R v Monardo
[2005] VSCA 115
•13 May 2005
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, |
| 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 applications for leave to appeal pursuant to s.582 of the Crimes Act 1958.
[1][1997] 1 V.R. 271 at 277.
Nevertheless, in the present case, the severity of the head sentence drives me to the conclusion that insufficient weight was given to the appellant’s plea of guilty and all that it entailed.[2] Had the matter gone to trial, in order to be consistent, his Honour would have had to impose a sentence roughly of the order of 17 years' imprisonment. The maximum penalty for a worst class of intentionally causing serious injury is 20 years' imprisonment. It is potentially a very serious offence indeed[3], but a sentence of that order would not have been warranted, having regard to the appellant’s age and previous character, his psychological condition[4] and the extent to which the victim had recovered from her injuries at the time of sentence.[5]
[2]It is well established that a head sentence must be assessed on the basis that the prisoner may have to serve every day of it. A head sentence that is too severe cannot be saved by a moderate, or even merciful, non-parole period.
[3]See Director of Public Prosecutions v. Zullo [2004] VSCA 153, Director of Public Prosecutions v. Lawrence [2004] VSCA 154, R. v. Huynh [2004] VSCA 156 and R. v. Tafa Sa [2004] VSCA 182.
[4]The record of interview, horrifying as some of the appellant’s answers were, is itself indicative of his disturbed state of mind on the day of the offence.
[5]As Batt, J.A. records, Mrs Monardo has since made a full recovery and her scarring is now minor, but that is a matter more relevant to re-sentencing if the discretion is re-opened.
I would allow the appeal, set aside the sentence imposed below and re-sentence the appellant to 11 years' imprisonment with a non-parole period of eight years.
BATT, J.A.:
On 27 October 2003 the appellant, Francesco Mario Monardo, who was born in April 1941, pleaded guilty on arraignment in the Trial Division at Melbourne to one count of intentionally causing serious injury to Lynda Monardo, his then estranged wife of 37 years, on 7 February 2003. Mrs. Monardo was aged 54 at the time of the offence. The maximum penalty for the offence was imprisonment for 20 years. The appellant had no prior convictions.
That day a plea in mitigation of penalty was conducted before the sentencing judge. The prosecutor tendered booklets of photographs, a victim impact statement by Mrs. Monardo, a report from her medical practitioner, two reports from psychologists and two reports from physiotherapists. Counsel for the appellant tendered a report by Mr. Ian Joblin, forensic psychologist, dated 20 October 2003 and an addendum of the same date, a report dated 4 March 2003 by the appellant’s general practitioner and a testimonial letter from two union colleagues of the appellant, and called a son of the appellant and Anthony Murphy, one of those unionists, as witnesses.
On 6 November 2003 his Honour sentenced the appellant to be imprisoned for 14 years, fixed a non-parole period of ten years and made a declaration as to pre-sentence detention of 273 days.
On 10 September 2003 the appellant gave notice of application for leave to appeal against sentence on the ground that the sentence imposed was manifestly excessive. On 3 December 2004 a single Judge of Appeal, pursuant to s.582 of the Crimes Act 1958, gave the appellant leave to appeal.
Before the ground of appeal can be considered it is necessary to state in summary the facts of the offence and certain facts personal to the appellant and to indicate the course of reasoning in his Honour’s sentencing remarks. The appellant’s marriage had slowly broken down over a number of years. His wife left the matrimonial home on 29 November 2002 and since that time negotiations, both in person and through solicitors, had been taking place between the spouses about the disposal and division of the matrimonial property. The appellant was very upset and angry, especially at the prospect of not being able to keep the matrimonial home for himself. He was anxious and depressed. He took sick leave from 13 January. He did not know where his wife was residing but knew both her place of employment and that she travelled to work each day by train from Geelong. (She had gone there to live with her former husband, whom she had divorced in order to marry the appellant.) On 20 January 2003 he purchased a “cut-throat” razor. He purchased it with the intention of using it in an attack on his wife which he had planned for 22 January, the 37th anniversary of their meeting. He bound a portion of the blade and the handle with electrical tape so that the razor stayed fixed open, no longer hinged in the manner of a cut-throat razor. On 22 January the appellant waited over twelve hours at Spencer Street station from the early hours of the morning until the evening intending to confront and attack his wife after handing her flowers which he had specially bought, but he did not see her that day.
