R v Esposito No. Sccrm-98-299 - [2000] SASC 182

R v ESPOSITO
[2000] SASC 182

Court of Criminal Appeal: Olsson, Wicks and Gray JJ

1................ OLSSON J....... I have had the advantage of reading, in draft, the reasons for decision published by Gray J in this matter. I agree with what he says and that the appeal must be dismissed.

I desire merely to add a few additional comments.
There can be no doubt that these crimes must be placed in the very serious category. They involved the premeditated slaying of the appellant’s wife and her mother in the presence of the appellant’s three young children. In the case of Mrs Esposito the appellant, over a short period of time, shot her in the groin, stomach and head. He also struck her in the face and kicked her, as a prelude to killing her.
Whilst the appellant was, no doubt, upset by his wife’s expressed intention to terminate the marriage, there can be no suggestion that, by reason of any psychiatric or even sudden emotional condition, he was labouring under a situation of diminished responsibility at the time. The detailed arrangements for what he did and the execution of his plan on All Soul’s Day, when he knew that his wife and her mother would be at the cemetery, speak volumes for the deliberateness of his actions. Those actions seem to have been simply the manifestation of anger and wounded pride.
These callous murders must necessarily have attracted a commencement point for the calculation of a non parole period of the order of 28-30 years. The abatement of this to allow for the appellant’s plea and any other mitigating factors was appropriate.
Whilst it is true that, having regard to his present age, there is a possibility that the appellant may die in gaol, that cannot constitute a reason for reducing further the period which the horrific nature of these crimes demands be actually served.

7................ WICKS J. I agree that this appeal be dismissed for the reasons given by Gray J.

8................ GRAY J.......................... The appellant pleaded guilty to the crimes of murder. After imposing one mandatory sentence of life imprisonment, the learned sentencing Judge fixed a non-parole period of 21 years.

The appellant complains that the non-parole period was manifestly excessive. It was said that an inadequate discount was given for the early plea of guilty and that insufficient regard was had to the advanced age of the appellant and other mitigating factors.
The victims of the crimes were Mary Esposito, the wife of the appellant, and Giuseppina Lopresti, his wife's mother. The killings took place in the West Terrace Cemetery on All Souls' Day, 2nd November 1997. Both women were at the cemetery to attend the graves of Mrs Esposito's father and grand-father who were respectively Mrs Lopresti's husband and father.
At the time of the crimes the appellant was aged 53 and Mrs Esposito was aged 39. There were three children of the marriage, Melissa aged 16, Gianni, aged 14 and Paolo aged 13. Mrs…

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.

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Details

Case: [2000] SASC 182
Decision Date: 30 June 2000

CaseChat Overview and Summary

In the case of R v Esposito, the appellant was convicted of two counts of murder and was sentenced to life imprisonment with a non-parole period of 21 years. The appellant challenged the non-parole period, arguing that it was manifestly excessive, and that insufficient regard was given to his early guilty plea and his advanced age. The appeal was heard by the South Australian Court of Criminal Appeal, comprising Olsson, Wicks, and Gray JJ. The court was required to determine whether the non-parole period was appropriate and whether the sentencing judge had erred in his consideration of the mitigating factors.

The Court of Criminal Appeal considered the principles governing the fixing of a non-parole period, as established in previous cases, including Power v R, Deakin v The Queen, and Bugmy v The Queen. The court held that the sentencing judge had considered all relevant factors, including the public interest and matters personal to the appellant, and had appropriately balanced them in determining the non-parole period. The court found that the starting point of 26 to 28 years for the non-parole period was reasonable, taking into account the appellant's early guilty plea. The court also rejected the argument that the appellant's age should have been given greater weight in determining the non-parole period, stating that while age may be a mitigating factor, it cannot be used to justify an inappropriately lenient sentence. The court concluded that the non-parole period fixed by the sentencing judge was appropriate and dismissed the appeal.

The final orders of the court were to dismiss the appeal against the appellant's conviction and sentence, upholding the non-parole period of 21 years as appropriate in the circumstances of the case.

Orders