DPP v Iaria and Panozzo
[2002] VSC 57
•26 February 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT WANGARATTA
CRIMINAL DIVISION
No. 1487 of 2000
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOSEPH IARIA AND RICHARD XAVIER PANOZZO |
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JUDGE: | Cummins J | |
WHERE HELD: | Wangaratta | |
DATE OF PLEAS: | 31 January 2002 and 1 February 2002 | |
DATE OF SENTENCE: | 26 February 2002 | |
CASE MAY BE CITED AS: | DPP v Joseph Iaria and Richard Xavier Panozzo | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 57 | |
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Criminal law – sentencing – murder – co-offenders – common purpose – aiding and abetting – enforcement of illegal activity – unlawful trade in tobacco – trafficking in cannabis – considerations applicable.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J. Leckie and Mr R. Pirrie | OPP |
| For Mr Iaria | Mr I. Crisp | Victoria Legal Aid |
| For Mr Panozzo | Mr A. Lewis | Kerry Clancy & Associates |
HIS HONOUR:
Joseph Iaria and Richard Xavier Panozzo, each of you after a seven week trial has been found guilty by a jury of the murder at Tawonga on Friday 5 May 2000 of Mr Peter Francioli. It was you, Mr Iaria, who fired the fatal shot - at a defenceless and unarmed man. It was you, Mr Panozzo, who was lurking in the shadows and who immediately emerged when the fatally wounded Mr Francioli sought to escape. You took the gun from Mr Iaria and set off in pursuit of the dying man, calling out "Kill them; kill them both" - 'both' because there were two Francioli brothers present at the scene, Peter and Polibio. At the time of his death Peter was 26 years of age. His younger brother, Polibio, was just 19. Fortunately for himself and fortunately for justice, the deceased's brother Polibio escaped alive.
Mr Iaria and Mr Panozzo, you are now each to be sentenced for the murder of Peter Francioli. On that dark night of Friday 5 May 2000 you acted together. You are each equally liable for the murder of Peter Francioli and now each of you is to be sentenced for that crime.
Earlier on that Friday evening, at around 7 p.m., you both had met at a public telephone box in Tawonga South. You both had had dealings with the Franciolis of Mountain Creek Road, Tawonga South. You, Mr Iaria, had had dealings with Mr Peter Francioli in the purchase of illegal tobacco, that is, tobacco sold not through lawful authorities and on which excise had not been paid. That potential source of income was turned to by you, Mr Iaria, because you had fallen into debt through gambling. By the night of 5 May 2000 you were seriously in debt, owing Peter Francioli $18,000 and having no funds to meet your debt. Your debt was due. You felt you had nowhere to turn. So you turned to crime.
You expected the two Francioli brothers, the older Peter and the younger Polibio, would come to seek payment of your debt. You recruited a second man, so that two faced two.
You Mr Panozzo, were that second man. You were a willing recruit. You had been dealing in cannabis with Peter and Polibio. Your estranged partner Laticia Wilson, to whom you had remained attentive, that week told you that she had heard from Mr Iaria that Polibio had uttered threats about her and your children concerning a debt you owed for cannabis and on which you had reneged. You Mr Panozzo, had had a history of dishonest dealing with the Franciolis. You decided it was time they were taught a serious lesson: not to double deal with you and not to threaten Ms Wilson and your children.
Thus it was that the two of you conspired by the public telephone box for an hour on that dark and lonely night. You conspired as to the Franciolis' fate. Mr Iaria was the instigator. He instigated you, Mr Panozzo, to join in. But join in you did, Mr Panozzo, and as events would reveal, it was yours, Mr Panozzo, which was the calculating mind in the joint operation.
The plan was to lure the two Francioli brothers to a place at which you would both have the strategic advantage. Thus Mr Iaria, by mobile phone, lured the two brothers to the farm of Mr Tony Iaria, a second cousin of you Mr Iaria. The farm was off the Kiewa Valley Highway, Tawonga. Its terrain was well known to you Mr Iaria. You both drove your vehicles to the farm and stopped at the farmhouse. Mr Iaria went into the house which he knew would be empty, obtained a firearm and ammunition, and when you were both together in Mr Panozzo's car, Mr Iaria loaded the firearm. You then drove together down to the rear of the farm and waited for your quarry. Mr Iaria had the firearm and was to approach the Franciolis after they arrived. You Mr Panozzo, had the presence of mind to secrete yourself out of sight and away from the action to follow, but where you could see it all and join in if necessary. You hid in the dairy shed, directly opposite the end of the driveway.