On 6 February the appellant received from his solicitors a letter to them from his wife’s solicitors proposing a final settlement of matrimonial property and in particular proposing that the matrimonial home be sold and the proceeds divided equally between them. He became angered and decided he would attack his wife the next morning.[6] (The letter was found in the house, torn up, after the assault of 7 February.) The same day, 6 February, he ordered a taxi to collect him from his home at 5.10 a.m. the next day. On 7 February the taxi duly collected him and took him to a station where he caught a train to Spencer Street station, arriving there at about 5.25 a.m. After waiting there for some time he walked to his wife’s place of employment at 565 Bourke Street. He waited there from about 6.30 a.m. in a position where he was able to keep a watch on the two entrances to the building, the second being in Church Street, a small street running south to Little Collins Street from the southern side of Bourke Street. He had the cut-throat razor in the pocket of his overalls. Mrs. Monardo approached the place of employment shortly before 8 a.m. The appellant grabbed her by the jacket and pushed her against the wall of the building at 565 Bourke Street. He said that if he could not have her no-one would. She begged him not to hurt her and repeated that as the attack continued. He then commenced attacking her with the cut-throat razor: holding her in position, he commenced slashing her face with the razor. He cut her deeply in the back of the neck, down the left side of the neck and under the chin. She was terrified. He continued cutting and slashing her body. She received a deep cut to her right hand as she tried to defend herself. During the attack she fell to the footpath and held her neck together with her hands to stop herself from bleeding to death. She lay very still in the hope that the appellant would desist. He then sat down near her on the footpath and watched her. A number of people who had witnessed the incident tried to assist Mrs. Monardo but were kept at bay by the appellant, who said, amongst other things, that it was his wife of 37 years and did not concern them. A Salvation Army officer who persisted in his attempts to help the victim was not only told to stay back but was also told by the appellant that he would kill him if he came closer. The police arrived at 8.05 a.m. and arrested the appellant. After receiving urgent medical attention, Mrs. Monardo was conveyed by ambulance to The Royal Melbourne Hospital.
[6]As counsel for the respondent pointed out, granted that the letter was a catalyst of sorts for the 7 February assault, it did not explain the failed attempt in January.
The appellant told the police that he had also stabbed his wife with a screwdriver which he claimed to have found on the railway station. However, although it seems that he had the screwdriver in his hand at some stage in the course of the attack, there seem to be no injuries to Mrs. Monardo’s body that were consistent with a stab with a screwdriver.
Mrs. Monardo was brought to the hospital’s Emergency Department at 8.37 a.m. and was seen immediately by the trauma team. She was fully conscious, had an elevated pulse and a systolic blood pressure in the normal range. The most significant of the incised wounds was a 20 centimetre long, deep laceration to the left side of her neck, extending from the left side of her chin to the mastoid process. There was also another laceration, of five centimetres in length, to the left side of the neck, below the laceration of 20 centimetres. The other lacerations recorded by a member of the trauma team were a 14 centimetre[7] long, oblique, superficial wound at the left edge of the sternum; a superficial wound to the left abdomen at approximately the level of the umbilicus; a 15 centimetre long, deep, oblique wound in the left renal angle/loin region; a superficial wound to the right palm from the base of the ring finger to the base of the thumb, which was consistent with its being a defensive wound; a 10 to 12 centimetre long wound to the left upper triceps, which went through the subcutaneous fat but no deeper; and a superficial laceration under the left eye of some three and a half centimetres. There was also bruising to the left wrist and right elbow. The injuries required not only suturing, analgesia and antibiotics, but subsequent plastic surgery. The plastic and reconstructive surgeon stated about a month after the incident that Mrs. Monardo’s neck muscle and left ear numbness would take many months to recover.
[7]One medical report gives five centimetres and another 40 centimetres as the length. Fourteen centimetres, which seems consistent with what appears from the relevant photograph, is taken from the prosecutor’s opening below.
