R v Vuocolo
[2003] VSC 472
•19 November 2003
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1481 of 2002
| THE QUEEN |
| v |
| VITO VUOCOLO |
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JUDGE: | COLDREY J | |
WHERE HELD: | MELBOURNE | |
DATE OF PLEA HEARING: | 8 SEPTEMBER 2003 | |
DATE OF SENTENCE: | 19 NOVEMBER 2003 | |
CASE MAY BE CITED AS: | R v VUOCOLO | |
MEDIUM NEUTRAL CITATION: | [2003] VSC 472 | |
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Sentence – Attempted murder of stepmother, intentionally cause serious injury to father – Protracted knife attack commencing in parents' home – Offender suffering from major depressive illness and possible effects of withdrawal from medication – No prior convictions – Genuine remorse – Excellent prospects of rehabilitation – Level of moral culpability reduced – General deterrence moderated – Sentence of 8 years for attempted murder and 5 years for intentionally causing serious injury – Total effective sentence after cumulation 10 years – Lower than normal non-parole period fixed at 5 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr R. Gibson with Mr M. Robinson | Kay Robertson, Solicitor for Public Prosecutions |
| For the Accused | Mr A. Lewis | Victoria Legal Aid |
HIS HONOUR:
Vito Vuocolo, you have been found guilty by a jury of the attempted murder of your stepmother Giueseppina (or Josephine) Galiano-Vuocolo, and intentionally causing serious injury to your father, Romano Vuocolo. (For convenience I will from time to time refer to them as Romano and Josephine, or as your parents). The offences occurred at their Mount Waverley home on 31 January 2002.
In sentencing you it is not only necessary to set out what occurred, but also to attempt to discover why it occurred.
On its face, the Christmas of 2001 was a happy event. A Christmas Eve celebration was held at your parents' home in Leyland Road, Mount Waverley with your family and that of your brother Aldo present. A video was made of the occasion to send to relatives in Italy. Your next contact with your parents was a telephone call to Josephine on 30 January in which you claimed to have a doctor's appointment in the Glen Waverley area the next day and asked if you could call in for a cup of coffee on the way home. You also asked her what time your father finished work on that day and you were told 4.30 p.m.
On 31 January, about that time, you arrived at the Mount Waverley premises, as did your father Romano. You greeted him with a traditional Italian two kisses and you entered the house together. Mr Vuocolo noticed that you were unshaven and you were speaking without your normal stutter. A conversation occurred at the table in the meals/family room area with you and Josephine discussing your various ailments. You requested some Sambuca with your coffee, which is an old Italian custom. Josephine suggested that it was not a good idea to take alcohol with your medication and you responded you had taken no medication that day. This accords with the evidence of your wife Soula that a dosette box containing your daily medication was later discovered to be untouched. The medication referred to was prescribed to counter the physical and emotional legacy of an industrial accident you had sustained.
During the conversation you asked your parents which side the heart was on and they told you the left side. Shortly thereafter Romano, who had been working at his usual job as a plasterer during the day, went off to take a shower. You drank the coffee and asked Josephine if a kitchen knife you had previously given her was sharp. She replied in the negative, but you requested to see it. You both went into the kitchen and, after she handed you the knife, you commenced to poke it at her. At first it did not penetrate and she actually said to you: "What are you doing?" you did not respond but stabbed her in the left shoulder and arm.
Mrs Galiano-Vuocolo commenced to scream and call for Romano who ran from the bathroom clothed only in a towel. By this stage you had Josephine in a corner of the kitchen and Romano tried to drag you away from her, grabbing the knife blade in the process.
The precise sequence of the traumatic events that followed will never be entirely clear, but according to Josephine you turned on Romano and commenced to stab him. It was now Josephine's turn to try and pull you away and eventually Romano ran into the back yard with you chasing after him.
A struggle ensued in the backyard in which you fell to the ground. Josephine finally wrested the knife off you and had the presence of mind to throw it over the side fence. Both she and Romano then ran inside, she locking the glass door leading from a patio into the kitchen and he locking the security door leading into the laundry.
Once inside Josephine began to dial 000. On regaining your feet you called out for the car key, which you had left inside, and Romano briefly opened the laundry door and threw it into the backyard. He then went to put on some jeans.
