R v Manna

[1999] NSWCCA 314

CITATION:	R v Manna [1999] NSWCCA 314
FILE NUMBER(S):	CCA 60374/98
HEARING DATE(S):	14 September 1999
JUDGMENT DATE:	10 December 1999
PARTIES :	Adriano Manna (applicant) Regina (respondent)
JUDGMENT OF:	Handley JA at 1; Grove J at 2; Hidden J at 9

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	97/21/1103
LOWER COURT JUDICIAL OFFICER:	Nield DCJ

COUNSEL:	T. A. Game (applicant) M. M. Cunneen (respondent)
SOLICITORS:	Legal Aid Commission (applicant) Director of Public Prosecutions (respondent)
CATCHWORDS:	CRIMINAL LAW - sentence - wounding with intent to murder - whether mental disorder related to commission of offence
ACTS CITED:	Criminal Appeal Act 1912
CASES CITED:	R v Engert (1995) 84 ACrim R 67 Veen v The Queen [No 2] (1987-1988) 164 CLR 465 Sindoni (CCA, unreported 27 April 1993) Cool (CCA, unreported 2 June 1994) Merritt (CCA, unreported 26 February 1996) Nguyen (CCA, unreported 13 June 1991) Papalia (CCA, unreported 18 July 1996) Azzopardi (CCA, unreported 1 October 1998) Applebee (CCA unreported 16 July 1991)
DECISION:	Appeal dismissed by a majority.

IN THE COURT OF
CRIMINAL APPEAL

60374/98

HANDLEY JA
GROVE J
HIDDEN J

10 December 1999

REGINA v ADRIANO GUISEPPE MANNA

JUDGMENT


1     HANDLEY JA: I agree with Grove J.

2     GROVE J : I have had the advantage of reading the judgment of Hidden J in draft form. His Honour has extracted a sketch of the relevant facts from the remarks of the learned sentencing judge and I would gratefully adopt them and refrain from repetition.

3     I do not share the conclusion of Hidden J that this Court should intervene to reduce the sentence and it is convenient to state my reasons by reference to his Honour’s ultimate view that the sentencing judge “fell into error in holding that the applicant’s psychiatric history provided no explanation for the crime”.

4     The relevant psychiatric evidence consisted of a report from a psychiatrist Dr Peter Klug. He saw the appellant once whilst the latter was in custody. Mental state examination was reported as disclosing no evidence of psychosis, delusions, hallucinations, an organic brain syndrome, a traumatic brain injury, confusion, delirium, intoxication, withdrawal, agitation or cognitive impairment. He was said to have provided a coherent and internally consistent history. As Hidden J has noted, the appellant gave a demonstrably false explanation for the shooting to Dr Klug and was otherwise an apparently undependable historian. There would be no error manifest in the sentencing judge so regarding him. What were collated as relevant psychiatric issues (emerging from an unreliable historian) were in summary described under six point headings. Possible convulsions as a child was the first, followed by disturbed dynamics within developmental years, a history of inability to control anger and aggression, the intensive use of anabolic steroids over one to two years (1990-91), poly drug abuse and dependence and a history of extreme irritability and violence to property. The details elaborated in relation to these points need not be recounted.

5     The summarized opinion of Dr Klug was that the appellant was a twenty three year old man who had a significant past psychiatric history and a long history of poly drug abuse and dependence. He thought, upon the history related to him, that at the time of the commission of the offence the appellant was probably intoxicated with a variety of drugs. He went on to note an opinion that the appellant was aware of the nature and quality of his actions and the possible consequences of them but probably had some lengthy amnesic episodes.

6     In his remarks the learned sentencing judge stated:
“I cannot see that the prisoner’s previous irrational behaviour or his abuse of steroids, cannabis and LSD played any real part in his initial decision to take a pistol and to attempt to rob the complainant of his money or in his subsequent decision to kill the wounded victim of the attempted robbery.”

7     I consider that that conclusion was open to his Honour and no error such as to attract the power of this Court to intervene has been shown. Further I am of the view that the psychiatric material did not mandate an element of particular leniency in the assessment of sentence. Explanatory material is of limited utility unless in a case such as the present it is attractive of mitigation. The essential question is whether sentencing discretion has miscarried. It did not.

