R v Russo

IN THE SUPREME COURT OF VICTORIA

Not restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2017 0311

Between:

THE QUEEN
-and-
ANGELO PAT RUSSO	Accused

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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, contrary to Mr Vigliaturo’s suggestion, instead of stopping immediately and tending to the suffering animal, Mr Calandro, quite callously, really, and completely out of character for him, just shrugged and kept on driving, leaving the dog for dead, without a word being said to anyone at the farm.

But much worse was about to come. By the time Mr Calandro had finally come to his senses and decided to return and confess the error of his ways, Mr Russo had learned something of what had occurred. Understandably, he was distressed and angry in consequence. Upon his return to the farm and after examining the dog, Mr Russo loaded two cartridges into his double-barrelled shotgun, which he had bought only recently to scare crows away from his fruit. He then fired one shot into the dog’s head to put him out of his misery. Immediately thereafter, Mr Calandro arrived with his sons in tow but without Mr Vigliaturo.

It is at this point that Mr Russo made the worst decision of all, and one that he will regret for the rest of his days. Instead of putting the gun away or unloading it or breaking it open and thereby making it safe beyond argument, with anger in his heart but no violence in mind, he approached Mr Calandro’s utility while still holding the loaded gun, albeit believing, wrongly, it seems, that the safety switch was engaged. As he neared the vehicle, Mr Russo stumbled (possibly on an eggplant, but it does not matter how), which caused the barrel to strike the driver’s side window, which in turn caused the gun to discharge, without any pulling of the trigger. (Unbeknown to Mr Russo, the gun was faulty and would discharge without any trigger pressure if bumped hard enough.) The resulting shot shattered the car window and struck Mr Calandro in the right eye region, causing catastrophic injuries.

Tiny fragments of glass from the window also struck Flavian, mostly on the right side of his face, arms and legs, as he was sitting in the front passenger seat to the left of his father. Fortunately, his younger brother Anton, who was seated behind his father, was uninjured. That said, both boys suffered the grave and inevitable shock of witnessing the shooting of their father at close range and its ghastly aftermath.

Mr Russo and one of his farm workers Matthew Franken desperately tried to assist Mr Calandro, who was still alive but in a very bad way. Mr Franken immediately rang triple-zero. Following the operator’s instructions, the two men extracted Mr Calandro from the utility and laid him on a piece of foam. On multiple occasions, Mr Russo can be heard in the background urging Mr Franken to tell the operator to hurry the ambulance. The call makes for harrowing listening.

Eventually, an ambulance attended and rushed Mr Calandro to hospital in Shepparton. Later, he was flown to the Royal Melbourne Hospital. Sadly, however, his injuries were not survivable, and life support was removed the next day. He died shortly afterwards.

Initially, Mr Russo was charged with the murder of Mr Calandro and manslaughter in the alternative, and also with alternative injury offences concerning Flavian and an endangerment offence concerning each boy. In November 2017, at a committal hearing presided over by a magistrate of vast experience in the criminal law, Mr Russo was discharged on murder but committed for trial on the remaining charges. He was bailed but was returned to prison soon afterwards, when the Director of Public Prosecutions directly indicted him on murder.

At his trial before a jury in this Court, Mr Russo initially pleaded not guilty to all charges. Mid-trial, having heard the evidence to that point, senior counsel for the Director conceded that an accidental discharge of the shotgun could not be excluded, which effectively put paid to all of the charges bar possibly one. Then, by agreement between the parties, the jury was discharged without verdict, and a fresh indictment charging manslaughter only was filed, to which Mr Russo pleaded guilty upon arraignment.

As well as considering the depositions and hearing evidence prior to and upon the incomplete trial, I have received numerous victim impact statements and other exhibits and have heard a detailed opening by Mr Papas QC, who appeared with Ms Parkes for the Director, and a comprehensive plea in mitigation by Mr Tehan QC, who appeared with Mr Lewis for Mr Russo. The parties have also made submissions on some disputed sentencing facts and on a few matters of law.

It now falls to this Court to resolve those issues and finally to sentence Mr Russo. The latter is no easy task. On the one hand, the cherished life of a universally-admired man with young children has been taken from him and his loved ones. Further, while the gun discharged by accident, the Director alleges, and Mr Russo accepts, that the circumstances in which those events occurred nevertheless amount to the crime of manslaughter by criminal negligence, which, by definition, is a serious offence carrying a heavy maximum penalty. On the other hand, Mr Russo is also a good family man of outstanding character who has contributed extensively to his community over many years but who made a fatal error of judgment that, in my view, only just amounts to an instance of manslaughter, and one falling towards the lower end of the spectrum of gravity. Further, despite what I regard as a viable defence to that charge, he has pleaded guilty, is wracked with remorse for the damage he has done and has excellent prospects of rehabilitation.

Before imposing sentence, I shall set out in more detail, and, where necessary, discuss, the following things:

a) the background to and circumstances of the offending;

b) the disputed sentencing facts;

c) the victim impact statements;

d) the gravity of the offending, including aggravating factors;

e) Mr Russo’s background;

f) the factors in mitigation;

g) the weight to be given to various sentencing purposes; and

h) current sentencing practices for manslaughter.

Background to and circumstances of the offending

I turn first to the background to and circumstances of the offending in more detail.

Mr Calandro

David Calandro was aged only 43 when he died. He was married to Virginia Calandro, although they had been separated for six months at the time of his death. Their children Flavian and Anton are now aged fourteen and eleven respectively. After the separation, both parents had shared custody of the children by agreement.

Mr Calandro worked with his brother Pat Calandro running a family business which performed earthworks in the Shepparton area.

The victim impact statements, to which I shall come later, show that Mr Calandro was a big man with an even bigger heart, who made a positive impression on all with his kind and jovial manner. It is palpable that his death has come as a great shock and has caused enormous grief to his loved ones.

Mr Russo

Angelo Russo was aged 54 at the time of the offence and is now 55. He is married to Maria Russo. Their relationship has also had its ups and downs and they too have children: a daughter Natasha, aged 29, and two sons Stephen and Damian, who are aged 21 and 19 respectively. Mr Russo and his family lived in Kialla, which is near Tatura.

All of his working life, Mr Russo has either worked on farms or been a self-employed farmer. In particular, he has grown fruit and vegetables on his two farms at Tatura East and Toolamba West.

At the time of the shooting, Mr Russo held a firearms licence. He owned ten firearms registered in his name, including the one used in the offence, which was a twelve-gauge double-barrelled Miroku under-and-over shotgun. Like many raised in farming, he had been involved with the use of firearms from a young age. He obtained a junior permit when only thirteen. He was a regular shooter, participating in both recreational hunting and competitive shooting. He also used guns to shoot vermin or scare away birds from his crops on his farms. He had a history of being careful with guns.

Mr Vigliaturo

Mr Russo and Mr Calandro had known each other and Mr Vigliaturo, another farmer in Tatura, for a number of years. All three were friends. Also, Mr Russo and Mr Calandro were related, albeit distantly. They had been shooting together in years gone by. Mr Russo and Mr Vigliaturo also had a business relationship through farming. And Mr Calandro had performed earthworks on Mr Russo’s farm.

A plan to pick peppers

At about 9:00 a.m. on Saturday 18 February 2017, Mr Russo went to Mr Vigliaturo’s farm to drop off bins of plums as payment for money he owed. During that visit, it was agreed that Mr Vigliaturo would go to Mr Russo’s farm to collect some peppers to give to some friends, including Mr Calandro, who was quite partial to Mr Russo’s produce. Mr Russo then left.

Later that morning, when Mr Vigliaturo first went to the farm to collect the peppers, Mr Russo was not present. Since the workers were not picking peppers at the time, Mr Vigliaturo arranged with Mr Russo’s son Stephen to prepare some boxes of peppers for him to come and collect later.

Mr Vigliaturo returned to his own farm. A short time later, Mr Calandro arrived in his Toyota dual cab utility with his children Flavian and Anton, who were then aged twelve and nine respectively. When Mr Calandro inquired about the peppers, Mr Vigliaturo advised that they had not been picked and that they might have to pick them themselves. With that plan in mind, at about 12:30 p.m., Mr Calandro, his sons and Mr Vigliaturo headed to Mr Russo’s farm, which was only a couple of minutes’ drive away.

The farm consisted of fruit and vegetables growing in paddocks, a house, a caravan, a packing shed, numerous outbuildings and the Number 4 main water channel running along the eastern boundary of the property. There is a large loading yard area situated between the house and the packing shed, which is suitable for large trucks to enter, turn around and be loaded. The packing shed is used to sort and pack fruit and vegetables prior to being shipped, and contains various associated machinery. The farm was growing peppers, beans, peas, plums and apricots at that time.

When the Calandros and Mr Vigliaturo arrived, while Mr Russo was still not present, numerous others were, including Mr Russo’s parents Claudio and Maria, his son Stephen, and his employees Mr Franken, Yunus Babayigit, Clemence Picot, Marion Py, Mohd Ifran Norhaidi, Mohammad Affika and Syafiq Hanafiah. Mr Franken, who was the farm manager, was living in the house, while Mr Babayigit was living in the caravan situated at the rear of the house. Mr Franken had known Mr Russo for about twenty years and had worked for him for ten years. He describes Mr Russo as being like a father to him. Mr Babayigit had been allowed to live at the caravan by the good grace of Mr Russo, as he had nowhere else to go.

The Calandros and Mr Vigliaturo spoke to Mr Russo’s parents, who were in the shed packing peppers. They were being assisted by Messrs Babayigit and Picot and Py. After Mr Calandro’s group went into the paddock and picked some peppers themselves, Mr Russo’s son Stephen invited them to collect some of the peppers that had already been picked and boxed. They put a couple of boxes in the back of Mr Calandro’s utility and then left.

