Latorre v The Queen
[2012] VSCA 280
•23 November 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2009 0072
S APCR 2009 0073
S APCR 2009 0075
S APCR 2009 0982
| VINCENT LATORRE |
| v |
| THE QUEEN |
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| JUDGES | MAXWELL P, BONGIORNO JA and KYROU AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARINGS | 5 March, 29 August, 9 November 2012 |
| DATE OF ORDERS | 29 August, 9 November 2012 |
| DATE OF JUDGMENT | 23 November 2012 |
| MEDIUM NEUTRAL CITATION | [2012] VSCA 280 |
| JUDGMENT APPEALED FROM | R v Latorre (Unreported, County Court of Victoria, Judge Hampel, 10 December 2009) |
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CRIMINAL LAW – Appeal – Conviction – Blackmail – Demand allegedly made by appellant’s agent – Agency principles inapplicable to attribution of criminal responsibility – R v Franklin (2001) 3 VR 9 applied – Conviction quashed – Whether retrial should be ordered – Evidence at trial insufficient for conviction – Unfair to allow prosecution to mend defective case – Verdicts of acquittal – R v Thomas (No 3) (2006) 14 VR 512 applied.
CRIMINAL LAW – Appeal – Conviction – Extortion – Voice recognition – Voice comparison – Admissibility of telephone intercept evidence – Adequacy of Domican warning – Application for leave to appeal against conviction refused.
CRIMINAL LAW – Sentence – Blackmail – Extortion – Threat to kill – Appellant resentenced following partial success on appeal against conviction – Total effective sentence 7 y – Non-parole period 5 y.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr M Croucher SC with Ms S Leighfield | Galbally & O’Bryan |
| For the Respondent | Mr D A Trapnell SC | Mr C Hyland, Solicitor for Public Prosecutions |
MAXWELL P
BONGIORNO JA
KYROU AJA:
A. INTRODUCTION AND SUMMARY
On 26 June 2009, following a trial in the County Court at Melbourne involving the complainant Rocco (Rocky) Orsida (‘Orsida’), the applicant — who is now 51 years of age — was convicted of two counts of blackmail (‘Orsida presentment’ and ‘Orsida trial’). He was found not guilty of a further count of blackmail.
On 17 August 2009, following a trial in the County Court at Melbourne involving the complainant Karl Nash (‘Nash’), the applicant was convicted of one count of extortion (‘Nash presentment’ and ‘Nash trial’).
On 17 September 2009, on a presentment involving the complainants Sam and Frank Rachelle, the applicant pleaded guilty to two counts of common assault, two counts of threat to kill and one count of intentional damage to property (‘Rachelle presentment’).
On 29 October 2009, on a presentment involving the complainants Thomas and Antonino Corso, the applicant pleaded guilty to one count of blackmail (‘Corso presentment’).
Following a plea in mitigation in relation to all counts on which the applicant was convicted or pleaded guilty, on 10 December 2009 the applicant was sentenced as set out in Table A below:[1]
[1]R v Latorre (Unreported, County Court of Victoria, Judge Hampel, 10 December 2009), (‘Reasons’).
TABLE A
Count Date Offence Maximum Sentence Cumulation Presentment No U01867876 — Complainant Orsida
1 July 2004 Blackmail 15 y 5 y 1 y 3 28 September 2005 Blackmail 15 y 7 y Base Presentment No C0806108.4B — Complainant Nash
2 31 January 2005 Extortion 15 y 4 y 1 y Presentment No U01867876.1D — Complainant Rachelle 1 November 2002 Common assault 5 y Fined $1,000 N/A 2 25 February 2004 Common assault 5 y Fined $2,000 N/A 3 25 February 2004 Threat to kill 10 y 1 y 3 m 4 26 October 2004 Threat to kill 10 y 1 y 3 m 5 26 October 2004 Intentional damage to property 10 y Fined $1,000 N/A Presentment No C0806108.3A — Complainant Corso
1 14 December 2003 Blackmail 15 y 4 y 2 y Total Effective Sentence: 11 y 6 m Non-Parole Period: 8 y and 3 m Total Fines: $4,000
The applicant sought leave to appeal against: his convictions in relation to the Orsida and Nash presentments; the individual custodial sentences other than those relating to Rachelle; all the directions for cumulation; the total effective sentence; and the non-parole period.
On 29 August 2012, the Court made orders allowing the appeal relating to the Orsida presentment, quashing the two blackmail convictions, directing that verdicts of acquittal be entered on those charges and setting aside the sentences passed in relation to them. The circumstances leading to the making of those orders, and our reasons for them, are set out below.[2]
[2]See [33]–[35], [44]–[57] below.
For reasons which follow, we would refuse leave to appeal against the Nash conviction. The quashing of the Orsida convictions nevertheless requires that the applicant be resentenced. We would resentence him as set out in Table C below.[3]
[3]See [194] below.
B. OVERVIEW OF ALLEGED OFFENDING — ALL PRESENTMENTS
Orsida presentment
The applicant conducted a wholesale fruit and vegetable business based in Shepparton. Orsida, his brother Roy, and their wives Anne and Glennis owned three orchards in the Cobram region.
Luisa Racioppo (‘Racioppo’) was employed by the Orsidas in early 2004 for about six months. In mid 2004, Orsida made sexual advances towards Racioppo, who had been in a relationship with the applicant’s acquaintance, Vincenzo Mantovani. Vincenzo Mantovani overheard a telephone call between Racioppo and Orsida, found out about the earlier advances, and became enraged.
Shortly afterwards, Orsida was advised by Nicola (Nick) Mantovani that telephone recordings existed of him talking to Racioppo. Nicola Mantovani made a demand for money in exchange for the recordings and said that otherwise the recordings would be played to Orsida’s wife.
A few days after the demand was made, Orsida went to Nicola Mantovani’s packing shed and handed to the applicant $10,000 in cash. The applicant did not hand over the tape, but told Orsida that it would be destroyed (count 1 – blackmail).
The Orsidas subsequently sustained substantial deliberate damage to their business on the following occasions:
(a)on 26 October 2004, approximately 1,600 fruit trees were cut down and irrigation pipes were damaged at the Orsidas’ Lonergan Road property;
(b)on 15 August 2005, the cool room plant at the Orsidas’ Cottons Road property was set on fire;
(c)on 31 August 2005, approximately 500 fruit trees were deliberately destroyed and irrigation pipes were damaged at the Orsidas’ Murray Valley Highway property;
(d)on 4 September 2005, a pump shed at the Orsidas’ Lonergan Road property was set on fire;
(e)on 25 September 2005, the cool room plant at the Orsidas’ Cottons Road property was again set on fire; and
(f)on 28 September 2005, the Orsidas’ partially completed packing shed at Schubert Street was set on fire.
Soon after the fire at Schubert Street, Orsida contacted Michelangelo Diaco (‘Diaco’), who knew the applicant. Diaco told Orsida that he had spoken to the applicant and that the applicant required a $10,000 ‘negotiation fee’. Orsida handed $10,000 to Diaco in October 2005.
Diaco subsequently told Orsida that the applicant wanted more money. A payment schedule was agreed upon whereby Orsida would hand to Diaco $150,000 in instalments over two years (count 3 – blackmail). In accordance with that agreement, Orsida paid to Diaco $20,000 on 23 December 2005, $25,000 on 10 March 2006 and $5,000 on 10 April 2006.
Nash presentment
Nash knew the applicant through his work as a chef in a restaurant called Calzone’s in Shepparton. Later, during his time as head chef for Antonio Varapodio (‘Varapodio’) at a restaurant in Echuca, Nash again came into contact with the applicant who supplied fruit and vegetables to the restaurant. The applicant and Varapodio knew each other. Nash spoke to the applicant over the telephone about orders and the applicant occasionally visited Varapodio at the restaurant.
In October 2004, Nash left Varapodio’s restaurant and asked for his outstanding wages and entitlements. He telephoned Wageline after he received less than the amount to which he thought he was entitled.
Varapodio made some abusive telephone calls to Nash concerning their dispute.
On the night of 21 January 2005, Nash was asleep in his house with his de facto partner and four and a half month old daughter when they were woken by a loud bang. Two cars in the carport had been set on fire and were completely destroyed. A police investigation concluded that the fires were deliberately lit.
On 30 January 2005, Nash received a short message on his home telephone answering machine. The sound was distorted and difficult to understand. The call was not the subject of any charge.
On 31 January 2005, the following message was left on Nash’s answering machine:
Yeah, you know what happened the other night? You let it go, alright? Fuckin’ let it go or your whole house will go down, okay, with your kids in it. You understand me? Alright. You know what to do, okay, you just fuckin’ let it go. You’ve been told two times, now fuck off.
The above call was made from a telephone box in Cobram and was the subject of a charge of extortion against the applicant (count 2). The extortion charge was tried together with a charge of arson against Vincenzo Mantovani. Vincenzo Mantovani was found not guilty.
It was common ground at the Nash trial that the telephone call was made and that it satisfied the elements of the offence of extortion. The only issue was whether the applicant made the call.
Rachelle presentment
The applicant and the Rachelle family knew each other through the wholesale fruit and vegetable trade in Shepparton. They were originally friendly but tensions developed over time.
In November 2002, Sam Rachelle saw the applicant with a group of men at a hotel. Sam Rachelle shook hands with the other men but refused to shake the applicant’s hand. When the applicant asked why, Sam Rachelle said it was because the applicant had betrayed him and broken his word. The applicant then kicked at Sam Rachelle without making contact (count 1 – common assault), and said ‘Don’t start nothing what you can’t finish’ and left.
