R v D'Angelo - [2014] VSC 522

IN THE SUPREME COURT OF VICTORIA

Unrestricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2013 0205

THE QUEEN

IVAN JOE D'ANGELO

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JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	5 October 2014
DATE OF SENTENCE:	16 October 2014
CASE MAY BE CITED AS:	R v D'Angelo
MEDIUM NEUTRAL CITATION:	[2014] VSC 522

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CRIMINAL LAW – Sentence – Manslaughter by unlawful and dangerous act – Plea of guilty – Charged with murder and acquitted - Firearm used to deter burglars – Shot fired inadvertently as a result of panic – Intoxication – Consumption of marijuana – No previous criminal history - Remorse – Very good prospects of rehabilitation – Low risk of re-offending.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms A Hassan	Office of Public Prosecutions
For the Accused	Mr P Faris QC	Spicer Lawyers

HIS HONOUR:

Ivan D’Angelo, on 14 August 2014, following a trial where you had been charged with the murder of Wade Vandenberg, a jury found you not guilty of that offence. That occurred following a brief direction from me pursuant to the principle arising from Prasad v R.[1] Such a procedure is described as “exceptional”. After that you were then arraigned on the alternative charge of manslaughter and pleaded guilty. Before the trial you had offered to plead guilty to that offence. That was first indicated to the prosecutor on 29 July 2014.
[1]See (R v Prasad (1979) 23 SASR 161; R v Smart (Ruling No 5) [2008] VSC 94)

It is now my responsibility to sentence you for the offence of manslaughter. On 7 October 2014 I heard submissions from the prosecutor, victim impact statements and a plea on your behalf from your counsel. The maximum penalty for manslaughter is 20 years’ imprisonment.

Circumstances of the offence

On Wednesday 27 March 2013, just before midnight, the deceased man Wade Vandenberg visited his friend Richard Flower. He spoke to Flower about his need for a replacement differential for his VL Holden Commodore. Flower told him he knew where such a vehicle was stored and it was contemplated that they would steal it for parts. Flower knew where the car was because a couple of days earlier he followed it to your premises in Bostock Court, Thomastown. He did that because he intended to later steal the vehicle and use it for spare parts.

The result was that the deceased man, Richard Flower, and another man, Jay Tennant, went to premises at 17 Bostock Court, Thomastown with the intention of stealing the particular vehicle. That address is where you conducted your panel beating and restoration business. For some time, as a result of financial necessity, you had been living at the premises. Your living quarters were upstairs, and the window of your living quarters overlooked the street. Those windows had been substantially blacked out.

So, in the early hours of 28 March 2013, the three men I have referred to, together with a young woman named Karni Bagdas, went to…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v D'Angelo

Details

AGLC: R v D'Angelo [2014] VSC 522
Case: [2014] VSC 522
Decision Date: 16 October 2014

CaseChat Overview and Summary

The case of R v D'Angelo involved the appellant, who was charged with murder but acquitted after pleading guilty to manslaughter by an unlawful and dangerous act. The incident arose when the appellant fired a shot in an attempt to deter burglars at his home. The shot was fired inadvertently during a state of panic. The court had to consider various legal issues, including the nature of the act, the appellant's state of intoxication due to marijuana consumption at the time, and the appellant's lack of prior criminal history. Additionally, the court weighed the appellant's remorse, prospects for rehabilitation, and the low risk of re-offending.

The primary legal issue before the court was determining an appropriate sentence for manslaughter committed in such circumstances. The court had to balance the appellant's state of intoxication and the involuntary nature of the act against the gravity of using a firearm. The court also considered the appellant's clean criminal record, his display of remorse, and the positive prospects for rehabilitation. The court was required to ensure that the sentence reflected both the deterrence of such dangerous conduct and the likelihood of the appellant's reformation.

In its reasoning, the court emphasised the involuntary nature of the shooting, the appellant's state of intoxication, and his lack of criminal history. The court acknowledged the appellant's genuine remorse and his potential for rehabilitation. The court concluded that while the use of a firearm in such a context was highly dangerous, the appellant's actions were not premeditated. Given these factors, the court deemed a lesser sentence appropriate, focusing on rehabilitation and deterrence. The court ultimately decided that a term of imprisonment, followed by community-based orders, would best serve justice.

The court ordered the appellant to serve a term of imprisonment, with specific conditions for release and supervision in the community to ensure the appellant's rehabilitation and to protect the public. The sentence included mandatory counselling and supervision, reflecting the court's emphasis on deterrence and rehabilitation.

Orders