The dog is run over and left for dead

As they were driving down the driveway from the yard towards the main road, Mr Russo’s dog, a Brittany Spaniel named Harry, chased after them. The dog ran beside the utility and barked at them. Mr Calandro swerved in order to ‘spook’ the dog but, unfortunately, it seems that he became caught under the wheel. Mr Calandro said, “Whoops,” and Mr Vigliaturo responded, “Fuck, David, that didn’t feel too good.” Mr Vigliaturo has since observed that “David always mucks around, it’s his nature” and that “[h]e wouldn’t have meant to hit the dog”. Mr Calandro then looked in the side mirror of the utility and said, “It’s all right.” Mr Vigliaturo responded, “Are you sure? That didn’t feel good.” Mr Calandro just said, “Yeah.” Mr Vigliaturo looked in his side mirror and saw that the dog was lying in the middle of the driveway and appeared to be injured and having a spasm of some sort. He said to Mr Calandro, “The dog looks like it’s having a spastic spasm on the track, David.” Mr Calandro looked in the mirror, shrugged it off and said, “Ah, you know.”

Mr Calandro kept driving down the driveway and then turned onto the main road and headed towards Mr Vigliaturo’s farm. As they were driving, Mr Calandro said, “Do you think we should go back?” Mr Vigliaturo responded, “Davey, it’s your fucking call. You are driving. You ran over the dog, you have got to face the music.” Plainly, pangs of conscience were setting in. Nevertheless, he did not turn back at that point.

Soon afterwards, Mr Calandro dropped Mr Vigliaturo off and they said goodbye. As he was about to leave, Mr Calandro said to Mr Vigliaturo, jokingly, that, if Mr Russo asked about the dog, he was to say that he did not know anything. Mr Calandro then drove off with his sons.

Meanwhile, Stephen Russo was leaving his father’s property in his Mazda utility when he found the dog lying in the middle of the driveway. He believed it was dead. He went to the farmhouse and told Mr Franken what he had found. The two then walked back to where the dog was situated. He was bleeding from the nose. Mr Franken picked up the dog and carried him around the back of the farmhouse and laid him on the ground next to an old caravan and a car. He too believed the dog was dead, but, on reflection, was not sure. He then returned to the house, while Stephen Russo left the farm in his vehicle.

Mr Russo learns about the dog being run over and left for dead

At 12:41 p.m., Stephen Russo rang his father and told him that Mr Calandro and Mr Vigliaturo had run over the dog and killed it and did not stop.

A short while later, Mr Russo arrived back at the farm. He was told by Mr Babayigit, whose English was poor, that the dog was dying or dead and that it had been struck by a vehicle. Given the description he gave, including that it was a grey ute, Mr Russo took it to be Mr Vigliaturo’s utility. Mr Babayigit then went elsewhere.

At 12:47 p.m., Mr Russo rang Mr Vigliaturo. He was very upset. He called Mr Vigliaturo a “fucking cunt” and accused him of running over his dog and failing to stop. Mr Vigliaturo suggested that it was Mr Calandro who might have run over the dog. Mr Russo said words to the effect of, “I want to find out from both of youse, you pair of pricks, right, I want to find out who ran over my dog, right, because you didn’t even have the courtesy to tell me that you killed the dog.” He told Mr Vigliaturo to tell Mr Calandro “to get back here” and look at what he had done to his dog. Mr Vigliaturo said something like, “I’m on my way.” At that point, Mr Russo was not sure precisely what had happened and, understandably, wanted Mr Vigliaturo and Mr Calandro to explain the whole ordeal to him.

At 12:49 p.m., Mr Vigliaturo rang Mr Calandro and told him that Mr Russo had called him and said that the dog was “fucked”. Mr Calandro said, “Yeah, yeah, I’m here.” Mr Vigliaturo took this to mean that Mr Calandro was just arriving at the farm. He told Mr Calandro that he would be there in a minute. He then headed off to Mr Russo’s farm.

Mr Russo destroys the dog

In the meantime, Mr Russo decided to destroy the dog in order to put it out of its misery. While the dog had made some movement, including trying to hold his head up and move his legs, he was “making a funny noise” and looked to be “in a lot of pain”. Initially, Mr Russo thought of hitting the dog over the head with a big stick, but he just could not do it. So, instead, he went to his utility, collected his shotgun and loaded it with two cartridges. He had bought the gun second-hand only relatively recently for the purpose of scaring crows away from his fruit, although he had not yet used it. He went back to the dog and shot him once in the head. This occurred in the vicinity of where Mr Franken had placed the dog.

Mr Russo then picked up the dog and carried him and the shotgun around to the front of the house. He placed the dog on the ground. His plan was to take him on the four-wheel motorbike and bury him in the same area of the farm in which other dogs had been buried.

Mr Calandro is shot accidentally

At that moment, Mr Calandro and his children arrived at Mr Russo’s farm. Mr Calandro, who of course was driving, parked the car in the yard in front of the packing shed. Flavian was in the front passenger seat and Anton was in the back seat immediately behind his father.

Mr Russo approached the driver’s side of the utility in order to speak to Mr Calandro. He was holding the loaded gun across his body but believed he had the safety switch on. While the tinting on the vehicle’s windows obscured him, Mr Russo assumed, correctly, that Mr Calandro was in the driver’s seat. He also believed he saw a child in the vehicle, and suspected that both children were there. As he neared the utility and before either man could say anything, Mr Russo stumbled (possibly on an eggplant), which caused the barrel to strike the driver’s side window, which in turn caused the gun to discharge, without any pulling of the trigger. As I said earlier, unbeknown to Mr Russo, the gun was faulty and would discharge without any trigger pressure if bumped hard enough. The resulting shot shattered the car window and struck Mr Calandro in the right eye region, causing catastrophic injuries.

Mr Russo dropped the gun. He initially thought that only the window had shattered as a result of the barrel hitting it and was not even sure that the gun had discharged. He opened the driver’s door but could not believe what he saw. Mr Calandro had indeed been shot and was in a very bad way. He was slumped forward and bleeding heavily.

The boys screamed and got out of the vehicle. They were crying and in shock. While Mr Russo did not notice this, Flavian had been injured by tiny fragments of glass from the window that had struck mostly the right side of his face, arms and legs. Fortunately, Anton was uninjured.

The events immediately following the shooting

As might be expected, by this stage, things became rather chaotic. Mr Russo ran around to the passenger side of the utility. Flavian had taken out his mobile phone as he wanted to call his mother. Mr Russo said to him, “Here, give me the phone, quick,” and snatched the phone from him, as he considered the immediate priority was to ring triple-zero for help. But, at that point, which was now 12:57 p.m., it became apparent to Mr Russo that Mr Franken had come on the scene and was ringing triple-zero already. Mr Franken had been inside the house having lunch. He came outside, saw what was happening and made the necessary call. Mr Russo also told Flavian that he should not call his mother now but that he should let Mr Vigliaturo do that when he arrived. At some point, Mr Russo must have put Flavian’s phone in the pocket of his shorts, because that is where it was discovered later.

Mr Russo and Mr Franken then tried to assist Mr Calandro, while receiving instructions from the triple-zero operator. Together, they removed Mr Calandro from the utility, carefully laid him on a piece of foam and applied a towel to his head in an attempt to staunch the bleeding. At various points during the triple-zero call, which was recorded and played at trial, Mr Russo can be heard in the background urging Mr Franken to ensure the ambulance comes as soon as possible. On another occasion, he can be heard barking instructions apparently to another or others to get a blanket. Also at some stage during this process, Mr Russo broke open the gun and put it aside, near the utility, which appears to be where it was found later.

Mr Vigliaturo arrived back at the farm soon after the shooting. By this stage, Stephen Russo had also returned and Mr Russo’s parents were on the scene, although they later retreated to the packing shed. Mr Russo told Mr Vigliaturo that he had shot Mr Calandro. He then went back to Mr Calandro’s utility to continue his attempts to help. Stephen Russo walked over to Mr Vigliaturo and said, “My dad’s going to go to jail. He’s shot David. He’s going to go to jail for this, isn’t he?”

Mr Vigliaturo noticed blood coming from the utility and saw Flavian and Anton standing nearby, crying. Flavian had blood on his clothing. Mr Vigliaturo tried to comfort the boys. He said, “Don’t, worry, Dad’s a strong man, he’ll be alright.” Flavian then told him that Mr Russo had taken his phone when he wanted to use it to ring their mother. Mr Vigliaturo assured the boys that they could ring their mother. He then took them with him as he headed towards his home.

On the way, he tried to contact the boys’ mother Virginia Calandro but her phone was not answered. He then saw a police divisional van drive past in the direction of Mr Russo’s farm. He attempted to flag those police down, but they did not stop. He then took the boys to his home. A short time later, Mrs Calandro called him back and he told her what had happened.

Police and ambulance arrive

At 1:11 pm, local police Sergeant Darryl Phillips and Senior Constable Gerard Balnaves arrived at the scene. Soon afterwards, Sgt Phillips asked Mr Russo what happened. He responded as follows:

My dog was run over and I shot it with my shotgun. I then walked over to the ute and on walking up to it I tripped and the shotgun hit the driver’s side window of the ute and went off hitting Dave in the head.

Between about 1:14 p.m. and 1:16 p.m., ambulance paramedics arrived at the scene and treated Mr Calandro. He was then taken via ambulance to the Goulburn Valley Hospital in Shepparton. He was in a life-threatening condition suffering from significant head trauma and brain injuries. The ambulance arrived at the hospital at 1:40 p.m. Mr Calandro was placed on life support.

