Mantovani v The Queen
[2012] VSCA 225
•20 September 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2009 0976
| VINCENT MANTOVANI |
| v |
| THE QUEEN |
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| JUDGES | MAXWELL P, BONGIORNO JA and KYROU AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 6 March 2012 |
| DATE OF JUDGMENT | 20 September 2012 |
| MEDIUM NEUTRAL CITATION | [2012] VSCA 225 |
| JUDGMENT APPEALED FROM | R v Mantovani (Unreported, County Court of Victoria, Judge Hampel, 10 & 15 December 2009) |
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CRIMINAL LAW – Appeal – Sentence – Blackmail, criminal damage, conspiracy to pervert the course of justice – Total effective sentence 7y, non-parole period 4y – Whether manifestly excessive – Cognitive impairment – Whether moral culpability reduced – Whether publicity caused applicant hardship in prison – Leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P F Tehan SC | Tait Lawyers |
| For the Respondent | Mr D A Trapnell SC | Mr C Hyland, Solicitor for Public Prosecutions |
MAXWELL P
BONGIORNO JA
KYROU AJA:
Introduction and summary
The applicant pleaded guilty to 12 offences. Following a plea in mitigation, he was sentenced as follows:
Count Date Offence Maximum Sentence Cumulation Presentment No C0806108.2 – Complainant Orsida
1 July 2004 Blackmail 15y 3y Base 3 26/10/2004 Intentional damage to property 10y 2y 6m 6 31/8/2005 Intentional damage to property 10y 2y 6m Presentment No C0806108.1 – Complainants Howes and Selman
Count Date Offence Maximum Sentence Cumulation 1 Jan/Feb 2006 Conspiracy to pervert the course of justice 25y 1y 6m 3 3/7/2006 Perjury 15y 6m None Presentment No. C0806108.3 – Complainant Corso
Count Date Offence Maximum Sentence Cumulation 3 November 2004 Blackmail 15y 2y 1y Presentment No. C0806108.5B – Complainant Paskins
Count Date Offence Maximum Sentence Cumulation 1 19/1/2006 Blackmail 15y 2y 1y Presentment No. U01871248 – Drugs offences
Count Date Offence Maximum Sentence Cumulation 1 19/1/2006 to 31/8/2006 Traffick in a drug of dependence (Steroids) 15y
18m 6m 2 3/8/2006 Possession of a drug of dependence (Steroids) 5y and/or 400 penalty units 6m None 3 3/8/2006 Possession of a drug of dependence (Diazepam) 1y and/or 30 penalty units
$500 fine N/A Presentment No. U01871248.1 – Firearms offences
Count Date Offence Maximum Sentence Cumulation 1 3/8/2006 Prohibited person in possession of an unregistered firearm 15y and/or 1800 penalty units $1,000 fine N/A 2 3/8/2006 Prohibited person in possession of an unregistered firearm 15y and/or 1800 penalty units $1,000 fine N/A TES: 7y and $2,500 NPP: 4y
The applicant now seeks leave to appeal against all the individual custodial sentences, the total effective sentence and the non-parole period.
For the reasons that follow, we have concluded that leave to appeal should be refused.
Overview of offending
(a) Orsida presentment
In mid-2004, the applicant learned that Rocco (Rocky) Orsida (‘Orsida’), who operated a number of orchards in partnership with his brother, Roy, in the Cobram region, had made sexual advances towards Luisa Racioppo (‘Racioppo’). Racioppo was employed by the Orsidas in early 2004 for about six months and had been in a relationship with the applicant.
The applicant was enraged about the advances towards Racioppo and told an acquaintance, Vincent Latorre (‘Latorre’), that he wanted to assault Orsida. Latorre suggested that the applicant use the situation as an opportunity to blackmail Orsida instead.
In July 2004, the applicant telephoned Orsida and said ‘Rocky, you’ve got to pay $40,000 and you know who to take it to. You just do what I told you to do’. The applicant later made Orsida aware that he would be harmed if he did not pay (Count 1). No money was paid to the applicant.
