R v Carbone

[2018] NSWSC 331

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Carbone [2018] NSWSC 331
Hearing dates:	2 February 2018
Date of orders:	22 March 2018
Decision date:	22 March 2018
Jurisdiction:	Common Law - Criminal
Before:	Mathews AJ
Decision:	Diego Carbone is sentenced to imprisonment consisting of a non-parole period of 21 years commencing on 23 July 2015 and expiring on 22 July 2036, with an additional term of 7 years, commencing on 23 July 2036 and expiring on 22 July 2043 making a total sentence of 28 years. The earliest day on which you will be eligible for release on parole is 22 July 2036.
Catchwords:	CRIMINAL LAW – murder - sentence after trial - joint criminal enterprise - premeditated killing in company - above mid-level of objective seriousness - offender suffering from depression and anxiety - relative youth of the offender - whether the offender has reasonably good prospects of rehabilitation.
Legislation Cited:	Crimes (High Risk Offenders) Act 2006 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	Muldrock v R [2011] HCA 25
Category:	Sentence
Parties:	Regina Diego Carbone
Representation:	Counsel: Mr R Herps – Crown Mr W Terracini SC – Offender   Solicitors: Solicitor for the Director of Public Prosecutions Tsambas & Co Solicitors
File Number(s):	2014/255002
Publication restriction:	No

Judgment

Introduction

1. On 20 September 2017 the offender, Diego Carbone, was indicted on a charge that, on 11 August 2014, he murdered Bradley Dillon. He pleaded not guilty, and a jury trial then proceeded. On 12 October the jury returned with a verdict of guilty of murder. The offender now comes to be sentenced for that offence.

Events leading up to the killing

2. The event which first set in train the various matters leading to Mr Dillon's murder occurred in the middle of July 2014. At that stage the deceased's younger sister, Cassie, had been going out with one Adriano Riccio for about six months. He had drug problems, and he asked her to lend him $2,000 so that he could go to a drug rehabilitation clinic in Broadbeach. She lent him the money, and he promised to return it. In fact he did not go to the rehabilitation clinic. By that time their relationship had ended. Early in August 2014, Ms Dillon, who needed the money, asked for it back. Her initial attempts were unsuccessful, so she enlisted the support of her brother Bradley. Ms Dillon said that Bradley did not know Mr Riccio, but he did know Antonio (Tony) Bagnato, who was Mr Riccio's business partner in that they were co-owners of a club in Oxford Street Darlinghurst. All three of them were members of the St Michael's Fight Club.

3. It is unnecessary for present purposes to go into the details of the attempts Mr Dillon made in order to have the money repaid to his sister. In due course it was arranged that he would meet some people at or near the Leichhardt Market, in order to sort out the debt. For that purpose he drove there late on the afternoon of 11 August in a car he was in the process of buying.

Circumstances of the killing

4. The Leichhardt Market comprises a number of shops, most of which are on or near the corner of Flood Street and Lords Road, Leichardt. Underneath is a car park that is rarely used. The vehicle approach is via a ramp that goes down from Lords Road. There are also stairways from Flood Street for pedestrian access.

5. Mr Dillon parked his car on Flood Street opposite the market a little after 5:00pm. CCTV images from the TAB shop on Flood Street show him wandering in and out of the shop, often looking up and down the street as if he was waiting for someone. At 5:20pm he received a text message saying "car park under tab". He immediately left the area and walked down to the car park.

6. About half an hour earlier CCTV footage showed the offender, Mr Carbone, walking down to the same car park. Shortly afterwards a blue Astra, driven by Antonio Bagnato, arrived in the car park. The offender got into the passenger side, and the car drove off. Other evidence showed that it parked in a nearby street to the south of the market. Subsequent events make it clear that the two of them then walked back to the car park, and were waiting there when Mr Dillon walked down from Flood Street.