Between 1:19 p.m. and 1:25 p.m., after administering the appropriate caution and advising Mr Russo of his rights, which he declined to exercise, Sgt Phillips conducted a more formal audio-recorded interview. Among other things, Mr Russo said the following:

a)He accidentally shot Mr Calandro.
b)The dog had been run over accidentally by the driver of the utility owned by Mr Calandro.
c)He destroyed the dog by shooting it once with his shotgun.
d)He thought the gun “was on safety”.
e)“I’ve come around and I just tripped over there and I just – bang, and I just – the – the gun just hit – hit the wing – the side like that and went off.”
f)He was “quite sure” he did not have his fingers on the trigger.
g)“I just hit the – … the barrel’s just went like this, just went bang like that and, like I fell and I was right back here and I fell in – I – I fell down onto me knee and bang the – the gun went off and I couldn’t believe it. I couldn’t even see inside the car because of the tinted windows.”
h)“When I opened the door, … I couldn’t fuckin’ believe what was going on.”
i)“I think it was a fuckin’ eggplant on the ground there, whatever it was, it was something on the fuckin’ ground that I tripped on.”
j)Mr Franken rang for the ambulance. The operator told them what to do with Mr Calandro and they got him out of the car and tried to give him first aid.

Sgt Phillips noticed that Mr Russo had blood splatter over his clothing and that both arms were covered in dried blood, which had occurred when Mr Russo was trying to assist Mr Calandro. He subsequently washed his arms and hands.

At 1:54 p.m., Mr Russo was arrested – at that stage, on a charge of recklessly causing serious injury – by Detective Senior Constable Mary-Jayne Kane of the Shepparton Criminal Investigation Unit.

At 2:00 p.m., just prior to placing Mr Russo in the divisional van, Sgt Phillips conducted a body search. He located Flavian’s mobile phone in Mr Russo’s shorts pocket.

Mr Calandro’s family heads to hospital

Meanwhile, Mrs Calandro arrived at Mr Vigliaturo’s farm. Her sons and Mr Vigliaturo told her what had happened. She then took Flavian and Anton to the Goulburn Valley Hospital.

When police had arrived at the scene, they were initially unaware that Mr Calandro’s sons had witnessed the incident or that Flavian was physically injured. They became aware of this only when the boys arrived at the hospital.

Flavian was examined and treated at the hospital. As I indicated earlier, he had received glass fragment wounds to his face, hands and thighs.

Anton was also examined and treated. He did not suffer physical injuries, but, like his brother, has experienced significant psychological impact.

Flavian and Anton were discharged from hospital and taken to Shepparton Police Station where they both participated in VARE recordings. Flavian’s injuries were also photographed at the station.

Mr Calandro is flown to the Royal Melbourne Hospital

At 5:40 p.m., Mr Calandro was flown via air ambulance to the Royal Melbourne Hospital.

Later that evening, Mrs Calandro drove with her sons to Melbourne to see Mr Calandro. They arrived at the hospital at about 12:30 a.m. the next morning, Sunday 19 February 2017.

Doctors at the Royal Melbourne Hospital determined that Mr Calandro’s brain injuries were not survivable. At 1:50 p.m. on the Sunday, his life support was removed. He died at 2:10 p.m.

Post mortem on Mr Calandro

At 10:15 a.m. on 22 February 2017, a post mortem examination of Mr Calandro was conducted at the Victorian Institute of Forensic Medicine by forensic pathologist Dr Yeliena Baber. Located in the brain of Mr Calandro were the fired shotgun wad, shotgun pellets and a piece of glass. Dr Baber concluded that the cause of death was a shotgun wound to the head.

The doctor could not determine the range of fire because the usual analysis was complicated by the fact that the shot was fired through the glass window.

Flavian’s physical injuries and both boys’ psychological trauma

While at the Royal Melbourne Hospital, a doctor reviewed Flavian’s physical injuries and recommended that he undergo surgery to remove the glass from his wounds. On 20 February 2017, Flavian underwent such surgery at the Goulburn Valley Hospital. He was discharged the same evening.

Dr Trusha Brys, a paediatrician at the Victorian Forensic Paediatric Medical Service of the Royal Children’s Hospital, provided a forensic medical opinion regarding Flavian’s injuries and trauma. Dr Brys concluded as follows:

Flavian had multiple tiny wounds on his face (right more than left), his hands (right more than left) and his left thigh. The wounds were scattered over his body and the pattern suggested a blast type injury. Small pieces of glass were found in some of Flavian’s wounds including in a wound on his right temple which was in close proximity to his right eye.
The wound on Flavian’s left hand appeared to be covered by dried blood and likely occurred within hours to a day or so of the photographs being taken. The images of the other wounds were not adequate to comment on possible timing of these injuries.
Flavian sustained multiple injuries from penetrating pieces of glass. The complications of penetrating foreign body injuries include infection, bleeding and trauma to major organs such as the eye. It was alleged that the firearm was fired at close range putting Flavian at risk of serious injury from potential misdirection of or deflected bullets and of acoustic trauma which can result in long term hearing impairment.
Flavian witnessed the violent death of his father at the hands of another person. This constitutes an extreme act of emotional maltreatment under the domain of terrorising behaviours. It is likely that Flavian’s exposure to this extreme act of violence will result in him experiencing emotional and psychological trauma. He may experience some or all of the following: anxiety, flashbacks, sleep disturbances, depression, emotional detachment, suicidality, low self-esteem and/or exhibit other disruptive or self-destructive behaviour. His witnessing the shooting death of his father has the potential to result in persisting maladaptive behaviours in the domains of social, emotional and behavioural functioning.

Dr Brys expressed precisely the same opinion as given in the last paragraph of the foregoing extract in respect of Anton’s witnessing of his father’s death.

Further police investigation

Back at Mr Russo’s farm, on the day of the shooting, a crime scene was established by police. A number of items were located and seized, including: a flannelette shirt with what appeared to be blood stains; the Miroku shotgun; two fired cartridge cases located in the upper and lower barrels of the Miroku shotgun; a fired shotgun cartridge case (found near the shed); swabs of what appeared to be blood in the rear yard and the driveway; and an Apple iPhone in a black cover, covered in what appeared to be blood. The farmhouse and Mr Russo’s vehicle were searched but no items were seized.

Numerous photographs were taken of the crime scene, and a video recording was made. Subsequently, aerial photographs were taken by police.

Investigators made the following initial observations of the crime scene on the afternoon of the shooting. First, the dog appeared to have significant injuries to its head only. Second, the location of what appeared to be blood on the driveway of the farm was believed to be the location in which the dog was struck by Mr Calandro’s vehicle. Third, the location of what appeared to be blood in the back yard of the house next to the caravan and an old car was believed to be the location in which the dog was shot by Mr Russo. Fourth, an eggplant was located on the ground near Mr Calandro’s utility but the yard was free of any other fruit and vegetables. Fifth, Mr Russo’s vehicle had been moved (by Mr Franken and with the consent of police) from its original position after the shooting.

During the flurry of activity that followed the shooting, at 1:03 p.m., the farm worker Mr Hanafiah took a photograph on his mobile phone which shows Mr Calandro lying on the foam mattress beside his utility. As was explained by Mr Franken in his evidence, he and Mr Russo can be seen in the photograph standing off to the side near another vehicle, which is consistent with his account of their desperate movements about the place when making the triple-zero call and trying to assist Mr Calandro.

That photograph was blown up considerably for the trial. To my eye, it is not clear whether it shows the eggplant that was discovered near Mr Calandro’s utility and photographed in situ later by police. That said, the quality of Mr Hanafiah’s photograph is poor. Further, there are unidentified objects apparent in that photograph any one of which might be an eggplant.

I note that Mr Franken and Mr Vigliaturo gave unchallenged evidence that it was common for items of produce to be scattered about the same area.

Ballistics evidence

At 5:27 p.m., Leading Senior Constable Alan Pringle and Senior Constable Ligery Pearson attended the scene. They are both firearm and tool-mark examiners with the Ballistics Unit at Victoria Police Forensics Services Centre. In addition to examining the scene, L/S/C Pringle and his team examined and tested the Miroku shotgun. Much later, on 31 January 2018, L/S/C Pringle recorded a helpful video demonstration of the safety testing procedure using the shotgun.

In summary, L/S/C Pringle’s evidence was to the following effect:

a) Intermittently, the safety catch on the firearm did not seem to engage fully.

b) That said, when the gun was sought to be fired in that state, the safety catch was effective, thus preventing the gun from firing by pressure on the trigger.

c) A previous user of the gun would be aware of this fault.

d) With the safety catch applied (in the safe position), neither barrel of the gun fired when struck in any of the test positions examined.

e) When the safety catch was off (that is, in the fire position), the gun would fire when struck on the receiver, the mid-barrel or the underside of the muzzle.

f) The tests conducted demonstrated that the firearm is susceptible to discharge when struck with the safety catch in the fire position, and no finger on the trigger.

g) The tests also demonstrated that the same unintentional discharge may also occur if the muzzle of the gun were to strike a surface with the same moderate degree of force used in the strike tests he conducted.

h) There was a mark on the driver’s side window of Mr Calandro’s utility which must have been made before the discharge of the firearm. That mark was consistent with impact from a solid object. Scratches to the muzzle of the gun were consistent with such damage being caused by impact with the glass. In particular, this damage could be caused by the muzzle of the gun hitting the car window.

i) Further, “if the shot were discharged as a result of that process, the window would allow the muzzle to come down and pass through the damaged glass”.

The upshot of the ballistic evidence is that, if the barrel of the gun were to strike the window of the vehicle by accident, that action would be sufficient to discharge the gun by accident, without any finger pressure on the trigger. This, of course, is consistent with Mr Russo’s account.

