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R v Monardo

R v Monardo

Case [2005] VSCA 115 13 May 2005

Sentencing

Criminal Liability

Intentially causing serious injury

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 315 of 2003

THE QUEEN
	v.
FRANCESCO MARIO MONARDO

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JUDGES:	CALLAWAY, BATT and BUCHANAN, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 April 2005
DATE OF JUDGMENT:	13 May 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 115

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CRIMINAL LAW – Sentencing – Intentionally causing serious injury – Premeditated revenge attack in public upon estranged wife with cut-throat razor by 61-year old psychologically disturbed first offender whose guilty plea sentencing judge held evidenced remorse – Whether 14 years’ imprisonment with non-parole period of 10 years manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C.J. Ryan	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Appellant	Mr O.P. Holdenson, Q.C.	Robert Stary & Associates

CALLAWAY, J.A.:

I have the misfortune to differ both from my brother Batt and from the learned and very experienced sentencing judge. In my respectful opinion, the sentence imposed was outside the range and the appellant should be re-sentenced.

It has often been said that manifest excess admits of little argument, and a difference among judges on that topic admits of little elaboration. The principal matter that has weighed with me is the aspect of the case that Mr Holdenson put at the forefront of his submissions, namely that the appellant pleaded guilty at a committal mention in the Magistrates' Court, having previously offered to do so, and pleaded guilty on arraignment. That plea was significant not only for its utilitarian value, not least in sparing the victim the ordeal of giving evidence at any stage of the proceedings, but also because the judge accepted that it evinced remorse. It also has a bearing on the appellant’s prospects of rehabilitation.

I am conscious that that amounts to saying, not that his Honour ignored a relevant factor, but that he gave insufficient weight to a factor that he did take into account. As I said in R. v. Bernath[1]:

“A ground of appeal may complain that a sentencing judge failed to give due weight or, alternatively, gave excessive weight to a relevant factor, but that stands in contrast with a ground that asserts that the judge disregarded such a factor altogether or took an irrelevant factor into consideration. Where the complaint is made in terms of weight, an appellate court must be especially cautious not to substitute its own opinion for that of the judge in the absence of identifiable or manifest sentencing error. The underlying concept pervades the law relating to discretionary judgments and is not limited to the criminal law. It is well established. See, for example, Lovell v. Lovell (1950) 81 C.L.R. 513 at 533. The same caution is appropriate when it is said that a sentence is manifestly excessive. In all three cases the question is whether the sentencing discretion was soundly exercised, not how we should have exercised it ourselves.” (Emphasis added.)

I have often applied that observation, or the principle it expresses, on appeals against sentence and…

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 Monardo [2005] VSCA 115
Case: [2005] VSCA 115
Decision Date: 13 May 2005

CaseChat Overview and Summary

In the matter of the Crown versus Monardo, the defendant was convicted for an attack on his estranged wife in a public place, which resulted in serious injury. The attack, carried out with a cut-throat razor, was deliberate and premeditated, motivated by revenge. The case was heard in the High Court of Australia, which was tasked with reviewing the sentence imposed by the lower court. The defendant, who was 61 years old at the time of the offence and had no prior criminal record, entered a guilty plea. The sentencing judge took into account the defendant's psychological disturbance and his display of remorse during the sentencing process.

The primary legal issue before the court was whether the sentence of 14 years' imprisonment, with a non-parole period of 10 years, was manifestly excessive. The court was required to consider the severity of the crime, the defendant's lack of a criminal history, his age, psychological state, and the fact that he had shown remorse. The court also needed to balance the need for punishment against the necessity for rehabilitation and deterrence.

The court, in its judgment, acknowledged the gravity of the offence but also recognised the mitigating factors presented. It noted the defendant's remorse and psychological issues as significant factors that could impact his rehabilitation and the potential for reintegration into society. However, the court held that the sentence was not manifestly excessive, as it appropriately reflected the seriousness of the crime and served to adequately deter similar conduct in the future. The court concluded that the sentence was proportionate to the crime committed, taking into account all relevant factors.

The final orders of the court were to affirm the sentence imposed by the lower court, with no reduction in the term of imprisonment or the non-parole period. The defendant's appeal against the sentence was dismissed, and the original sentence was upheld.

Orders