DPP v Russo

Case [2019] VSCA 129


SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0169

DIRECTOR OF PUBLIC PROSECUTIONS Appellant
v
ANGELO PAT RUSSO Respondent

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JUDGES: BEACH, KYROU and EMERTON JJA
WHERE HELD: MELBOURNE
DATE OF HEARING: 7 June 2019
DATE OF JUDGMENT: 13 June 2019
MEDIUM NEUTRAL CITATION: [2019] VSCA 129
JUDGMENT APPEALED FROM: R v Russo [2018] VSC 395 (Croucher J)

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CRIMINAL LAW – Sentence – Crown appeal – Manslaughter by criminal negligence – Respondent shot victim in head as he approached victim’s vehicle in anger and accidentally discharged loaded shotgun – Whether sentence of 5 years’ imprisonment with non-parole period of 2 years and 6 months manifestly inadequate – Whether offending mischaracterised as ‘falling towards the lower end of the spectrum of gravity’ – Appeal dismissed.

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APPEARANCES: Counsel Solicitors
For the Appellant Mr B F Kissane QC with Mr J C J McWilliams Mr J Cain, Solicitor for Public Prosecutions
For the Respondent Mr P F Tehan QC with
Mr A P Lewis
Galbally & O’Bryan

BEACH JA
KYROU JA
EMERTON JA:

Introduction and summary

  1. On 25 May 2018, the respondent pleaded guilty to one charge of manslaughter by criminal negligence.  The maximum penalty for manslaughter is 20 years’ imprisonment.[1]  

    [1]Crimes Act 1958 s 5.

  1. The offending occurred on 18 February 2017 when the victim, David Calandro, drove to the respondent’s farm in Tatura East with his two young sons.  The respondent, who was carrying a shotgun at the time, approached Mr Calandro’s vehicle when he stumbled and accidentally discharged the shotgun.  Mr Calandro was shot at close range through the driver’s window and died as a result of a bullet wound to the head. 

  1. On 20 July 2018, the respondent was sentenced to 5 years’ imprisonment with a non-parole period of 2 years and 6 months. In his declaration pursuant to s 6AAA of the Sentencing Act 1991, the judge stated that, had the respondent not pleaded guilty, he would have been sentenced to 7 years’ imprisonment with a non-parole period of 4 years.[2]

    [2]R v Russo [2018] VSC 395 [206] (‘Sentencing remarks’).

  1. The Director of Public Prosecutions has appealed against the respondent’s sentence on the following grounds:

Ground 1 — The sentence imposed on charge 1, the total effective sentence and the non-parole period is manifestly inadequate in all the circumstances.

Particulars

The learned sentencing judge failed to have sufficient regard to:

(a)the nature and objective gravity of the offending and, in particular:

(i)        that the offending involved the use of a firearm;

(ii)that the respondent was an experienced shooter familiar with the safe use of firearms;

(iii)that the offending occurred in front of the deceased’s children;

(iv)that the respondent had knowledge of the children’s presence;

(v)that the offending involved the endangerment of both children; and

(vi)that the offending occurred in the presence of family and farm workers, in what was effectively a ‘workplace’;

(b)the impact of the offending on all the victims and in particular, the psychological harm to both the deceased’s…

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AGLC
Director of Public Prosecutions v Angelo Pat Russo [2019] VSCA 129
Case
[2019] VSCA 129
Decision Date

CaseChat Overview and Summary

The appellant, the Director of Public Prosecutions, appealed against the sentence imposed on the respondent, who was convicted of manslaughter by criminal negligence. The respondent had shot the victim in the head with a loaded shotgun as the victim approached his vehicle in anger, resulting in the victim's death. The court was required to determine whether the sentence of five years’ imprisonment with a non-parole period of two years and six months was manifestly inadequate. The court also needed to consider whether the offending had been mischaracterised as falling towards the lower end of the spectrum of gravity.

The court found that the sentence was not manifestly inadequate. It held that the primary judge had given proper consideration to the relevant principles and had imposed a sentence that was within the range of sentences that could be considered appropriate. The court also rejected the argument that the offending had been mischaracterised, finding that the primary judge had correctly assessed the gravity of the offending. The court held that the sentence was proportionate to the seriousness of the offending and did not need to be increased.

The appeal was dismissed, and the original sentence was upheld. The court found that the sentence imposed was not manifestly inadequate and that the primary judge had correctly assessed the gravity of the offending. The court also held that the sentence was proportionate to the seriousness of the offending and did not need to be increased. The original sentence of five years’ imprisonment with a non-parole period of two years and six months was affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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