A medical practitioner, who examined Mrs. Monardo on 1 May 2003, that is, nearly three months after the attack on her, stated that she was profoundly affected in many ways. She suffered badly depressive symptoms with anxiety at a high level at most times. The effect upon her family weighed heavily upon her. Back at work, she had poor concentration and poor recall, affecting her work performance. She could not sit down to concentrate and read. In public she was hyper-vigilant and suspicious. Her scarring left her self-conscious in public and her self-confidence was considerably reduced. She had reduced function in her left arm, especially when trying to elevate it to or above shoulder level. The doctor expressed the opinion that there would continue to be improvement slowly over the following months, but he considered that she would have some permanent psychological and physical scars. A psychologist who had seen Mrs. Monardo on five occasions from 19 February to 2 May 2003 stated that she was suffering post-traumatic stress disorder and continued to use anti-depressant and tranquilising medication. She considered that psychological counselling for a further 12 months would be necessary. A physiotherapist, Rick Clingan, reported on 6 May 2003 that Mrs. Monardo’s superficial injuries were resolving well but she would always have superficial and subcutaneous tissue scarring which might cause some permanent tightness of neck and left shoulder movements. Damage to a motor nerve intrinsic to the movement of her left shoulder and arm had resulted in a decrease of power and a subsequent decrease of movement and function, making it likely that she would have a permanent deficit of left arm movement and strength and therefore function. Finally, another physiotherapist, Martha Azzopardi, reported on 13 October 2003 that she was concentrating on the other main area, the neck and jaw. She was of the opinion that with persistence the discomfort would ease somewhat and the function and movement would increase.
In case the sentencing discretion fell to be re-exercised by this Court counsel for the appellant informed the court that Mrs. Monardo, who was present in court, said that she had made a full recovery and that her scarring was now minor.
In her victim impact statement declared on 21 October 2003 Mrs. Monardo said that the event and its after effects on her family had shattered the foundation of her life. She could not understand why her husband had attacked her.
The appellant was interviewed by police at very great length (some 1,763 questions) on the day of the assault. In the course of the interview he stated that his intention had been to stab his wife for revenge on behalf of his children and grandchildren, so that she would have some feeling because she had cheated them very badly. He said that he did not want her to die, but to live to remember. “She hurt me, I hurt her back”, he said. If he had been going to kill her he would have used a gun, but this was to give her pain. If she did die he would not feel sorry. The way she had hurt him in the last years, she had to feel something back. He was not saying that he was feeling sorry for what he had done because if he saw her on the street he would still stab her. The children and grandchildren still loved her and, he seemed to say, he did in his heart, but he repeated that if he saw her on the street he would stab her. He repeated that he wanted to injure her seriously, to make something to remember. At another point, after professing his love for her, he stated that he hated her more than anything in the world. He described the planning of his attack on her and the earlier occasion when he had lain in wait for her. Later he said that she was still perhaps alive but she was not going to enjoy life. The prosecutor below relied on the recorded interview, submitting that the whole tenor of it was that, whilst he did not intend to kill her, he wanted to leave her in a position where she would not forget him, in order to avenge the wrong he perceived her to have done. As the prosecutor submitted, there was not a shred of remorse in it.
In his report Mr. Joblin, noting that the appellant’s psychological condition deteriorated significantly after the discussion of separation in November 2002, was of the opinion that the impact of the breakdown of a relationship such as the appellant’s paralleled that of grief. The appellant had informed him that prior to November 2002 he had considered everything to be satisfactory in his relationship with his wife. The appellant acknowledged that there had been difficulties over the years but he believed they had been resolved. When he was then told by his wife that she was leaving there was, in Mr. Joblin’s opinion, a significant psychological conflict with which he was simply unable to cope. He decided to attack the source of the conflict, his wife. The psychological basis of the offence, therefore, Mr. Joblin considered, related to the violation of an expectation, the expectation in this case being that the relationship would continue. It should be mentioned that his Honour did not adopt all Mr. Joblin’s views without qualification.
Mr. Murphy said in evidence that the appellant was a hard working, experienced and very competent sprinkler fitter, who trained new workers and was very generous.
Antonio Monardo gave evidence of his father’s strong work ethic, his primary concern for his family, the deterioration in his marriage, his inability to understand his wife’s reason for leaving, and his inability at the end to manage household chores and finances without assistance.
In his sentencing remarks his Honour sketched the history of the appellant’s meeting of and marrying his wife and the early part of their marriage. He then stated that in more recent years they had drifted apart. The appellant valued his male friends at the Italian Club. Too often he drank too much and came home belligerent. For a long time his wife put up with that behaviour although she did not like it. It was the appellant’s perception that her attitude was unreasonable. The two continued to live in the same house, but lived separate lives. Their four sons had problems and those problems imposed for the strains on husband and wife. Speaking of Mrs. Monardo’s leaving the matrimonial home and moving to Geelong, his Honour, addressing the appellant, said:
“It rankled with you that she chose to leave you. It rankled even more when you were told that she was living with her first husband. For nearly two months you brooded.”