7. The details of what happened immediately afterwards cannot be known. A woman who was walking along Flood Street near the stairs down to the car park heard arguing and swearing. Shortly afterwards a number of gunshots were heard by numerous witnesses. Almost immediately afterwards Mr Dillon ran up the ramp to Lords Road, and staggered along the footpath before collapsing. All attempts to revive him were unsuccessful. I shall describe a little later the numerous injuries he received.

8. Very shortly afterwards, two men were seen to run up the same ramp, cross Lords Road and then run south in George Street. There is no doubt that these two men were the offender and Mr Bagnato. They got into Mr Bagnato's car and drove away from the scene.

Events following the murder

9. Two days later, on 13 August, Mr Bagnato flew to Thailand where, on all accounts, he is currently in prison, facing a possible death sentence as a result of a murder committed in that country. On 26 August the offender, Mr Carbone, also sought to fly to Thailand. However he was not permitted to leave because of problems with his passport. After obtaining a new passport, he again sought to fly out on 29 August. On that day he was arrested at the International Terminal, and charged with the current offence. He has consistently declined to answer any questions about the matter, as is his absolute right.

The course of the trial

10. The Crown case at the trial was based on circumstantial evidence, given that no outside observer had witnessed the events in question. It was also dependent upon the jury finding beyond reasonable doubt that there was a joint criminal enterprise between Mr Bagnato and the offender to kill or really seriously injure Mr Dillon (or alternatively to assault him, with the offender foreseeing the possibility that really serious injury or death might result). A number of people who were in the vicinity of the market at the time gave evidence of hearing the gunshots and seeing Mr Dillon run up from the car park onto Lords Road where he collapsed. A few also described seeing two men running away from the market almost immediately afterwards. They were going in a southerly direction towards the place where Mr Bagnato had earlier parked his car. One was wearing a green top with a large "7" on it. A highly compelling piece of evidence consisted of a piece of green fabric found on the floor of the car park, which was consistent with being the top of the jersey worn by one of the two men. This contained the DNA of both Mr Dillon and of the offender, Mr Carbone. In addition, a DNA analysis of one of the deceased's fingernails also included the DNA of the offender. A common means whereby this can occur is for the person in question - in this case Mr Dillon - to have scratched the other person.

11. Numerous telephone records were tendered in the Crown case. Potentially the most significant telephone was the one which sent the final message to Mr Dillon, saying "car park under tab". However, as it later emerged, that telephone had been sold to an anonymous person. It had been activated only that afternoon, and was not used for any other purpose. Accordingly the records relating to that telephone were of no assistance in identifying the perpetrator. One thing they did indicate, however, is the extent of the planning and premeditation involved in this offence.

12. Highly significant evidence was given by the forensic pathologist, Dr Kendall Bailey, who conducted the post mortem examination of the deceased, and also by the ballistics expert, Senior Constable Andreatta.

13. Constable Andreatta attended at the scene later on the evening of 11 August. He found five cartridge cases on the ground, indicating that five shots had been fired. The gun involved was a Glock 9mm pistol, which he said is a very common form of firearm, used by police forces around the world. This particular gun must have been equipped with a magazine in order to fire the shots in quick succession, as described by numerous witnesses.

14. Dr Bailey conducted the post-mortem examination on 12 and 13 August. She concluded that the direct cause of death was multiple gunshots and stab wounds of the thorax. Of these, the gunshot wounds were by far the more serious. Indeed some of the apparent stab wounds might, she said, have been caused by therapeutic intervention when paramedics attended the scene and attempted to revive Mr Dillon. She described these stab wounds in considerable detail, though it is unnecessary for present purposes to repeat those details here. Suffice it to say that all stab wounds were apparently inflicted from behind. There were three gunshot wounds. Two of these had entry wounds on Mr Dillon's back, and exit wounds at the front of his chest and upper body. Both were very serious, and would almost certainly have been fatal on their own. The third wound was on his left foot, with the entry wound on the sole of the foot and the exit at the top. One realistic scenario for this wound is that Mr Dillon was shot from behind when he was attempting to run away, with his foot in the air.