Post mortem on the dog

At 8:45 p.m. on the day of the shooting, a post mortem examination of the dog was conducted by Dr Regan Lynch at Tatura Veterinary Clinic. Dr Lynch noted the following. First, there was no significant trauma other than head wounds. Second, all limbs appeared intact and functional. Third, the spine and pelvis appeared intact. Fourth, the abdomen and thorax appeared normal on radiographic imaging. Fifth, due to the severity of the head wound from shooting, any previous injuries or abnormalities were not distinguishable. Put another way, the head injury caused by shooting had the potential to mask an underlying injury in the same area. Finally, if the dog had been hit by a car to the head, the vet could not say that that killed him instantly or left him brain damaged and incapacitated in some way.

None of the foregoing is inconsistent with the view that the dog was still alive when shot by Mr Russo. The dog may well have suffered a head injury when run over which caused him to move in the way observed by Mr Vigliaturo initially and Mr Russo later but to have appeared deceased in the meantime.

Detailed police interview

After his arrest, Mr Russo was taken to the Shepparton Police Station. His clothing was removed and seized. He was then interviewed. Again, he declined legal advice and answered each and every question. Among other things, he said the following:

a) He returned to the farm and found his dog had been run over. The dog was bleeding, “all smashed up”, “looked mangled [and] buggered”, “was trying to crawl around”, “trying to lift his head up”, “was making a funny noise” and “looked as if he was in a lot of pain”.

b) He called Mr Vigliaturo before he shot the dog. He “was pissed – I was obviously pissed off”.

c) He shot the dog before picking him up and carrying him (with the gun) around to the front of the house and placing him on the ground.

d) Mr Calandro then arrived at the scene.

e) He was holding the shotgun in the air on his shoulder and went around the front of Mr Calandro’s vehicle where his foot went on top of an eggplant and it rolled forwards, whilst he fell backwards. Later, he said that, when he stood on the eggplant and slipped with his right foot, he “rolled forward”, with all his weight on his left leg, and then he went down and fell forward onto his knees.

f) The barrel of the shotgun then hit the driver’s side window two times on the door and accidently discharged into the vehicle, hitting Mr Calandro.

g) The shotgun fell out of his hand onto the ground, “And that’s where it stays.”

h) He picked up the shotgun and then “just chucked it” and “just threw it down near the tyre. And I started running around, doing what I could do.”

i) He did not hear the shotgun go off and thought it was the driver’s door window breaking. It was not until he opened the door and heard Mr Calandro’s sons screaming in the vehicle that he realized what had occurred.

j) He ran up to one of Mr Calandro’s sons and grabbed his phone because he was in a hurry to ring triple-zero. But, as it happened, Mr Franken was already calling them. Both then rendered assistance until the police and ambulance arrived.

k) When asked why he took the shotgun with him when he approached Mr Calandro, he stated, “I just had it in my hand.”

l) He had owned the gun for about eight or nine months, but had never fired it.

m) The gun had a safety on it, the operation of which he described.

n) He had been around guns all his life, had them since he was thirteen, and owned seven or eight guns.

o) He took Flavian’s phone because he was going to ring triple-zero. He put it in his pocket because the boys had gone and then he gave it to police.

p) When advised that Anton and Flavian had told police that they did not see him slip prior to the shooting, he said, “I don’t know. How can – I know what happened there. If they didn’t see me slip on anything how do they know if there’s [an] eggplant … on the ground? The eggplant was there. I slipped on – I – I tripped on the eggplant.”

q) He denied that he was angry or that he was walking at a fast pace when he approached Mr Calandro.

r) When told that Mr Vigliaturo said that Mr Calandro “swerved a bit to spook the dog”, he became angry, slammed his fist on the table and said, “So he killed the dog on purpose then? … This changes the complete concept of how I’m thinking now … [Mr Calandro] has put me in this situation … What a fuckin’ cunt … .”

s) He denied that he deliberately shot Mr Calandro.

t) He conceded that, as he approached, he saw a child in the utility, which caused him to think Mr Calandro must have his children with him.

At the conclusion of the interview, police advised Mr Russo that he was going to be charged with attempted murder. His response was that he “didn’t try to kill David, it was a fucking accident”. He repeated similar remarks several times.

Subsequently, he was charged with the other offences I mentioned earlier.

Disputed sentencing facts

I turn now to the disputed sentencing facts.

In so far as there is a dispute about some sentencing facts, I note that I am satisfied that it is appropriate to sentence on the bases of the foregoing summaries of the facts. In particular, where those facts go to make up the offence or an aggravating factor of it, I am satisfied of the applicable facts beyond reasonable doubt. Where those facts go positively in mitigation, I am satisfied of them at least on the balance of probabilities. Where there are aggravating factors alleged about which I am not satisfied on the criminal standard, I am satisfied of the alternative version (whether it be neutral or mitigating) on the balance of probabilities or I have at least reached the view that cannot exclude the truth of the alternative.

In short, having considered all of the evidence before me, where there is a conflict in that evidence, I am satisfied of, or cannot exclude the truth of, the account given by Mr Russo in his very long and detailed interviews with police. He impressed me as an honest man doing his best to recount and explain what occurred. His account on important matters was sufficiently consistent, or at least not so inconsistent, that I am prepared to accept it. He answered every single question without any legal advice and, with one exception, without any attempt to shirk or minimize his position.

The exception is that, contrary to his assertions in the interviews, I am satisfied that Mr Russo was angry at the time he approached Mr Calandro’s utility. He was angry when he rang Mr Vigliaturo and was still in the same mood when he had to shoot the dog. While there was a different (albeit related) reason for his outburst in the formal interview, it is not without significance that he was driven to anger in such a setting. And, as I say, I am satisfied that he was still angry when he approached the utility. Given what he understood had or may have occurred, he was entitled to be angry. That said, it was at least unwise to be handling a loaded gun when in that agitated state.

Mr Russo’s account on other matters was also supported, to a greater or lesser extent, by other aspects of the evidence, including that of Mr Franken (who was a most impressive witness), the triple-zero call, the timing of various undisputed events, the expert opinion of L/S/C Pringle concerning the faults in the shotgun, and concessions in evidence by various other witnesses at committal, pre-trial and/or trial, including Mr Franken, Mr Vigliaturo and Flavian and Anton Calandro.

As I indicated in the course of the plea, Mr Vigliaturo struck me as a man who was in a very difficult predicament and who felt great pressure to say what he thought others wanted to hear. In some respects, he was given to versions of events that I simply could not accept, which in turn caused me to doubt other aspects of his evidence.

Understandably, Mr Calandro’s sons were in a state of shock as a result of the horrible ordeal that they experienced. Both boys did their best to recall what they could. And each made concessions refreshingly unburdened by the cynicism that seems to beset many in adulthood. But, on the crucial matters where there was a conflict, I preferred Mr Russo’s account. Further, it was also apparent, not only in the sensitive cross-examination of the boys by (different) senior counsel at the committal and at pre-trial and trial, but also upon the careful and insightful questioning by Detective Sergeant Julie Trimble, who conducted the VAREs, that there were aspects of their accounts that amounted to (perfectly understandable) inferences or speculation by them rather than observations actually made.

I shall now address what I understand to be the particular disputed facts. I shall not refer to all of the evidence that impacts on these questions, but only to the more important parts of that evidence.

First, the Director submitted that I should be satisfied that Mr Russo returned to the farm after – and not before – Mr Calandro and his sons. Reliance is placed mainly on the evidence of Flavian and Anton Calandro and, I assume, to a lesser extent, Mr Hanafiah. But Mr Vigliaturo’s account of Mr Russo’s utterances during the call to him at 12:47 p.m. implies that, by then, Mr Russo had already returned to the farm and had seen the wounded dog. Further, while I did not see him in the flesh, in his evidence at committal (in both cross-examination and re-examination), Mr Hanafiah was quite uncertain about the order of events. I should also refer to Mr Norhaidi, who gave evidence at the committal hearing but not at trial, although I did not understand the Director to rely on his evidence. Again, while I did not have the benefit of seeing or hearing Mr Norhaidi, his account introduced yet another version – namely, that Mr Russo returned to the farm and left before Mr Calandro arrived and then returned again after Mr Calandro. This struck me as rather confusing and as unsupported by any other evidence. Also, without seeing or hearing him, I was unable to make an adequate assessment of his credibility or reliability in the face of contrary evidence. Further, given also the shock the Calandro boys suffered, and the potential cross-contamination of their evidence as a result of being spoken to together at various points, including by Mr Vigliaturo and later by a police officer when at the hospital, I am not prepared to accept their versions on this issue. In any event, given also my assessment of Mr Russo’s version and his credibility in general, I am not prepared to reject his account of returning before Mr Calandro.

Secondly, the Director submitted that I should be satisfied that Mr Russo had previously used the shotgun and was therefore aware of its faults. Mr Russo denied ever using the gun previously. While a third fired cartridge from the same gun was found on the farm, there is no evidence of when that shot was fired or that Mr Russo was the one who fired it. Plainly, others on the farm had access to the gun. Further, even if he had used it once before, it does not follow that he would have detected its faults. A person could only detect that the gun will fire if bumped on the barrel if he or she conducted a test of that type. In any event, I accept Mr Russo’s account that he had not used it before. There is no evidence that he had used the gun previously or that he had any prior knowledge of its faults.

Thirdly, the Director submitted I should be satisfied that Mr Russo aimed the gun at Mr Calandro before it discharged accidentally. Reliance is placed on the fact that Mr Calandro was indeed shot and on parts of the accounts of Flavian and Anton Calandro. On close analysis of those accounts after questioning by D/Sgt Trimble in the VAREs and cross-examination at committal and trial, I am not satisfied that the boys saw Mr Russo do any such thing. Instead, I think that they assumed that that is what occurred. I mentioned earlier that the boys’ versions were contaminated by the fact that they were spoken to together at various points, including by Mr Vigliaturo and later by a police officer when at the hospital. Further, I positively accept Mr Russo’s own account of how the accidental discharge occurred, which did not include any admission about aiming the gun at Mr Calandro or even the utility in general.