His Honour referred to Mr. Joblin’s explanation of the offending as being that the appellant was experiencing a form of grief, but his Honour considered that that was only a shadow of an explanation. He did, however, recognise that some part of the explanation lay in the family’s stresses that were mounting late in 2002. His Honour mentioned the evidence of the appellant’s son Antonio Monardo, who referred to the possibility of reconciliation. (The appellant’s wife had visited him twice in prison and telephone calls were being made between them. She had left her former husband and had returned to live in the matrimonial home.) His Honour said that he had noted that Mr. Joblin had reported that there was need for great caution in addressing the matter of reconciliation. It seemed to his Honour that Mrs. Monardo was ambivalent about reconciliation, which he could understand given the family dynamics.
His Honour then stated that the appellant was 62, having been born in Calabria in Italy. He had been raised in a culture of male dominance. His history of making a new life for himself in Australia was impressive and he, the judge, had been impressed by the evidence of the son and Mr. Murphy. The appellant’s sons were, and were likely to remain, supportive of him. He had no prior convictions (as mentioned earlier). That was the more impressive given his age. Until he had attacked his wife the appellant had shown every sign of being of exemplary character. He had pleaded guilty and offered to do so at an early stage. (In fact, the initial indication of intention to plead guilty to intentionally causing serious injury was given on 18 March 2003 when the appellant also stood charged with attempted murder, and agreement was reached on 15 August.) That was a sign of remorse. On the other hand the case against him was overwhelming. But the plea facilitated the course of justice and the appellant had co-operated extensively with the police.
Having noted those mitigating factors, his Honour stated that the fact remained that this was an extremely serious instance of a very serious crime, its seriousness being shown by the maximum penalty of 20 years’ imprisonment. Considerations of general deterrence were important. There are plenty of people dissatisfied with the decisions of a spouse to go his or her separate way. They must be discouraged from thinking that violence is an option. The appellant’s actions were calculated and long premeditated. The choice of a weapon was carefully made. The cut-throat razor provided the appellant with maximum control. Further, he chose to carry out his acts in a very public way. His wife was attacked when she was particularly vulnerable. He added to the controlling position by keeping others away. The words he used to describe his intentions to the police were extremely sadistic. The appellant wanted revenge. He wanted his wife to be punished in a way that would cause a lingering painful life. Nevertheless, the appellant was prepared to risk her death. But for medical intervention, death would have resulted. His Honour then pronounced the sentence stated earlier.
I turn now to the submissions for the appellant. Mr. Holdenson began by tracing the course and breakdown of the appellant’s marriage, culminating in his receipt on 6 February 2003 of the letter from his wife’s solicitors. Mr. Holdenson then painted a powerful picture (as his predecessor had done on the plea) of (a) the disintegration of the family unit in the period from November 2002 to January 2003 as first one son, then Mrs. Monardo, then another son and then yet another son moved out of the matrimonial home for one reason or another, leaving (apart from the appellant) only another son who attended irregularly, living in the garage, and (b) the attendances of the appellant in the period from 16 November to 22 January upon medical practitioners for anxiety and depression, as disclosed by the report tendered dated 4 March 2003. In short, in the period from November to January the appellant was concurrently undergoing two progressive occurrences, the departure of family members from the home that he had established and that was under threat of sale and the corresponding deterioration in his medical and psychological condition.
With that introduction, counsel then stressed the two most important matters in mitigation. The first was the plea of guilty, made initially at a committal mention in the Magistrates’ Court after a previous offer to do so and repeated on arraignment, so that it was made at the earliest opportunity available to the appellant. He had facilitated the course of justice and saved witnesses, and in particular the victim, from being required to give evidence. Counsel might also have mentioned his Honour’s finding, generous (as it seems to me) in face of the recorded interview and the overwhelming Crown case, that the plea was a sign of remorse. In view of the foregoing the appellant was entitled, it was submitted, to a substantial discount in penalty which was real and not illusory. Further, the appellant had extensively co-operated with investigating police, participating in a video re-enactment. Secondly, the appellant, who was 61 years of age at the time of the offence, had no prior convictions. He had started out in Australia with nothing, had always provided for and supported his wife and children, had an exemplary employment history, was well regarded and respected by those who knew him, and, but for this offence, showed every sign of being a man of exemplary character, to use the sentencing judge’s words. There was no suggestion that he might subsequently re-offend. Counsel also relied upon some further matters in mitigation. The offence was committed at a time when his psychological well-being had deteriorated and he was unable to deal with the breakdown of his longstanding marital relationship. Indeed, the genesis of the offence was the termination of the relationship. Counsel stressed that he was not suggesting that this was a case for application of the principle in R. v. Anderson[8], whereby little weight is given to general deterrence where the offender was mentally ill at the time of offending. Further, the appellant and his wife had, at the time of the plea, commenced to “explore their reconciliation”. (In case the appellant fell for re-sentencing, counsel stated that the process had been maintained to the present time and drew attention to Mrs. Monardo’s presence in court.)