15. It is unnecessary for present purposes to say more about the evidence relied upon by the Crown at the trial. Suffice it to say that the cumulative effect was sufficient to establish a reasonably strong Crown case, as the jury's verdict indicates. Mr Terracini SC, who appeared for the offender, called no evidence in the defence case.

16. The Crown case was primarily based upon the proposition that there was a joint criminal enterprise between the offender and Mr Bagnato to kill or really seriously injure Mr Dillon. A further scenario was raised whereby the jury could convict of murder, namely that there was a joint criminal enterprise between the two of them to at least assault Mr Dillon, and the offender foresaw the possibility that, in the course of the assault, Mr Dillon might be really seriously injured or killed. However, given the background facts, particularly the fact that Mr Dillon was lured to the car park, and the nature and extent of his injuries, I have no difficulty in finding beyond reasonable doubt that the intention of both the offender and Mr Bagnato at the time was to kill him. This is highly relevant to the objective seriousness of this offence, which I now turn to discuss.

Objective seriousness of this offence

17. I shall commence by discussing the aggravating and mitigating factors that are required to be taken into account under s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) which I will henceforth refer to as ("the Sentencing Act") and which relate to the offence, as opposed to the offender, and which are not inherent in the offence of murder.

18. The following aggravating factors apply in this case. First, under s 21A(2)(e), the offence was committed in company. Second, under s 21A(2)(n), the offence was part of a planned or organised criminal activity in the sense that it was clearly premeditated. It involved a considerable degree of planning, as shown by the whole of the evidence, particularly the purchase and use of the telephone used to lure Mr Dillon down to the car park where the two offenders were waiting with the weapons. He was unarmed at the time, and was presumably not expecting a physical confrontation. In addition, as the Crown Prosecutor rightly pointed out, the lack of defensive injuries on Mr Dillon indicates that this was not a physical altercation that developed into something more serious. Indeed the fact that all the injuries were inflicted from behind may well indicate that he was trying to escape when he was shot and stabbed. Mr Dillon did nothing whatsoever to provoke this fatal attack. He was an entirely innocent participant in an endeavour to have money repaid to his sister. It was a brutal and completely unnecessary killing.

19. There are no mitigating factors under s 21A(3) of the Sentencing Act relating to this offence.

20. When one takes into account the extent of the planning for this offence, and the brutal circumstances of the killing itself, I am thoroughly satisfied that its objective seriousness falls well above the midline of objective seriousness for murder. Indeed Mr Terracini did not seek to argue to the contrary.

21. I should say at this stage that letters to the Court from both the offender and his mother were tendered during the sentencing proceedings.   They both denied that the offender had been involved in killing Mr Dillon. However the offender had the opportunity to refute the claims against him during his trial, and chose not to do so.   In the circumstances it would be inappropriate for me to take account of these statements, given that they are, on their face, totally at odds with the jury's verdict. Certainly these letters might be intended to mean that it was Mr Bagnato who actually inflicted the fatal injuries, but given that the jury found beyond reasonable doubt that there was a joint criminal enterprise between the offender and Mr Bagnato to attack Mr Dillon, each of them is taken to be responsible for the actions of the other in furtherance of that enterprise.

22. I now turn to say something about the offender's background.

The offender's background

23. The information on this subject primarily derives from the report of John Machlin, clinical psychologist.

24. The offender is now 26 years old, having been born on 21 May 1991. He was the third of four children. His family is of Italian origin, but he was born and brought up in Leichhardt, where his parents run a fish and chip shop. On all accounts it was a harmonious family background, although his father was a strict disciplinarian. He struggled at school, and completed years 9 and 10 at a school for children with behavioural problems. He has a long history of problems with depression. He worked for a time at his parents’ fish and chip shop, but then fell out with them. He started taking cocaine at the age of 16, and then moved to crystal methylamphetamine otherwise known as (“ice”). Despite occasional attempts to abstain from drug taking, his consumption of ice continued up to the time of this offence. Since then, however, he has only been taking prescription drugs for his depression and sleeping problems.

