R v Arico
[2000] VSC 257
•13 June 2000
| SUPREME COURT OF VICTORIA | |
| CRIMINAL DIVISION | Not Restricted |
No. 1538 of 1999
| THE QUEEN |
| v. |
| DOMENICO ARICO |
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JUDGE: | COLDREY, J. | |
WHERE HELD: | MELBOURNE | |
DATE OF SENTENCE: | 13 JUNE 2000 | |
MEDIUM NEUTRAL CITATION: | [2000] VSC 257 | |
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CATCHWORDS: Sentence – Murder – Victim wife – Non-acceptance by accused of victim's termination of marriage – Pre-meditation – Prolonged ferocious attack – Importance of general deterrence – Sentenced to 18 years with a 14 year non-parole period.
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APPEARANCES: | Counsel | Solicitors |
For the Crown | Mr. B. Kayser | Office of Public Prosecutions |
| For the Accused | Mr. C. Francis Q.C. Mr. I. Crisp | Darrell Nelson & Co. |
HIS HONOUR:
Application was made by the Crown for an order that Domenico Arico provide a blood sample pursuant to s.464ZF of the Crimes Act 1958. That application was the subject of consent. Accordingly, I intend to make the order sought. I am further required by the legislation to explain to Mr Arico that the police may use reasonable force in order that the forensic procedure involved may be carried out.
Mr Arico, I have ordered that you provide police with a DNA sample, being a blood sample. The procedure is simple and quick and should only involve a pinprick. It can easily be performed with your co-operation. However, the law also provides that the police may use reasonable force to enable the procedure to be conducted. No doubt your barrister will explain the matter further to you.
Domenico Arico, you have been found guilty by a jury of the murder of your wife, Carmel Arico, at Williamstown on 10 May 1999, and I must now sentence you. In order to do so, it is necessary to briefly outline the circumstances surrounding this offence.
You married your wife, Carmel, in November 1974. She had been brought up in Australia, while you had migrated here from Calabria, Italy, in 1969 when you were about 19 years old. Together you brought up two sons, Rocco and Gaetano. For much of the marriage you both worked and pooled your resources. You also shared such household chores as cooking and washing. Eventually you bought land in Lana Court, Airport West where the family home was built. You did all the carpentry work and the house was completed in about 1986. Shortly thereafter, your wife became interested in ceramics and ultimately went into business, having purchased an oven and a large number of moulds. You assisted your wife in this enterprise, although it does not appear to have been profitable.
It is hard to assess the exact nature of your relationship. You told the jury that it was a happy one until your wife commenced to further her education in 1996. Your son Rocco agreed this was a turning point in your marriage, although he claimed that his mother was unhappy in the marriage from an earlier time. Indeed, he deposed to her telling him on many occasions that she was depressed.
It is clear, however, that from 1996 your relationship with Carmel Arico deteriorated.
You complained she was no longer interested in the home, that she would yell at you and that she showed you no respect. For example, if you would ask her to perform a household chore, she would reply: "You've got hands, you do it." if she received a telephone call or was home late and you enquired as to the caller, or where she had been, she would respond: "It's none of your business."
In turn, your wife was apparently upset because of what she perceived as the restrictions you sought to impose on her lifestyle. She complained that you treated her like a servant. She was also critical of your gambling habits. Whether gambling was a significant issue between you, or a manifestation of your wife's discontent, it is not possible to determine on the evidence. What is clear is that, as a couple, you were growing apart. Carmel Arico had found in her student activities a new dimension to her life. She was exposed to a level of freedom and independence she had never before experienced, and she desired more of it. You found it difficult to cope with the destruction of the order and certainty of two decades of married life. Your distress was accentuated when, in February 1999, Carmel Arico left you without any prior warning. She set up house at 6 Knight Street, Williamstown, having taken a considerable amount of furniture with her. I accept that you still loved her and wished to preserve the family unit. No doubt you were also affected by what you described to the jury as the Calabrian tradition that if a wife left her husband, the husband lost respect and experienced shame within the Calabrian community.
Once you located your wife's new address, you attempted to re-establish the relationship. Carmel Arico would permit you to stay on Saturday nights, but she required you to return to your sons on the Sunday. I accept the evidence of your son Rocco that the on-off nature of the relationship was causing you to deteriorate emotionally. At the same time your wife was pressing you to sell the Airport West property, indicating that she desired to live at Williamstown. Despite your very great attachment to the Lana Court house, which you had partially built yourself, you agreed to sell it in order to please her.