[8][1981] V.R. 155.
It was submitted that by reason of the foregoing matters the sentence of 14 years’ imprisonment with a non-parole period of 10 years was manifestly excessive because it was outside the range of sentences open to be imposed upon a 61-year old first offender who pleaded guilty at the very first opportunity and who committed the offence in the circumstances relied on.
It must be understood that sentencing is a discretionary exercise par excellence. Mandatory sentences apart, there is no single correct sentence. Rather, there is a range of sentences open to a sentencing judge in the exercise of a sound discretionary judgment. When it is contended that a sentence is manifestly excessive (or manifestly inadequate) the principle applicable is that it is basic that the appellate court may not substitute its own opinion for that of the sentencing judge merely because it would have exercised its discretion in a manner different from that in which the sentencing judge exercised his or her discretion.[9] As all members of the High Court stated in Lowndes v. The Queen[10], the discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice. For the appellate court to interfere the sentence must be “unreasonable or plainly unjust”.[11] Now, manifest excessiveness, like manifest inadequacy, is a conclusion. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and it frequently does not admit of much amplification.[12]
[9]Lowndes v. The Queen (1999) 195 C.L.R. 665 at 671 [15].
[10]Ibid.
[11]House v. The King (1936) 55 C.L.R. 499 at 505.
[12]Compare Dinsdale v. The Queen (2000) 202 C.L.R. 321 at 325 [6].
Essentially for the reasons which follow, I have come to the conclusion after close consideration that this sentence, stern as it is, is not outside the range that was open to his Honour, though it is at the top of that range. As was submitted for the respondent, the appellant’s offending involved premeditation and in particular the choice and modification of a terrifying weapon; had as a major element the application of an open blade to the neck of the woman the appellant had lived with for 37 years; was committed in public; was, as Mr. Holdenson, when asked, stated he was forced to accept, motivated by revenge; was designed to punish an estranged wife and to punish her in a way that she would never forget; and, as the appellant admitted in his recorded interview, involved his being prepared to risk his wife’s death, even to the extent of deterring rescuers. His Honour was, accordingly, right to characterise the offending as an extremely serious instance of a very serious crime. The inherent seriousness of the offence, which is demonstrated by the maximum penalty of 20 years’ imprisonment, stems from the definitional requirement that the offender not only caused, but intended to cause, injury that was serious. It follows that general deterrence was a very important sentencing purpose, along with denunciation and just punishment. A condign sentence was required. Of course, in the instinctive synthesis which the sentencing judge was required to make in order to arrive at his sentence, the appellant was entitled to allowances for the mitigating circumstances identified earlier. Moreover, although the appellant’s offending was extremely serious, it was not, as it seems to me, of the very worst kind; for, notwithstanding Mrs. Monardo’s description of it from a victim’s perspective, the attack was not frenzied and was not pursued without ceasing. Rather, it was calculated to achieve a certain effect, though the distinction may be two-edged. Further, although there was no up-to-date medical or psychological report at the date of sentencing, it would seem that, consistently with some prognoses, the victim’s condition had improved somewhat since the last reports and that the injuries were not permanently disabling. But even when allowances are made for the nature of the offending, the improvement in the injuries, physical and psychological, and the mitigating factors and when the appellant’s upset psychological state is borne in mind, I conclude that the sentence is within, albeit just within, the range open. It has to be understood that in considering the allowances to be made in the instinctive synthesis those allowances are not what an appellate court might make but those which it was open to the sentencing judge to make.
For the foregoing reasons, I would dismiss this appeal.
BUCHANAN, J.A.:
I agree with Callaway, J.A. that the appeal should be allowed and the appellant re-sentenced as his Honour proposes.
The premeditated, even studied, exacting of revenge by inflicting grave injury and terror for the act of a wife leaving her husband is an aspect of this crime which is disturbing and cause for denunciation and punishment that will act as a general deterrent. Nevertheless, within the constraint imposed by the maximum sentence, I am of the opinion that the sentence imposed below did not sufficiently value the mitigating factors of the plea of guilty, the appellant’s age, previous good character and disturbed state of mind.
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