The Franciolis arrived. They alighted from their vehicle. At first they could not see anyone else present. There was a delay before you emerged, Mr Iaria - possibly because at that fateful moment you hesitated before embarking on what was to come. The two Franciolis started to walk around the area. Polibio went looking in the tobacco drying sheds. Peter returned to his car to use his mobile phone. Then you, Mr Iaria, stepped forward. It is not known precisely what was said or precisely what occurred. What is known is that Peter Francioli was assaulted with the rifle (he sustaining a fractured jaw), that you Mr Iaria said "Get down, you fucking dog" and that you shot him in the back while he was at his car - once and fatally. Peter did not die immediately. He sought to escape by moving a few steps into the tobacco drying sheds beside the driveway. Polibio had been looking in the sheds and did not see the shooting but he heard it. He also heard his brother call out, "Get the fuck out there". He hid in the sheds.
Then you, Mr Panozzo, emerged from your hiding place and took over the action. You took the firearm from Mr Iaria and pursued the two Franciolis, yelling "Kill them; kill them both". But in the dark and in the sheds - the very type of cover you had earlier utilised - they managed to avoid detection by you.
Peter, in his last breath, counselled Polibio to leave him behind in the tobacco shed. Polibio, in desperate personal conflict, ultimately fled in the dark across the paddocks to the north. You both found the deceased shortly afterwards.
You both thus were in a position of having a dead body and a live eye-witness. You could nothing about the live eye-witness, who had escaped. So you decided to dispose of the body. Time was dangerously short. You both loaded the body into the boot of the Francioli car. Mr Iaria drove it to the Bright Gap Road. Mr Panozzo followed. An attempt was made to incinerate the car, and the dead body in the boot with it, by lighting the petrol tank. The attempt failed. You both fled the scene.
You, Mr Iaria, returned to your family home in Mount Beauty. You were genuinely distraught. You showed genuine emotion then and later, but not enough to tell the truth. You told investigating police a succession of lies. On 6 May 2000 you were charged with the murder of Peter Francioli. At that time you were the only person charged.
You, Mr Panozzo, in contrast to Mr Iaria, upon leaving the scene set in train a series of calculated steps. You went home to your family, apparently normally. The next day, Saturday 6 May, you helped a neighbour in Killara remove a bay tree and you were your "normal friendly self". Then, most calculated of all, you drove on that Saturday evening to the Francioli farm. Your purpose was to ascertain whether you had been identified at the scene of the killing by the one living witness, Polibio. Doubtless had Polibio said he had seen you there, you would have said you had come to help to convict the true killer. Indeed, to the jury that is the story you gave them: that you were at the scene for non-violent purposes and were no part of the killing. When Polibio answered the door you started to cry and said "Is it true? Is it true?" Polibio did not say he had seen you at the farm the night before. Reassured, you engaged Polibio in small talk and then slipped away into the night. You later sought to rearrange the memory of a peripheral witness, Mr Brendan Vail. When ultimately you were interviewed by investigating police you told them a succession of calculated lies. On 26 May 2000 you also were charged with the murder of Peter Francioli.
The phone box conspiracy was not to go to the farm necessarily to murder Peter Francioli. The agreement was to go there to threaten Peter with violence, in which threat a loaded firearm was to be used, and in which death or grievous injury to Peter was contemplated. The meeting was to be an educational one with killing if necessary. By reason of your agreement and your actions at the farm as I have described, you both are equally liable for the murder of Peter Francioli. It was necessary, and it was the plan, that you both be there. You both participated as I have described. On the basis of aiding and abetting, you, Mr Panozzo, likewise are equally liable for the murder of Peter Francioli. You were there, you knew what was happening, you intentionally helped and encouraged Mr Iaria in infliction of death, you were necessary to the events and actively took part in them.
Mr Iaria, at the time of the killing you were 26 years of age. You were born on 26 October 1973, and are now 28 years of age. With your parents and brothers you moved to the Mount Beauty area when you were three years of age. You were brought up and educated there, leaving a local secondary school at the end of Year 10, when you were 16. Since then you have been productively and usefully employed, including in the five years to May 2000, in your father's fruit and vegetable business at Mount Beauty. Your father is a law abiding, decent and hard working man. He gave evidence before the jury and he has been loyally present throughout every day of these lengthy and painful proceedings. He has impressed me substantially.
In late 1998 your father discovered that you had involved yourself in dealing in illegal tobacco. Responsibly, he terminated your employment in the family business immediately, seeking to teach you a short, sharp lesson. Sensibly, he re-employed you three months later. I say sensibly, because your father considered that following the reality-shock of dismissal, the guidance of your working in the family business was most likely to be productive of rehabilitation. Unfortunately, your father's decent efforts were to no avail.