On the night of 26 October 2004, the applicant drove four men armed with secateurs to the Orsidas’ Lonergan Road property, where the four men cut down about 1,600 fruit trees and damaged irrigation piping (Count 3).
On the night of 31 August 2005, the applicant drove a number of men armed with secateurs to the Orsidas’ Murray Valley Highway property, where the men cut down about 500 fruit trees and damaged irrigation piping (Count 6).
(b) Howes and Selman presentment
In March 2005, the applicant was charged with offences to be dealt with in the Magistrates’ Court. Rebecca Howes (‘Howes’) was to be a prosecution witness in those proceedings.
Between 8 January and 3 February 2006, the applicant conspired with Daniel Latorre (Latorre’s son) and Giuseppe Campisi (‘Campisi’) to persuade Howes to either withdraw her statements to the police or to vary her evidence so as not to incriminate the applicant.
Between 8 and 14 January 2006, Daniel Latorre telephoned Howes and said that he had some paper to give her in relation to the applicant and the impending court case. They met at a park and Daniel Latorre gave Howes a letter addressed to the applicant from his solicitors. Daniel Latorre told Howes to contact the solicitors and advise them that she did not wish to give evidence.
Between 22 and 30 January 2006, the applicant made a number of telephone calls to Daniel Latorre and Campisi to obtain Howes’ telephone number and to confirm that Howes had seen the solicitors. On 30 January 2006, Daniel Latorre telephoned Howes to find out why she had not been to see the solicitors.
On 31 January 2006, Daniel Latorre told the applicant he would text Howes’ telephone number to him. The applicant telephoned Campisi and asked him to obtain Howes’ number from Daniel Latorre after work the next day. The applicant said that, if Daniel Latorre could not get Howes to cooperate, Daniel Latorre would have to make a statement exonerating the applicant.
On 3 February 2006, an unidentified male telephoned Howes and said, ‘This is about court on Wednesday. I suggest you don’t turn up. It would be terrible if something happened to you on your way back or on your way there’ (Count 1).
On 22 May and 29 May 2006, the applicant spoke to a subpoenaed witness, Jarrod Selman, by telephone. On 3 July 2006 the applicant gave false evidence on oath that he had not spoken to Selman between 22 May and 3 July 2006 (Count 3).
(c) Corso presentment
In mid November 2003, Thomas Corso, a friend of the applicant, had a consensual sexual liaison with the applicant’s cousin, Tammara Mantovani. The applicant and Tammara’s brother, Carmine Mantovani, were upset at this.
On 13 December 2003, the applicant, Carmine Mantovani 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. Latorre 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.
In late December 2003, Antonino Corso gave Latorre $50,000 in cash.
In April 2004, Latorre telephoned Antonino Corso and asked for the remaining $50,000. Antonino Corso said he needed a few more weeks and Latorre said, ‘Alright’. Antonino Corso did not pay the remaining $50,000.
On 2 November 2004, at Latorre’s request, the applicant approached Thomas Corso at a pub, assaulted him and demanded payment of the remaining $50,000 by saying in a threatening manner, ‘You know what you’ve got to do now, do it’ (Count 3).
(d) Paskins presentment
In December 2005, Harold (Harry) Paskins (‘Paskins’) ceased his employment as sales manager of a Ymer family business called Fruit Ace and set up his own wholesale fruit business. In January 2006, Paskins received a letter from the Ymer family which stated that Fruit Ace was suffering financial difficulties and was ‘approximately $150,000 short’. The letter further stated that ‘Your running of our company has cost us dearly’.
In the early hours of 19 January 2006, the applicant and his co-accused, Campisi, went to the market where Paskins’ fruit stall was situated. When Paskins arrived, Campisi said, ‘I hear you owe some money and we’re here to talk about it. You owe $300,000. We are good friends of the Ymer family. You don’t need to know and we want $100,000 by Wednesday’. Paskins said that he did not owe anyone any money. Campisi replied, ‘You owe $100,000 by Wednesday’.
