R v Mangione
[2004] VSC 135
•22 April 2004
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1447 of 2003
| THE QUEEN |
| v |
| FRANCESCO MANGIONE |
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JUDGE: | HARPER J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 2-5, 9-13 FEBRUARY; 6 APRIL 2004 | |
DATE OF SENTENCE: | 22 APRIL 2004 | |
CASE MAY BE CITED AS: | R v MANGIONE | |
MEDIUM NEUTRAL CITATION: | [2004] VSC 135 | |
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Sentence – Murder - Offender entered matrimonial home in the early hours of the morning, killing his cousin with a home-made sword – Offence took place in the presence of the victim’s wife – Family dispute over sale of icecream - Offender intelligent and with capacity for appropriate insight - No evidence of offender being affected by alcohol or drugs – Denial of guilt – Absence of remorse – No prior convictions – Relevance of denunciation and deterrence – Sentenced to a total of 22 years' imprisonment with a minimum of 18 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr W. Morgan-Payler QC | Office of Public Prosecutions |
| For the Accused | Mr D. Brustman | Victoria Legal Aid |
HIS HONOUR:
Francesco Mangione, you have been convicted of the murder, in the early hours of Tuesday 5 February 2002, of your cousin, Denis Timothy Guinta. He was the son of your mother’s brother. If there were any redeeming features of this crime, the evidence did not reveal them. It was a planned assassination. It was committed in cold blood in the principal bedroom of the victim's house. That bedroom is upstairs. Denis Giunta had, shortly before, returned home after working a late shift. He was naked and unarmed as he prepared for bed. His murderer must have been waiting for him. He was hacked to death with a home-made sword. He tried with his bare hands to defend himself. Of course, he failed. He died from a combination of blood loss and collapsed lungs. Each of these was brought about by multiple stab wounds, the most serious of which were to his chest, head and abdomen.
During much of this, Laura Giunta, the wife of the dead man, was a terrified witness. She was in bed half asleep when the attack began at about 2.00 am. She was awakened by the commotion. Although the evidence is not entirely consistent, I accept that a light was on. She was able to see her husband’s masked assailant, and the colour of his clothes. She also heard the screams of the victim. They were of a man in pain – a pain which may have been lessened by the turmoil of the moment, but which at the same time was doubtless increased by the realisation that he was about to die.
When an opportunity presented itself, Mrs Giunta escaped through doors which led to the balcony. She herself was screaming, partly for help and partly through fear that she too might be attacked. She heard her husband's screams becoming fainter. Somehow – she cannot explain how she did it – she climbed from the balcony onto the roof of the garage. From there she jumped onto the bonnet of the family car, suffering a compound fracture of the ankle and breaking four bones in her right foot. She also cracked a vertebra in one of the discs of her spine. As a result, she was in hospital for 21 days, in a wheelchair for two months and on crutches for a year. She still requires a walking stick most of the time.
It is against this setting that I must assess the appropriate punishment for the crime of which you have been found guilty. I must also take into account all those matters to which Parliament requires me to have regard. Among these are the maximum penalty prescribed for murder; current sentencing practices; your culpability and degree of responsibility; the personal circumstances of the victims of the offence; your previous character; and any other relevant circumstance. All aggravating or mitigating factors are necessarily relevant. I have had regard to all these things.
I begin with your background. Your life, like the lives of all of us, has had its ups and downs. You were born on 23 July 1957, in Sicily. Your education began there, and you are now fluent in both Italian and English. You came to Australia with your parents in 1969, when you were 12 years old. You continued your education at the East Altona Primary School and the Altona North Technical School. After successfully completing year 11 at Altona North, you commenced employment as an apprentice electrical technician with the State Electricity Commission. During your apprenticeship, you studied at the Sunshine Technical School and at the Footscray Institute of Technology, from which you obtained your higher certificate of technology. This was an achievement of which you deserve to be proud. More importantly, you were in 1978 named by the Industrial Training Commission of Victoria as being the outstanding radio tradesman apprentice of that year. It was an impressive beginning to your working life.
