R v Schembri - [2010] VSC 402

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2010 0126

S CR 2010 0125

THE QUEEN
V
MARIO SCHEMBRI	Firstnamed Accused
And
BERNADETTE DENNY	Secondnamed Accused

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JUDGE:	T FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	30 August 2010
DATE OF SENTENCE:	8 September 2010
CASE MAY BE CITED AS:	R v Schembri and anor
MEDIUM NEUTRAL CITATION:	[2010] VSC 402

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SENTENCE- Manslaughter – Post-mortem dismemberment an aggravating feature.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C Beale	Office of Public Prosecutions
For the Firstnamed Accused	Mr P Dunn QC with Mr P Tiwana	Robert Stary & Associates
For the Secondnamed Accused	Mr G Steward	James Dowsley & Associates Pty Ltd

HIS HONOUR:

Herman Rockefeller made some unorthodox choices in his adult life. So too did you Mario Schembri, and you Bernadette Denny. None of those choices was in itself unlawful, nor is it the function of this Court to pass judgment on them. The upshot of the choices you made, however, is that the scene was set for the totally unnecessary death of a man. His parents, wife and children are devastated. The harm that you have caused them is profound. They will always carry some legacy of it, and so will you.

In late 2009 Herman Rockefeller placed an advertisement in “Australian Contacts” magazine. It ran three times.

“Attractive couple
Attractive fun loving couple who enjoy an active uninhibited but safe sex life. Swing together and independently. We are both in our 30’s. Daytimes fine for meetings as we are discrete. Phone 04xx xxx xxx or write.
No single men.”

The advertisement was false in the sense that Mr Rockefeller was acting alone. Mr Rockefeller had placed 34 similar advertisements in similar publications since 2000.

You had been in a relationship since April 2009, living together at 2/125 South Street, Hadfield. You, Ms Denny, made contact with Herman Rockefeller who was using the alias of Andy Kingston.

In early January 2010, after several telephone contacts, Mr Rockefeller came alone to your house. On that occasion he had sex with you, Ms Denny, while you, Mr Schembri, watched. He told you falsely his wife was named Jenny.

On 21 January 2010, Mr Rockefeller was to return from an interstate business trip. He sent a text message to his wife indicating that he would not be home until 10.30pm or thereabouts. He also made contact with you Ms Denny, and arranged to visit your house.

The only evidence as to what occurred after he arrived is set out in your respective interviews with police. Insofar as your accounts are consistent, I accept the following facts:

· He arrived alone wanting another sexual encounter.

· There was a verbal altercation as to whether “Jenny” actually existed.

· This escalated into a physical altercation involving both of you and Mr Rockefeller.

· During this physical altercation, Mr Rockefeller sustained the injuries that led to his death.

Beyond this, there is conflict in the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Schembri

Details

AGLC: R v Schembri [2010] VSC 402
Case: [2010] VSC 402
Decision Date: 8 September 2010

CaseChat Overview and Summary

In the case of R v Schembri, the defendant was convicted of manslaughter. The case arose following the death of a person, whose body was later found dismembered. The case was heard in a court of appeal, where the primary issue was whether the post-mortem dismemberment of the victim constituted an aggravating feature that warranted a harsher sentence. The court was tasked with determining the appropriate weight to be given to this factor in the sentencing process.

The legal issues centred on the interpretation of sentencing principles in cases involving post-mortem dismemberment. The court had to consider whether this act constituted a significant aggravating factor and, if so, how it should be reflected in the sentence imposed. Additionally, the court examined the principles of proportionality and deterrence in sentencing, ensuring that the sentence was both just and appropriate to the circumstances of the crime.

The court found that the post-mortem dismemberment of the victim was indeed an aggravating feature, as it demonstrated a high degree of premeditation and a disregard for the sanctity of human life. This act exacerbated the gravity of the crime, warranting a more severe sentence. The court emphasised the importance of reflecting such aggravating factors in the sentencing process to maintain public confidence in the justice system. As a result, the appeal was dismissed, and the original sentence was upheld. The court's decision underscored the need for courts to consider all relevant factors when imposing sentences, ensuring they are commensurate with the seriousness of the offence.

Orders