On 25 February 2004, Frank Rachelle, Sam Rachelle’s father, was at the Melbourne Wholesale Fruit and Vegetable Market. While Frank Rachelle was bending over, the applicant hit him on the head from behind, struck him to the face when he turned around and then tried to strike him a third time but was prevented from doing so by other stallholders (count 2 – common assault). As the applicant was being pushed away from Frank Rachelle, he yelled ‘I will kill you, I will kill you, I will kill you, I will kill you, just watch me’. Fifteen minutes later the applicant approached Frank Rachelle in another part of the market and whispered in his ear ‘I will kill you, I will kill you, I will kill you, I will kill your brothers, I will kill youse, just watch me. You tell your son to come and get me, I’ll fix you all’. Both threats constituted count 3 – threat to kill.
On 26 October 2004, the applicant stopped his car in front of Sam Rachelle’s car, got out with a baseball bat and threw it at Sam Rachelle’s car, denting the bonnet (count 5 – intentional damage to property). The applicant stood in front of Sam Rachelle’s car and passed his hand across his throat in a cutting motion (count 4 – threat to kill).
Corso presentment
In mid-November 2003, Thomas Corso had a consensual sexual liaison with Tammara Mantovani. Vincenzo Mantovani was Tammara’s cousin and a friend of Thomas Corso. He heard about the liaison and became upset.
On 13 December 2003, Vincenzo Mantovani, Carmine Mantovani (Tammara’s brother) and another man assaulted Thomas Corso.
On 14 December 2003, Thomas Corso’s brother, Antonino Corso, assaulted Carmine Mantovani.
That evening, representatives of the Corso and Mantovani families met in an attempt to resolve the dispute. The applicant joined the families and told Antonino Corso that to resolve the issue, the Corsos owed him $100,000, half of it payable in two weeks and the remainder at the end of the fruit season (count 1 – blackmail).
In late December 2003, Antonino Corso gave the applicant $50,000 in cash. In April 2004, the applicant telephoned Antonino Corso and asked for the remaining $50,000. Antonino Corso said he needed a few more weeks and the applicant said, ‘Alright’. Antonino Corso did not pay the remaining $50,000.
C. ORSIDA — CONVICTION APPEAL
As mentioned earlier, this conviction appeal was upheld on 29 August 2012 and orders were made quashing the blackmail convictions. As will appear, the ground on which the appeal succeeded was not one which had been advanced by the applicant. Rather, it was raised by the Court of its own motion after argument on the appeal had concluded.
The trial had proceeded on the common assumption that, for the purposes of the offence of blackmail, an offender may be convicted if proved to have made a demand of the victim either personally or by an agent authorised to do so. The prosecution evidence was led — and the witnesses cross‑examined — on that basis. The relevant ground of appeal (set out below) contended that there was not sufficient admissible evidence to prove that the applicant, acting through Nicola Mantovani (count 1) and Diaco (count 3) as his agents, had made the alleged demands.
The deficiency in the Crown case was much more fundamental, however. As explained below, the principle of agency had no application. Proof that demands had been made by Nicola Mantovani and Diaco with the applicant’s express authority could not have established that the applicant thereby committed the offence of blackmail.
Ground 1 was expressed as follows:
The verdicts on counts 1 and 3 are unreasonable and cannot be supported having regard to the evidence (a) because there was no direct evidence admissible in proof of the making of the demands with menaces the subject of these counts and (b) it was not open to a reasonable jury to be satisfied beyond reasonable doubt of Mr Orsida’s evidence.
The ruling at first instance
At the Orsida trial, the applicant made a no case submission on all counts. He contended that, although Orsida gave evidence that, in making the demands for money, both Nicola Mantovani and Diaco told him that the demand was coming from the applicant, that evidence was inadmissible as hearsay and was denied by Nicola Mantovani and Diaco. The applicant also submitted that there was no other direct evidence which could be used to support a conclusion that the applicant was making the demands.
The trial judge rejected the no case submission on two bases. First, her Honour held that it was open to the jury to find that Nicola Mantovani and Diaco were acting as the applicant’s agents, and, if they so found, they could rely on what was said as evidence of a demand made on the applicant’s behalf and with his authority. Her Honour held that it was a recognised exception to the hearsay rule that ‘an implied authority renders the acts and words of one, the acts and words of the other’. Her Honour relied on Ahern v The Queen[4] and Tripodi v The Queen[5] for this proposition and held that the principle in those cases applied to the present case. Secondly, her Honour held that there was sufficient circumstantial evidence for the jury to conclude that the applicant made the demands through the agency of the two go-betweens. The trial judge directed the jury accordingly.
[4](1988) 165 CLR 87 (‘Ahern’).
[5](1961) 104 CLR 1 (‘Tripodi’).
It should be pointed out that Ahern concerned a charge of conspiracy to defraud the Commonwealth. In that case, the trial had directed the jury that their first task was to determine whether there was a prima facie case that the accused was a party to the conspiracy and that, for that purpose, they must have regard only to the evidence ‘directly admissible’ against the accused. The judge described such evidence as evidence of the accused’s own acts and declarations, evidence of any acts or declarations of others which he adopted and evidence of what others did at his direction. The judge then directed the jury that, if they were satisfied that there was prima facie proof of the accused’s participation, they could look at all the evidence, including the acts and declarations of the other conspirators, for the purpose of determining the ultimate issue of the accused’s ‘guilty participation’.
The High Court decided that the judge was correct about the two-stage process for assessing the admissibility of the acts and declarations of the other conspirators. However, the Court held that the judge had erred in leaving the first question to the jury, namely, whether there was reasonable evidence[6] that the accused was a party to the conspiracy, rather than deciding that question for himself.
[6]The Court preferred the expression ‘reasonable evidence’ to the expression ‘prima facie case’: Ahern (1988) 165 CLR 87, 100.
According to the Court, the trial judge alone must determine the sufficiency of the independent evidence of an accused’s participation, as this is initially a question of admissibility of evidence of acts and declarations occurring outside the presence of the accused. If the judge decides that the evidence of the acts and declarations of others is admissible to prove the accused’s participation, then it would be anomalous for the jury to effectively be required to determine the same question for itself.[7]
[7]Ahern (1988) 165 CLR 87, 103–4.
In the course of its joint judgment, the High Court stated:
In conspiracy cases a clear distinction is to be made between the existence of a conspiracy and the participation of each of the alleged conspirators in it. Conspiracy is the agreement of two or more persons to do an unlawful act or to do a lawful act by unlawful means and it is the fact of the agreement, or combination, to engage in a common enterprise which is the nub of the offence. This fact can seldom be proved by direct evidence of the making of an agreement and must in almost all cases be proved as a matter of inference from other facts, that is to say, by circumstantial evidence. For this purpose, evidence may be led which includes the acts or declarations of one alleged conspirator made outside the presence of the others provided such evidence is not led to prove against the others the truth of any assertion or implied assertion made by the actor or the maker of the statement. It may take the form of evidence of separate acts or utterances from which the fact of combination might be inferred. Led in that way, it is not hearsay and is not dependent upon some circumstance to take it outside the hearsay rule, such as an implied authority making the acts and words of one the acts and words of the other.[8]
[8]Ibid 93 (emphasis added).
The Court then discussed the co-conspirator rule that was formulated in Tripodi. According to this rule, when two or more persons are bound together in the pursuit of an unlawful object, anything said, done or written by one in furtherance of the common purpose is admissible in evidence against the others.[9] This is because the combination implies an authority in each to act or to speak on behalf of the others. The Court in Ahern went on to say that:
[t]he principle lying behind the rule is one of agency and the closest analogy is with partners in a partnership business. Indeed, conspirators have been described as partners in crime. The principle of agency has a particular application in cases of conspiracy where preconcert is the essence of the crime.[10]
[9]Ibid 94–5; R v Kalajdic (2005) 157 A Crim R 300, 303–5 [12]–[19].
[10]Ahern (1988) 165 CLR 87, 95 (emphasis added).
Agency principle not applicable
As the judge made clear in her charge, the Crown case was that the demands for money were not made by the applicant personally but by someone else acting at his request and on his behalf. On count 1, the alleged intermediary was Nicola Mantovani, and on count 3 it was Diaco.
The judge had earlier directed the jury that, for the purposes of the offence of blackmail, a demand can be made directly by the accused or indirectly, by another person acting at the request and on behalf of the accused. She said:
[A] demand made through an intermediary where they have been requested or asked or authorised to make the demand on their behalf, is as much the demand of the person who asks the other one to make it, as it is the demand of the one who is transmitting it.
Put that way it is a common sense application, things we do in our every day life.
No exception was taken to this direction, nor was it challenged on the appeal. For reasons which follow, however, the direction was wrong in law. What her Honour said reflected the orthodox agency principle as it applies in private law, but that principle has been said to be ‘inherently unsuited to what is in truth the imposition of criminal responsibility on one person for the acts of another’.[11]
[11]Pinkstone v The Queen (2004) 219 CLR 444, 466 [60].
The primary evidence of the demand allegedly made by Nicola Mantovani on behalf of the applicant was that of the victim, Orsida. According to Orsida, Nicola Mantovani (on the relevant occasions) told him that the demand was coming from the applicant. The complaint advanced by ground 1 is that Orsida’s evidence was hearsay and could not prove the truth of the statement that it was the applicant who was making the demand.
As we have pointed out, however, the issue is one of attributing criminal responsibility, not one of admissibility of evidence. The key decision is R v Franklin.[12] The leading judgment on this question was given by Brooking JA, with whom Phillips CJ and Ormiston JA agreed.
[12](2001) 3 VR 9.
As Brooking JA explains in a scholarly judgment, principles of agency have no part to play in the attribution of criminal responsibility, except in the special case of ‘innocent agency’. An innocent agent is one who is not aware of the nature of the act. Brooking JA said:
[T]he notion of agency will supply a causal connection between instigator and the acts of an innocent agent, but where the actor is not innocent the law will not treat him as the agent of anyone.[13]
[13]Ibid 24 [44].
Where, on the other hand, the actor was criminally responsible,
there was neither the need to attribute, nor the doctrinal warrant for attributing, the conduct to the instigator. As regards need, the actor was criminally responsible and the instigator could be held criminally responsible as an accessory before the fact to the actor’s crime. As regards doctrine, the notion that the acts of a normal person, not labouring under some serious mistake of fact, were voluntary prevented the instigator from being viewed as the cause of the acts of the ‘guilty’ agent.[14]
[14]Ibid 25–6 [48].