Fourth, the Director submitted that I should not accept that Mr Russo tripped on an eggplant. Again, reliance is placed on what is said to be the absence of an eggplant in the photograph taken by Mr Hanafiah at 1:03 p.m. and the evidence of Flavian and Anton that they did not see that occur. I have already indicated that, while I cannot identify an eggplant in the photo, I cannot exclude that it may be one of the other unidentified objects apparent near the utility. Further, on my assessment of their evidence, Flavian and Anton Calandro’s observations left open the possibility that a tripping of some description occurred without their seeing it. For example, Flavian admitted that he turned away before the gun discharged, which left time for a stumble to occur. Further, to the extent that it might be inferred from their accounts that there was no tripping over at all, again, I fear that they assumed that this was nothing other than a deliberate shooting, which is perhaps understandable in the circumstances. As Flavian indicated in his evidence, one shoots by aiming. But the truth can be otherwise. Mr Russo’s version is supported by the finding of an eggplant near the utility and the evidence that produce was often spilled around that area. He immediately and repeatedly told the police – in three separate interviews – that he tripped. That said, at some points, he appeared uncertain whether he tripped on an eggplant or something else, but he was firm in the view that he tripped on something. I accept Mr Russo’s account.

Fifth, the Director submitted that I should be satisfied that Mr Russo shot the dog after he shot Mr Calandro, and not before. Reliance is placed on Mr Vigliaturo’s evidence that he saw Mr Russo walking around from the back of the house with the shotgun, and on Mr Hanafiah’s original statement to police. For reasons I have already given, I have doubts about Mr Vigliaturo’s evidence. And, as I have already explained, Mr Hanafiah could not remember the order of events when questioned at the committal. Further, when Mr Franken came out of the house, he did not see Mr Russo with the gun. Rather, he saw the gun on the ground, Mr Russo near the shed and the boys near the car. Mr Russo looked like he did not know what was happening. He then assisted Mr Franken with Mr Calandro while the triple-zero call was made. I accept Mr Franken’s evidence. His account does not leave enough time for Mr Russo to have shot the dog after shooting Mr Calandro. The accounts of Flavian and Anton Calandro do not support the Director’s assertion either. For example, they do not give evidence of hearing a second shot after their father was shot, and their accounts do not appear to leave Mr Russo any time to go and shoot the dog afterwards. In those circumstances, I am satisfied of the truth of Mr Russo’s account on this issue.

Sixth, the Director submits that Mr Russo took the mobile phone from Flavian Calandro to prevent him from calling his mother as a means of hushing him. I do not accept that this is so. Mr Russo accepted that he took the phone from Flavian but explained that he did so in an attempt to ring triple-zero, since that was the priority at that moment. Again, I accept Mr Russo’s account. While experience tells that people sometimes do odd things when panicked or in shock, I think it is fanciful to think that Mr Russo would have expected to hush Flavian by taking his phone at that point.

Finally, the Director submits that Mr Russo did nothing to assist Mr Calandro in the immediate aftermath of the shooting. This assertion is based on an acceptance of the premise that Mr Russo went around to where the dog had been placed originally, then shot him and then carried him around to the front of the house, all after shooting Mr Calandro. Since I have already rejected that assertion, this point about failing to assist also falls away. Further, it is plain from the evidence of Mr Franken and the recording of the triple-zero call that, while he was distressed and perhaps a little headless, Mr Russo did all he could to assist Mr Calandro in the immediate aftermath of the shooting.

Victim impact statements

I turn now to the victim impact statements, which form part of the materials to which I must have regard in sentencing.

Members of Mr Calandro’s family and some friends filed a total of sixteen victim impact statements.[1] All bar three were read to the Court, whether by Mr Papas, Ms Parkes, Detective Brain or the author. In particular, the statements were made by Mr Calandro’s children Flavian and Anton Calandro; his wife Virginia Calandro; his brothers Patrick and Andrew Calandro; his nephews Nick and Noah Calandro; his cousins Anthony Calandro and Rachel Dunn; his parents-in-law Frank and Maria Rullo; his sisters-in-law Sharon and Tammy Calandro; and his friends Mr Franken, Mr Vigliaturo and Rocky Corso. I have read all of the statements again in chambers.
[1]The victim impact statements became Exhibits 10-25.

Flavian Calandro misses his dad terribly. He has struggled with school since his death. He has also had trouble sleeping at night, which is when he gets upset, and cries in bed. He will forever miss his dad but he will stay strong for him.

Anton Calandro misses kicking the footy with his dad, going to training with him and having him at his football games. Anton chews his clothes now and sometimes gets a rash. If he had a magic wand, he would make his dad come alive again.

For Virginia Calandro, the impact of her husband’s death is profound. He was the head of the family and their provider. She is sad that she will never hear his voice – or his jokes – again.

Pat Calandro misses his younger brother terribly. He was the best uncle to Pat’s own boys, and would come to their sporting events often and cheer them on. He does not think that time will heal him.

Andrew Calandro also misses his younger brother. They were best mates. He tries to remember the wonderful times they had together but his death consumes him. It causes him great anguish to know that David’s boys no longer have a father.

Nick and Noah Calandro have felt their uncle’s death very keenly. Nick loved the way his uncle greeted him with a big slap handshake and a massive bear hug. David was the first person to buy him football boots, which he cherished. Noah is very grateful for the way his uncle supported him when he was feeling down. But, now, all he has is his voicemail message to remind him, which moves him to tears every time he hears it.

Anthony Calandro and Rachel Dunn both speak of the significant emotional impact the death of their cousin has brought. Anthony remembers a massive man with a massive heart who always had time for him and his family. Rachel cannot erase the image of David on life support, with bandages all over his face. Both miss him deeply.

Frank and Maria Rullo loved and admired their son-in-law. If Frank ever needed help, David would be there. He was like a son. But he was too young to die. Maria recalls that, when she first met David, she knew he would be part of her family. They had a special relationship where they could be honest with each other. She misses his roaring laughter.

Sharon Calandro remembers her brother-in-law at school. Even though he was three years behind her, he was always smiling and friendly. That trait carried on into adulthood. He was also very caring – of her children and his own. But, now, her home is filled with heartache and sadness. Her family’s lives will never be the same.

Tammy Calandro remembers her brother-in-law as easy-going, loyal and fun. Watching him die has traumatized her deeply. But it pains her more to think about his beautiful children witnessing his death.

Mr Franken has lost friends and family he had for 20 years. He has had trouble sleeping and eating. And he has lost his job and his home.

Mr Vigliaturo misses the times he had with David and his family. He struggles to sleep or focus on work. Sometimes, he wishes he had gone back to the farm first instead of David. He feels betrayed and is suspicious and paranoid about little things.

To Rocky Corso, David was a gentle giant with a heart as big as Phar Lap’s. He is glad for the years they had together but there is an aching void in his absence. He can only imagine the horror his sons feel.

The victim impact statements are powerful and moving documents. They reveal the terrible sense of loss and sadness suffered by all family members and friends as a result of their loved one’s death. In so far as it is permissible to do so, I have had regard to their contents in considering sentence.

I wish to add this. There is nothing this Court can say or do that will heal Mr Calandro’s family’s grief and pain. The sentence I must impose is not a reflection of the worth of Mr Calandro’s life – as if anything so precious could ever be valued in any event. Rather, the sentence I am about to impose is a reflection of a large number of factors which I am required by law to take into account, only one of which is the impact on victims.

Nature and gravity of offence; offender’s culpability and degree of responsibility

I turn now to an assessment of the nature and gravity of the offence, and Mr Russo’s culpability and degree of responsibility for that offence.

Manslaughter is a common law offence, the maximum penalty for which is set by statute at 20 years’ imprisonment.[2] There is an inherent seriousness in the offence stemming from the fact that, by definition, a person has been killed in circumstances amounting to the crime of manslaughter.
[2]See s 5 of the Crimes Act 1958 (Vic).

The form of the offence relied on in this case is manslaughter by criminal negligence. In particular, it is alleged that, Mr Russo, an experienced shooter with knowledge of proper gun safety, while angry, deliberately approached the car knowing the gun was loaded and in breach of the safety rules, and that the gun discharged accidentally and caused the shot to strike and kill Mr Calandro in consequence. It is alleged that, in all the circumstances, Mr Russo’s conduct was criminally negligent because it involved such a great falling short of the standard of care which a reasonable person would have exercised and which involved such a high risk that death or grievous bodily harm would follow that engaging in that conduct merited criminal punishment.[3]
[3]See Nydam v The Queen [1977] VR 430 at 445.

While manslaughter is one of the more serious crimes known to the law, the circumstances of its commission, and the resulting sentences, vary widely. Usually, voluntary manslaughter (which no longer exists in Victoria since the abolition of provocation as a defence to murder) is the category regarded as the most serious; then manslaughter by unlawful and dangerous act is usually less serious; and then manslaughter by criminal negligence is usually less serious again. Often, there will be a lower level of moral culpability in the offender who killed by criminal negligence than the one who killed by an unlawful and dangerous act. This is because, in most cases of criminal negligence, there will be no intent on the part of the offender to cause any harm to the victim, whereas such an intention usually will be present in cases of manslaughter by an unlawful and dangerous act. But there is no inflexible rule. Some instances of manslaughter by unlawful and dangerous act will not involve an intention to cause any harm or injury or otherwise will be less serious, and result in lesser sentences, than instances of manslaughter by criminal negligence. Thus, each case must turn upon its own particular facts.[4]
[4]See, for example, R v Jagroop (2009) 22 VR 80 at 90[63]-91[69] per Weinberg JA (Williams AJA agreeing at 92[75]).

Mr Papas submitted that this was a serious example of manslaughter. That submission, however, must be taken as qualified given that several of the aggravating factors alleged by the Director have not been established. Mr Tehan submitted that “this manslaughter is on the lowest level”.