Mr Iaria, you had been residing with your wife in your home in Mount Beauty for some five years prior to the killing. Your wife was a nurse. You undertook the upbringing of her two young children by a previous marriage, aged 13 and 11 at the time of the killing, and you and she have one daughter, aged three at that time.
The loving support of those around you should have been sufficient to sustain you, but you had a weakness: gambling. To satisfy your weakness you needed access to money - more money than your family's business lawfully provided you. So, secretly, you turned to another source of income: the illegal sale of tobacco. Ultimately, you got out of your depth financially in that illegal trade, and you turned to crime to resolve your financial difficulties. It is that decision which has brought you to this court. It has resulted tragically in the death of a human being, affliction for the fiancee and family of the deceased, profound sadness for your father and family, the failure of your marriage, separation from your child, and now a lengthy term of imprisonment.
There are a number of factors significantly in your favour, Mr Iaria. You have no prior convictions. That, of itself, is significantly in your favour. You personally have suffered as a result of this crime, as I have just outlined. You have remorse for the crime. Although you pleaded not guilty, as you are fully entitled to do, and made untrue statements to the police, I consider your demeanour at your home and in the homicide interviews indicates remorse for the killing. I think also that is consistent with your character. You did not give evidence before the jury. Finally, the burden of your incarceration is especially heavy upon you, and has been since mid-2000, because you have been placed in a secure prison unit in protection. You were so placed, responsibly, by prison authorities on objective material, as the affidavit of Mr P.W. Graham, Correctional Officer, Port Phillip Prison, sworn on 6 December 2000, and the Port Phillip Prison file extract from August 2000, exhibited before me on the plea as Exhibits 4I and 5I respectively, make clear. I take those matters into account and they have reduced the penalty otherwise I would have imposed upon you.
I also take into account the evidence before me on your behalf of Mr Jessup of Bright and Mr Randle of Tawonga South, who gave evidence before me, and the report of Ms Liz Cooper, the co-ordinator of the Drug and Alcohol Services Division, Western Health, at Melbourne Assessment Prison of 23 May 2001, which states that you have been a peer educator since November 2000, important as an indicator of your capacity for rehabilitation. I also note the report of Dr Lester Walton, psychiatrist, of 13 June 2001 of an examination of you of 11 June 2001. That shows that you suffer from no psychiatric illness, but you are depressed, notably through the close confinement which you were enduring then and are continuing to endure. I also note a psychological report of Mr Bernard Healey, clinical psychologist, of 8 January 2002 of examinations by him of you of 6 and 8 January 2002. It shows that you are of normal intelligence and that because of your current predicament you are suffering depression and anxiety. I take those matters into account, and the matters most helpfully submitted on your behalf by your counsel, Mr Crisp, on the plea.
Mr Panozzo, at the time of the killing you were 34 years of age. You were born on 31 May 1966 and are now almost 36 years of age. Apart from being eight years older than Mr Iaria, there are other significant differences between you both. Mr Iaria has remorse for his crime; you have none. Mr Iaria has shown emotion; you have shown none. You have shown yourself to be a very calculating person.
Mr Panozzo, your family resides in the Wodonga area. You have two brothers, both successfully employed. Another (younger) brother was killed in tragic circumstances, a matter to which I shall return.
Mr Panozzo, you were well educated, successfully completing Year 12 at a leading Victorian provincial school. You were successful at sport. After leaving school you had various jobs in Wodonga and Melbourne and in the snowfields at Falls Creek and in Aspen, Colorado. Ultimately you returned from Colorado to Wodonga and ran a restaurant in Wodonga. You were a person with ability, education and opportunity.
Two tragedies afflicted your life. In 1990 your younger brother, then aged 20, was killed when struck by a motor vehicle. Then on 31 December 1993, through no fault of yours, a vehicle you were driving struck two persons on the roadway and killed them both. The tragic circumstances of that accident are set out on p.3 of the report of Mr I.A. Joblin, psychologist, of 24 January 2002, as is its interaction with the like death three years earlier of your younger brother. I shall not repeat that detail. Your life deteriorated significantly and understandably from that time. You suffered post traumatic stress disorder.
Over many years, indeed since you were 18 years of age, you have had a relationship with Ms Laticia Wilson of Mt.Beauty. The relationship has not been continuous, but you have lived together in Mt. Beauty, Falls Creek, Melbourne and overseas. You have two daughters of that relationship, now aged 12 and 5 years. The relationship was volatile and unstable and at the time of the killing you were yet again separated, you living in Wodonga and Ms Wilson and the children in Mt.Beauty. You had separated in August 1999, but you retained your affection for her. Over the years you have been a significant abuser of cannabis. It was the combination of your significant abuse of cannabis and loyalty to Ms Wilson which led you to the crime of which you have been convicted. From a position of ability, intelligence, good education and potential you now face a lengthy term of imprisonment.