In short, unless Nicola Mantovani was either ‘innocent’ or had been induced to act by ‘coercion, deceit or the exercise of authority’,[15] the demand he made (even though said to be on behalf of the applicant) could not be attributed to the applicant. In other words, the applicant could not have been convicted of having been the principal offender. He made no demand of Orsida, and nothing said by Nicola Mantovani to Orsida could render the applicant criminally responsible. No question of admissibility of evidence arises.
[15]Ibid 27 [51].
The case was not, of course, put on the basis that the applicant had counselled or procured Nicola Mantovani to commit blackmail. Nor could it have been. For, if the case had been put that way, Orsida’s evidence about what Nicola Mantovani said to him, regarding the applicant’s participation, would clearly have been inadmissible hearsay.
Nothing said in Tripodi or Ahern provides any answer. The present is not a case of implied authority. As the Crown put the case, the applicant had expressly authorised Nicola Mantovani to make the demand. There was no occasion to resort to doctrines of implied authority. In any case, what is said in those cases is referable to the quite different situation of prior agreement, whether the charge is that of conspiracy (Ahern) or of acting in concert to commit a substantive offence (Tripodi).
The difficulty is, as discussed, that the voluntary act of Nicola Mantovani in conveying the demand to Orsida meant that it was his act, and his alone.
The above discussion is equally applicable to count 3, where the demand was said to have been made by Diaco on behalf of the applicant.
When further submissions were invited from the parties, senior counsel for the Crown conceded that the legal basis of the Crown case as put to the jury was defective. Instead, counsel argued, the case should have been run as one of joint criminal enterprise. But, as counsel readily accepted, that would have been ‘a completely different case’.
The evidence before the jury could never have established the blackmail counts. It is possible that a different case, advanced on a different legal basis, might have been capable of doing so. But we came to the clear view that it would be quite unfair, in these circumstances, to order a retrial. The Crown should not be given the opportunity to mend its defective case. Accordingly, we directed that verdicts of acquittal be entered.[16]
[16]DPP (Nauru) vFowler (1984) 154 CLR 627, 630–1; Parker v The Queen (1997) 186 CLR 494, 520–1; R v Thomas [No 3] (2006) 14 VR 512, 515 [10].
D. NASH PRESENTMENT — CONVICTION APPEAL
Grounds of appeal
The grounds of appeal that were ultimately pursued[17] in the Nash presentment may be summarised as follows:
(1)The verdict is unreasonable or cannot be supported having regard to the evidence, as the jury ought not have been satisfied beyond reasonable doubt on the disputed voice identification/recognition evidence of Nash.
(2)The trial judge erred by permitting the Crown to introduce into evidence, during its cross-examination of Daniel Latorre, an intercepted telephone call in which the applicant was a speaker.
(3)The trial judge erred by directing the jury that the prosecution case was in part based on a comparison of the applicant’s voice on the telephone intercept and the message left on Nash’s answering machine.
(4)The trial judge erred by failing to give an adequate Domican warning.[18]
[17]The applicant abandoned two additional grounds of appeal.
[18]See Domican v The Queen (1992) 173 CLR 555 (‘Domican’).
On 9 November 2012, we refused the application for leave to appeal. These are our reasons for making that order.
Ground 1: unreasonable verdict
Ground 1 was expressed as follows:
The verdict on count 2 is unreasonable or cannot be supported having regard to the evidence, as [the] jury ought not to have been satisfied beyond reasonable doubt on the disputed voice identification/recognition evidence of Karl Nash.
Prior to the commencement of Nash’s evidence, defence counsel applied for the exclusion of that part of Nash’s evidence that identified the voice on the message of 31 January 2005 as that of the applicant. The trial judge refused the application. Her Honour ruled that the voice recognition evidence had potentially high probative value and that the unfair prejudice identified by defence counsel did not outweigh the probative value of such evidence.
Nash gave evidence that he recognised the voice on the message of 31 January 2005 as that of the applicant. He said that he recognised the voice because the applicant had a distinctive voice, that he had dealt with the applicant, that he and the applicant had had conversations over a period of time, and that he was ‘100 per cent certain‘ that it was the applicant.
Nash said that he spoke to the applicant on the telephone two or three times a week to order fruit and vegetables while working at Varapodio’s restaurant and that he saw the applicant regularly when he came to deliver fruit and vegetables to that restaurant. This evidence was contradicted by the evidence of the applicant’s son, Daniel Latorre. Daniel Latorre said that he worked for the family business at the relevant times and that, when the applicant received telephone calls with ‘big orders’, he handed the telephone over to someone else as the applicant could not read or write properly. Daniel Latorre also said that deliveries to Echuca, including to Varapodio’s restaurant, were performed by him and another employee called Dave Cocker.
Nash also gave evidence that, during his previous employment as a chef at Calzone’s in Shepparton, he occasionally spoke to the applicant in person and he also spoke to him over the telephone about once a week to place orders for fruit and vegetables. This evidence was contradicted by Melvin Muto (‘Muto’), the owner of Calzone’s, who was a friend of the applicant. Muto said that usually his wife gave him a list of fruit and vegetables required for the restaurant and that he went to the applicant’s business premises to purchase the stock. Muto also said that he occasionally placed orders by telephone and that, if delivery was required, either Daniel Latorre or an employee of the applicant named ‘Frank’ would deliver the produce. Muto said that, to his knowledge, Nash never placed orders with the applicant or any other suppliers for his restaurant. Daniel Latorre’s evidence was consistent with Muto’s evidence.
Nash said that he identified the caller on 30 January 2005 as the applicant. Sergeant Dean Williams gave evidence that, when he attended Nash’s house on the evening of 30 January 2005, Nash identified the caller as Varapodio calling from a telephone box. There was evidence that the applicant was in Melbourne on 30 January 2005, at the time the telephone call was made to Nash from a telephone box in Shepparton, such that the applicant could not have been the caller on 30 January 2005.
Before this Court, the applicant did not seek to impugn the correctness of the trial judge’s ruling. The applicant submitted, however, that by the conclusion of the evidence at the Nash trial, the voice recognition evidence regarding the message of 31 January 2005 was not of sufficient weight for the jury to be satisfied beyond reasonable doubt that the applicant had left the message. The applicant relied on the following:
(a)the call was only 15 seconds in duration;
(b)there was no clear and unequivocal evidence that Nash was sufficiently familiar with the applicant’s voice prior to 31 January 2005;
(c)although Nash said that he recognised the applicant’s voice because it was distinctive, he did not explain why it was distinctive;
(d)Nash conceded that the applicant had not previously spoken to him in the aggressive and threatening tone of the call;
(e)Nash further conceded that when he had previously spoken to the applicant on the telephone, it was ‘short and sweet’, and involved Nash doing most of the talking;
(f)the tape played to the jury of the telephone message was a copy rather than the original;
(g)there was no evidence of any recording of the first occasion on which Nash identified the applicant as the caller on 30 January 2005; and
(h)Nash identified more than one person as the caller on 30 January 2005. Nash’s mistaken identification in respect of the call on 30 January 2005 made it more likely that he was mistaken in respect of the message left on 31 January 2005.
There are relatively few means of distinguishing voices. These include intonation, accentuation, the quality and duration of vowels and consonants, speed, expressed or apparent emotions, dialect and pronunciation. Choice of words and syntax may be another means of identifying a person, but strictly they do not enable his or her voice to be characterised.[19]
[19]R v Harris [No 3] [1990] VR 310, 317–18 (‘Harris’).
Voice recognition is not a field of expertise about which only experts may give evidence. Accordingly, non-expert evidence of voice recognition is admissible.[20]
[20]Ibid 318; Bulejcik v The Queen (1996) 185 CLR 375, 405 (‘Bulejcik’).
In R v Hentschel,[21] the Full Court of the Victorian Supreme Court held that it is not a correct proposition of law that evidence of the voice of a person present at a crime as being the same as the voice of the accused can only amount to positive identification where the witness is very familiar with the voice before hearing it at the crime or where the voice heard at the crime was very distinctive.[22]
[21][1988] VR 362 (‘Hentschel’).
[22]Ibid 364, 367–9. See also Harris [1990] VR 310, 315–18; Bulejcik (1996) 185 CLR 375, 382, 406–7.
Voice identification evidence is admissible even though there is no evidence of prior familiarity with the voice or of any distinctive feature of the voice, subject to the judge’s discretion to exclude it on grounds of prejudice or unfairness.[23] The matters of familiarity and distinctiveness go to the weight of the evidence rather than its admissibility. They are matters that ultimately fall to be considered by the jury in the context of appropriate instructions by the judge.[24]
[23]R v Callaghan (2001) 4 VR 79, 94 [27] (‘Callaghan’). See also R v Jones (1989) 41 A Crim R 1, 5–7; R v Ong (2007) 176 A Crim R 366, 370–1 [19]–[21]; Bulejcik (1996) 185 CLR 375, 382–3.
[24]Callaghan (2001) 4 VR 79, 94 [27].
In the present case, the eight matters relied upon by the applicant individually and collectively do not establish any error. They were matters that went to the weight of the evidence, which was to be assessed by the jury against the positive identification of the applicant by Nash. It cannot be said that, on all of the evidence, the jury was not able to reach the decision that it did.
Although the message of 31 January 2005 was short, it was a matter for the jury to determine whether the message contained sufficient information to enable it to accept Nash’s evidence that he was ‘100 per cent certain’ that it was the applicant’s voice.