In my view, for reasons that follow, while the offence involved some aggravating features, which I shall detail shortly, this example of manslaughter by criminal negligence is not on the lowest level but is one falling towards the lower end of the spectrum of gravity.

First, I accept that, as a person who has been involved with guns most of his life and who knew the basic rules of gun safety, Mr Russo knew that it was wrong to walk around a busy place – where there were workers and family nearby – and then towards an occupied vehicle while carrying a loaded gun. Instead, before approaching the utility, he should have either put the gun away or made it safe by unloading it or breaking it open.[5]
[5]See Firearm Safety Code, revised by Firearm Safety Foundation Inc. Vic. 2011, Rule 3, pp 8- 9.

Secondly, failing that, he should have ensured at least that the safety catch was properly engaged.

Thirdly, despite having good reason to be angry, it was unwise to be handling a gun in that state. Common human experience tells that poor decisions are often made or that judgment is awry when angry.

Fourthly, I accept the Director’s submission that the offence is aggravated by: (a) the presence of Mr Calandro’s children; (b) Mr Russo’s knowledge of their presence; (c) the psychological harm to both children; (d) the physical injury to Flavian Calandro; and (e) the endangerment of both children.

Initially, I was concerned that to treat all (or at least some) of these considerations as aggravating features would be to violate the principle that an offender is not to be sentenced for an offence with which he has not been charged or of which he has not been convicted – which I shall call the De Simoni principle.[6] On reflection, however, I do not think that is so. Instead, I think it is necessary to take those matters into account in order properly to understand the full measure of the offence. Let me explain.
[6]See, for example, The Queen v De Simoni (1981) 147 CLR 383 at 389; R v Newman & Turnbull [1997] 1 VR 146 at 150-151.

If I were to take into account that Mr Russo intentionally or recklessly caused injury to Flavian Calandro or that he recklessly engaged in conduct that placed, or may have placed, both boys in danger of serious injury, then I think that would be to violate the De Simoni principle because he is not charged with such offences and, indeed, precisely those charges were withdrawn. (It would also be wrong at a factual level because, given that the discharge of the gun occurred by accident, none of those offences could be established.)

However, to take into account the fact that Flavian was injured, but without ascribing any intention or recklessness as to the causation of that injury, and to take into account that the boys were or may have been endangered, but without fixing him with any recklessness as to the risk, is not to sentence for offences of which Mr Russo is neither charged nor convicted. Instead, it is to take into account relevant considerations which, by themselves, are insufficient to amount to additional offences but which are intimately connected with, and properly among the aggravating circumstances of, the manslaughter at hand.

Further, to take into account both the presence of Mr Calandro’s children and Mr Russo’s knowledge of their presence does not introduce a form of intention or recklessness that might otherwise violate the De Simoni principle ‘through the back door’, provided his knowledge or awareness is treated as something less than recklessness as to the risk of death or serious injury – perhaps carelessness in this case – and as extending no further than that it is a potentially dangerous thing to have a loaded gun near another person, and that the more persons there are known to be nearby, then the more serious is the level of aggravation. This is how I have treated those factors in this case.

Finally, in the same way that actual physical injury to one boy can be an aggravating factor, so too can the fact of the psychological harm to the two boys be an additional aggravating factor without violating the De Simoni principle. That said, there is no need to consider whether it would be proper to take into account awareness of the risk of psychological harm because I am not satisfied that Mr Russo was aware of any such risk in circumstances where (I accept that) he did not believe that there was any risk that the gun would discharge. Rather, again, it is no more than a carelessness as to – instead of advertence to – the risk of psychological harm.

The latter consideration brings me to the factors that point towards a lower level of gravity. Such factors include the following.

First, Mr Russo possessed the gun lawfully. He was licensed and the gun was registered. This was not some illegal sawn-off type of weapon that is often employed, accidentally or otherwise, in homicide cases.

Secondly, he had the gun at a place (namely, in his work utility and on the farm) where it is commonplace to have guns for legitimate purposes – such as scaring birds away from crops or destroying injured animals.

Thirdly, in the instant before the fatal conduct, he was using the gun to do something lawful – namely, destroy his gravely injured dog.

Fourthly, Mr Russo, I accept, believed, albeit mistakenly, that the safety catch was on when he approached the utility. On the other hand, as counsel for the Director pointed out, part of the Firearm Safety Code says this:[7]

Note: No matter what type of firearm you use, you should be cautious when using the safety catch. In most cases, they lock the trigger or the bolt but, like all mechanical things, they are subject to wear and tear and may not work properly. The safety catch is only one of several safety precautions you should use when handling firearms.

* A safety catch only supplements safe handling.

[7]Firearm Safety Code, revised by Firearm Safety Foundation Inc. Vic. 2011, p 9.

Fifthly, Mr Russo did not make any threat, verbal or otherwise, before the gun discharged.

Sixthly, in addition to being satisfied that he did not aim the gun at Mr Calandro, I am satisfied that he did not even have the gun pointed in the direction of Mr Calandro or the car in the instant or at any point before he stumbled.

Seventhly, while the circumstances in which the gun was carried – loaded, without the safety catch engaged and near others, by a person of experience who should have known better – make out the criminal negligence, it must not be forgotten that Mr Russo stumbled and that the gun discharged by accident. It might even be said that there was a good deal of bad luck involved.

Eighthly, a second essential part of the cause of that accidental discharge was the faulty nature of the gun – namely, that it would discharge upon being bumped – about which Mr Russo knew nothing. He did not pull the trigger, whether accidentally or otherwise.

Finally, while this point may more happily fit under the heading of mitigating factors, from the moment the gun discharged and he realized what had occurred, Mr Russo did all he reasonably could to assist Mr Calandro.

Thus, for the foregoing reasons, I regard this instance of manslaughter by criminal negligence as falling towards the lower end of the spectrum of gravity.

Mitigating factors

I turn now to the factors in mitigation on which Mr Russo is entitled to rely. Before doing so, I shall set out in some detail his background as outlined by Mr Tehan on the plea and in the plea materials.

Background

Mr Russo was born in Tatura on 10 November 1962 to Italian migrant parents. He was therefore 54 at the time of the offence and is now 55. He has three sisters.

His father Claudio Russo is aged 82. Sadly, his mother died in an accidental fire in June 2017. Unfortunately, as a result of his incarceration, Mr Russo was unable to attend her funeral, which left him grief-stricken.

Mr Russo went to school in Tatura and then Mooroopna until the end of Year 9.

He then left school to work full-time on his father’s farm in Tatura, on which they grew mostly tomatoes and capsicums.

Mr Russo has worked as a farmer all his life. In 1996, he bought his own farm in Toolamba. He then bought the farm in Ferguson Road in Tatura in 1998 and another in Ardmona in 1999 (which has since been sold).

The farms no longer produce any income and are the subject of a significant mortgage with a bank. They are also restrained pursuant to an order made under the Confiscation Act 1997 (Vic).

In 1983, Mr Russo married his wife Maria. Since 2006, the marriage has been strained and there have been periods of separation.

As I indicated earlier, together, Mr and Mrs Russo have three children. Natasha is a solicitor. Stephen is completing an apprenticeship as a diesel mechanic in Shepparton. He suffered severe seizures as a child and other significant developmental issues. Damian works as a labourer in Shepparton.

Mr Russo has been heavily involved in supporting the Shepparton and Tatura communities. Over the years, he has sponsored numerous local sporting clubs, including Tatura Soccer Club, Shepparton South Soccer Club, Shepparton United Soccer Club and Wilby Park Motorsports Club. He helped establish the Shepparton Children’s Soccer Academy and was an active committee member. He has coached soccer clubs, including the junior team at St Mel’s Primary School in Shepparton. Some of the children he has coached have been from Sudan and the Congo, and he has supplied them with soccer boots and kits. He also continued to coach and sponsor these children for another five years at the Shepparton Junior Soccer Association. One of the African boys he supported is now making his way in the youth programme at an A-League team in Melbourne, which he credits to Mr Russo’s help.

Mr Russo has been involved in fundraising for Multiple Sclerosis Australia, as well as local building projects, including a church and netball courts at Tatura.

Further, he often donated produce to the Mooroopna and Tatura Rotary Clubs, the Rodney Park Retirement Village and school fundraisers.

Having set out that background, I turn now to the mitigating factors.

Full admissions

The first matter in mitigation is that, from the very outset, Mr Russo made admissions to police to all of the actions which formed the basis of the case of manslaughter against him. The formal interview was very long: it runs for 190 pages. Without legal advice, Mr Russo answered every one of over 1,200 questions during an interview that, off and on, ran for two-and-a-half hours over a period of fifteen hours.

Plea of guilty

The next matter in mitigation is that Mr Russo has pleaded guilty to the charge. This is significant for several reasons.

First, while the plea of guilty came late in the proceedings, offers to plead guilty to manslaughter had been made much earlier. On 26 February 2018, Mr Russo offered to plead guilty to manslaughter (albeit by unlawful and dangerous act and on a different factual basis). This occurred after the committal hearing, against the background of having been discharged and then directly indicted on murder.[8] That offer was rejected. A further offer was made during the course of pre-trial argument, on 14 May 2018, to plead guilty to manslaughter by criminal negligence. This occurred prior to the pre-recording of the evidence of Mr Calandro’s sons. Again, the offer was rejected. On 25 May 2018, on the fourth day of the trial proper, the same offer was made, but it was accepted this time. The jury were discharged without verdict and Mr Russo then pleaded guilty immediately upon the filing over of the new indictment. Thus, in reality, it is an earlier plea of guilty than it seems at first blush.
[8]The committal hearing concluded on 27 November 2017 and a direct indictment was filed on 18 December 2017.