8 Undoubtedly the sentence is capable of being viewed as severe but as Hidden J has noted the facts of the offence are grave indeed. In the terms of s6(3) of the Criminal Appeal Act I am unpersuaded that a less severe sentence was warranted in law and should have been passed and I would dismiss the appeal.

9     HIDDEN J : The applicant, Adriano Guiseppe Manna, seeks leave to appeal against a sentence imposed upon him at the Penrith District Court after he pleaded guilty to a charge of wounding with intent to murder. He was sentenced to penal servitude for twenty years, comprising a minimum term of fifteen years and an additional term of five years.

Facts

10     The facts of the offence are grave indeed. They were summarised by the learned sentencing judge in his remarks on sentence as follows:
At about 4pm on 17 February 1997 the complainant, who had a contract with Coca Cola Amatil to restock Coca Cola vending machines, attended the Werrington TAFE College to restock the college’s vending machines. He was alone, but he was to meet his wife and their children at the college. He went to one of the machines, unlocked it, counted the remaining stock to determine the number of cans needed to refill the machine, removed the money from the machine’s money box, re-locked the machine and returned to his truck with the money from the machine. At his truck, he placed the money in the truck’s safe, gathered together a number of cartons containing cans with which to refill the machine and returned to the machine with the cartons. At the machine, he unlocked the machine and was placing cans from the cartons in to it when he was joined by his wife and children. After using all of the cans that he had taken to the machine, he realised that he needed another carton and so returned to his truck, leaving his wife to guard the unlocked machine. He opened the middle roller shutter of three shutters on the side of the truck and jumped onto the truck’s tray to obtain another carton and was about to jump from the tray to the ground with the carton when he was confronted by the prisoner who was standing alongside the truck and who was holding a silver pistol in his right hand and who demanded that he give him his money. He told the prisoner that he could not give him any money as he did not have the keys to the safe. Then the prisoner demanded that he give him the keys to the machines. He told the prisoner that he would give him the keys and he put his hand into his pocket to get the keys. Then the prisoner fired one shot from the pistol at the complainant. The bullet struck the complainant in the chest and he fell from the truck’s tray onto the ground. Then the prisoner aimed the pistol at the complainant and fired another four shots from the pistol at him. These bullets struck the complainant in the face, left elbow, right hand and left thigh. Then the prisoner ran away from the scene of the shooting.

11     As one would expect, this incident has had serious consequences for the victim and his family. As his Honour observed, “it was only by the grace of God” that the victim was not killed. He required extensive surgery and follow-up medical treatment. He has been left with significant disabilities. His lifestyle has been gravely affected, as has that of his wife and children. Of particular concern is the impact of this event upon one of the children, a boy then aged seven, who witnessed the shooting.

12     The applicant was arrested two days later. When interviewed by police, he admitted having shot the victim but would not disclose why he had done so. Some months later, when interviewed by a psychiatrist for forensic purposes, he said that the shooting occurred in the course of a confrontation with the victim who, he believed, had been supplying heroin to a young girl whom he knew. Clearly, this account is false. It was not advanced as an explanation in the sentence proceedings and, as his Honour observed, it was inconsistent with the known circumstances of the case. The applicant did not give evidence, and his Honour was unable to assess whether he believed what he had told the psychiatrist.

Subjective case


13     The applicant was twenty-three years old at the time of the offence, and is now twenty-six. He has a criminal record, primarily for driving and dishonesty offences, but it includes convictions for supplying a prohibited drug, malicious damage and possessing a shortened firearm. At the time of the offence he had not long completed serving a short prison term. He was then living with his father, who was separated from his mother. His relationship with his mother had been poor for a long time.

14     His father’s evidence about his background, and his behaviour in the period leading up to the offence, is significant. He was given to disruptive and violent behaviour at school, such that his schooling came to an end at the age of fifteen without his obtaining his School Certificate. In his later teens he began to use steroids to achieve muscle growth. His abuse of those drugs escalated over the ensuing years, to the point where he was taking them in tablet form and by injection in large quantities. His behaviour was aggressive, and he would frequently damage items of property in bursts of anger. He refused to cooperate with his parents’ efforts to arrange for his treatment and counselling. He also drank heavily at times and used other drugs: in particular, cannabis, ecstasy and LSD.