During this period the family met at a Williamstown restaurant. On that occasion your son Rocco walked out of the restaurant because he did not wish to leave Airport West. You later met up with him at the Knight Street property where, in the course of trying to convince him that the family should stay together, you obtained a knife from the kitchen and threatened to kill yourself. Ultimately you fell on the floor weeping.
Around Easter 1999, Carmel Arico was admitted to the Royal Melbourne Hospital. You visited her nightly and, when she was discharged, she allowed you to live with her at the Williamstown property. Even then there were tensions between you. A next door neighbour, Mr Glenn Davis, spoke of hearing two loud arguments emanating from the premises. The last of these was about three weeks prior to 10 May 1999.
On 9 May you left Knight Street ostensibly to go shopping. However, you ended up in a hotel playing the poker machines. After you had been absent for about two hours, your wife traced you to this venue. She was very angry, and when you returned to Knight Street, you were confronted with three green plastic bags full of your clothing and personal items, deposited on the front verandah. After a brief verbal exchange, you entered the house through a side window and you were removing the balance of your possessions when the police arrived. They had been called by your wife to supervise your departure.
According to one of these police officers, Senior Constable Graeme Betts, your wife complained to him about your gambling. When asked whether you had been separated, she replied: "Yes, but I let him come back about two months ago. I want him to go again because of his gambling." you agreed to go, and surrendered the house keys. Senior Constable Betts described the behaviour of each of you as calm and rational.
According to your son Rocco, you were most unhappy and emotionally hurt by what had occurred. Indeed, you agreed that you had said that you could have killed your wife for what she did to you, but you said it only as a figure of speech and not an expression of intent.
By 9 May 1999 the Airport West house had been sold for $320,000 and, on 10 May, you and your two sons went looking for another suitable house.
On that afternoon you located such a property at Keilor Park. Your evidence to the jury was that when you rang to inform your wife about this, she said: "Keep it for yourself." a further phone call in which you suggested that you both buy a house in Williamstown was met with the short response: "Not with you anymore." by this stage, if not on the Sunday morning, it must have been quite clear to you that your wife regarded the marriage as at an end. This was, however, a state of affairs you were unwilling to accept.
The evidence of Rocco Arico was that on two or three occasions on that Monday you had asked: "Do you think I ought to kill her?" your sons had said, in effect: "Don't be stupid, because you're going to mess up our lives as well." although you denied asking this question, the jury would, in my view, have been satisfied that it was an option which crossed your mind, and to which you gave expression. Your son said you may also have spoken of committing suicide. Your state of mind at this time was a mixture of hurt, depression and anger.
About 7.30 p.m., after an evening meal with your sons, you went to your bedroom, saying you intended to go to bed. At an indeterminate time you secretly left the house. You could provide no explanation to the jury as to why you did not inform your son Rocco. Before leaving, however, you wrote a note for your sons which you left under your pillow. It read: "Dear children, Rocco and Gaetano, I can no longer put up with what has happened. For this reason I, your father , leave you all that I have. Love each other, both of you, as you are brothers. I, your father, Arico Domenico, and I ask your forgiveness."
In light of the subsequent events, it is my view that the jury would have viewed this note as an expression of your intention of killing your wife, and possibly yourself. It is significant that when you later rang Rocco from the Newport railway station, you told him that you had killed his mother and apologised. You said that you were upset the knife had broken or you would have killed yourself. You also told him of the note that you had written.
After leaving the Airport West premises, you embarked on a journey that must have taken over an hour. You travelled by public transport to Williamstown, en route stopping at a hotel to drink a can of VB. You arrived at Knight Street shortly after 10 p.m. Your wife was not at home and you waited in the lane opposite her house. Upon her arrival, about 10 minutes later, you crossed the road towards her. You had left home with a knife in a plastic bag, together with salami and a bread roll. You claimed that you intended to stay the night and this was your lunch to take to work the next day. I regard it as highly likely that the contents of the bag were designed to make the carrying of the knife appear innocent. In any event, you left the plastic bag at the corner of the laneway, for reasons which were never adequately explained, and crossed the road with the knife. You told the jury it was in your back pocket. You confronted your wife just inside the gate at 6 Knight Street, before she was able to enter the house. Whether there was any preliminary conversation is a matter of conjecture. Between 10 and 10.30 p.m. The neighbours heard what transpired to be the screams of your wife. Your account to the jury was that in the course of conversation with your wife, you were gesticulating when she threw herself on you, grabbed your left hand and bit off the tip of your ring finger. You had no memory of your actions thereafter. It was not until you were near the Newport railway station that you started to remember that you had stabbed your wife. You did, however, tell the jury that you remembered the knife breaking during the course of the stabbing.
