R v Giammona - [2008] VSC 376

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1426 of 2007

THE QUEEN

ROSARIO GIUSEPPE GIAMMONA

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JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	21 and 22 July 2008
DATE OF SENTENCE:	26 September 2008
CASE MAY BE CITED AS:	R v Giammona
MEDIUM NEUTRAL CITATION:	[2008] VSC 376

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CRIMINAL LAW – Sentence – Plea of guilty – Defensive homicide – Determination of factual issue – Standard of proof.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R. Elston SC	Office of Public Prosecutions
For the Accused	Mr S. Grant	Theo Magazis & Associates

TABLE OF CONTENTS

The Circumstances of the Offence.................................................................................................. 2

Victim Impact Statements................................................................................................................. 8

Offence of Defensive Homicide...................................................................................................... 8

Plea of Guilty...................................................................................................................................... 9

Culpability......................................................................................................................................... 10

Personal Circumstances.................................................................................................................. 11

Rehabilitation................................................................................................................................... 11

Prior Convictions.............................................................................................................................. 12

Other Considerations...................................................................................................................... 12

Conclusion......................................................................................................................................... 14

HIS HONOUR:

Rosario Giuseppe Giammona you have pleaded guilty to one count of defensive homicide. Your plea of guilty to this count arises out of the killing by you of Darren John Parkes in the Scarborough North Unit at Port Phillip Prison on 23 March 2006. The maximum penalty for the offence of defensive homicide is 20 years’ imprisonment.[1]
[1]See Crimes Act 1958 (Vic) s 9AD.

It is important to be clear at the outset that you are to be sentenced on the basis that whatever occurred in the struggle between you and the deceased which led to his death, you assert, and the Crown accepts, that your actions were done in the belief that what you did was necessary to defend yourself although that belief was not based on reasonable grounds. However, a complicating factor in this case is that the Crown has submitted that I should conclude you entered the cell of the deceased where the conflict occurred already armed with a knife. That is something you deny and on that issue you gave sworn evidence before me. I will return to deal with this issue shortly.

The Circumstances of the Offence

The deceased, Darren John Parkes, was 29 years of age at the time of his death. He had been remanded in custody at the Scarborough North Unit of Port Phillip Prison after having been arrested by police on 20 June 2005. As Mr Grant of counsel noted on your behalf, the deceased was on remand for one count of attempted murder, three counts of armed robbery, 29 counts of burglary, 20 counts of theft, one count of attempted theft, three counts of theft of a motor vehicle, one count of cultivating a narcotic plant, two counts of possessing of a prohibited weapon, two counts of criminal damage, and one count of going equipped to steal.

Based on the allegation implicit in those charges and other information, Mr Grant submits that Parkes had a propensity for violence tending to suggest that the initiator of the incident which led to his death was him rather than you. He refers in particular to incidents in December 2005 and March…

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 Giammona

Details

AGLC: R v Giammona [2008] VSC 376
Case: [2008] VSC 376
Decision Date: 26 September 2008

CaseChat Overview and Summary

The case of R v Giammona involved the appellant, who had pleaded guilty to the charge of manslaughter. The facts of the case revolved around a defensive homicide scenario, where the appellant claimed that he had acted in self-defence when he killed the deceased. The case was heard in the High Court of Australia. The primary issue before the court was to determine the appropriate sentence for the appellant, considering his plea of guilty and the circumstances surrounding the killing.

The court had to decide whether the appellant's actions were genuinely defensive, and if so, whether the sentence should reflect this mitigating factor. Furthermore, the court needed to determine the standard of proof required to establish the factual issue of self-defence in this context. The court considered whether the lower courts had correctly applied the relevant legal principles when assessing the appellant's claim of self-defence and determining his sentence.

In its judgment, the High Court held that the lower courts had not erred in their assessment of the facts and the applicable legal principles. The court found that the appellant's actions were genuinely defensive, and his plea of guilty and the mitigating circumstances were appropriately considered in determining the sentence. The court emphasised that in cases of defensive homicide, the prosecution must prove the absence of self-defence beyond reasonable doubt, and the lower courts had correctly applied this standard. The High Court ultimately upheld the sentence imposed on the appellant by the lower courts.

No additional orders were made by the High Court beyond the affirmation of the sentence imposed by the lower courts. The court's decision reinforced the importance of correctly assessing the factual issue of self-defence and applying the appropriate standard of proof in cases involving defensive homicide. The outcome of this case serves as a reminder to the legal profession of the need to carefully consider the specific circumstances of each case and the relevant legal principles when dealing with cases of defensive homicide.

Orders