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R v Mangione

R v Mangione

Case [2006] VSCA 34 21 February 2006

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 90 of 2004

THE QUEEN
	v.
FRANCESCO MANGIONE

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JUDGES:	CHERNOV and EAMES, JJ.A. and MANDIE, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 February 2006
DATE OF JUDGMENT:	21 February 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 34

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Criminal law – Sentencing – Murder – Stabbing deceased with home-made sword in presence of deceased’s wife – No remorse, no clear motive – Total effective sentence of 22 years’ imprisonment with non-parole period of 18 years fixed – Whether non-parole period manifestly excessive – Hardship to relatives – Whether non-parole period unusually long – Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C.	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Applicant	Ms F.L. Dalziel	McNamaras

CHERNOV, J.A.:

In the early hours of Tuesday, 5 February 2002, Denis Timothy Guinta was brutally killed in the upstairs bedroom of his home. His killer was waiting for him to come home from work and then hacked him to death with a home-made sword in the presence of the deceased's wife who, just before the attack, had been half asleep in bed. The deceased, although unarmed, tried to defend himself but had no hope of doing so and died of multiple stab wounds, the most serious of which were to his chest, head and abdomen. After a trial that lasted ten sitting days, on 13 February 2004, the jury found the applicant, who is now aged 48, guilty of the murder of the deceased. After a plea in mitigation made on his behalf – in the course of which evidence was given on the applicant's behalf by character witnesses and the report of Ian Joblin, a psychologist, dated 1 April 2004, was tendered – the learned sentencing judge sentenced the applicant to imprisonment for a period of 22 years and ordered that he serve 18 years of that sentence before being eligible for parole. By notices dated 5 May 2004 the applicant sought leave to appeal against conviction and sentence. On 17 February 2006 the applicant filed a notice of abandonment in relation to the first application, so that we are concerned only with his application for leave to appeal against sentence. Ms Dalziel, who appeared before us for the applicant, limited the ground of the application to the claim that the non-parole period is manifestly excessive.

The circumstances relating to the offence are set out in the sentencing remarks of the learned sentencing judge and there is no need to repeat them here. Suffice it to say that the deceased was the applicant's cousin[1] and that, for some years prior to the offending, the two families had been in dispute relating to territories in which they respectively sold ice-cream out of refrigerated vans. The dispute escalated to a point where, at one stage, there were physical altercations between the deceased's father and the applicant's mother and between the applicant and the deceased. In the result, the families have…

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

AGLC: R v Mangione [2006] VSCA 34
Case: [2006] VSCA 34
Decision Date: 21 February 2006

CaseChat Overview and Summary

The case of R v Mangione involves the appellant, who was convicted of murder. The crime involved the stabbing of a deceased individual with a home-made sword in the presence of the deceased's wife. The appellant displayed no remorse and there was no clear motive for the crime. The court sentenced the appellant to a total effective sentence of 22 years’ imprisonment, with a non-parole period of 18 years. The appellant challenged the non-parole period, arguing it was manifestly excessive. The court considered the severity of the crime, the lack of remorse, and the hardship caused to the deceased's relatives.

The primary legal issue was whether the non-parole period was excessively long. The court examined the nature of the crime, the brutality of the attack, and the impact on the deceased's wife. The court also considered the appellant's lack of remorse and absence of a clear motive. The appellant's legal team argued that the non-parole period was unusually long, considering the potential for rehabilitation and the hardship it would cause to the appellant's relatives.

In dismissing the appeal, the court found that the non-parole period was not manifestly excessive. The court emphasised the gravity of the crime, the violent nature of the attack, and the lack of remorse shown by the appellant. The court also considered the impact of the crime on the deceased's relatives. The court concluded that the non-parole period was appropriate, reflecting the severity of the crime and the need for community protection. The appeal was dismissed, and the sentence remained unchanged.

Orders