15     The situation worsened late in 1995, when his girlfriend left him after a relationship of some years. His aggressive behaviour became even more bizarre. It included incidents when he stabbed a CD player with a knife and took to the family car with a mattock. On one occasion his father found him in the car with a piece of hosepipe leading from the exhaust to the interior, apparently trying to asphyxiate himself. On another, he threatened to shoot himself with a rifle. While the second occasion may have been no more than a gesture, the first occasion appears to have been a serious suicide attempt.

16     There were further exhibitions of this kind of behaviour in the period leading up to the offence. One morning, saying that he needed to do something to occupy himself, he tried to cut the lawn with a machete. On another occasion he threatened to shoot himself with a hand-gun, which may have been the weapon used in the offence. On the night before the offence he was very angry, apparently believing that his girlfriend had had an abortion.

17     He told the psychiatrist, who prepared a report for the sentence proceedings, that he was under stress at the time of the offence for a number of reasons, including the fact that he was unemployed, was arguing with his father about work and money, and was unsuccessful in attempts to re-establish a relationship with his girlfriend. He was using LSD, and his Honour accepted that he was affected by that drug “to some degree” at the time of the shooting. At the time he examined him in custody, the psychiatrist found no indication of a psychosis or an organic brain disorder. However, he noted in his report that abuse of steroids “can cause persistent alterations of personality and behaviour”. He saw the applicant as a man having “a significant past psychiatric history and a long history of poly-drug abuse and dependence”. He added that he “appears currently well but may have suffered the residual effects of long-term steroid dependence…”.

18     The author of a pre-sentence report was concerned about the applicant’s mental state, noting that he “at times has little self-control and yet on other occasions is able to act in a very appropriate manner”. The probation officer considered it necessary that he have “ongoing psychiatric/psychological intervention” whilst in custody, and that “his eventual release should be contingent upon him being assessed as no longer a homicide risk”.

Remarks on sentence

19     His Honour accepted the evidence of the applicant’s father and the material contained in the reports about his history of irrational behaviour and drug abuse. However, he saw no direct relationship between that history and the offence, except in so far as “the way in which he has lived his life may have played a part in his decision to attempt to rob the complainant when armed with the pistol”. Having rejected the false account the applicant gave the psychiatrist to the effect that the shooting occurred during a confrontation with a man he believed to be a drug dealer, his Honour concluded that the applicant “shot the complainant four times intending to kill him simply because the armed robbery of the complainant… had gone wrong”.

The application


20     The principal argument for the applicant in this Court was that it was not open to his Honour to find that the history of irrational behaviour had no bearing upon the commission of the offence. As this is a matter of inference from the whole of the material, and does not depend upon the assessment of the credibility of any witness in the sentence proceedings, it is something which we are as well placed as his Honour was to determine.

21     In my view, the submission is sound. His Honour appears to have reached the conclusion he did primarily because he rejected the explanation of the shooting which the applicant proffered to the psychiatrist. Certainly, that explanation is false. In other respects, which I need not set out, the applicant appears to have been an unreliable historian. However, it does not follow from the rejection of that account that this was simply an armed robbery gone horribly wrong, to which the applicant’s psychiatric history is irrelevant. The true picture is more complicated than that.

22     It may be that, as the victim put his hand in his pocket to get his keys, the applicant thought he was reaching for a weapon of some kind. To have shot him once at that stage, as he did, is one thing. To have shot him another four times while he was on the ground is quite another. It is not without significance that the victim told a psychologist, who prepared a victim impact statement, that he remembered “the look of hatred” in the applicant’s eyes as he was firing the gun. He expressed his difficulty in understanding that “someone who did not know him could appear to hate him”. For my part, I am satisfied that the repeated shooting is consistent with the applicant’s history of mindless and aggressive behaviour over the years. Indeed, it appears to be the dreadful culmination of an escalating pattern of behaviour of that kind since the breakdown of his relationship with his girlfriend, a pattern which endured right up to the time of the offence.

23 I am satisfied that his Honour fell into error in holding that the applicant’s psychiatric history provided no explanation for the crime. Accordingly, leave to appeal should be granted and this Court should determine for itself the appropriate sentence. The question remains, however, whether that sentence should be different from that which his Honour passed: s6(3) of the Criminal Appeal Act .

