R v Pello - [2001] NSWSC 650

CITATION: R v Pello [2001] NSWSC 650

CURRENT JURISDICTION: Common Law Division

FILE NUMBER(S): SC 70014/2000

HEARING DATE(S): 21/05/2001; 28/05/2001

JUDGMENT DATE:
3 August 2001

PARTIES :

Regina
Michael Pello

JUDGMENT OF: Hidden J at 1

COUNSEL : Mr Bruce Smith (Crown)
Mr John Stratton (Pello)

SOLICITORS: Solicitor for Public Prosecutions (Crown)
Brenda Duchen (Pello)

CATCHWORDS: CRIMINAL LAW - Sentence - provocation - manslaughter

LEGISLATION CITED: Crimes Act 1900

CASES CITED: R v Engert (1995) 84 ACrim R 67
R v Alexander (1994) 78 ACrim R 141 at 144

DECISION: Sentenced to imprisonment for five and a half years with non-parole period of three years.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HIDDEN J

No: 70014/2000 Regina v Michael Pello

Remarks on Sentence

1 HIS HONOUR: The offender, Michael Pello, was indicted for the murder of a woman named Loida Smith at Marrickville on 19 May 1999. His plea of guilty to manslaughter was accepted by the Crown in discharge of that indictment, on the basis of provocation. A question also arises whether, at the time of the killing, he was suffering from a psychiatric disorder bearing upon his culpability. To understand the circumstances of the offence, it is necessary to sketch his background.

2 The offender is now forty years of age. He was born and raised in the Indonesian province of West Timor, one of a family of nine children. His father was violent and his childhood was unhappy. His education did not progress beyond primary school. His father died when he was in his early teens, and he had to work as a sewing machinist to help provide for his younger siblings. His mother died in more recent years.

3 He came to Australia in 1988 on a visitor’s visa and has remained here since that time. Two of his brothers have settled in this country, having married and had children. If he came here in search of a better life, he was to be disappointed. Most of his daily routine was menial work for long hours, he does not appear to have been close to his brothers and he did not develop a relationship of any warmth or affection with anyone else.

4 The deceased, Loida Smith, was thirty-five years old at the time of her death. A native of the Philippines, she married an Australian and they had two children, but they separated in 1996. Since 1990 she had been renting the house at Marrickville near which she met her death. In that same year she invited Elma Valdehueza, a friend of hers from the Philippines, to move into the house with her.

5 In about December 1995 the offender also moved into the house. The deceased introduced him to Ms Valdehueza and arranged for their marriage, which was solemnized in January 1996. In fact, the marriage was a pretence designed to enable the offender to remain in Australia, as Ms Valdehueza had been granted permanent residency here. Their relationship was never…

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.

Continue reading R v Pello

Details

AGLC: R v Pello [2001] NSWSC 650
Case: [2001] NSWSC 650
Decision Date: 3 August 2001

CaseChat Overview and Summary

In the case of R v Pello, the defendant was convicted of manslaughter and the Crown sought an appeal against the sentence imposed by the court. The case was heard in the Supreme Court of Victoria, where the defendant was represented by counsel and the Crown by a prosecutor. The Crown argued that the sentence was too lenient given the circumstances of the offence, which involved the defendant killing his partner after an argument. The defendant's counsel submitted that the sentence was appropriate, given the mitigating factors present in the case, including the defendant's history of abuse and the circumstances of the killing.

The legal issues before the court were whether the sentence imposed was manifestly inadequate, and whether the mitigating factors relied upon by the defence were properly taken into account. The court considered the principles of sentencing in relation to manslaughter and provocation, as well as the relevant case law on the matter. The court noted that while provocation was a mitigating factor, it did not excuse the defendant's actions entirely and that a sentence of imprisonment was necessary to reflect the seriousness of the offence.

The court held that the sentence imposed was manifestly inadequate and that the mitigating factors relied upon by the defence were not sufficient to justify the sentence. The court noted that the defendant's history of abuse was a relevant factor in determining sentence, but that it did not excuse his actions entirely. The court also noted that the circumstances of the killing, including the fact that it was premeditated, were aggravating factors that needed to be taken into account. The court ultimately varied the sentence to a term of imprisonment of ten years, with a non-parole period of six years and six months.

The court's decision highlights the importance of considering all relevant factors in determining an appropriate sentence for manslaughter, including both mitigating and aggravating factors. The case also underscores the need for sentences to reflect the seriousness of the offence, particularly where the killing was premeditated. The final orders of the court were that the defendant's sentence be varied to a term of imprisonment of ten years, with a non-parole period of six years and six months.

Orders