The applicant then slapped Paskins across the face and said ‘You owe money’ and ‘We will shoot you and we know where you live’ (Count 1).
The applicant took Paskins’ briefcase and walked away with Campisi. Paskins ran after them and recovered the briefcase. Market security staff pursued the applicant and Campisi, who fled the market.
(e) Drug offences
Between 19 January and 3 August 2006, the applicant dealt in testosterone, nandrolone, methiandienone and boldenone and/or their derivatives. These are all drugs of dependence under the Drugs, Poisons and Controlled Substances Act 1981. He sold, offered to sell and had in his possession for sale quantities of the drugs on an ongoing basis (Count 1).
On 3 August 2006, the police found in the applicant’s bedroom quantities of tablets and capsules containing prasterone, two sealed syringes of testosterone enanthate and 60 blue tablets containing diazepam (Counts 2 and 3).
(f) Firearms offences
The details of the firearms offences are not relevant to the appeal.
Applicant’s personal circumstances and the sentencing judge’s findings
The applicant was aged between 25 and 27 years when he committed the offences. He is now 32. At all relevant times he lived and worked with his parents on their orchard near Cobram.
The applicant left school to work on the family farm after failing year 9 and completing year 10 at Technical School. He suffered acute pesticide poisoning while working on the farm at 15 years of age.
The applicant had been involved in body building since around 17 years of age and had taken part in competitions. He had used steroids over a number of years and had suffered significant health consequences as a result.
The sentencing judge made the following relevant findings:
(a)As to the Orsida blackmail, the applicant felt aggrieved at Orsida because of his own previous relationship with Racioppo. Even though his motive (revenge) was reprehensible, his conduct in blackmailing Orsida was less culpable than Latorre’s two separate acts of blackmailing him.[1]
[1]R v Mantovani (Unreported, County Court of Victoria, Judge Hampel, 10 & 15 December 2009), [55]–[59] (‘Reasons’). Latorre’s convictions on those two blackmail counts were the subject of a separate appeal. By order made 29 August 2012, the Court of Appeal quashed those convictions and entered a judgment of acquittal on each count. Reasons are to be published in due course.
(b) The applicant had been reluctant to assist in damaging the Orsidas’ orchards but he lacked the courage to refuse to do so, notwithstanding his personal knowledge of how significant the destruction of the fruit trees was.[2]
[2]Reasons, [63]–[65].
(c) As to the Corso matter, the applicant had acted as an enforcer at Latorre’s behest.[3]
[3]Ibid [116].
(d) As to the Howes and Selman matter, the conspiracy was the applicant’s idea and it was pursued with persistence.[4]
[4]Ibid [122].
(e) As to the drug trafficking, it was persistent conduct and a very serious offence, but profit was not the dominant purpose.[5]
[5]Ibid [134]–[135].
(f) As to the Paskins offence, although the applicant acted at the behest of Latorre and Campisi, he did more than simply intimidate by his presence.[6]
[6]Ibid [149]–[150].
(g) Taken as a whole, the offending was serious, persistent, committed over a long period, had cruel and manipulative aspects and was accompanied by some violence.[7]
[7]Ibid [290].
(h) The applicant had led a ‘thuggish’ lifestyle during the period of the offending and it was not possible to determine the extent to which his offending was the result of the influence of Latorre or the consequence of his own self-image.[8] However, it was through Latorre that the applicant’s impulse to resolve grievances by violence was diverted into other unlawful activities such as blackmail and property damage.[9]
[8]Ibid [266].
[9]Reasons, [264].
(i) The applicant had sustained a ‘minimal but significant’ acquired brain injury as a result of the pesticide poisoning. His deficits in cognitive functioning affected his memory and some of the executive functions associated with his frontal lobes. As a result, the applicant had difficulty with new learning, conceptual flexibility, planning and organisation and coping with new situations. The applicant was less aware of the needs and feelings of others and found it difficult to deal with situations of provocation and anger arousal. The applicant’s impaired memory affected his self-confidence.[10]
[10]Reasons, [258], [270]–[272]. These findings reflect the conclusions in a report of a neuropsychologist, Dr Lindsay Vowels, dated 23 January 2007.