As I have said, you have suffered significantly by reason of the two fatal motor vehicle accidents I have referred to, of your brother in 1990 when he was 20 and of the two persons on 31 December 1993. As to the latter, the psychologist, Mr Joblin, in the report I have already cited concluded that as a consequence you suffered PTSD. You thereafter suffered depression. A psychiatrist, Dr Alan England of Albury, in a report of 24 February 2000 upon examination of you in December 1999 found you to be depressed in mood. After prescription of medication, the particulars of which are set out on p.1 of his report, Dr England reported that by January 2000 you had significantly improved. Dr England's report was in fact to Dr Roslyn Baylis of Wodonga. Dr Baylis, a general practitioner, gave evidence before me on the plea. She treated you over time, from 20 January 1999, for severe depression. She saw you twice in January 1999 and then from 19 August 1999 to 3 December 1999 she saw you seven further times. However Mr Panozzo, you were not in a state of depression at the time of the killing. Numerous witnesses from Mt Beauty, Toowonga and Falls Creek, at the trial gave evidence of your behaviour and mood in May 2000, not indicating depression. You gave evidence before the jury that you were looking forward to your new job at Falls Creek for the forthcoming snow season. On the plea evidence was called from a neighbour at Killara who said that on Saturday 6 May 2000, the day after the killing, you were your "normal friendly self". Indeed on the plea, when I raised this matter with your counsel, your counsel specifically conceded that you were not depressed at the time of the killing as a factor in reduction in sentence (T.2952.).
I take into account Mr Panozzo, significantly in your favour that you have no relevant prior convictions. That is a substantial matter in your favour. I also take into account the significant burden upon you of separation from your two daughters, which is inevitably involved in a lengthy term of imprisonment. That is a special burden upon you. I take into account the matters helpfully submitted on the plea by your counsel, and the evidence called on your behalf from Dr Baylis and Mr C.K. Edwards of Killara and the exhibits tendered on your behalf, notably the report of the psychologist Mr Ian Joblin on 24 January 2000 and of Dr Alan England, psychiatrist of Albury of 24 February 2000. The report of Mr Joblin states that you are intelligent - as indeed you have demonstrated throughout the police investigation and these proceedings - and that you have no psychological disorder but that you have been significantly depressed since 1996, if not 1994. The report of Dr England the psychiatrist demonstrates that you have no psychiatric illness but you were significantly depressed in December 1999 with marked improvement by January 2000.
You, Mr Panozzo, are an intelligent person. You acted in a calculating manner throughout. You have no remorse. You are not to be punished for having no remorse, but the reduction in sentence which remorse as a harbinger in rehabilitation entails, does not apply to you. You are not of course to be punished for giving false evidence before the jury.
This is a very serious case, with seriously aggravating features: the killing of an unarmed man, in the enforcement of illegal activity by you both, by deliberately luring him to his nemesis. You both are equally liable for his death.
Finally I refer to the victim impact statements which, as I said on the last occasion I was here, are moving and impressive documents. Exhibit B on the plea is a victim impact statement of Ms Jodie Simpson, the fiancee of the deceased and the mother of their young son. I was most impressed by Ms Simpson when she gave her evidence before the jury and by her presence in court throughout the proceedings. She is a quiet and dignified young woman. She has been distressed and afflicted by the death of her husband-to-be and her life has been forever changed by it.
The nine victim impact statements of the Francioli family, likewise are most impressive documents. I shall not repeat them in detail. Each of the Franciolis has
been distressed and afflicted by the death of their brother.
You Mr Iaria, have served 635 days in pre-sentence detention to today and pursuant to s.18(4) Sentencing Act 1991, I declare that period of 635 days as already served under the sentence I impose upon you.
You, Mr Panozzo, having been arrested not at the start but at the end of May, 2000, have served 615 days in pre-sentence detention to today, and pursuant to s.18(4) Sentencing Act 1991 I declare that period of 615 days has already been served under the sentence I impose upon you.
Having considered all the relevant matters, including all the personal matters, I consider that the appropriate sentence to be imposed upon each of you is the same.
I sentence you, Mr Iaria, for the murder of Peter Francioli to 20 years' imprisonment. I direct that you serve a minimum term of 16 years' imprisonment before you are eligible for parole.
I sentence you, Mr Panozzo, for the murder of Peter Francioli to 20 years' imprisonment. I direct that you serve a minimum term of 16 years' imprisonment before you are eligible for parole.
Mr Iaria and Mr Panozzo may be removed.
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