business of the complainant to clear the rubble, concrete and rubbish from the front section of the property. The job was estimated to take four weeks and the invoice contained a condition that there would be an additional cost if contaminated soil was found on the property. The contract was $27,500 and according to an invoice dated 31 July 2020, $15,000 was paid. Work commenced around August with a large volume of rubbish removed. Then the complainant commenced moving soil and after moving three or four metres of soil, found that the soil was contaminated.
4.Mr Pascoe, the complainant, raised that with you and you confirmed to him that there had been some contamination on the site. Mr Pascoe said, he would be required to report the matter to the EPA. He then quoted the charge of an extra $1000 per truck load to remove the contaminated soil. You said you did not have the money to pay. Mr Pascoe ceased work and then demanded the balance of the contract fee, being $12,500. You refused, as the job was not complete.
5.Thereafter, lawyers became involved and a letter of demand was sent on
5 November 2020, with threats to commence legal proceedings. A solicitor's letter was sent on 16 November 2020. On 23 November, Mr Pascoe attended at the lot to speak to you. You were there with your co-developer and there was a verbal altercation. Mr Pascoe alleged you began poking him with your walking stick. He snatched it off you, and put it under your chin. Mr Pascoe admits poking you. You suffered minor abrasions to the upper chest. You attended at the Sunshine police station and made a statement about the incident.6.The intensity of the demands by Mr Pascoe rose. He sent a text message to your grandson, where he noted that the sheriff would seize your property. He also stated that it was out of hand. 'I will continue to attack him, until it cost him a hundred thousand dollars or more. I will not sleep until this mess breaks his back.'
7.In another text message Mr Pascoe said he was going to refer the matter to the media. And he also said he would be coming to your house. He also threatened on 26 November to dump 20 semi-trailer loads of rubbish from a new contract on the lot. In the days before 9 December, Mr Pascoe did dump rubbish at the site, and it was in those circumstances you armed yourself with the firearm that day.
8.In the record of interview, you said you had the gun because Mr Pascoe had been at your house, and you said, 'I'd better protect myself.' In the record of interview you denied pointing the gun at Mr Pascoe, but said that he had grabbed your arm, causing the firearm to go off. In the record of interview, you said that you approached him in order to stop him dumping rubbish at the site. It was to bluff him, you said, you never had intention to use it, and you said should you 'wait until he killed me?' You said that Mr Pascoe told you that he had been at your house on two occasions.
9.Given your prior good character, there was a ring of truth in the statements in the record of interview explaining the events.
Victim Impact Statement
10.Mr Pascoe has filed a victim impact statement outlining the significant injury that he sustained in the incident. He has had to have major surgery on his arm and now suffers PTSD, anxiety and severe depression. He may need further surgery. He is now taking significant medication and has trouble with his partner. He becomes angry and lashes out at people. He does not go a single day without thinking about the event.
11.It is clear from the victim impact statement that your conduct in recklessly having a firearm with you that day, has caused a long lasting injury to Mr Pascoe. I must take this into account in sentencing you.
Seriousness of the offences.
12.The mental element of the offence of reckless conduct endangering life is engaging in conduct which a reasonable person appreciates would have placed another person at an appreciable risk of death. The mental element requires that the accused person foresees that an appreciable risk of death was a probable consequence of his actions. Here, your conduct in pointing a loaded pistol at Mr Pascoe, created a foreseeable risk of death or serious injury and the risk eventuated with a serious wound to his right arm after a struggle.
13.This was seriously misguided conduct by you. The overall circumstances of the event arise out of a breached contract. At bottom, I am satisfied that you bear significant blame for the contractual dispute, because of your refusal to pay the additional charges for the contaminated soil. In strict contractual terms, there is an argument that you repudiated the contract. You prevented Mr Pascoe completing the job. On the other hand, you asserted he had not completed the job, and thus was not entitled to full payment.
14.The full extent of the work required is somewhat uncertain from the invoice. After the dispute about the contaminated soil and cessation of the work thereafter, Mr Pascoe adopted an aggressive approach to recovery of what he asserted was due to him, namely the balance of the contract price. This led to an angry exchange of text messages and solicitors letters of demand.
15.Mr Pascoe escalated the dispute by confronting you on the site a couple of weeks prior. This led to the altercation and you reporting the matter to the police on 23 November. At this point Mr Pascoe escalated the matter by engaging in self-help by dumping rubbish on the site. His conduct was completely unacceptable and was designed to coerce you into paying the outstanding account.
16.It is with that background that you armed yourself with an old unregistered pistol. You were carrying it when he arrived to dump another load, and you confronted him. The gun discharged and he suffered the serious injury. Your counsel relied on the circumstances leading up to the incident in mitigation. I am prepared to accept that you were sorely provoked by Mr Pascoe and his conduct.
17.Given your prior good character as outlined in the references, Mr Pascoe's assertive demands for the outstanding payment including your statement that he visited your home on two occasions, and his conduct in dumping loads of rubbish on your site and threatening to continue to do so on that day, provides an explanation for your out of character actions.