(j) The applicant was ‘in the normal intelligence range, although perhaps towards the lower end of the scale’.[11]
[11]Reasons, [272].
(k) Her Honour did not consider that there was a strong link between the applicant’s cognitive deficit arising from his acquired brain injury and the offending nor, therefore, that his moral culpability was significantly reduced. However, the weight given to general and specific deterrence had to be moderated.[12]
[12]Ibid [274].
(l) In his late teens, the applicant had health problems arising from his steroid use and he began to suffer from depression due to the deaths of a number of people close to him.[13] He was diagnosed with depression prior to being charged. He now acknowledged that he suffered from the condition, having previously denied this.[14]
[13]Ibid [260]–[261].
[14]Ibid [267]–[269], [273].
(m) In relation to the drug offending, the health problems suffered by the applicant as a result of his steroid use were a deterrent in themselves.[15]
[15]Ibid [289].
(n) The applicant had apologised through his counsel to the victims of his offending, and he had a stable and supportive family.[16]
[16]Ibid [254]–[257], [280].
(o) The applicant was genuinely remorseful.[17] He was a model prisoner, who made every effort to rehabilitate himself[18] and who had good prospects of rehabilitation.[19]
[17]Ibid [276], [281].
[18]Ibid [277].
[19]Ibid [280], [287].
(p) The guilty pleas had significant utilitarian value and reflected remorse. Although the pleas were not entered at the earliest reasonable opportunity, due to the complexity of the case and the difficulties in finalising settlements, the pleas should be given more weight than pleas made at a similar stage of proceedings might otherwise receive.[20]
(q) Prison would be more onerous for the applicant because of his cognitive deficits, depression and anxiety. This counted in his favour.[21]
(r) The applicant’s few prior convictions were of little relevance.[22]
[20]Ibid [282]–[287].
[21]Ibid [275]–[276].
[22]Ibid [262].
Grounds of appeal
The grounds of appeal may be summarised as follows:
(1) The total effective sentence is manifestly excessive as a result of the imposition of a manifestly excessive sentence for the Orsida blackmail count, and the making of excessive orders for cumulation.
(2) The sentencing judge erred in finding that the applicant’s moral culpability was not reduced by reason of his acquired brain injury and depressive illness.
(3) In the light of fresh evidence concerning the applicant’s situation in custody arising from a newspaper article, this Court should resentence the applicant.[23]
[23]On 6 March 2012, this Court made a suppression order in relation to matters concerning Ground 3.
Ground 1: sentence is manifestly excessive
Under cover of Ground 1, the applicant submitted that the imposition of a sentence of three years’ imprisonment for the Orsida blackmail was disproportionate to the criminality of his conduct for the following reasons: the offence was committed by the applicant by the making of a single threatening telephone call to Orsida; the applicant received no benefit from the offence; the applicant was manipulated by Latorre; the applicant was remorseful and had good prospects of rehabilitation; the applicant had pleaded guilty; and the sentencing judge found that general and specific deterrence were to be accorded reduced weight.
The applicant also contended that, for the same reasons, the cumulation of one year in respect of the blackmail offences against Corso and Paskins respectively was excessive, as was the total effective sentence of seven years.
The applicant’s submissions must be rejected. The applicant’s conduct in relation to the Orsida blackmail constituted a serious violation of the rights of his victim to go about his personal and business affairs without being threatened with financially motivated violence. The demand was for a substantial amount of money and was motivated by revenge. The fact that the applicant received no benefit is irrelevant.
There was no finding that the applicant was manipulated by Latorre. Her Honour found that, although the idea of making a demand had come from Latorre, the applicant had been ‘a willing and receptive independent operator’.[24] He had, in short, acted on his own initiative, motivated by his own desire for revenge. The judge found that he was ‘prepared to lend [himself] as a henchman to Vincent Latorre in his various illegal activities and independently also to commit offences on [his] own’.[25] There was no challenge to those findings.
[24]Reasons for Sentence, [55].