Whether or not the jury regarded your partial loss of memory as genuine, I am of the view that they totally rejected your account of this incident. In particular, they rejected your assertion that your wife, who had a history of non-violence, initiated the incident by biting your finger. Rather, they formed the view that your finger was bitten and the right side of your face was scratched by a woman desperately trying to defend herself from your knife-wielding attack. Whilst her defensive actions may have further increased your anger and you resolved to kill her, they did not cause you to lose your self-control. Indeed, when the witness Scott Pepin disturbed you while you were standing astride your wife's prone body slashing her lower back and buttocks, you warned him: "get back or else I'll have a go at you." At this stage your wife was still alive and calling out: "help, help, I'm dying, help, help." Mr Pepin temporarily retreated and called on a neighbour, Mr Davis, to contact the police. He then returned to the scene where you were lifting the waistline of your wife's pants and slashing in the buttock area. Mr Pepin pleaded with you to stop or calm down, but you ignored him.
The attack you made upon Carmel Arico was truly ferocious as you gave vent to your feelings of frustration and anger. The noted pathologist, Professor Stephen Cordner, described 42 incised wounds and three stab wounds to Mrs Arico's body, each caused by a separate pass with the knife. The fatal wounds were those inflicted to the neck and abdomen. There were, for example, four to five inch (11 centimetre) incised wounds to either side of the deceased's neck. One wound to the abdomen, which was about eight inches in length, had part of the deceased's bowel protruding from it. Indeed, the force of your attack was illustrated by the fact that a portion of the bowel had been detached from the body by the knife and been deposited over the front fence in the gutter. There were 15 to 16 horizontal and largely parallel incised wounds to the mid region of Mrs Arico's back. The only other injuries I will mention are eight incised wounds to the fingers and forearms of the deceased, consistent with her trying to grab or fend off the knife.
Despite the valiant efforts of both Mr Pepin and Mr Davis to render assistance to your wife, she died soon after you left the scene. After telephoning your son, as I have detailed, you rang 000. You informed them in an unemotional, matter of fact manner of what you had done, although the evidence suggests that, with the passage of time, you began to realise the enormity of your actions.
The element of premeditation in this offence is one aggravating feature. Having arrived at the decision to kill your wife , and having left the note for your sons, you travelled a considerable distance across Melbourne and awaited her arrival at the house. Further, the attack itself was both extremely violent and prolonged. It continued despite your wife's cries for help and the attempted intervention of neighbours.
By the sentences which they impose, the courts must uphold the sanctity of human life and deter persons who, by resorting to violence, seek to destroy such life. In particular, the courts must deter persons who may contemplate violence to resolve domestic conflict. Carmel Arico, like any other woman in Australian society, had every right to terminate her marital relationship, and to do so without suffering fatal consequences.
In assessing the gravity of this offence I do take into account the emotional trauma you were experiencing at the time, although it is not suggested that you were suffering from any identifiable psychological problems or psychiatric illness. However, the significance of the element of general deterrence cannot be undervalued.
In the course of his plea on your behalf, your counsel, Mr Crisp , mentioned a number of matters personal to you which are relevant to any sentence to be imposed. However, before discussing these matters, I wish to say something about Mrs Arico.
Carmel Arico was only 44 years old when she died. Victim Impact Statements prepared by her brother, Rocky Furina, and sisters, Grace Italiano and Rose Athanasiadis, each contain heartfelt expressions of their grief and sense of loss at her death. The Victim Impact Statements also speak of the devastating effect of this loss upon her parents and sons. Grace Italiano speaks of a sister who was a great comfort to her, Rocky Furina of a person who looked after him as her little brother and Rose Athanasiadis as a cherished best friend. All speak of her loving nature, her warm-hearted generosity, and her willingness to assist family, friends and neighbours. She derived great pleasure from her studies, and particularly from being accepted into the Victorian University of Technology to do a psychology degree. The tragic and untimely death of Carmel Arico is something from which her relatives, and her friends, will never fully recover.