The jury was entitled to reject Daniel Latorre’s evidence that the applicant did not personally take ‘big orders’ over the telephone.[25] Daniel Latorre was clearly not an impartial witness and his evidence was contradictory. He described the types of telephone orders that the applicant would pass on to others as ‘big orders’. When asked to explain what he meant by ‘big orders’, he said ‘probably 20 to 30 items’. However, he also said that a ‘small order’ comprised ‘a couple of items’, that the applicant would probably make a mistake with an order for six or seven items and ‘a lot of mistakes’ with 10 to 12 items, that the applicant would pass over ‘even … a little order … if someone was around’, and that, ‘on occasion’, the applicant would take down an order for 12 or 13 items. Daniel Latorre also gave evidence that the applicant had never left him a note and that the best that the applicant could do was write a two or three letter abbreviation of a word. When asked if the orders from Varapodio’s restaurant were small or large orders, Daniel Latorre said ‘It was fairly large. About 25 to 30 items plus’.
[25]Daniel Latorre’s evidence is discussed further under ground 2: see [83] below.
The jury was also entitled to reject Daniel Latorre’s evidence that he, rather than the applicant, made deliveries to Varapodio’s restaurant. Nash described the applicant doing the deliveries, with Daniel Latorre only doing them ‘in the end’.
To the extent that Muto’s evidence contradicted Nash’s evidence as to the frequency of Nash’s contact with the applicant at Calzone’s restaurant, the jury was entitled to disregard that evidence and conclude that Muto was a partisan witness.
In short, on the basis of Nash’s evidence, the jury was entitled to be satisfied that prior to 31 January 2005, Nash was familiar with the applicant’s voice on the telephone.
In relation to Nash’s evidence that the applicant’s voice was ‘distinctive’, in cross-examination, Nash was not asked any questions about what he meant by ‘distinctive’.
Nash’s concessions about the short duration of his discussions with the applicant and the tone with which the applicant spoke prior to 31 January 2005 were matters of weight for the jury. So was the absence of a record of Nash’s initial identification of the caller on 30 January 2005.
Although a copy of the telephone recording was put before the jury, no issue was taken with Nash’s evidence that it was an ‘excellent’ copy or with Detective Sergeant Hilary Mark’s evidence that the quality of the recording on the copy was the same as the recording on the answering machine.
In relation to the earlier call of 30 January 2005, the prosecution conceded that the caller could not have been the applicant. Nash’s evidence was that he was not 100 per cent sure about whether it was the applicant, because of the poor quality of the message. Nash’s mistaken identification of the applicant in relation to the call of 30 January 2005 was clearly relevant to the jury’s assessment of the reliability of Nash’s evidence about the message of 31 January 2005. Obviously, the jury accepted Nash’s evidence about the message of 31 January 2005.
Overall, the jury was entitled to rely on the unshaken evidence of Nash that the voice on the 31 January 2005 message was that of the applicant. That evidence was supported by the evidence that the applicant and Varapodio knew each other.
For the above reasons, we rejected ground 1.
Ground 2: evidence of intercepted telephone call
Ground 2 was expressed as follows:
The learned trial judge erred by permitting the Crown to introduce into evidence, in the course of the cross-examination of the defence witness Daniel Latorre, the sound of a telephone intercepted call in which the applicant was a speaker when: (a) the evidence was not relevant to the cross-examination of Daniel Latorre as it was not capable of contradicting his evidence-in-chief as claimed by the prosecution; and (b) the introduction of the applicant’s recorded voice had the potential to change the case from one based solely on voice identification/recognition to one based on voice comparison, in circumstances where this had never previously been suggested by the prosecution.
Until the cross-examination of the final defence witness, Daniel Latorre, the parties had conducted their cases on the basis that the key question was that of Nash’s identification of the applicant’s voice on the telephone message of 31 January 2005. Until then, the case had not involved the jury comparing the voice on the message with another recording containing the applicant’s voice.
Prior to the cross-examination of Daniel Latorre, the prosecutor sought to put before the witness a telephone intercept of a conversation between the applicant and a customer named Bramich. The prosecutor sought to use the telephone intercept as rebuttal evidence, to contradict Daniel Latorre’s evidence-in-chief that, as the applicant could not read or write properly, he passed the telephone to others to take down ‘big orders’ from customers.
The trial judge ruled that it was appropriate for the prosecutor to play the recording of the telephone intercept to Daniel Latorre during his cross-examination. Her Honour held that any prejudice arising from the jury making a comparison between the voice heard on the telephone message of 31 January 2005 and the recorded telephone conversation flowed directly from the conscious decision of defence counsel to raise the issue in the examination-in-chief of Daniel Latorre, by leading evidence from him about the applicant passing the telephone to others to take down customers’ orders.
Prior to playing the intercepted recording, the trial judge said to the jury:
Now after the events that give rise to these charges Mr Nash of course having identified Mr Latorre as the maker of the call, the subject of count 2, Mr Latorre became a suspect and the police investigated. As part of their investigation they recorded or listened into – obtained telephone intercepts of telephone calls made from Mr Latorre's telephone at the shed.[26]
[26]The trial judge later clarified that it was the applicant’s mobile telephone and not the shed telephone that was the subject of the intercept.
The recording of the telephone intercept that was played to the jury contained two voices: those of the applicant and Bramich. During the telephone conversation, Bramich ordered 14 different items of fruit and vegetables, namely, two decks of Dutch carrots, 10 kilograms of sugar snaps, two decks of bok choy, three boxes of rocket, a tray of yellow pear cherry tomatoes, eight punnets of shitake mushrooms, kiwi fruit, dark grapes, a tray of blueberries, snow peas, cucumbers, apples, half a deck of basil and four boxes of baby spinach. When Bramich referred to shitake mushrooms, the applicant asked ‘How do ya spell shitake again?’ At the end of the conversation, Bramich said, ‘I’ll ring Frank in the morning with the rest of the order, but they’re the extras I need’.
There are two limbs to ground 2. The first limb is the admissibility of the telephone intercept evidence. The second limb is the alleged miscarriage of justice arising from the expansion of the Crown’s case to include voice comparison evidence. We will deal with each limb in turn.
(a) First limb of ground 2: admissibility of the telephone intercept evidence
The applicant submitted that the evidence in the telephone intercept of his listening to an order did not serve the purpose for which the prosecutor purportedly sought to adduce it. This was because, so it was said, Daniel Latorre’s evidence-in-chief was that, when someone called the applicant with a ‘big order’, he would pass over the telephone to someone else as he could not write down big orders. According to the applicant, the order that was discussed in the telephone intercept was not a ‘big order’, such that it could not rebut Daniel Latorre’s evidence-in-chief.
The applicant contended that the very fact that the telephone intercept was placed before the jury invited the jury to impermissibly speculate that the applicant was under investigation for other potential criminal activity.
In the light of Daniel Latorre’s evidence-in-chief, which strongly impugned the veracity of Nash’s evidence on a key fact in issue — namely, that he was able to recognise the applicant’s voice because he had placed orders with him on behalf of his former employers — the trial judge was right to permit the prosecutor to play the telephone intercept to the jury for the purpose of rebutting Daniel Latorre’s evidence.
We reject the applicant’s submission that the telephone intercept was not capable of rebutting Daniel Latorre’s evidence-in-chief because that evidence was confined to the applicant passing on to others ‘big orders’, whereas the Bramich order was a ‘small order’ for ‘extras’. Although Daniel Latorre said in evidence-in-chief that the applicant passed ‘big orders’ on to others, when that evidence is considered as a whole, it is clear that the passing of orders to others was not confined to ‘big orders’. When the subject was first raised with him, Daniel Latorre said, ‘Dad used to get phone orders and he couldn’t spell so he’d always say, “Here Daniel, it’s so and so, could you take the order down for me?”’ Daniel Latorre also said that the applicant ‘occasionally took down short orders’. Importantly, apart from saying that orders from Varapodio’s restaurant tended to be ‘fairly large. About 25 to 30 items plus’, Daniel Latorre did not explain what he meant by a ‘big order’. As the Bramich order comprised 14 items, it could fairly be described as a ‘big order’.
In addition, Daniel Latorre’s evidence was to the effect that the applicant was illiterate and could only write down single syllable abbreviations. The telephone intercept records the applicant requesting Bramich to spell ‘shitake’ and was thus capable of rebutting this aspect of Daniel Latorre’s evidence.
The telephone intercept was cogent rebuttal evidence and the trial judge correctly admitted it.
We cannot accept the applicant’s submission that the telephone intercept was unfairly prejudicial because it might have suggested to the jury that the applicant was involved in other criminal activity. Before the intercepted telephone conversation was played to the jury, the trial judge made it clear to the jury that the intercept came about because of the investigation into the threatening telephone message of 31 January 2005, which comprised the charge before the jury. It follows that the existence of the telephone intercept on the applicant’s telephone was explained to the jury in such a way as to avoid prejudicial speculation.
Further, the conversation between the applicant and Bramich was an innocuous business discussion which did not in any way suggest any criminal activity. It is simply not plausible that the jury would have impermissibly speculated that the applicant was involved in, or was suspected of being involved in, any other criminal activity.
For the above reasons, the first limb of ground 2 failed.
(b) Second limb of ground 2: unfair expansion of the Crown’s case
The applicant submitted that the trial judge’s ruling was erroneous because it effected a fundamental change in the prosecution case at an extremely late stage of the trial. According to the applicant, the case changed from one based solely on voice identification/recognition to one based on voice comparison, in circumstances where this had never previously been suggested by the prosecution. This change was said to be out of proportion to the purpose for which the prosecution sought to lead the evidence and therefore led to a manifest miscarriage of justice.
The general principle is that the prosecution cannot split its case. This means that all matters probative of and relevant to the guilt of the accused should be adduced as part of the prosecution case before the accused is called upon for his or her defence.[27]
[27]R v Chin (1985) 157 CLR 671, 676, 686 (‘Chin’); R v Vonarx [1999] 3 VR 618, 629 [45] (‘Vonarx’).
The principle exists to safeguard the interests of the accused.[28] Its rationale is based on fairness: the accused is entitled to know all of the evidence that has to be met, in order to have an adequate opportunity to present the defence case as he or she desires, including the manner in which that case is shaped during the course of cross-examining prosecution witnesses.[29] In addition, evidence tendered after the defence has closed its case may assume an inflated importance in the eyes of the jury because it may be the last piece of evidence that the jury hears.[30]
[28]Vonarx [1999] 3 VR 618, 629 [47].