Re-sentence

24     The familiar principles governing the sentencing of an offender who is psychiatrically disordered were summarised by Gleeson CJ in R v Engert (1995) 84 ACrim R 67 at 70-1. Among other things, his Honour said that the relationship between a mental disorder and the commission of an offence is one of the circumstances of the case to be taken into account when applying general sentencing principles. His Honour continued (at 71):
The existence of such a causal relationship in a particular case does not automatically produce the result that the offender will receive a lesser sentence … . … the existence of a causal connection between the mental disorder and the offence might reduce the importance of general deterrence, and increase the importance of particular deterrence or of the need to protect the public.

25     I have referred to the admonition of the probation officer who prepared the pre-sentence report of the need to assess the risk which the applicant might pose to society before releasing him on parole. The psychiatric report is silent about his long term prognosis. The sentencing judge, after referring to his background, his criminal record and his need for appropriate treatment and counselling in prison, commented that it was “impossible to say whether or not he will change his ways but everything that he has done in the past suggests that he is unlikely to do so”. Senior counsel who appeared for him in this Court acknowledged that he could not challenge that conclusion.

26     In the result, the applicant’s psychiatric history provides some explanation for this violent offence and, to that extent, reduces his culpability for it. This, however, is substantially offset by the need for particular deterrence and, above all, the protection of the public. His condition should be taken into account but, in the circumstances, it cannot afford him any marked measure of leniency. On the other hand, of course, it must not lead to the imposition of a sentence more severe than that which would have been appropriate if he were not suffering from any mental abnormality: Veen v The Queen [No 2] (1987-88) 164 CLR 465 at 477.

27     Senior counsel for the applicant referred us to a number of decisions of this Court in more or less comparable cases, together with sentencing statistics provided by the Judicial Commission. A summary of the cases is set out in a schedule to this judgment. The statistics are derived from a relatively small sample, twenty-three cases, but the pattern of sentence which they disclose is much as one would expect. Against a statutory maximum of twenty-five years, a sentence of twenty years penal servitude is exceptional and right at the top of the range.

28     This is consistent with the sentences in the cases set out in the schedule. This Court upheld a sentence of twenty years in Applebee but, quite apart from the high level of criminality involved in the offence, that sentence was partly concurrent with a lengthy existing prison term. In the related cases of Papalia (wound with intent to murder) and Azzopardi (solicit to murder), this Court accepted that twenty years was an appropriate starting point before allowance was made for subjective matters favourable to the applicants. However, that was a case of a contract killing which was unsuccessful, but which left the victim permanently and seriously disabled.

29     The present case is very serious but, upon a proper balance of the objective and subjective factors, it does not call for a sentence of that order. Nevertheless, a lengthy sentence is inevitable. Clearly, there are special circumstances warranting an extended additional term. It will remain to be seen whether the applicant could responsibly be released at the expiration of the minimum term which I propose. Obviously, it is in the community’s interest that he be rehabilitated and, in my view, that would best be achieved by his being at liberty for a lengthy period with the benefit of supervision and subject to the sanction of parole.

30     In arriving at what I consider to be the appropriate sentence, I have had regard to evidence tendered in this Court of the applicant’s completion of various courses since he has been in custody. I would propose that leave to appeal be granted, the appeal allowed and the sentence in the District Court quashed. I would re-sentence the applicant to penal servitude for eighteen years, comprising a minimum term of twelve years, commencing on 19 February 1997 and expiring on 18 February 2009, and an additional term of six years.

Schedule

Sindoni (unreported, 27 April 1993): The applicant was convicted at trial of wounding his sister’s husband with intent to murder him. He believed that the victim had been violent to his sister. He shot the victim in the abdomen and, after he had fallen to the ground, shot him two or three more times. He then struck him on the head with the butt of the pistol. The victim underwent surgery and made a substantial recovery. The applicant presented a very favourable subjective case, and the offence was seen as an isolated act of criminality.

He was sentenced to 8 years penal servitude (MT 6 years, AT 2 years). An appeal against sentence was dismissed, McInerney J observing that the sentence was “to the bottom of the range”.