Domenico Arico, you are 51 years of age , having been born in September 1948. You were born at Palmi, a coastal town in Calabria in southern Italy. You have three brothers and two sisters, all of whom live in Italy. You left school at the age of 13 to assist your father on the family farm, which produced grapes. At the age of 15 you commenced to work in the building trade as a builder's labourer. You learnt the skill of constructing concrete formwork over the next few years. When you were aged 19, your employer became insolvent and you lost the equivalent of about $3,000 in back pay. You decided that Australia presented better opportunities and migrated here. At that time you had both an aunt and an uncle living in Melbourne. After working in a biscuit factory in Richmond for about three weeks, you commenced work in the building trade and have pursued that occupation ever since. Between 1969 and 1973 you worked for Salzer Constructions. Apart from doing concrete formwork, your tasks also included those of steel fixer, dogman and carpenter. Thereafter you obtained a job with Grollo Constructions for about 18 months. After a visit to Italy in 1973, you returned to Melbourne, and for the next 17 years you worked for Podgor Constructions attaining the level of general foreman. That employment ceased after the death of the company founder and you were then engaged by another construction company, Vina Constructions. You worked there for about a year, during which time you incurred a back injury for which you received compensation.
Medical reports tendered to the Court describe a continuing disability to your lower back and subsequent degenerative arthritic changes to both knees. Despite these physical impairments you resolved to continue working and from 1994 to the time of your arrest in 1999, you worked for Caelli Constructions, again as a formwork carpenter. The construction manager of that firm, Mr Guy Caelli, gave evidence that you were a hard worker, who worked well with others and during the Docklands project, you were working up to seven days a week. In short, your history indicates that you have worked consistently and hard over many years. There is also evidence that you were a good provider.
In the course of your plea an aunt, Mrs Dominica Romea, with whom you lived for five years upon your arrival in Australia, attested to your capacity for hard work. While working in the building trade, you also assisted her and her husband in a fruit shop they were operating in Richmond. She also asserted that this offence has had a devastating effect upon your family in Italy and is quite out of character from your normal behaviour. This is borne out by your history of non-violence.
While you have prior Magistrates' Court convictions in September 1992 for possessing firearms without a licence, these matters have no relevance for sentencing purposes.
A letter written by Father Grant O'Neill of the Catholic Prison Ministry indicated that you now regularly attend church and have come to understand the consequences of your actions. Father O'Neill perhaps provides some insight into your situation. He speaks of the problems where wives broaden their experiences and education and husbands like you, who traditionally expect to make all the decisions and have their wives remain subservient, feel greatly threatened. In my view, implicit in what occurred in this case is your inability to cope with your wife's educational attainments and growing desire for independence.
I accept the submission by your counsel that the loss of any support from your sons is itself a punishment. This, coupled with the fact that your own close family reside in Italy, means that your time in prison is likely to be characterised by isolation and loneliness. Additionally, the assets you had accumulated over your working life are now lost to you forever. All this constitutes a level of punishment.
Although you may feel some remorse at what you have done, a critical examination of material before the Court suggests that much of it is directed to the destruction of your own life rather than the death of your wife. Furthermore, it is significant that although Father O'Neill speaks of you coming to understand the consequences of your actions, he details no expressions of remorse by you. It follows that remorse can be given only limited weight in the sentencing process.
I take into account that you have lived a virtually unblemished life in this community for over 30 years. Your non-violent past, lack of any relevant or significant prior convictions and demonstrated capacity for hard work make your prospects of rehabilitation good. This also reduces to some extent, the weight that needs to be accorded to specific deterrence. I also take into account that you are almost 52 years of age.
Balancing as best I can the principles of sentencing enunciated in the Sentencing Act, including punishment, specific and general deterrence and rehabilitation, I have concluded that the appropriate sentence in your case is that you be imprisoned for 18 years. I fix a minimum of 14 years before you become eligible for parole.
Further, I declare that the period to be reckoned as already served under the sentence is 400 days inclusive of today's date. I direct that there be noted in the records of the Court the fact that this declaration was made and its details.
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