R v Gangi - [2004] VSCA 244

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 165 of 2003

THE QUEEN
	v.
ANTHONY LOU GANGI

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JUDGES:	WINNEKE, P., CHARLES and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 December 2004
DATE OF JUDGMENT:	17 December 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 244

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Criminal Law – Murder – Stabbing - Self defence and provocation– Propensity warning not in standard form – No error in propensity direction –– Consciousness of guilt - Post offence conduct: flight, self-inflicted wounds, lies– Provocation – Objective test – Application for leave to appeal against conviction dismissed.

Criminal Law – Sentence – Murder - Total effective sentence of 21 years’ imprisonment with non-parole period of 17 years not manifestly excessive – Application for leave to appeal against sentence dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R.A. Elston, S.C.	Ms K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr T. Kassimatis	Leanne Warren & Associates

WINNEKE, P.:

I agree with Chernov, J.A. that the applications for leave to appeal against conviction and sentence should be refused. I do so generally for the reasons given by his Honour.

CHARLES, J.A.:

I agree with Chernov, J.A.

CHERNOV, J.A.:

On 10 May 2003, following a nine day trial before a judge and jury in the Supreme Court at Melbourne, the applicant, Anthony Lou Gangi, who is now aged 35 years was found guilty of murdering his older brother, Salvatore Michael Gangi. Not long thereafter, the applicant terminated his counsel’s retainer and, notwithstanding having been granted an adjournment to seek alternative representation, appeared for himself at the hearing of the plea of mitigation in sentence. On 12 June 2003, the learned judge sentenced him to 21 years’ imprisonment and ordered that he serve a minimum term of 17 years’ imprisonment before being eligible for parole.

By notices dated 17 June 2003, the applicant sought leave to appeal against conviction and sentence on the respective grounds that the verdict of the jury is unsafe and unsatisfactory and the sentence is manifestly excessive. On 29 November 2004, the applicant gave written notice of intention to substitute new grounds in each of his notices. When the matter came on for hearing before us, the applicant applied to substitute these proposed grounds. In the event, the Court gave the applicant leave to argue his application on the basis of the new grounds, reserving to itself the decision whether to grant the leave sought until after it heard and considered argument. Before dealing with the substantive grounds, I shall describe briefly the circumstances of the offending.

Circumstances of the offending

The offence was committed on the evening of 25 January 2002 on the footpath outside a hotel, known as Jukes Tavern, which is located near the corner of Jukes Road and McDougall Street, Fawkner. According to a number of witnesses, the applicant had been standing in that area for several hours on that day[1], as if he was waiting for someone. He carried, concealed on his person, a kitchen…

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 Gangi

Details

AGLC: R v Gangi [2004] VSCA 244
Case: [2004] VSCA 244
Decision Date: 17 December 2004

CaseChat Overview and Summary

In the case of R v Gangi, the defendant was convicted of murder and was subsequently sentenced to 21 years imprisonment, with a non-parole period of 17 years. The defendant appealed against both his conviction and his sentence. The appeal was dismissed by the court. The defendant argued that the trial judge's direction to the jury regarding propensity evidence was not in the standard form, and therefore constituted an error. The court found that while the direction was not in the exact form of the standard direction, it did not result in a miscarriage of justice or an unfair trial. The court also examined the defendant's arguments regarding provocation and self-defence, and found that the trial judge's application of the objective test was correct.

The court considered the defendant's arguments regarding his post-offence conduct, including flight, self-inflicted wounds, and lies, and found that they did not amount to consciousness of guilt. The court found that the evidence of the defendant's post-offence conduct was properly before the jury, and that it was open to them to draw inferences from that evidence. The court also considered the defendant's arguments regarding the sentence, and found that the total effective sentence of 21 years imprisonment, with a non-parole period of 17 years, was not manifestly excessive. The court found that the sentence reflected the seriousness of the offence, and took into account the defendant's background and circumstances.

The court dismissed the defendant's application for leave to appeal against both his conviction and sentence. The court found that there was no error in the trial judge's direction to the jury regarding propensity evidence, and that the trial judge's application of the objective test in relation to provocation and self-defence was correct. The court found that the evidence of the defendant's post-offence conduct was properly before the jury, and that it was open to them to draw inferences from that evidence. The court found that the sentence was not manifestly excessive, and reflected the seriousness of the offence.

Orders