JUDGE:	Croucher J
WHERE HELD:	Melbourne
DATES OF HEARING:	30 & 31 May 2018
DATE OF SENTENCE:	20 July 2018
CASE MAY BE CITED AS:	R v Russo
MEDIUM NEUTRAL CITATION:	[2018] VSC 395

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CRIMINAL LAW – Sentence – Manslaughter by criminal negligence – Accidental discharge of shotgun – Accused angry at deceased for running over his dog and leaving it for dead – While holding loaded shotgun and approaching deceased’s vehicle, accused stumbled, causing barrel of gun to strike driver’s side window, causing (defective) gun to discharge without pulling trigger – Resulting shot shattered window and struck deceased in right eye region, killing him – Child sitting next to deceased injured by shattered glass – Second child sitting behind deceased uninjured – Disputed sentencing facts – Whether proper to have regard to following as aggravating features of manslaughter: (a) presence of children; (b) accused’s knowledge of their presence; (c) psychological harm to both; (d) physical injury to one child; and (e) endangerment of either or both children – Objective gravity of offence towards lower end of spectrum – Full admissions – Plea of guilty despite arguable defence – Profound remorse – No prior convictions – Outstanding contributions to community – Excellent prospects of rehabilitation – Weight to general deterrence, just punishment, denunciation and rehabilitation but not specific deterrence or protection of community – Non-parole period shorter than usual – Sentence of five years’ imprisonment with non-parole period of two-and-a-half years – But for plea of guilty, sentence of seven years’ imprisonment with non-parole period of four years – Sentencing Act 1991 (Vic), ss 3, 5, 6, 6AAA & 18; Crimes Act 1958 (Vic), ss 5, 18 & 23.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr N Papas QC with Ms C Parkes	John Cain, Solicitor for Public Prosecutions
For the Accused	Mr P Tehan QC with Mr A Lewis	Galbally & O’Bryan

HIS HONOUR:

Overview

On Saturday 18 February last year, David Calandro took his two young sons Flavian and Anton and his friend Vince Vigliaturo on what was expected to be a pleasant jaunt to pick some peppers at a farm in Tatura East. The farm belonged to another friend, Angelo Russo, who was absent at the time. After picking some peppers, Mr Russo’s son Stephen invited them to collect some of the peppers that had already been picked and boxed, which they did. Regrettably, however, as a result of a series of ever-worsening decisions, first by Mr Calandro and then by Mr Russo, things turned from agreeable to bad very quickly, and ultimately to utter tragedy.

When heading out of the farm with his passengers and the peppers on board, Mr Calandro swerved his utility at Mr Russo’s farm dog to frighten him away as he chased them down the driveway. Unfortunately, the dog was struck and gravely injured. Then,…

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 Russo

Details

AGLC: R v Russo [2018] VSC 395
Case: [2018] VSC 395
Decision Date: 20 July 2018

CaseChat Overview and Summary

In the matter of the Crown versus Russo, the defendant faced charges arising from the accidental discharge of a shotgun which resulted in the death of the victim. The circumstances surrounding the incident were particularly tragic, as the defendant was reportedly angry at the victim for running over his dog, and the ensuing events occurred as the defendant approached the victim's vehicle with a loaded shotgun in hand. A stumble caused the gun to discharge, shattering the vehicle's window and fatally striking the victim in the eye region. The case was heard and determined by the Supreme Court of Victoria.

The central legal issues addressed by the court involved the appropriate sentencing considerations for manslaughter by criminal negligence, particularly whether certain factors should be regarded as aggravating circumstances. These included the presence of children in the vehicle at the time of the incident, the defendant's awareness of their presence, the psychological impact on the children, the physical injury sustained by one of the children, and the risk of harm to the children. Additionally, the court needed to balance various sentencing objectives, such as general deterrence, just punishment, denunciation, and rehabilitation, while considering the defendant's full admissions, guilty plea, profound remorse, lack of prior convictions, and positive contributions to the community.

The court meticulously weighed the aggravating and mitigating factors presented. It determined that the presence of children and the resultant psychological and physical harm did constitute aggravating features but recognised the objective gravity of the offence was towards the lower end of the spectrum for manslaughter by criminal negligence. The court also acknowledged the defendant's full admissions, early guilty plea, and outstanding contributions to the community. Consequently, the court imposed a sentence of five years' imprisonment, with a non-parole period of two-and-a-half years. The court noted that without the plea of guilty, the sentence would have been seven years' imprisonment, with a non-parole period of four years.

The final orders of the court mandated that the defendant serve a total sentence of five years, with a non-parole period of two-and-a-half years, reflecting the court's comprehensive consideration of all relevant factors in the sentencing process.

Orders