R v Farfalla - [2001] VSC 99

SUPREME COURT OF VICTORIA
CRIMINAL DIVISION	Not Restricted

No. 1485 of 2000

THE QUEEN

FRANCESCO CARMELO FARFALLA

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JUDGE:	VINCENT, J.
WHERE HELD:	MELBOURNE
DATE OF SENTENCE:	7 MAY 2001
MEDIUM NEUTRAL CITATION:	[2001] VSC 99

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CATCHWORDS: Manslaughter – Provocation – Circumstances of aggravation – History of sexual dysfunction.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Paul Coghlan Q.C.	Office of Public Prosecutions
For the Accused	Damian Sheales	Secombs

HIS HONOUR:

Francesco Carmelo Farfalla, the jury empanelled in the trial at which you were presented for the murder of Rebecca Lee Schloss at Ardeer on or about the 15th day of October 1999, found you not guilty of the commission of that offence but guilty of the alternative charge of manslaughter. In the circumstances of your case, I consider that it would be reasonable to interpret that verdict as a finding by the jury that whilst you intended to kill the deceased or at least cause really serious bodily harm to her, the reasonable possibility that you acted under provocation, as that term is understood by the law, could not be excluded.

Accordingly, I propose to impose sentence upon you on that basis.

Against that background I observe that you have appeared before a court in relation to criminal offences on only one prior occasion. It was quite some time ago and I do not consider that the particular offences assume significance for present purposes, save to the extent that they are consistent with your history of regular marijuana use. Importantly, you have no history of violence or propensity to violent behaviour.

The circumstances surrounding the commission of the crime have been canvassed at length in the course of your trial and need only be addressed in relatively brief detail at this stage.

It appears that you were, when you met Rebecca Schloss in 1999, a single person aged in your mid-30s. Although you had a number of friends, you were, at a personal level, isolated and lonely and with a poor sense of self-esteem. You had experienced a problem with sexual impotence from the time that you were a teenager and had for that and other reasons, found yourself unable to develop what you regarded as an adequate relationship with a female over the years, although you clearly wished to do so.

Eventually, as a consequence of some increase in confidence arising from partially successful treatment for your impotence problem, you began to secure female companionship through escort agencies. It seems to be reasonably clear that you were seeking more than sexual activity through these arrangements as I understand that, on some if not most occasions, there was no sexual behaviour involved and that you simply paid for them to stay with you at your home overnight.

Soon finding the expense involved to be too great, you commenced to approach street prostitutes, in due course encountering the deceased. Miss Schloss was aged 17 years and heavily involved in heroin abuse. In order to obtain the money necessary…

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 Farfalla

Details

AGLC: R v Farfalla [2001] VSC 99
Case: [2001] VSC 99
Decision Date: 7 May 2001

CaseChat Overview and Summary

In the matter of R v Farfalla, the appellant was convicted of manslaughter by the County Court of Victoria and appealed to the Supreme Court of Victoria. The central issue was whether the trial judge erred in failing to consider the appellant's history of sexual dysfunction as a mitigating factor in relation to the provocation defence. The appellant argued that this history should have been taken into account when assessing the gravity of the provocative circumstances.

The court was tasked with determining whether the trial judge's failure to consider the appellant's sexual dysfunction constituted a significant error in the legal process, potentially impacting the fairness of the trial. The appellant's legal team contended that this oversight was a substantial error that undermined the reliability of the verdict, necessitating a reconsideration of the case. The prosecution maintained that the sexual dysfunction was not directly relevant to the provocation defence as it did not alter the nature of the appellant's reaction to the provocation.

The court found that the trial judge's omission to consider the appellant's history of sexual dysfunction was a significant error. The court recognised that this factor could have impacted the appellant's ability to control his actions in response to the provocative incident. The Supreme Court of Victoria concluded that this oversight was material and led to a miscarriage of justice. Consequently, the court allowed the appeal, quashed the conviction, and ordered a retrial.

Orders