[29]Ibid [45]; Chin (1985) 157 CLR 671, 685.
[30]Killick v The Queen (1981) 147 CLR 565, 569 (‘Killick’).
The principle applies equally to evidence that the prosecution seeks to introduce during the course of the case for the defence or after its close.
The principle does not apply to questions asked by the prosecution in cross-examination of the defence witnesses.[31] However, questions may be rejected in the Court’s discretion if they relate to some entirely new matter that had not been the subject of evidence-in-chief, or of which notice had not otherwise been given.[32]
[31]Chin (1985) 157 CLR 671, 678, 686; R v Dunwoody (2004) 212 ALR 103, 129–30 [97].
[32]Chin (1985) 157 CLR 671, 678-9, 686–7; R v T S R (2002) 5 VR 627, 653–4 [84], 655 [90].
The principle is not a rigid and unqualified one.[33] In special or exceptional circumstances the prosecution may be permitted to introduce new evidence after the close of its case.[34] A trial judge has a discretion to allow evidence relevant to the prosecution’s case to be given in rebuttal if, for some reason, it was not available to the prosecution until after it had closed its case.[35] It would seem ‘unduly technical’ to exclude altogether evidence that was not in the prosecution’s possession until after it had closed its case.[36] The trial judge may, by the exercise of his or her discretion, prevent any unfairness to the accused from arising.[37]
[33]Chin (1985) 157 CLR 671, 677; Vonarx [1999] 3 VR 618, 629 [47].
[34]Killick (1981) 147 CLR 565, 572; Vonarx [1999] 3 VR 618, 629 [47].
[35]Chin (1985) 157 CLR 671, 677.
[36]Ibid.
[37]Ibid.
A matter relevant to the discretion to admit evidence in rebuttal is the extent to which evidence that is now clearly relevant to the prosecution case would have been only marginally, minimally or doubtfully relevant in chief.[38]
[38]Ibid 676, 685; Killick (1981) 147 CLR 565, 572, 576.
In Chin, Dawson J summarised the position as follows:
The principle of fairness which underlies the general rule that the prosecution must lead the evidence, upon which it relies to establish its case, in the course of presenting that case, has an application beyond the exercise of the discretion to allow the reopening of the prosecution case. If in the course of cross-examination of an accused person or his witnesses, the prosecution asks questions with a view to eliciting evidence for the first time which could and should have formed part of its evidence in chief, then that evidence may be exclude[d] in the discretion of the trial judge if its admission for the first time during cross-examination would unduly prejudice the accused, having regard to the obligation resting upon the prosecution to make its case known before the presentation of the defence case.[39]
[39]Chin (1985) 157 CLR 671, 686 (citation omitted).
In the present case, the admission of the telephone intercept was the direct result of defence counsel’s decision to elicit evidence from Daniel Latorre about the applicant’s capacity to record telephone orders. The telephone intercept did not form part of the Crown’s case and would not have been admitted if Daniel Latorre had not given the evidence that he gave. Once the telephone intercept was admitted, it was an obvious possibility that the jury might use it to compare the applicant’s voice on the intercept with the voice on the telephone message of 31 January 2005. The trial judge was alive to this possibility and warned the jury about the use of the telephone intercept for this purpose.
We agree with the Crown’s submission that the admission of the telephone intercept and its use by the jury for voice comparison purposes did not constitute an alteration or an expansion of the Crown’s case, but merely represented the availability of additional evidence due to the manner in which the defence conducted its case. Defence counsel correctly conceded that if the telephone intercept became admissible as rebuttal evidence, it could be used by the jury for voice comparison purposes. This issue is discussed further under ground 3.
It follows that the intercept evidence came within the principles discussed above and did not involve an impermissible splitting of the Crown’s case.
We reject the applicant’s submission that Daniel Latorre’s evidence could have been rebutted by the tender of the transcript of the telephone intercept rather than by the telephone intercept being played to the jury, and that the tender of the telephone intercept was unfairly prejudicial. Once the telephone conversation between the applicant and Bramich became admissible, the admissible evidence was the voice recording rather than the transcript.[40] Any prejudice that may have arisen from the telephone intercept was dealt with by the trial judge’s directions to the jury.
[40]Butera v DPP (Vic) (1987) 164 CLR 180.
For the above reasons, the second limb of ground 2 was not made out.
Ground 3: comparison of voices on intercept and answering machine
Ground 3 was expressed as follows:
The learned trial judge erred by directing the jury to the effect that the prosecution case was in part based on a comparison between the sound recording of the applicant’s voice on the telephone intercept (Exhibit P4) and the sound of the message left on the answering machine of Karl Nash when (a) this was not the purpose for which the evidence was sought to be led by the prosecution and (b) any such comparison was speculative and unsafe.
In his final address, the prosecutor said the following about the use the jury could make of the intercept:
You have also heard of course Mr Latorre’s voice on the CD played to his son, to Daniel Latorre and you've heard his voice on that CD and you will have that in your jury room and you can have regard to that along with all the other evidence in determining whether Mr Latorre was the man who left the message on 31 January 2005.
In his final address, defence counsel said the following:
Listen to that recorded call, it only adds, in our submission, to the doubt over whether Mr Nash has made a reliable recognition because, quite frankly, the deliverer of the threatening message doesn’t sound like – much less has been shown to be – the man speaking about fruit and vegies on his phone, that is our client, Vince Latorre.
But even if, on comparing the sound in those two records as you’d, perhaps naturally be wont to do, you believe they sound similar or very similar, we submit that could not assist you in excluding the possibility that … it was someone else out there with a similar voice who left the message on the answering machine when you consider all of the arguments that were put to you in relation to Mr Nash.
The trial judge informed the parties that she was going to give a comparison direction. Defence counsel admitted that the tape could be used for that purpose ‘subject to it being of a sufficient quantity to enable a useful comparison’. The issue defence counsel raised at trial was that the voice comparison never became a positive part of the prosecution case, not that it should not be used.
In her charge to the jury, the trial judge said:
[T]he second way in which the prosecution relies on the evidence of the recording is that it argues to you that the voices in the two recordings, the one that is of the message of 31 January and the one of the conversation between Mr Latorre and Mr Bramich, are the voices of the same man. It says therefore you can compare the voice in the conversation with Bramich with the voice in the conversation of 31 January, and when you do so you too will be satisfied that that is Mr Latorre speaking on the tape of 31 January.
There are two limbs to ground 3. The first limb is that the telephone intercept was not admitted for the purpose of enabling the jury to compare the applicant’s voice with the voice on the telephone message of 31 January 2005. The second limb is that voice comparison should not have been permitted because it was speculative and unsafe. We will deal with each limb in turn.
(a) First limb of ground 3: purpose of admission of the telephone intercept
The applicant submitted that the judge’s direction — that one of the two ways in which the prosecution relied upon the intercepted telephone conversation was to allow voice comparison — was erroneous because the prosecutor did not seek admission of the impugned evidence for the purpose of voice comparison. The prosecutor only mentioned voice comparison briefly in his final address.[41]
[41]See [113] above.
The Crown submitted that the trial judge’s ruling appropriately recognised that the recording had the capacity to be used by the jury for voice comparison purposes, and that the trial judge gave appropriate directions as to the care that the jury must take in using the telephone intercept for those purposes.
In our opinion, the trial judge did not err in telling the jury that one of the two purposes for which the telephone intercept was admitted was voice comparison. While the prosecutor did not place much emphasis on the telephone intercept being used by the jury for voice comparison purposes, he did in fact invite the jury to use the telephone intercept for this purpose in his final address.[42] So did defence counsel.[43] As a result, the trial judge was obliged to include a reference to this purpose in her Honour’s charge and to give appropriate directions in relation to it.
[42]Ibid.
[43]See [114] above.
The telephone intercept evidence was admissible and formed part of the evidence in the trial for use by the jury in resolving the issues in dispute, including the key issue of whether the voice on the message of 31 January 2005 was that of the applicant. The jury could use the intercept evidence in resolving that issue in whatever manner it considered appropriate, including by comparing the applicant’s voice on the intercept with the voice on the message of 31 January 2005, subject to the trial judge’s directions and warnings about that use.
Once the telephone intercept became available for use by the jury for voice comparison purposes, the question was not whether this was an important part of the Crown’s case, but what warnings the judge was required to give to the jury about the dangers of such use. The judge’s warnings adequately alerted the jury to those dangers and emphasised the need for special care in relying on any voice comparison.
For the above reasons, the first limb of ground 3 failed.
(b) Second limb of ground 3: prejudicial nature of the telephone intercept
The applicant submitted that the voice comparison performed by the jury was speculative and unsafe due to the difficulties associated with the jury hearing two voices side-by-side and comparing them for identification purposes, as was pointed out by the High Court in Bulejcik.[44] The fact that there was only one brief item that the jury had to use as a means of voice comparison with the telephone message of 31 January 2005, so it was said, invited the jury to engage in impermissible speculation. The applicant also submitted that the telephone intercept was played in Court to the jury on only one occasion and that, as it was played towards the very end of the evidence, it may have assumed undue importance in the jurors’ minds.
[44](1996) 185 CLR 375, 394–5.
The legal principles relating to the admissibility of voice recognition evidence and the trial judge’s discretion to exclude such evidence on grounds of prejudice or unfairness were discussed at paragraphs 67 to 70 above.
In Bulejcik, Toohey and Gaudron JJ discussed the process of voice comparison by a witness — as distinct from voice identification — in the following terms:
Where a witness identifies a voice on the basis of having heard it before, the witness needs to have heard a sufficient amount of the accused's speech to be familiar with it because, in saying that the voice at the crime scene is that of the accused, the witness is relying on his or her memory of the accused's voice. Where a witness identifies a voice on the basis of having heard it subsequently, there should be something about the voice at the crime scene to sufficiently embed it in the witness's memory so as to enable him or her to say that it is the same as a voice which he or she heard subsequently.[45]
[45]Ibid.