25. Mr Machlin conducted psychometric testing on the offender, which showed that his IQ is in the bottom 2 or 3 per cent of the population. He is also experiencing high levels of depression and anxiety. He was on bail for the current offence between 18 November 2016 and 12 October 2017, the day of his conviction. During that time, by all accounts, he abstained from taking illegal drugs and applied himself to working in the family business.

26. The offender has a record of minor offences only, consisting principally of driving offences, as well as a couple of minor property offences and one offence, in 2011, of possessing a prohibited drug. Before the current offence he had never been in prison.

27. Other than the offender's minor criminal history, there are no aggravating or mitigating factors under s 21A of the Sentencing Act that relate to the offender personally.

28. I now turn to discuss the appropriate sentence in this case.

The appropriate sentence

29. The maximum penalty for murder is life imprisonment, with a standard non-parole period of 20 years. Since the High Court judgment in Muldrock v R [2011] HCA 25, it has been accepted that the standard non-parole period constitutes a guidepost rather than a starting point, as had previously been considered.

30. In determining the appropriate sentence it is necessary to take account of the purposes of sentencing, as set out in s 3A of the Sentencing Act. As relevant in this case they are:

• to punish the offender;

• to deter the offender and others from committing similar offences;

• to protect the community from the offender;

• to promote the rehabilitation of the offender;

• to denounce the offender, and to recognise the harm done to the victim of the crime and the community.

31. They do not always point in the same direction, and some deserve more emphasis than others, depending on the facts of the particular case.

32. Notwithstanding my finding that this offence is well above the midline of objective seriousness, there are a number of matters which, in my opinion, point towards a sentence which is a little more lenient than the objective factors would otherwise indicate. These include the offender's depression and anxiety, which, according to Mr Machlin, will increase the hardship of his incarceration. In addition, the offender is still a young man. If he receives appropriate treatment for his depression and anxiety, and abstains from taking illegal drugs, I consider that his chances of rehabilitation are reasonably good.

33. Extremely moving Victim Impact Statements were read by and on behalf of several members of Mr Dillon's family. At this stage I would like to say something to you. You have lost a much-loved young man who was central to your lives. On behalf of the Court I offer you my most sincere condolences. You will no doubt think that the sentence I am about to impose is totally inadequate, given the extent of your loss. Indeed no sentence this Court can impose could ever compensate you for your loss. I hope that you understand that sentencing is a very complex process, and you understand that many factors need to be taken into account, one of the most important being to endeavour to ensure that other members of the community do not have to suffer as you have done.

34. The offender was in custody from the day of his arrest, 29 August 2014, until 18 November 2016, when he was released on bail. He was again placed into custody on 12 October 2017 when he was convicted for this offence. Accordingly, taking into account time already spent in custody, his sentence is to commence 328 days after 29 August 2014, namely on 23 July 2015.

35. I am obliged to warn the offender, which I now do, of the existence of the Crimes (High Risk Offenders) Act 2006 (NSW), and the fact that that Act applies to the offence of which he has been convicted and is about to be sentenced. At some future point in time, an application may be made that, notwithstanding the completion of his sentence, he nevertheless ought to be detained in ongoing custody, or else ought to be the subject of an extended supervision order, impacting on his liberty.

36. Diego Carbone, for the murder of Bradley Dillon, I sentence you to imprisonment consisting of a non-parole period of 21 years commencing on 23 July 2015 and expiring on 22 July 2036, with an additional term of 7 years, commencing on 23 July 2036 and expiring on 22 July 2043 making a total sentence of 28 years. The earliest day on which you will be eligible for release on parole is 22 July 2036.

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Amendments

14 December 2021 - New trial complete verdict announced 10/12/21

Decision last updated: 14 December 2021