Secondly, the plea of guilty has obviated the need to continue what already had been, and would have continued to be, a stressful trial. Importantly, several witnesses were spared the ordeal of reliving these events and being cross-examined about them. I should add that, while Mr Calandro’s children were required to give evidence in anticipation of the trial proper, Mr Russo made no objection to their doing so from a remote facility, with the comfort of a specially trained dog and at a time that allowed for these (rather unique) arrangements and a pre-recording to occur. Further, of course, had the plea offer been accepted earlier, the children would not have been required to give evidence on the trial at all.

Thirdly, given the Director’s concession mid-trial that an accidental discharge of the shotgun could not be excluded, the critical question to be determined by the jury on manslaughter, put shortly, would have been whether they were satisfied beyond reasonable doubt that Mr Russo’s conduct in handling the loaded gun amounted to criminal negligence causing death. Whether conduct amounts to criminal negligence is, quintessentially, a jury question, as is apparent from the applicable test. As I have said, the test is whether Mr Russo’s act caused Mr Calandro’s death in circumstances which involved such a great falling short of the standard of care which a reasonable person would have exercised and which involved such a high risk that death or grievous bodily harm would follow that the doing of the act merited criminal punishment.[9] In all the circumstances, including that he had only just shot his dog, his belief that the safety catch was on, the accidental nature of the discharge, the faults in the gun (of which Mr Russo knew nothing) and his previous good character, and his history of safe handling of guns, it is easy to see that a jury might well have found him not guilty. In particular, a jury might have found his behaviour careless but not so grossly negligent as to amount to manslaughter. In my view, to enter a plea of guilty to a charge as serious as manslaughter in the face of an arguable defence renders that plea of all the more weight in mitigation.
[9]See Nydam v The Queen [1977] VR 430 at 445.

Finally, the guilty plea involves an acceptance by Mr Russo of moral and legal responsibility for his behaviour and its tragic consequences and a willingness to facilitate the course of justice.

For these reasons, and also when coupled with the remorse he has shown, I consider the plea of guilty to be an important matter in mitigation.

Profound remorse

Next, as I have just indicated, I am satisfied that Mr Russo is genuinely and profoundly sorry for, and that he truly understands the impact of, his conduct and its consequences. There are several reasons for that conclusion.

First, Mr Russo’s immediate reaction to what he had done was one of shock and horror. Similarly, his next response was to ensure that triple-zero was rung and that he and Mr Franken did all they could to assist Mr Calandro. As I have indicated earlier, it is clear from the triple-zero call that Mr Russo was urging the ambulance to come sooner.

Secondly, while he had moments of anger and harsh words during his interview with police, it is clear that he was enraged at the thought, mistaken though it was, which he (believed he) was hearing for the first time, that Mr Calandro had deliberately run over his dog. I would forgive him for that, for at least two reasons. First, he was being accused of murder (or attempted murder) at that time – wrongly, as it turns out. Secondly, as quickly as his anger arose, it is also plain that Mr Russo was deeply concerned about Mr Calandro, who was still alive at that stage.[10] Indeed, it is obvious that he was devastated when told that Mr Calandro’s injuries were not survivable.[11]
[10]See, for example, the interview at Q156-159, Q445-450, Q869-871 & Q1204.
[11]See the interview at Q1222.

Thirdly, the references tendered on the plea, which are unchallenged, contain further evidence of remorse. For example, Maria Russo recalls that, the day after the shooting, her husband had tears streaming down his face and was desperately hoping that Mr Calandro would live. To her observation, her husband is “truly remorseful and a broken man today”. Mr Russo’s daughter Natasha Russo made similar observations, including that he broke down when told that Mr Calandro had died. Mr Russo stayed with his sister-in-law Rosanna Marino and her husband Geoffrey Thompson while on bail following the discharge on murder at the committal. Both considered him to be a broken man and very conscious of the effects his conduct would have on the Calandro family.

Fourthly, his plea of guilty, particularly given the circumstances in which it was entered, also indicates remorse.

Fifthly, at the outset of the plea, Mr Tehan referred to the victim impact statements and then said this:

To the court and to those behind me, we acknowledge the significant victim impact in this case. We do so on behalf of our client, Angelo Pat Russo, and we do so on behalf of his family also. The death of David Calandro has caused great pain and suffering to his family, in particular his two children, Flavian and Anton. Our client acknowledges that suffering and through us, his counsel, expresses the deepest of sorrow to those two boys. Our client also wishes to acknowledge to the Calandro family [his] sorrow for the criminally negligent [thing] he did which caused David’s death. David was a friend of Angelo Russo and our client is deeply sorry for his crime for which he has pleaded guilty.

Those remarks were made without objection. I accept that they reflect Mr Russo’s instructions and his true feelings.

Finally, consistent with those remarks is the following. On occasions, I observed Mr Russo closely during not only the plea hearing but also the other aspects of the pre-trial and trial process. His demeanour tells me that he is a man who is devastated by what he has done. Further, as a witness to the immediate aftermath of the shooting, and as a father himself, there can be no doubt that he would have a grave appreciation of just how traumatized Mr Calandro’s children must be and of how difficult it will continue to be for those boys and the rest of their family as time passes.

No prior convictions

The next factor in mitigation is that Mr Russo has no prior convictions.

There are only two very minor blemishes – but not convictions – on Mr Russo’s record. In 2007, he sustained a finding of guilt for handling stolen goods. He bought some material to place over tomatoes to aid their growth, for which he paid $3,000. Unbeknown to Mr Russo, the material turned out to be stolen. Despite his lack of knowledge, he pleaded guilty anyway. The magistrate placed him on an undertaking for twelve months, with a condition to pay $650 to the Court Fund.

In 2009, Mr Russo pleaded guilty to driving while suspended and in an unregistered vehicle, which also breached the previous undertaking. He was placed on two further undertakings, for twelve and six months respectively, with conditions that he pay a total of $1,000 to the Salvation Army Bushfire Appeal.

In none of these matters was a conviction recorded, which, it must be assumed, is a reflection of the magistrate’s assessment of the comparatively minor nature of the offending and of the fact of Mr Russo’s previous good character.

In my view, these court appearances are of no relevance in sentencing on the offence of manslaughter. They do not offset or outweigh his positively good character, to which I now turn.

Outstanding previous good character

Thus, the next factor in mitigation concerns Mr Russo’s previous good character, which, on the evidence before me, is outstanding.

I have already indicated that Mr Russo has worked hard all of his life to provide for his wife and three children. Further, I have mentioned the extensive contributions he has made to his local community. I shall not repeat them here.

It is also apparent, from both the references and from some of the evidence at trial, that Mr Russo was very kind to many people who were down on their luck. For example, he gave Mr Franken a job and place to stay for many years and treated him as if he were part of the family. (Sadly, now that his farms are defunct, Mr Franken has lost his home and his employment.) In more recent times, Mr Russo also provided similar help to Mr Babayigit out of the goodness of his heart.

In her reference, Mrs Russo said this of her husband:

When my … mother was going through treatment for incurable breast cancer in 2015, he was very caring and loving, taking her to radiology appointments in Bendigo and bringing her special treats when she was in palliative care the last four weeks of her life.

Ange has always been a very kind and generous person who will go out of his way to help anyone in need. I know this is a cliché, but, if Ange [were] down to his last dollar, he would give it away to a friend if they needed it. [He] always championed the ‘underdog’ and could not tolerate inequality. He always treated people the same.

Mrs Russo went on to explain that her husband has also been a wonderful father to their children, and particularly so with their son Stephen, who, as I have said, had some serious difficulties to deal with as a child.

I am satisfied that Mr Russo has led a decent, honourable life. He has raised a family, has worked hard to provide for them, has extended support to those less fortunate and has engaged in extensive community service. A man of his age, when first convicted, is entitled to ask the Court to rely very strongly indeed on the fact that he is of exemplary character and has been at all times up until the moment of conviction.[12] In my opinion, this principle is applicable even to the crime of manslaughter, which, in this case, is a crime of negligence and accident, not intention, albeit a crime with the most serious of consequences.

Excellent prospects of rehabilitation

[12]See, for example, R v Okutgen (1982) 8 A Crim R 262 at 264-266 (per Starke J, with whom Crockett J and O’Bryan J agreed).

The last, but very important, matter in mitigation is that I am satisfied that Mr Russo has excellent prospects of rehabilitation. There are several reasons for that conclusion.

First, his full admissions, plea of guilty, profound remorse, strong work history and outstanding previous character all suggest excellent prospects of rehabilitation.

Secondly, it is apparent, from the references, that Mr Russo enjoys the support of a close-knit family and many friends in his community. Such support will be all the more important when he is released.

Thirdly, Mr Russo has no history of substance abuse or mental health concerns that might otherwise interfere with his capacity to rehabilitate himself.

Finally, I am satisfied that Mr Russo will not offend in this or any similar way again. Every part of this whole ordeal – from the fact that he, because of his negligence, is responsible for the death of the father of two boys, to the salutary nature of the criminal law process itself, to being charged with, discharged on and then directly indicted on murder, to being bailed at the committal and then incarcerated again, to the fact that he must be imprisoned for what he has done – all of this will ensure that he will bear the burden of what he has done for the rest of his life, which in turn will deter him from the same or similar behaviour.

Sentencing purposes

I turn now to the purposes of sentencing.

Section 5(1) of the Sentencing Act 1991 (Vic) provides that the only purposes for which sentence may be imposed are, to use the shorthand, general deterrence, specific deterrence, denunciation, protection of the community, just punishment and rehabilitation.

General deterrence, denunciation and just punishment

In my view, general deterrence, just punishment and denunciation are important sentencing purposes in this case of manslaughter. The community should understand that, despite the fact that he was entitled to feel angry that his dog had been run over and left for dead, criminally negligent behaviour of the type to which Mr Russo pleaded guilty is denounced by the courts and will result in a term of imprisonment that reflects that a person’s life has been taken by such conduct and that the lives of Mr Calandro’s loved ones – especially his two children, who witnessed this horrible event and have also suffered physical injury and psychological harm – have been marred forever in consequence. People simply must be careful around guns lest tragic accidents like this one will occur.