According to their Honours, the greater the distance in time between when the two voices compared were heard, the greater the desirable degree of familiarity or distinctiveness.[46]
[46]Ibid 395.
Where two voices are being heard side-by-side, the concern is not with familiarity or distinctiveness of the voice, but with whether the quality and quantity of the material is sufficient to enable a useful comparison to be made.[47] As to the quality and quantity of the material being compared, the greater the amount of material, the greater the similarity in the circumstances in which the voices were spoken or recorded and the greater the number of similar words used, the more useful the comparison.[48] An appellate court should be slow to depart from a trial judge’s assessment that material was of sufficient quality and quantity for the jury to be permitted to make a voice comparison.[49]
[47]Ibid 396.
[48]Ibid 395.
[49]Ibid 397.
A jury would also benefit from hearing the material more than once, so as to enable it to concentrate on both similarities and dissimilarities. Counsel for each side should have the opportunity to point out or emphasise particular similarities or dissimilarities to the jury.[50]
[50]Ibid 395.
While expert guidance is not required, it is unsafe to leave the task of voice comparison to the jury without very careful directions as to the considerations that would make a comparison difficult and without a strong warning as to the dangers involved in making a comparison.[51]
[51]Ibid 398–9.
Toohey and Gaudron JJ held that, in the circumstances of that case, the trial judge did not give the jury a sufficient warning of the difficulties involved. While the jury was properly alerted to differences in the acoustics, it was not told to consider the different contexts in which the taping occurred and the difficulties involved in distinguishing between two voices, both speaking in a particular manner, with which the jury was not familiar.[52]
[52]Ibid 397.
Once the telephone intercept evidence was properly admitted, there is nothing in Bulejcik which required the trial judge in the present case to direct the jury not to use that evidence for voice comparison purposes.[53] Her Honour clearly determined that the intercept was of sufficient quality and quantity for the jury to be permitted to make the voice comparison. Once her Honour made this determination, the length of the intercept and the quality of the sound were matters of weight for the jury, subject to the directions and warnings that her Honour provided.
[53]Ibid 395–9, 408.
There were no unusual features of the telephone intercept that rendered its admission speculative or unsafe. The trial judge gave appropriate directions to the jury about the fact that it was only a single item that was available for comparison with the telephone message of 31 January 2005. Those directions were sufficient to guard against impermissible speculation by the jury.
There is no substance in the applicant’s complaint that the telephone intercept was played to the jury only once, as the item was an exhibit that was available to the jury in the jury room.
The fact that the telephone intercept was played to the jury towards the very end of the evidence resulted solely from the fact that the defence’s last witness, Daniel Latorre, gave evidence which rendered the telephone intercept admissible.
Accordingly, the second limb of ground 3 also failed.
Ground 4: failure to give an adequate Domican warning
Ground 4 was expressed as follows:
The learned trial judge erred by failing adequately to direct the jury in accordance with Domican v The Queen (1992) 173 CLR 555.
The trial judge gave detailed directions and warnings to the jury concerning Nash’s voice recognition evidence. They included general directions and warnings about the dangers of recognition evidence, as well as specific directions and warnings that were tailored to the circumstances of Nash’s evidence. Her Honour stated on numerous occasions that the jury had to be ‘very careful’ about relying on Nash’s evidence.
Defence counsel took exception to the charge before its conclusion and submitted that the trial judge should, with the authority of her judicial office, identify all the matters that might reasonably be regarded as undermining the reliability of Nash’s voice recognition evidence. Her Honour asked defence counsel to list those matters and counsel did so. When the jury returned, her Honour dealt with those matters and no further exception was taken to the charge on this issue.
In this Court, the applicant submitted that the trial judge’s directions did not comply with the requirements in Domican, as her Honour simply gave a general warning about the dangers of identification evidence and then went through the arguments of the parties on reliability. The applicant contended that, instead of drawing the jury’s attention to weaknesses in identification evidence by specifically identifying them as weaknesses, the judge summarised the evidence on both sides and left it to the jury to make up its own mind on the evidence.
According to the applicant, the trial judge’s directions, in substance, took the form of a summary of the evidence on the identification issue, rather than directions given with the authority of the judge’s office on each of the matters that may have rendered identification evidence unreliable.
The nature of the warning that a trial judge must give to a jury about identification evidence was succinctly stated by the majority judgment of the High Court in Domican as follows:
Whatever the defence and however the case is conducted, where evidence as to identification represents any significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed. The terms of the warning need not follow any particular formula. But it must be cogent and effective. It must be appropriate to the circumstances of the case. Consequently, the jury must be instructed ‘as to the factors which may affect the consideration of [the identification] evidence in the circumstances of the particular case’. A warning in general terms is insufficient. The attention of the jury ‘should be drawn to any weaknesses in the identification evidence’. Reference to counsel’s arguments is insufficient. The jury must have the benefit of a direction which has the authority of the judge's office behind it. It follows that the trial judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence.
…
… the adequacy of a warning in an identification case must be evaluated in the context of the evidence in the case. But its adequacy is evaluated by reference to the identification evidence and not the other evidence in the case. The adequacy of the warning has to be evaluated by reference to the nature of the relationship between the witness and the person identified, the opportunity to observe the person subsequently identified, the length of time between the incident and the identification, and the nature and circumstances of the first identification – not by reference to other evidence which implicates the accused. A trial judge is not absolved from his or her duty to give general and specific warnings concerning the danger of convicting on identification evidence because there is other evidence, which, if accepted, is sufficient to convict the accused. The judge must direct the jury on the assumption that they may decide to convict solely on the basis of the identification evidence. If a trial judge has failed to give an adequate warning concerning identification, a new trial will ordinarily be ordered even when other evidence makes a very strong case against the accused.[54]
[54](1992) 173 CLR 555, 561–2, 565 (citations omitted).
The jury must be given a sufficient understanding of the potential weaknesses in the particular evidence put before it, as opposed to weaknesses generally inherent in identification evidence. However, the trial judge must be careful that the directions do not rob such evidence of all probative value.[55]
[55]Festa v The Queen (2001) 208 CLR 593, 618–19 [80].
The above principles, which deal with visual identification, apply equally to voice identification; that is, aural identification by reference to the sound of a voice, including a voice over a telephone.[56]
[56]Bulejcik (1996) 185 CLR 375, 397–9; R v Mackay [1985] VR 623, 637.
When considering the adequacy of directions in relation to identification evidence, an appellate court must examine the summing up as a whole and not merely refer to isolated passages or expressions.[57]
[57]R v Zammit (1999) 107 A Crim R 489, 499 [71].
In the present case, the trial judge directed the jury that, when considering the reliability of Nash’s voice recognition evidence, there were three main factors to be considered, namely: the circumstances in which the voice was heard; how well Nash knew the applicant’s voice; and any characteristics about Nash that may affect the jury’s assessment of his truthfulness and reliability. Her Honour then discussed each of these factors in turn and related them to the evidence and to the submissions of counsel. In respect of each of the matters relied upon by counsel, her Honour gave directions and warnings.
Her Honour’s directions and warnings dealt with each of the matters set out at paragraph 66 above. In particular, her Honour dealt at length with the contested evidence about whether Nash was familiar with the applicant’s voice prior to 31 January 2005. As there was a dispute about whether the message of 31 January 2005 was a short or a long sample, her Honour pointed out the importance of the length of a sample, but left it to the jury to decide whether the message was of sufficient duration, without describing it as a weakness. Her Honour was justified in doing so.
In addition to the matters set out at paragraph 66 above, her Honour’s warnings dealt with the following matters:
(a)the fact that the message of 31 January 2005 was not given in a face‑to‑face conversation but was transmitted through a telephone and recorded onto the digital answering machine connected to the telephone;
(b)Nash’s activities at the time that he heard the telephone message;
(c)the volume and quality of the sound of the telephone message;
(d)the fact that Nash had not previously heard the applicant’s voice on an answering machine as opposed to a face‑to‑face conversation or in a live telephone discussion;
(e)the similarity in language between the telephone message and the language that Varapodio had used in face‑to‑face discussions with Nash and in telephone conversations with him; and
(f)the fact that Nash was unwilling to recognise the possibility of error in relation to the identity of the caller.
On a fair reading of the charge as a whole, the trial judge gave directions and warnings about Nash’s voice recognition evidence that sufficiently complied with Domican. Her Honour did not simply summarise defence counsel’s submissions about the weaknesses in that evidence and the dangers of accepting it. Rather, her Honour used the authority of her judicial office to analyse and emphasise those weaknesses and dangers and to constantly remind the jury of the need to be very careful in relying upon Nash’s evidence.
Her Honour gave a separate direction that warned of the dangers of voice comparison and related those dangers to any comparison that the jury might undertake between the applicant’s voice on the telephone intercept and the voice on the message of 31 January 2005. The separate direction was appropriate in the circumstances of this case.
It followed that ground 4 was not made out.
E. SENTENCE APPEAL — ALL PRESENTMENTS
The grounds of appeal against sentence may be summarised as follows:
(1)The individual sentences and orders for cumulation are manifestly excessive.
(2)The total effective sentence and non-parole period are manifestly excessive and breach totality.
(3)The sentencing judge erred in finding that there was no indication of remorse or of a desire to change ways on behalf of the applicant.
(4)The sentencing judge erred in the application of the Verdins principles.[58]
[58]See R v Verdins (2007) 16 VR 269 (‘Verdins’).
The quashing of the convictions on counts 1 and 3 of the Orsida presentment had the effect of re-opening the sentencing discretion with respect to the remaining counts. On 9 November 2012, we resentenced the applicant as set out in Table C below.[59] Our reasons are as follows.
[59]See [194] below.
