Legal Research
Cases
DPP v Russo

DPP v Russo

Case [2019] VSCA 129 13 June 2019

Criminal Liability

Sentencing

Manslaughter by Criminal Negligence

Criminal Law

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0169

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
ANGELO PAT RUSSO	Respondent

---

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)

---

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.

---

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

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.

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.

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’).

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DPP v Russo

Details

AGLC: Director of Public Prosecutions v Angelo Pat Russo [2019] VSCA 129
Case: [2019] VSCA 129
Decision Date: 13 June 2019

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