The State Electricity Commission is no more. In 1989, when you were 32 years old, it closed the radio section in which you were employed. As a result, you were made redundant. You had then been married for some seven years, from which you have four children. You have a son aged 21 who is an apprentice carpenter; a 19 year old daughter who is studying education at university; an 18 year old son who, also at university, is engaged in a business course; and a 9 year old daughter. All of them have continued to visit you in custody since your arrest.
Your marriage, however, has been ended by divorce. You separated from your wife in 1995 and thereafter until your arrest you lived with your parents in Moonee Ponds. In 1998, you met Ms Kathy Wang. You formed a relationship with her which continued until at least the beginning of your trial.
Following your departure from the SEC in 1989, you began selling icecream from an icecream van. Initially this was part time, and then became full time. Until your separation from your wife, she was also your business partner. You were later joined in the business by one of your sons. You worked hard - up to seven days a week, and sometimes away from home. For example, you took advantage of the holiday periods by taking the van to holiday resorts such as Phillip Island or Inverloch where trade was good and substantial amounts of money were the reward for the long hours you put in.
You had the advantage, while you lived with your wife, of the use of her parents' house at Inverloch. That ended with difficulties in the marital relationship. Unable to access the holiday market so readily, your income from the business decreased markedly. By the year 2000, however, it was again returning you a comfortable living.
To this point, then, the evidence concerning your background is very largely positive. It seems that you are a good son and a good father. You enjoyed eight or nine years of successful marriage, followed from 1998 by a stable relationship with Ms Wang. You have a good work history. You have no history of drug abuse (and, I add, there is no suggestion of alcohol or other drugs being a factor in the commission of this crime). You are undoubtedly intelligent. I also accept that you have a capacity for appropriate insight.
In 1993, an incident occurred which damaged the relationships between your family on the one hand and that of Denis Guinta on the other. You and your uncle, Denis' father, both operated icecream vans. A dispute arose over the territory in which you each wanted to sell your product. There was some violence, in the course of which your mother was injured by your uncle. Apart from an unsuccessful attempt at reconciliation shortly afterwards, your families have not spoken since.
The violence included a fight between you and the deceased. It seems that punches were thrown. This and the more general dispute over icecream territory is the only suggested reason why you should harbour feelings of hostility towards the Guinta family, and why you might have wanted Denis Guinta dead. I proceed upon the basis that there is no other evidence of motive for what happened on 5 February 2002.
You have continued to deny any part in the offence. It necessarily follows that you have not expressed any remorse, and have put forward no mitigating circumstances. On the other hand, you have no prior convictions. I also take into account the fact that, since your imprisonment, you have been awarded certificates in asset maintenance, information technology, and hospitality. I have had regard, in addition, to the evidence given on your behalf by Mr Lecce , and the submissions of your counsel, Mr Brustman, on your plea.
It is against this background that I must take into account the other relevant factors. Of these, one is the effect of the killing on the surviving victims. As is entirely to be expected, Laura Guinta was severely traumatised by her experience that night. She frequently relives the occasion and, among other things, imagines a masked person standing over her. She has distressing nightmares. She remains significantly concerned about her own security and that of her family. This has often left her feeling exhausted and overwhelmed. All this is compounded by her grief for her late husband.
I have also read victim impact statements signed by each of Denis Guinta's parents, and his sister. They too attest to the degree of suffering they have experienced at the death, and the manner of the death, of a very close relative.
Every case of murder is one of unnecessary, and therefore tragic, loss of life. The circumstances of Mr Guinta's death make this a particularly serious case. The purposes for which sentences may be imposed include the denunciation by the court of the type of conduct in which the offender engaged. They also include the deterrence of the offender or other persons from committing offences of the same or similar character. Where the offence is premeditated murder, and where it is committed in the circumstances which obtained in this case, both denunciation and deterrence assume especial significance. In my opinion, the appropriate sentence is 22 years' imprisonment. I direct that you serve 18 years before becoming eligible for parole. For the purposes of s.18 of the Sentencing Act 1991, I declare that the period to be reckoned as already served under the sentence is 666 days. I direct that there be noted in the records of the Court the fact that this declaration has been made, and its details.
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