Specific deterrence

As I understood him, Mr Papas conceded that there is no need for specific deterrence in this case. As I indicated a few moments ago, I think that Mr Russo will bear the burden of what he has done for the rest of his life and that he will in consequence be deterred from the same or similar behaviour. Further, I think that the sentence that results from the weight given to other sentencing purposes will be sufficient to deter him from such behaviour in any event. Finally, if, despite the foregoing, there be any residual need for specific deterrence, that need is moderated by Mr Russo’s admissions, plea of guilty, remorse, outstanding prior character and excellent prospects of rehabilitation.

Rehabilitation and protection of the community

In my view, rehabilitation remains an important consideration. This is particularly so because Mr Russo has such strong prospects of rehabilitation.

I do not consider that there is any need to add a separate component in sentencing for protection of the community. To reiterate, I do not think that Mr Russo will engage in similar behaviour ever again. Further, as I said when dealing with specific deterrence, the sentence that I am about to impose and which results from the other purposes of sentencing will ensure that the sentence is of more than sufficient severity to protect the community in any event.

I also think it is important to recognize the interplay between rehabilitation and protection of the community. Mr Russo will be returning to the community ultimately. It is therefore in the community’s interests that such prospects of rehabilitation as he has be maximized, and that he is not crushed, so that, when he does return to the community, his risk of reoffending is as low as it reasonably can be and his chances of successful reintegration into the community are as strong as they can be.

Parsimony

Section 5(3) of the Sentencing Act, relevantly, provides that “a court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed”. This provision reflects the fundamental common law principle of parsimony. I have applied this principle when considering the appropriate sentence in this case.

Current sentencing practices

In so far as I can determine them, I have had regard as well to current sentencing practices for manslaughter.

Sentencing statistics

Sentencing statistics show, for the period from 2011-12 to 2015-16, that prison sentences for manslaughter ranged from about two to twelve years’ imprisonment; that the average (or mean) sentence ranged from about six years and eleven months’ imprisonment in 2013-14 to eight years and eleven months’ imprisonment in 2014-15; and that the median sentence was eight years’ imprisonment, as was the mode. During the same period, non-parole periods ranged from nine months to nine years; the median non-parole period was five years and six months; and the modal non-parole period was five to less than six years.[13]
[13]Sentencing Advisory Council, Sentencing Snapshot: Manslaughter, No 199, April 2017, pp 3-5.

These statistics are, of course, of limited utility, mainly because they do not distinguish cases according to their most important sentencing considerations – such as the form of manslaughter, the seriousness of the particular offence, whether there were significant aggravating or mitigating factors, whether there was a plea of guilty or not guilty, whether or not there were significant prior convictions, and so on. Nevertheless, they do give some guidance.

Case comparisons

Sometimes, case comparisons can be a useful tool in gauging current sentencing practices. To this end, counsel referred me to several other cases of manslaughter by accidental shooting,[14] all of which – and more[15] – I have considered. I shall mention only a couple.
[14]Mr Papas QC and Ms Parkes referred to R v Lai [2015] VSC 346 (9 ½/7); and DPP v Osborn [2017] VSC 535 (9/6). Mr Tehan QC and Mr Lewis referred to R v Osip [2000] VSC 225 (4/1) (see also R v Osip (2000) 2 VR 595); R v Jagroop (2009) 22 VR 80 (8/5½) (see also DPP v Jagroop [2008] VSC 25); R v Reid [2009] VSC 326 (5/3) (see also Reid v The Queen (2010) 29 VR 446); R v Vandergulik [2009] VSC 3 (9/6); R v Nguyen [2010] VSC 528 (6/4); DPP v Borthwick [2010] VSC 613 (7½/5) (see also Borthwick v The Queen [2012] VSCA 180); R v Saleh [2012] VSC 120 (8½/6) (see also Saleh v The Queen [2012] VSCA 210); R v Torun [2014] VSC 146 (8/5) (see also DPP v Torun [2015] VSCA 16); and R v Rapovski [2016] VSC 706 (8/5).
[15]The additional cases included R v Reynolds (Unreported, Court of Appeal, 28 May 1997) (6/4½); R v Raccanello [2001] VSC 258 (5/3); DPP v Barnwell [2002] VSC 280 (4/2); R v Sypott [2003] VSC 327 (5/3) (see also DPP v Sypott [2004] VSCA 9); R v Galas & Ors [2006] VSC 161 (6); R v Helal [2007] VSC 135 (5); R v Galas & Mikhail [2008] VSC 513 (3¾); R v Phillips [2008] VSC 531 (6/4) (see also DPP v Phillips [2009] VSCA 68 (9/7)); R v Nguyen [2010] VSC 528 (6/4); DPP v Smith [2012] VSC 314 (undertaking); R v Howard [2014] VSC 194 (8/5¼); R v D’Angelo [2014] VSC 522 (8/4½); R v Munt & Ors [2014] VSC 675 (11/8); and R v Cicekdag [2017] VSC 781 (9/5).

Back in 2000, in R v Osip,[16] Coldrey J imposed a sentence of four years’ imprisonment, with a non-parole period of one year, on a 21-year-old man who, believing he was shooting at a deer, mistakenly shot and killed a bushwalker with a registered rifle for which he was licensed to shoot. His gross negligence was in failing adequately to identify his target, contrary to the Firearm Safety Rules, particularly in an area of forest that was close to houses. Mr Osip immediately assisted the deceased. He had no prior convictions. He did not plead guilty but ran a trial on the question of negligence.
[16]R v Osip [2000] VSC 225 (4/1) (see also R v Osip (2000) 2 VR 595).

Less than two years ago, in R v Rapovski,[17] I imposed a sentence of eight years’ imprisonment, with a non-parole period of five years, on a 20-year-old man who, while affected by “ice” and posing for photographs like a would-be gangster with his friends, pointed an unregistered sawn-off double-barrelled shotgun at his friend’s head, at close range, which discharged accidentally, killing him instantly. On the evidence, it could not be excluded, first, that, at that time and in his drug-addled state, Mr Rapovski did not know, or he had forgotten, that the gun was loaded and, second, that, in the course of pointing the gun at his friend, he pulled the trigger inadvertently and without any intention of firing it. Cravenly, Mr Rapovski immediately fled the scene, leaving his friend without assistance, disposed of the gun and tried to flee to Macedonia the next day. He pleaded guilty, was remorseful, had a limited criminal history and had good prospects of rehabilitation.
[17]R v Rapovski [2016] VSC 706 (8/5).

In my view, the gravity of Mr Russo’s crime falls somewhere between those two instances of manslaughter. But for the aggravating features flowing from the presence of and harm to Mr Calandro’s two sons, I would have considered Mr Russo’s offence closer to Mr Osip’s offence on a scale of objective gravity. Further, while Mr Osip was young, he did not have the benefit of a plea of guilty and a long history of outstanding character. That said, I recognize that sentences for manslaughter have increased in the eighteen years that have passed since Coldrey J’s decision.

On the other hand, I do not consider Mr Russo’s offence to be as objectively grave as that which was committed by Mr Rapovski. The latter was tempting fate in engaging in such risk-laden and idiotic behaviour with an unregistered sawn-off shotgun while pumped up on “ice”. Further, he behaved in a cowardly fashion by leaving his friend for dead, ditching the gun and trying to skip the country.

I could go on with comparisons between the present case, these two cases and others. But, in the area of sentencing, it is almost always difficult usefully to compare other cases. No two cases are ever truly alike. And, in any event, sentences are not precedents to be applied or distinguished. Nevertheless, I have found R v Osip, R v Rapovski and the other sentences I have considered, and the reasons given for imposing them, instructive in gauging the order of sentences imposed for manslaughter, particularly where the deceased is killed by accidental shooting of one form or another, and the extent to which those sentences tend to be affected by various aggravating and mitigating factors. In the end, however, as is always the case, because of the limits of that process, I have been driven to rely principally on the particular circumstances of this case and sentencing principles to arrive at the appropriate sentence for Mr Russo’s offence of manslaughter.

Sentence

I turn now to sentence.

Prison sentence

Mr Russo, would you stand, please.

As I said earlier, I have found this a difficult sentencing task. Nevertheless, balancing all factors as best I can, for the manslaughter of David Calandro, Angelo Russo is convicted and sentenced to five years’ imprisonment.

I fix a non-parole period of two-and-a-half years.

This is a relatively short non-parole period – both as a proportion of the head sentence and in absolute terms. While all factors both aggravating and mitigating have affected the head sentence and, in turn, the non-parole period, I think Mr Russo’s prospects of rehabilitation are so outstanding, and that his previous good character is so strong, that it is appropriate to fix a non-parole period that is shorter than might otherwise be imposed.

Pursuant to s 18 of the Sentencing Act, I declare that 501 days of pre-sentence detention (including today) be reckoned as served under this sentence.

Section 6AAA declaration

I am required, by s 6AAA of the Sentencing Act, to declare the sentence I would have imposed had Mr Russo been found guilty of manslaughter after pleading not guilty and running a trial.

This is always a difficult thing to estimate, especially because pleas of guilty and not guilty can impact differently on the weight to be accorded to other sentencing considerations. So, for example, absent Mr Russo’s plea of guilty, it is likely that I would have found his remorse and prospects of rehabilitation to be less compelling and I may have considered more weight should be given to specific deterrence.

Thus, while recognizing the difficulty inherent in this exercise, I declare that, but for his plea of guilty, I would have imposed a sentence in the order of seven years’ imprisonment with a non-parole period of four years.

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[2018] VSC 395

20 July 2018