R v Domenic Diblasio

[1992] SASC 3484

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL WHITE ACJ(1), COX(2) AND MOHR(3) JJ

CWDS
Criminal law and procedure - particular offences - offences againbst the person - Manslaughter - appeal against sentence - victim had a congenital heart disorder - victim went out with appellant's girlfriend - 18-year-old appellant hit victim twice with his fist - after the second blow the victim fell backwards and hit his head on the bumper bar of a car - he died as a result of a subarachnoid haemorrhage - trial judge sentenced appellant to six years imprisonment, four years non-parole period, sentence suspended.
Held, per Cox and Mohr JJ (White ACJ dissenting), appeal against head sentence dismissed, appeal against non-parole period allowed - non-parole period set aside and non-parole period of two years substituted - suspension confirmed.
Per Cox J - The appellant had been warned of the imprudence of striking the victim - the victim did not die because of the medical condition which provoked a warning, but the warning did bring home to the appellant, or ahould have, that he should keep his hands to himself - in fact, having hit him once, he followed it up, despite someone else intervening and trying to restrain him, and he hit him again when the victim was retreating which made his conduct more than ordinarily serious.
Per Mohr J - not only had his companions told him of the deceased's heart condition, but had also tried to talk him out of what was obviously at that stage his intention of confronting the deceased - the other serious matter that was disclosed by the evidence is that after he struck the first blow, not only did the deceased retreat and try and withdraw from the situation, but the appellant, forcibly restrained by his friend, Valandro, broke free from that restraint, followed the deceased and struck him again.
Per White ACJ, dissenting - sentences for manslaughter depend on their own facts - it is difficult, if not impossible to detect a tariff. Here the fatal consequences were not related to the vulnerability of the victim through a heart condition, of which this young man had been warned - the death was quite fortuitous - I would allow the appeal - the head sentence and non-parole period are manifestly excessive.

HRNG ADELAIDE, 19 June 1992 #DATE 19:6:1992
Counsel for appellant:         Mr D. F. Stokes
Solicitors :                 David Stokes and Associates
Counsel for respondent:        Mr P.J.L. Rolfe QC
   with Ms R.C. Gray
Solicitors :                 Attorney-General's Department

ORDER
Appeal allowed.

JUDGE1 WHITE ACJ This is an appeal against a sentence of six years' imprisonment, non-parole period four years, imposed upon the appellant for the crime of manslaughter. The appellant was, at the time, 18 years of age. Apart from one appearance in the Children's Court not resulting in any conviction, he was, to all intents and purposes, a person of good character, working in an apprenticeship and not in any trouble with the police. 2. On the evening of December 2 1990, the appellant became angry when the girl, whom he considered to be his "girlfriend", was out in a car until about midnight in company with two young men. One of the young men was the victim of the manslaughter, Steward Sullivan. The appellant and Sullivan were of approximately the same build. Sullivan had a heart condition which might loosely be described as a hole in the heart. The appellant became even more angry when he realized that Sullivan was with his girlfriend. He had been warned by other companions earlier that he should be careful not to strike Sullivan because he had a heart condition. In spite of that warning, the angry appellant approached Sullivan and struck him one blow when he was standing at the end of the drive near the roadway. Sullivan did not fall down. 3. The learned sentencing judge said:
    "It appears that as a result of that blow he did not suffer
    any really injury and did not succeed in knocking him over.
    However, you followed him when Sullivan retreated from that
    position back towards the car and back towards the front door of
    the house. Valandro attempted to restrain you, but you
    succeeded in striking Sullivan again when he was in a position
    behind the motor car that he had driven in and apparently
    (standing) a step or two away (from it)." 4. It is unclear from the sentencing remarks whether they were blows to the body or to the head. In any event, the result of the second blow, was that Sullivan stepped backwards, lost balance and struck his head on the hard rubber surface at the end of the rear bumper bar. He died, not as a result of the heart condition, but of a different injury arising from the rupture of a blood vessel in his neck. He died from a haemorrhage. 5. The learned sentencing judge went on to say:
    "Clearly, such a consequence (that is, of such an injury)
    was not intended by you and the Crown have never suggested in
    these proceedings that you intended to do the actual harm which
    resulted ... You did intend some harm, not merely slight and
    insignificant harm, to Sullivan. The fact that you struck him
    for the second time is clearly a significant and important
    factor." 6. Having reviewed his past history, his contrition and his work as a third year apprentice baker and his good relationship with his parents, his Honour went on to imprison the appellant with hard labour for six years, non-parole period four years, and suspended the sentence. 7. On the appeal we were referred to some other sentences in manslaughter cases, but each case depended upon its own facts. This is so especially in relation to the crime of manslaughter. It is difficult, if not impossible, to detect a tariff. In my opinion, the fatal consequences were not related to the vulnerability of the victim through a heart condition, of which this young man had been warned. The injury was quite different. The young appellant was sober. No weapon was used. He struck two blows, the first not sufficient to knock the victim over, the second sufficient to unbalance him. The death, tragic as it was, was quite fortuitous. 8. In my opinion, the head sentence of six years is manifestly excessive. I would fix a head sentence of three years. The non-parole period of four years is likewise, in my opinion, manifestly excessive. I would fix a non-parole period of two years. 9. I agree with the order made by the learned sentencing judge that the term of imprisonment be suspended in the circumstances. For those reasons, I would allow the appeal and make the orders.