[25]Reasons for Sentence, [263].
Rather than being manifestly excessive, the sentence of three years imposed for the Orsida blackmail was, as the Crown submitted, moderate in the circumstances. But for the plea of guilty and the other matters relied on in mitigation, a significantly higher sentence would have been warranted.
The directions for cumulation were unobjectionable. The sentencing judge found that the applicant’s offending was serious, persistent and long-term, often cruel and manipulative’ and associated with violence.[26] As submitted by the Crown, the blackmail offences involving Thomas Corso and Paskins were entirely separate offences, which involved different victims and which occurred many months after the Orsida blackmail. They were both serious offences, particularly the Paskins blackmail which involved a threat that Paskins would be shot. A direction for cumulation of 50 per cent of the sentence for each offence was entirely appropriate in the circumstances.
[26]Reasons for Sentence, [290].
The criminal damage offences were likewise very serious. As the Crown submitted, they represented an attempt to destroy the Orsidas’ livelihood, and were calculated to make them fearful.
At the same time, the sentencing judge had proper regard to the principle of totality in her directions for cumulation.[27] Given the extent of the applicant’s criminality, the total effective sentence of seven years was moderate if not lenient, as the Crown submitted. It is plain that the judge gave significant weight to the mitigating factors. It is not reasonably arguable that the sentences were outside the available range. Accordingly, we would refuse leave on Ground 1.
[27]Reasons for Sentence, [291].
Ground 2: moral culpability
Under cover of Ground 2, the applicant submitted that the judge ought to have moderated the sentence on account of reduced moral culpability resulting from his acquired brain injury and depressive illness.[28] The failure to do so was said to have resulted from two factual errors. The first alleged error was the finding that the applicant had performed ‘well enough at school academically’,[29] when he had failed year 9. The second alleged error was her finding that a neuropsychologist, Dr Lindsay Vowels, had assessed the applicant’s problems as ‘not overwhelming’, when Dr Vowels had in fact referred only to his memory problems as ‘not overwhelming’.[30]
[28]See R v Verdins (2007) 16 VR 269, 275 [26] (‘Verdins’).
[29]Reasons, [257].
[30]Ibid [270], [272].
The applicant contended that the sentencing judge misunderstood the nature and severity of his cognitive impairment and that this led her to the erroneous conclusion that his moral culpability was not reduced by his acquired brain injury.
In her report dated 23 January 2007, Dr Vowels assessed the applicant’s pre-morbid intelligence at the lower end of the average range and concluded that the brain injury resulted in his memory and executive function being compromised. Dr Vowels also found that the applicant’s problems in executive functioning, arising from damage to a different area of the brain from that relevant to memory, were likely to be expressed in inappropriate behaviours. In Dr Vowels’ opinion, it was very possible that some of the offending behaviour was the outcome of organic frontal lobe impairment rather than deliberate and planned conduct.
The applicant submitted that, having accepted that his cognitive functioning was compromised, the sentencing judge erred in finding that he lacked ‘the moral courage to say it was wrong [or] that [he] did not want to be part of it’, when urged by Latorre to commit criminal damage. The applicant contended that his capacity to resist Latorre’s manipulations was compromised. According to the applicant, his inability to see beyond his anger at Orsida’s attentions towards Racioppo, and at Thomas Corso’s conduct with Tammara Mantovani, reflected a combination of his traditional upbringing and the incapacities which Dr Vowels identified as arising from his frontal lobe damage.
In our view, there was no error of fact. Her Honour’s conclusions were open on the evidence. As to the first, the finding that the applicant performed ‘well enough at school academically, socially and in sport’[31] was an overall assessment of his performance in three separate areas, and was not inconsistent with there having been occasional setbacks in one of those areas.
[31]Ibid [257].
The second alleged error is based on a misreading of the sentencing reasons. After referring to Dr Vowels’ statement about the applicant’s cognitive disabilities, her Honour said:
[I]t is important to go back and to … put it into context, that Dr Vowels’ assessment was that this was a minimal but significant acquired brain impairment, and that the problems are clearly not overwhelming.[32]
The statement that the problems were not overwhelming was her Honour’s own observation regarding a relevant contextual matter. She did not misquote Dr Vowels’ report.
