DPP v Minutoli

[2003] VSCA 201

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 265 of 2003

DIRECTOR OF PUBLIC PROSECUTIONS

v.

NUNZIO FRANK MINUTOLI

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JUDGES:	CHARLES, BUCHANAN and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 November 2003
DATE OF JUDGMENT:	27 November 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 201

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Criminal Law – Sentencing – Crown appeal – Blackmail – Head sentence of two years' imprisonment with a minimum term of four months' imprisonment – Minimum term manifestly inadequate – New term of 12 month's imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T. Gyorffy	K. Robertson, Solicitor for Public Prosecutions
For the Respondent	Mr O.P. Holdenson, Q.C.	Kenna Croxford & Co.

CHARLES, J.A.: 

1. I will ask Buchanan, J.A. to give the first judgment.

BUCHANAN, J.A.: 

1. At about 9.30 p.m. on 26 August 2002 Mr and Mrs Muir-Smith, a couple in their seventies, were watching television at their home in Kyabram.  They heard a loud noise outside, and when they investigated they found their motor car had been set alight, causing severe damage to the car as well as damage to the carport in which it was housed.

1. On 11 September 2002, Mrs Muir-Smith answered the door to the respondent, who identified himself as “Peter”.  The respondent asked to speak to Mr Muir-Smith and told him that he was a messenger from the Outlaws, a gang of motorcyclists from Adelaide, who, he said, were behind the burning of their car.  The respondent said that if he were given money it would not happen again.  Mr Muir-Smith said that he and his wife were pensioners;  he didn’t have any money.  The respondent said that “A bikie gang was paid to burn the car, and the only way to stop it is to pay money.”  Mr Muir-Smith said that he might be able to scrape up a thousand dollars.  The respondent asked about the insurance money for the car, and Mr Muir-Smith repeated that the most they could scrape together would be a thousand dollars.  The respondent said that would be “an insult” and they were looking for something like $10,000.  He said that he would come back next week with another person.  He warned Mr Muir-Smith not to go to the police under any circumstances and said that if he did “there will be fire bombs and he will burn the car and the house and come over the back fence”.

1. Mr Muir-Smith informed the police, who placed covert recording equipment in their house.

1. On 25 September 2002 the respondent, this time calling himself “Steve”, returned to the house of Mr Muir-Smith.  Arrangements were made for him to come the following day to collect the money, which was to be paid in two instalments of $5,000 each.  The respondent claimed there were two people with him and that he was representing the Outlaw Motorcycle Club from Shepparton.  He said that he was from Adelaide and the police were not to be involved.  The conversation was recorded.

1. The respondent returned the following day.  He was invited into the house and was arrested by the police.

1. The respondent was arraigned in the County Court and pleaded guilty to a charge of blackmail.  The maximum sentence for the offence was imprisonment for a term of 15 years.  After a plea, the respondent was sentenced to be imprisoned for a term of two years and a minimum term of four months' imprisonment was fixed before the respondent was to become eligible for parole.

1. The Director of Public Prosecutions has appealed against the sentence on the ground that the non-parole period was manifestly inadequate.

1. In September 2001, the respondent was convicted on two charges of handling stolen goods and was fined $4,000.  The following month he was convicted on a charge of driving while his licence was suspended, and was sentenced to a term of imprisonment for a period of one month.  The sentence was suspended for a period of 12 months.  The offence of blackmail was committed during the period of suspension.

1. The respondent is 33 years of age.  He was born on his grandparents’ fruit farm at Tatura, which is still occupied by the respondent’s family.  The respondent attended school until Year 10.  His counsel during the plea said that “He struggled at school”.  After leaving school at the age of 16 years, the respondent worked on the farm and continued to do so until he was sentenced for this offence.  The respondent and his family are respected members of the local community.  His father was president of the Rotary Club of Tatura and the respondent was a member of a number of the local clubs and helped children by training them in football.

1. During the course of the plea counsel for the respondent called evidence as to the good character of the respondent and tendered 21 character references and the report of a psychologist, who expressed the opinion that the respondent was remorseful, that he had no antisocial personality disorder, or indeed any personality disorder, and was unlikely to re-offend.  The psychologist also said that the respondent functioned at a very low intellectual level and it was quite possible that he did not realise his acts constituted a criminal offence.  There was evidence from which the sentencing judge could have found the respondent felt deep shame for his conduct.  Further, the respondent’s family apparently relied heavily upon the respondent in conducting the family business.  We were told by counsel for the respondent during the course of the appeal that since this sentence was imposed the family business has suffered a heavy blow in the destruction of its crops by a frost.

1. It thus appears that there were mitigating factors upon which the respondent could rely, apart from the discount to which he was entitled as a result of his plea of guilty.  On the other hand, the crime was serious indeed.  During the plea the respondent’s counsel said:

“[I]t’s acknowledged (that) this is a serious example of the offence of blackmail.”

The sentencing judge’s remarks bear this out.  He said:

“This is a most serious offence and may result in a term of imprisonment of up to 15 years.  …  It is plain from each of the victim impact statements that your criminal conduct has had a profoundly adverse effect upon them …  It is plain that the targets that you chose, or perhaps others chose, for the blackmail were senior members of the community who you no doubt thought would be more vulnerable and easily terrified into submitting to blackmail demands than other members of the community …  Such expression of remorse (made by counsel) … would have carried more weight if I had heard it from you …  The fact that you were serving a suspended sentence at the time of this offence can only be regarded as an aggravating factor, and on its face would appear to call for a sentence of specific deterrence … (The psychologist) expressed the view that you have now learned your lesson and will not be likely to re-offend.  However, that opinion is difficult to reconcile with your history over the last three years … 

Both general deterrence and specific deterrence are important considerations in sentencing you.”

The sentencing judge was not able to determine whether the respondent was a messenger or the originator of the blackmail scheme.

1. As this Court said in R. v. Krasnov and Shlakht[1], a non-parole period is the minimum term to be served having regard to all the circumstances of the offence and requires a balancing of the various interests of the community against the advantage to the community which release on parole is thought likely in the particular circumstances to confer and against whatever degree of mitigation or mercy the offender may claim without injustice.  In the present case the non-parole period bore an unusual relationship to the head sentence.  In my view, the head sentence was lenient indeed having regard to the past record of the respondent and the circumstances of the offence.  To then impose a minimum term which was one-sixth of the head sentence simply could not on any view reflect the interests of the community and in particular the need for specific and general deterrence.  In my view, the minimum term is so inadequate as to betoken error on the part of the sentencing judge.

   [1](1995) 82 A.Crim.R. 92.

1. I would allow the appeal.  Constrained by the special factors that apply on a Crown appeal, I would fix a new term of 12 months before the respondent is to be eligible for parole.

CHARLES, J.A.: 

1. I agree.

CHERNOV, J.A.: 

1. I also agree.

CHARLES, J.A.: 

1. The orders of the Court are –

The Director’s appeal is allowed.

The non-parole period fixed on 1 September 2003 is set aside.  In lieu thereof the Court fixes a new non-parole period of 12 months.

The Court declares that the period of 94 days be reckoned as the period of imprisonment already served under this sentence and directs that this declaration be entered in the records of the Court.

MR HOLDENSON: 

1. As a consequence of those orders application is made for an indemnity certificate under sub-section (1) of s.15 of the Appeal Costs Act.

CHARLES, J.A.: 

1. A certificate will be granted.

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