JUDGE2 COX J It was a very important thing during the Crown case in this trial that the young appellant had been warned of the imprudence of striking the victim and it is tragic that the consequence of his doing so was that the victim died. 2. Now, as the learned Acting Chief Justice has pointed out, the victim did not die because of the medical condition which provoked a warning. But it did bring home to the appellant - or should have - that he should keep his hands to himself. He was jealous of the other young man, who had evidently gone out with his girlfriend, although the evidence seems to indicate that they did not go out alone. But be that as it may, he had no property in the girlfriend who, if she went out with the victim, presumably did so because she wanted to. It was an arrogant piece of behaviour on the appellant's part and, most important he was not merely warned not to strike the victim, but he struck him more than once. In fact, having hit him once, he followed it up, despite someone else intervening and trying to restrain him, and he hit him again when the victim was retreating. I think that makes his conduct more than ordinarily serious. A young life has been lost, and lost because of the plainly reprehensible conduct of this appellant. 3. Now, when all that has been said, he was only 18 at the time and he had a relatively good record. Indeed, he had no previous brushes with the law for anything involving violence, or even any street offence, and that, plainly, was to be taken into account in his favour. So was the fact that he was contrite and, apparently, a good candidate for parole. 4. However, I am unable to say that the sentence was manifestly excessive. It was severe. It was, I think, at the top of the range. Not all judges, I am sure, would have imposed a sentence of six years. But, in all the circumstances, I do not feel able to characterise the sentence as manifestly excessive. I do agree, however, that the non-parole period was too long for a young lad of 18 or 19 with a pretty good record and I would reduce the non-parole period to two years. I agree with the suspension of the sentence and indeed, that is not an issue on this appeal.

JUDGE3 MOHR J: I agree with what Justice Cox has said and I wish only to add a few remarks of my own. 2. It appears, from the evidence, that before the deceased returned with the appellant's girlfriend not only had his companions told him of the deceased's heart condition, but had also tried to talk him out of what was obviously at that stage his intention of confronting the deceased and taking some action against him. 3. The other serious matter that was disclosed by the evidence is that after he struck the first blow, not only did the deceased retreat and try and withdraw from the situation, but the appellant was forcibly restrained by his friend, Valandro; that he broke free from that restraint, followed the deceased up and struck him again. That was the blow that eventually led to the deceased's death. 4. I agree that the sentence is not manifestly excessive. I also agree that the non-parole period should be reduced to two years, but otherwise the sentence and suspension of that sentence should stand.