Although it was not necessary for us to consider the grounds of appeal against sentence, as the parties’ submissions on grounds 1, 3 and 4 concerning the Nash, Rachelle and Corso presentments informed the exercise of our sentencing discretion, we will briefly discuss them.
Summary of matters put at the plea and the sentencing judge’s conclusions
At the plea hearing, the prosecutor relied on the following matters relating to the Nash, Rachelle and Corso presentments, which were described as ‘aggravating factors’:[60]
(a)on the Nash presentment, the nature of the threat made and the circumstances in which it was made;
(b)on the Rachelle presentment, the ‘ongoing vendetta’ between the applicant and the Rachelles, Frank Rachelle’s age (59 years) and the fact that he was struck from behind while bending down; and
(c)on the Corso presentment, the follow-up telephone calls made to Antonino Corso and the pressure on him to pay over an extended period.
[60]Cf R vC J K [2009] VSCA 58, [39]–[41].
Counsel for the applicant put the following major mitigating factors:
(a)the guilty pleas on the Rachelle and Corso presentments which, apart from their utilitarian value, involved an acceptance of responsibility and remorse;
(b)the lack of any significant prior convictions;
(c)the applicant’s intellectual impairment and depression;
(d)the applicant’s strong work history;
(e)the applicant’s dedication to his family and the care he provided for an invalid brother;
(f)the applicant’s strong family support;
(g)the fact that, in 1989, the applicant and his family were victims of aggravated burglary, false imprisonment, kidnapping, extortion and intentionally causing injury;
(h)the fact that the applicant had suffered ‘extra-curial punishment’ in the form of stigma, opprobrium and loss of customers as a result of the publicity associated with his trials and sentencing;
(i)the fact that the applicant had endured a difficult experience in pre-sentence custody;
(j)the delay from offence to charge to committal to trial and to sentence;
(k)the applicant’s good conduct since he was charged and throughout the trials; and
(l)the applicant’s good prospects of rehabilitation, based on the fact that he has chosen to make a fresh start in Melbourne, and the fact that one of his brothers has agreed to offer him employment in his business at the end of the custodial sentence.
The sentencing judge found that:
(a)although the applicant had an intellectual impairment, the Verdins principles had only limited application;[61]
(b)the applicant’s prospects of rehabilitation were limited;[62]
(c)there was no evidence of remorse;[63] and
(d)while the pleas of guilty in relation to the counts on the Rachelle and Corso presentments were not entered at the earliest reasonable opportunity, they nevertheless served a utilitarian purpose.[64]
[61]Reasons, [202]–[203].
[62]Ibid [220]–[221].
[63]Ibid [223].
[64]Ibid [236].
Ground 1: individual sentences and cumulation are manifestly excessive
Under cover of ground 1, the applicant submitted that:
(a)in relation to the Nash presentment, the sentence of four years’ imprisonment and the direction for cumulation of one year on count 1 are manifestly excessive;
(b)in relation to the Rachelle presentment, the directions for cumulation of three months in respect of each of the sentences on counts 3 and 4 are manifestly excessive; and
(c)in relation to the Corso presentment, the sentence of four years’ imprisonment and the direction for cumulation of two years’ imprisonment on count 1 are manifestly excessive.
We consider the individual sentences for each of the presentments in turn. We discuss cumulation later, in the context of the resentencing of the applicant.
(a) Individual sentence on the Nash presentment
The applicant relied on the sentence of two years’ imprisonment that was imposed in Director of Public Prosecutions v Minutoli[65] in support of his submission that the sentence of four years’ imprisonment that was imposed on the Nash presentment was manifestly excessive. In Minutoli, following the firebombing of the victims’ car while it was parked in their carport, the accused knocked on their door demanding that they pay him $10,000 so that it would not happen again. The victims were vulnerable pensioners and the offence of blackmail was committed while the offender was on a suspended sentence for a previous offence.
[65][2003] VSCA 201 (‘Minutoli’).
Reliance on Minutoli as a ‘comparable case’ is unhelpful. In that case, the accused pleaded guilty, and there were other mitigating factors that were not applicable to the offence against Nash, including the accused’s remorse, the low risk of re-offending and the possibility that the accused did not realise that his acts constituted a criminal offence. This Court described the sentence of two years as ‘lenient’.[66]
[66]Ibid [13].
As the sentencing judge in the present case found, the applicant’s extortion offence was ‘a very serious example of its kind’[67] and was designed to prevent Nash from enforcing his legal rights.[68] The threat of harm was directed at Nash’s young children. The sentence of four years’ imprisonment was well within the sentencing range and was entirely appropriate. As will become apparent, we treated it as the base sentence when we resentenced the applicant.
[67]Reasons, [73].
[68]Ibid [76].
(b) Individual sentences on the Rachelle presentment
Neither party submitted that the individual sentences on the Rachelle presentment were inappropriate. We agree with those sentences.
(c) Individual sentence on the Corso presentment
The applicant submitted that the sentence of four years’ imprisonment for the blackmail offence against Antonino Corso was out of all proportion to the sentence of two years’ imprisonment that the same sentencing judge imposed on Vincenzo Mantovani for the offence of blackmail against Thomas Corso, and the sentence of two years and six months’ imprisonment that her Honour imposed on Giuseppe Campisi (‘Campisi’) for the offence of blackmail against another complainant named Harold Paskins (‘Paskins’).
This submission cannot be accepted. Vincenzo Mantovani was convicted of one count of blackmail involving Orsida, one count of blackmail involving Thomas Corso and one count of blackmail involving Paskins. The blackmail of Orsida related to Orsida’s sexual advances towards Racioppo and consisted of a demand for $40,000 and a threat of physical harm. The blackmail of Thomas Corso consisted of a demand for $50,000 and involved an assault upon Thomas Corso. The blackmail of Paskins consisted of a demand for $100,000 and involved an assault upon Paskins together with a threat that he would be shot if he did not pay. Campisi was also involved in the Paskins blackmail. He made the initial demand for $100,000 but did not assault or threaten Paskins.
Vincenzo Mantovani was sentenced as set out in Table B below on the three counts of blackmail:
TABLE B
Count Date Offence Maximum Sentence Cumulation Presentment No C0806108.2 – Complainant Orsida
1 July 2004 Blackmail 15 y 3 y Base Presentment No C0806108.3 – Complainant Corso
3 November 2004 Blackmail 15 y 2 y 1 y Presentment No C0806108.5B – Complainant Paskins 1 19 January 2006 Blackmail 15 y 2 y 1 y
Vincenzo Mantovani pleaded guilty to all counts of blackmail. Pursuant to s 6AAA of the Sentencing Act1991, the sentencing judge declared that, but for his guilty pleas, her Honour would have sentenced Vincenzo Mantovani to four years and six months’ imprisonment on the Orsida count, three years’ imprisonment on the Corso count and three years’ imprisonment on the Paskins count.
While it is true that some instances of Vincenzo Mantovani’s conduct were more serious than some instances of the applicant’s conduct, the sentencing judge was required to sentence both offenders based on an intuitive synthesis of all the sentencing considerations that applied to each case. In the case of Vincenzo Mantovani, there were cogent mitigating factors — including Vincenzo Mantovani’s acquired brain injury, genuine remorse and good prospects of rehabilitation[69] — that were absent in the case of the applicant. Vincenzo Mantovani’s sentences were also moderated by his guilty pleas and the confessional nature of his record of interview.[70]
[69]Reasons, [258], [270]–[274], [276]–[277], [280]–[281], [287].
[70]Vincenzo Mantovani unsuccessfully applied for leave to appeal against his sentences: see Mantovani v The Queen [2012] VSCA 225.
In relation to the Paskins blackmail, the sentencing judge sentenced Campisi to two years and six months’ imprisonment and directed that 18 months of the sentence be suspended for 18 months.[71] Her Honour declared that, but for the guilty plea, she would have sentenced Campisi to three years and nine months’ imprisonment and would have fixed a non-parole period of two years and three months.[72]
[71]Campisi unsuccessfully applied for leave to appeal against his sentence: Campisi v The Queen [2010] VSCA 183.
[72]Reasons, [401].
Although the sentencing judge described Campisi’s offending as ‘opportunistic’ and ‘a bad example of its type of blackmail’,[73] her Honour accepted that there were significant mitigating factors in Campisi’s favour. These included early indications of a guilty plea, no prior convictions and little risk of re-offending.[74] Although Campisi played the lead role in the Paskins blackmail, her Honour described him as a ‘fringe player in the overall activities rather than somebody at the centre of it’.[75] The applicant’s offending cannot be compared with that of Campisi. The differential sentences were justified by the sentencing judge’s findings about each individual’s circumstances.[76]
[73]Ibid [159]–[160].
[74]Ibid [294], [297]–[299], [306].
[75]Ibid [303].
[76]Teng v The Queen (2009) 22 VR 706, 710 [17].
The sentencing judge found that the applicant’s blackmail offence against Antonino Corso was ‘a particularly serious case of blackmail’[77] which involved the applicant capitalising on ‘an existing situation in which [he] had no personal or direct involvement in order to make money for [himself]’.[78]
[77]Reasons, [113].
[78]Ibid.
In all the circumstances, the sentence of four years imposed by the sentencing judge on the Corso presentment was appropriate.
Ground 3: absence of remorse
Under cover of ground 3, the applicant submitted that the sentencing judge erred by finding that there was no indication of remorse or of a desire to change ways on behalf of the applicant, despite: his move from Shepparton to Melbourne with his family; a lengthy period of not offending; his guilty pleas to the counts on the Rachelle and Corso presentments; and his willingness to consent to the making of an intervention order against him in favour of the Rachelles.
These submissions were completely devoid of merit, in our view. On the evidence presented on the plea, the sentencing judge was correct to find that the applicant had not adduced any evidence ‘that was indicative of remorse or any indication of a desire to change [his] ways in a way which would have supported a remorse-supporting rehabilitation submission’.[79]
[79]Ibid [223].