18.Your conduct however, was completely unacceptable and is to be utterly condemned. Given your age, frailty, use of a walking stick and the provocative conduct by Mr Pascoe, you were substantially provoked by his conduct. In a civilised society however, people must use the courts to resolve commercial disputes, otherwise we will have the law of the jungle. The building and development industry is well-known for ruthless behaviour. The conduct of
Mr Pascoe went well over the line. Your conduct reached into the criminal law.19.You were failed by your own lawyers, in that they did not take action to restrain Mr Pascoe's unacceptable conduct. Like you, he was not entitled to engage in self-help to force you to pay the disputed invoice balance, but your conduct took the dispute into the criminal sphere and as a result he sustained a serious injury.
20.Your conduct in retaining in your possession over the years an unlicensed handgun is totally unacceptable. The community cannot tolerate recourse to firearms for either self-protection or to assist in resolving disputes of any kind. Your possession of the firearm, access to ammunition and bringing it to the site that day, is remarkably out of character, given the volume of character references put before the court. I cannot believe that over the years you were unaware of the various amnesties that had been announced in relation to unlicenced firearms. But for the personal matters that I'm about to advert to, in normal circumstances you would be facing a term of imprisonment.
Matters in mitigation
21.Your counsel put a number of matters in mitigation in his written submission, which I incorporate by reference. He has made all the relevant points in your favour. Specifically, you are now aged 90. In 1951, you arrived from Italy, aged 20. You had no prior convictions. You had been married for 63 years and have three adult children, grandchildren and great grandchildren. You have been fully employed including as a bus driver and in other occupations over your life and upon your retirement, continued to be in engaged in part-time property development.
22.Your counsel filed a bundle of over 50 character references. Their content is overwhelmingly impressive. You have led a proud, productive and rewarding life and are highly regarded by members of the community, including business contacts and professionals who have dealt with you over the years. You are said to pay your debts and to contribute to your community.
23.You are in your twilight years, but you were still actively involved in property development. You are entitled to draw on your good character and past contributions to the community fully set out in those references as you come before the Court, having pleaded guilty to these offences.
24.Your plea is significant, as it was an early plea. You have facilitated a course of justice and have accepted responsibility for your conduct. By your plea, you have admitted engaging in reckless conduct, whereas in a trial, the Crown may not have been able to succeed in proving that, or any other count. You have no defence to the charge of possession of an unregistered handgun and as I have indicated you are to be utterly condemned for your possession of that firearm.
25.Given that you have been in possession of it for many years, your access to it on this occasion, speaks testament to the provocation you felt that you were under, that led to you resorting to the use of the firearm to seek to have
Mr Pascoe desist from his aggressive conduct as he sought to coerce you into paying what he asserted was the outstanding amount for the removal job.26.Your plea is also evidence of remorse. I am satisfied that you are remorseful and your expressions of remorse are confirmed in a number of the references. You are to be accorded full weight for that. It is relevant to your reformation. Given the lack of prior convictions and your remorse, considerations of specific deterrence are of little concern here. Given your age, it is not surprising you are suffering from health issues that are set out in the medical reports in evidence. These include osteoarthritis, hypertension, and you have had previously, cardiac problems. You are on multiple medications. I take those conditions into account.
27.Your counsel filed a report from Dr Barth, a psychologist, who indicates that you are suffering from a depressive reaction to the events leading to your engagement in the criminal justice system. Importantly he notes that you have no psychopathic or anti-social personality features. He is of the opinion that you would be assisted by counselling and the events since being charged are weighing heavily on you.
Purposes of sentencing
28.The basic purposes for which a court may impose a sentence are punishment, deterrence both specific and general, rehabilitation, denunciation and protection of the community. In sentencing I must have regard to a range of factors, such as the seriousness of the offences, your culpability for them, your personal circumstances, and those of the victim.
29.I am required to balance the interests of the community in denouncing criminal conduct, with the interests of the community and seeking to ensure that as far as possible, offenders are rehabilitated and reintegrated into society. In the present case, given your age, considerations of general deterrence carry less weight. As a 90 year old you are not an appropriate vehicle for setting an example for others, which is the underlying rationale of general deterrence.
30.Had these events occurred when you were substantially younger, then a sentence of imprisonment would inevitably have been imposed. The use of firearms is to be utterly denounced and those tempted to be involved with firearms in any circumstances can expect heavy penalties.
31.The particular circumstances of this offending and your personal circumstances including your prior life are such that considerations of leniency must be engaged. Sentences of imprisonment are always to be a last resort, and the courts always search for suitable alternatives that can meet all the sentencing needs. This applies particularly in sentencing offenders in the COVID environment, where there is to be a perceptible amelioration in sentences upon pleas of guilty.
32.On the plea, your counsel submitted that a community corrections order was within range. The prosecution also submitted that such an order was in range. I have had you assessed for a community corrections order. I have determined however that imposing a community corrections order on you would be of no efficacy. At your age the community would be best served, if you can put this unfortunate event behind you.
33.In the circumstances, after anxious consideration, I have determined that the sentencing objectives of deterrence and denunciation can be met by a heavy fine. You appear to have been financially successful and are in a position to pay such a fine.
34.The sentence of the court is that you are convicted on both counts and fined $20,000. This is an aggregate sentence. I declare pursuant to s6AAA of the Sentencing Act that you had not pleaded guilty, I would have imposed a nine month sentence of imprisonment on you. The prosecution have sought a forfeiture order which I make of the pistol and the ammunition.
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