[32]Ibid [272].
Contrary to the applicant’s submission, the sentencing judge did find that there was a link between his cognitive impairment and his moral culpability, but concluded that it was not strong and did not ‘significantly reduce’ the applicant’s moral culpability. Accordingly, her Honour gave little weight to reduced moral culpability as a mitigating factor. Her Honour also took into account the effect of the applicant’s cognitive impairment in making imprisonment onerous for him, and for the purpose of moderating general and specific deterrence.[33]
[33]See above [33](k).
The sentencing judge was not, of course, bound to accept Dr Vowels’ evidence about the link between the applicant’s cognitive impairment and his offending. It was for her Honour to assess, in the light of all the evidence, the nature of the applicant’s cognitive impairment and the degree, if any, to which it contributed to his offending and thus reduced his moral culpability. Her Honour applied the correct principles regarding the connection that must exist between the applicant’s cognitive impairment and his offending in order to engage the first principle in R v Verdins.[34] The conclusions she reached were conclusions of fact. In our view, those conclusions were reasonably open on the evidence.[35]
[34](2007) 16 VR 269, 275 [26]. See Carroll v The Queen [2011] VSCA 150, [20] (‘Carroll’).
[35]Carroll [2011] VSCA 150, [18].
Moreover, in our respectful view, the conclusions were clearly correct. The applicant’s difficulties in managing anger and provocation, and his tendency to act impulsively without considering the consequences of his actions, had little to do with his offending. Rather, his offending involved a crude simplicity and required only rudimentary planning. The key element was the use of brute force or the threat of it to coerce his victims into complying with his demands. The applicant’s offending did not occur in a sudden burst of anger, nor did it involve a spur-of-the-moment reaction to an act of provocation.
It follows that Ground 2 is not made out.
Ground 3: fresh evidence about applicant’s situation in custody
Under cover of Ground 3, the applicant submitted that the impact of a newspaper article on his situation in custody has turned out to be more severe than the sentencing judge had anticipated when she passed sentence and that, in the light of the fresh evidence about that situation, he should be resentenced.
The background to Ground 3 is as follows. On the morning upon which the applicant was due to be sentenced, a newspaper article about the court proceedings contained statements which, the applicant felt, would cause him additional hardship within the prison system. The sentencing judge adjourned the plea in order to give the applicant an opportunity to consider his position. At the adjourned hearing, after hearing counsel’s submissions, her Honour ruled that any adverse impact on the applicant arising from the newspaper article would be ‘at most … a short term impact’. As a result, her Honour held, she did not need to reconsider the sentence to be imposed on the applicant.
On the appeal, the applicant sought to rely on three affidavits as fresh evidence about his experience in custody since his sentence, to demonstrate that it was significantly worse than was appreciated at the time of sentence.[36] The Crown did not object to the tender of the affidavits but submitted that the sentencing judge had evaluated the situation correctly and had sentenced the applicant appropriately.
[36]See R v Rostom [1996] 2 VR 97, 99–101; R v Pividor [2002] VSCA 174 (1 November 2002)
[41]–[43]. Eliasen v The Queen (1991) 53 A Crim R 391, 394.
The affidavits indicate that, between the date of the sentence on 15 December 2009 and 19 April 2010, the applicant was subjected to verbal abuse, jostling and threatening behaviour. Importantly, however, he had not been subjected to similar conduct since that time.
In our view, the three affidavits do not go anywhere near demonstrating that the sentence imposed on the applicant was inappropriate. The sentencing judge correctly anticipated the short-term nature of the difficulties that the applicant might face in custody. Having regard to all the circumstances, including those set out in the three affidavits, the sentence imposed on the applicant was well within the applicable range. Indeed, it was at the lower end of the range.
Accordingly, Ground 3 is not made out.
Conclusion
For the reasons we have given, none of the grounds is reasonably arguable and leave to appeal must therefore be refused.
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