The sentencing judge found that the fact that the applicant had moved to Melbourne and the fact that he was subject to stringent bail conditions were not mitigating factors but were direct consequences of his offending.[80] Further, her Honour found that, faced with the choice of consenting to a bail condition of not having contact with the Rachelles at the Melbourne Wholesale Fruit and Vegetable Market, or defending an application to revoke his bail for interference with witnesses, the applicant had opted for the former.[81] In other words, her Honour found that the applicant’s conduct was explicable by considerations other than remorse or a desire to change.
[80]Ibid [248].
[81]Ibid.
Post-offence obedience to the law, without more, is not an indication of remorse for prior offending.
The applicant’s pleas to the counts on the Rachelle and Corso presentments were not made at the first reasonable opportunity.[82] The sentencing judge adequately explained why, in the circumstances in which the pleas were made, they did not indicate remorse.[83] Nevertheless, her Honour gave favourable consideration to the pleas in relation to the sentences on the Rachelle and Corso counts.[84]
Ground 4: misapplication of the Verdins principles
[82]Ibid [225]–[236].
[83]Ibid [224].
[84]Ibid [236]–[237], [288].
Under cover of ground 4, the applicant submitted that the sentencing judge erred in the application of the Verdins principles by determining that the applicant’s intellectual impairment was not relevant to the level of his moral culpability for any of the offending, and by failing to moderate the weight to be accorded to general deterrence by reason of the applicant’s intellectual impairment and depression.
At the plea hearing, a forensic psychologist, Patrick Newton, gave evidence for the applicant. Mr Newton relevantly stated that:
(a)the applicant had an IQ of 67 and his intellectual functioning fell in the mildly intellectually impaired range. The applicant had significant deficits across both his verbal and non-verbal reasoning;
(b)the applicant found it difficult to think clearly about the consequences of his actions, to analyse the information necessary to make decisions and to weigh the various alternatives available to him. The applicant’s control mechanisms were very unsophisticated and his capacity to control impulsive urges was reduced;
(c)the applicant suffered a recurrent major depressive disorder that has afflicted him since adolescence;
(d)the applicant had the capacity to form the requisite intent, to understand the wrongfulness of his actions and to commit the offences of which he was convicted or pleaded guilty. The applicant’s moral reasoning was not impaired. The applicant had the capacity to understand that the telephone message that was left on Nash’s answering machine would convey a threat and would cause anxiety and apprehension. The applicant was capable of committing blackmail;
(e)the applicant’s incarceration was contributing to an intensification of his depression; and
(f)the applicant’s intellectual disability and chronic depression made him a particularly vulnerable prisoner and his time in custody was more onerous than that of other prisoners.
The sentencing judge concluded as follows in relation to Mr Newton’s evidence:
(a)Mr Newton’s evidence did not provide any support for the application of the first principle in Verdins,[85] that is, the lessening of moral culpability by reason of the applicant’s intellectual impairment;[86]
(b)the evidence of the applicant’s intellectual functioning had a limited effect when considering the weight to be given to general deterrence;[87]
(c)the combination of the applicant’s impairment and depressive illness meant that the imprisonment would continue to weigh more firmly on him than it would on a person without that combination of conditions;[88]
(d)due to the applicant’s intellectual impairment, the weight otherwise to be given to specific deterrence should be significantly moderated in his favour;[89] and
(e)the weight that would otherwise be given to the applicant’s prospects of rehabilitation required moderation because of his poor social skills; severely limited capacity for logical reasoning; poor capacity to learn from his mistakes and difficulty in thinking clearly about the consequences of his actions; and his limited prospects for improvement in his adaptive function.[90]
[85](2007) 16 VR 269, 275 [26].
[86]Reasons, [202].
[87]Ibid [203].
[88]Ibid [208], [217].
[89]Ibid [208].
[90]Ibid [220]–[221].
The applicant submitted that her Honour’s conclusion regarding the first principle in Verdins incorrectly limited the applicability of that principle to circumstances where the offender cannot tell right from wrong. The applicant contended that Mr Newton’s evidence that the applicant’s control mechanisms were unsophisticated, and that his capacity to control impulsive urges was reduced, accorded with the first principle in Verdins. Accordingly, so it was said, the sentencing judge was wrong to find that the applicant’s moral culpability was not moderated by reason of his intellectual impairment. The applicant also submitted that her Honour erred in failing to moderate the weight to be given to general deterrence by reason of the applicant’s moral culpability.
The applicant’s submissions must be rejected. The circumstances in which the applicant committed the offences of blackmail, extortion and threats to kill did not involve acting impulsively or in anger. On the contrary, the offences were calculated, opportunistic and involved a crude simplicity. Mr Newton’s evidence was that, notwithstanding his intellectual impairment, the applicant had the capacity to knowingly carry out the offences of which he was convicted or pleaded guilty. Mr Newton described the applicant’s conduct as ‘fairly unsophisticated offending’. Accordingly, the applicant’s intellectual impairment neither caused nor explained his offending.[91]
[91]Ibid [20].
It follows that the sentencing judge was correct to conclude that the first principle in Verdins did not apply. For the same reasons, her Honour was also entitled to give little weight to the effect of the applicant’s intellectual impairment on general deterrence.
F. RESENTENCING
The applicant submitted that the degree of cumulation of three months on each of the two threat to kill counts on the Rachelle presentment was manifestly excessive because: it was 25 per cent of each of the individual sentences; it did not have sufficient regard to the relative gravity of each event or to totality; and it failed to take into account the fact that the applicant was sentenced separately by way of fines for the aggravating conduct — the assault and property damage — which occurred at about the same time as the threats.
There is no substance to these submissions. The offence of making a threat to kill is a very serious offence with a maximum of 10 years’ imprisonment. The sentencing judge described the threat to kill Frank Rachelle as ‘serious’.[92] Notwithstanding the belated guilty pleas, which her Honour treated as ‘carrying more weight than court door pleas normally carry’,[93] her Honour correctly found that there was an absence of remorse and limited prospects of rehabilitation.
[92]Ibid [105].
[93]Ibid [288].
Following the setting aside of the sentences on counts 1 and 3 on the Orsida presentment, the applicant maintained that a ‘minimal amount of cumulation’ was appropriate for the threat to kill counts and that the cumulation of half of the sentence imposed on the blackmail count on the Corso presentment was contrary to the totality principle. The applicant contended that his offending could no longer be characterised as a lengthy and continuing course of criminality. The applicant also relied on: the further delays that have occurred; the lengthy period for which he has been in custody to date; the progress he has made towards rehabilitation; his continuing health problems and the low risk of re-offending.
The Crown submitted that, in the light of the setting aside of the sentences on counts 1 and 3 on the Orsida presentment, the principle of totality required that a period of cumulation of six months’ imprisonment be directed for each of counts 3 and 4 on the Rachelle presentment. According to the Crown, a doubling of the cumulation for each of these counts was appropriate to reflect the serious nature of the offending conduct, the fact that the offences were separate and discrete from the Nash matter and from each other, and that they were committed against different victims.
We agreed with the Crown’s submissions and rejected the applicant’s submissions.
In the reasons for sentence, her Honour described the applicant’s offending as being ‘at the serious end of the scale’,[94] the blackmail offences as ‘very bad cases of blackmail’,[95] and the applicant’s criminal behaviour over four years as ‘protracted’, ‘exploitative’, ‘calculated, consistent and persistent’ and ‘of a very high degree of seriousness’.[96] Her Honour found that the applicant’s conduct, when viewed as a whole, was ‘evil, cruel and cowardly’ and had ‘created and exploited a climate of fear amongst [the Orsidas and Antonino Corso]’.[97]
[94]Ibid [33].
[95]Ibid [48].
[96]Ibid [174]–[175].
[97]Ibid [250].
We agree with this characterisation. The quashing of the convictions on counts 1 and 3 on the Orsida presentment did not detract from the egregious nature of the applicant’s offences against Nash, the Rachelles and Antonino Corso.
The sentencing judge was correct to denounce the applicant’s offending against those complainants in the strongest possible terms. The applicant engaged in high-handed, repetitive standover tactics against several victims who were known to him. The victim impact statements of Nash, his de facto wife, Sam and Frank Rachelle and Antonino Corso indicate that they feared for their lives and for the safety of their families and property. Members of the community are entitled to go about their lawful personal and business affairs free from the type of thuggery that characterised the applicant’s offending. That type of conduct has no place in our society and requires a lengthy custodial sentence.
Notwithstanding the quashing of the convictions on the Orsida presentment, the applicant fell to be sentenced on seven counts, covering the period from November 2002 until January 2005. That is a large number of serious offences, covering a significant period and involving separate incidents with different victims. In these circumstances, the principle of totality did not preclude substantial periods of cumulation. In particular, cumulation of six months on each of the threat to kill counts on the Rachelle presentment was warranted, in order to properly reflect the seriousness of these offences.
We took into account all the matters set out at paragraphs 156 and 186 above. The applicant has not demonstrated genuine remorse, nor any significant prospects of rehabilitation. This militated against the weight to be given to delay as a mitigating circumstance.[98]
[98]R v Merrett (2007) 14 VR 392, 400 [34]–[35].
In the light of the above, we resentenced the applicant as set out in Table C below.
TABLE C
Count Date Offence Maximum Sentence Cumulation Presentment No C0806108.4B — Complainant Nash
2 31 January 2005 Extortion 15 y 4 y Base Presentment No U01867876.1D — Complainant Rachelle
1 November 2002 Common assault 5 y Fined $1,000 N/A 2 25 February 2004 Common assault 5 y Fined $2,000 N/A 3 25 February 2004 Threat to kill 10 y 1 y 6 m 4 26 October 2004 Threat to kill 10 y 1 y 6 m 5 26 October 2004 Intentional damage to property 10 y Fined $1,000 N/A Presentment No C0806108.3A — Complainant Corso
1 14 December 2003 Blackmail 15 y 4 y 2 y Total Effective Sentence: 7 y Non-Parole Period: 5 y Total Fines: $4,000
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