Cool (unreported, 2 June 1994): The applicant was convicted at trial of wounding with intent to murder, having stabbed a passenger on a train in the neck. He was affected either by liquor or drugs at the time, and there was no apparent motive for the crime.

For that offence, and taking into account several less serious offences, he was sentenced to 10 years (MT 7 years, AT 3 years). That sentence was accumulated upon a minimum term of 6 years imposed by another judge in respect of a serious drug offence, and the sentencing judge assessed it with an eye to totality. An appeal against sentence was dismissed.

Merritt (unreported, 26 February 1996): The applicant pleaded guilty to wounding with intent to murder, maliciously shoot at to prevent lawful apprehension, maliciously discharge a firearm with intent to prevent lawful apprehension, and common assault. The applicant entered a hotel and shot the publican, wounding him in the right shoulder. Shortly afterwards, he pointed his rifle in a threatening manner at a woman in a motor vehicle (the common assault charge). Later again, when police tried to apprehend him, he fired a shotgun in their direction, narrowly missing one of them (the charges of shoot and discharge firearm with intent to prevent lawful apprehension). The applicant was grossly affected by alcohol and drugs at the time, and the sentencing judge had regard to his Aboriginal background.

His Honour passed concurrent sentences designed to reflect the totality of the applicant’s criminality, the effective sentence being 13 years penal servitude (MT 9 years, AT 4 years). An appeal against sentence was dismissed.

Nguyen (unreported, 13 June 1991): The appellant was convicted at trial of wounding with intent to murder in the course of a violent incident in a restaurant. In the course of that incident, he was wounded when a gun held by a man seated at a table in the restaurant accidentally discharged. He himself was armed, and he shot another man seated at the same table at close range. Despite the circumstances, this Court held that the trial judge had correctly characterised that shooting as a “cold-blooded attempt at murder”. Nevertheless, the judge had taken into account the fact that he was affected by alcohol at the time and was himself injured, requiring extensive hospital treatment.

The sentence, passed under the regime prior to the Sentencing Act 1989, was penal servitude for 17 years with a non-parole period of 13 years. An appeal against that sentence was dismissed.

Papalia (unreported, 18 July 1996): The applicant pleaded guilty to wounding with intent to murder and another offence of no present consequence. He was engaged to murder the victim, who was not known to him. He shot the victim three times, causing him to fall to the ground, whereupon he shot him two more times. The victim’s injuries were life-threatening, he was hospitalised for many months, and was left a paraplegic. He was in his mid-forties, married with two children. The applicant had a criminal record, including convictions for armed robbery.

The sentencing judge considered that, but for some assistance which the applicant offered to the authorities in the prosecution of others involved in the affair, the appropriate sentence was penal servitude for 20 years. Because of the offer of assistance, he reduced the sentence to 13 years (MT 9 years, AT 4 years). An appeal against sentence was dismissed.

Azzopardi (unreported, 1 October 1998): This appellant was convicted at trial of soliciting Papalia to murder the victim referred to in the previous case. He was a man in his mid-fifties, having no criminal record and suffering from a life-threatening disease.

He was sentenced to the term which the judge would have imposed upon Papalia but for his offer of assistance: 20 years penal servitude (MT 15 years, AT 5 years). Given his subjective circumstances, this Court reduced that sentence to 17 years (MT 12 years, AT 5 years).

Applebee (unreported, 16 July 1991): The applicant was convicted at trial of wounding with intent to murder, and robbery with corporal violence, the charges arising out of the same incident. He was one of two men, both of them armed, who robbed the licensee of a hotel. As they fled, they were pursued by one of the hotel’s patrons. The applicant’s accomplice fired a shotgun at that man twice, on the second occasion causing a serious and life-threatening wound. In this Court, Grove J considered the case to be “one of the most serious of its type”, noting “the deliberate robbery and the final act of shooting a concerned citizen who sought to do something about this violent crime”.

He was sentenced on the charge of wounding with intent to murder to penal servitude for 20 years (MT 15 years, AT 5 years) and on the robbery charge to a lesser concurrent term. However, those terms themselves were partly concurrent with terms of imprisonment, effectively of 10 years, which had previously been imposed upon the applicant for other offences in the Australian Capital Territory.
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