It was Mrs Galiano-Vuocolo's perception that you observed her on the telephone. In any event you smashed the glass door with a kick and entered the kitchen where you re-armed yourself with a knife from the kitchen bench. Josephine tried to run away but you caught her in a corner of the family room and renewed your attack, stabbing her behind the right ear. Romano returned to the scene and attempted to intervene by picking up a chair to throw at you. According to his evidence you thwarted his efforts by grabbing the chair. You then turned on him stabbing him several times in the back. He ran out through the laundry, down the driveway and into Leyland Road. He turned left into Kingston Street with you in hot pursuit. Romano ran into No.3 where a neighbour John Durrant, (known to your parents as Silvio), emerged from his garage in response to Romano frantically ringing the front door bell. By the time Mr Durrant spoke to Romano, you had apparently left the scene.
In the meantime, Mrs Galiano-Vuocolo had armed herself with a broom in the hope of defending herself and ventured into Leyland Road. She arrived just in time to observe you coming towards her in Kingston Street. According to Josephine you began to run towards her and she responded by running across the road into No.33, and up the steps on to the balcony where she rang the bell. You caught up with her and attempted unsuccessfully to push her over the balustrade. Next, you aimed several further knife blows at her then crouching figure.
By this time at the behest of your father, Mr Durrant had come on the scene. In what I regard as an act of conspicuous courage, he quickly disarmed you and, after assisting Mrs Galiano-Vuocolo back to her driveway, he placed the knife on the back lawn.
You drove your Ford Futura from the scene to the Brunswick home of Mrs Amalia Theodosiou, your mother-in-law. After observing blood on your face, she asked, in effect, what had happened. You told her that you had had a fight with your father but you did not know why.
You were subsequently arrested at your Brunswick flat, having driven there from your mother-in-law's. Informed by the police that there had been an incident at Mount Waverley, you replied: "I don't remember; I've got a problem with my memory." .
In a record of interview conducted by investigating police you maintained that what had happened was essentially a blank to you - at least from 3 p.m. onwards. You professed to have no memory of travelling to Mount Waverley, let alone each of the stabbings.
Your mental state at the time of this incident was a key issue in you trial. Its foundation lay not only in your assertions in the record of interview, but also in descriptions, given by your victims, of your appearance during these attacks. Apart from your lack of stuttering, Mrs Galiano-Vuocolo noticed that your eyes were glassy, fixed and staring, (at least initially); and Mr Romano Vuocolo described your eyes as fixed, like crystal and glass. He also used the terms zombie and robot to describe your actions at stages of these assaults. In addition Mrs Theodosiou later described your eyes as very scary and different. Another factor considered as relevant was the lack of any obvious precipitating argument.
On this basis, the potential affects of your use and abuse of your medication were canvassed. Further, a well-known psychiatrist, Professor Graham Burrowes was called on your behalf. Professor Burrowes' opinion was that your actions were not conscious, voluntary ones because you were acting in a dissociative state. That opinion was contrary to one advanced by Dr Douglas Bell, an experienced forensic psychiatrist called by the Crown, who expressed the view that the complex series of actions undertaken by you could not have been performed in such a dissociative state. Dr Bell did, however, advance the opinion that it was a very common phenomenon for people who had engaged in serious acts of violence against loved ones to subsequently be unable to remember their behaviour. This was a mechanism that protected them from the trauma of having to confront the horror of what they had done.
It is unnecessary to canvass the expert evidence. It is sufficient to note that the jury rejected Professor Burrowes' opinion and was satisfied that your actions were conscious and voluntary. However, I should add I think it highly probable that, given your cultural background of parental respect, your lack of any detailed recollection of your actions is quite genuine. Moreover, the evidence of your parents certainly suggests that you were in a disturbed state mind at this time.
In considering the facts of the offences themselves the question of premeditation is raised. On one view it may be argued that you intended to harm your parents at least from the time of the phone call on 30 January. There were, however, supervening events on 31 January, to which I will refer, which may have influenced and affected your resolve. Ultimately, for reasons which I shall mention later, I am not prepared to find that there was any premeditation prior to the afternoon of the stabbing.
The assaults themselves, however, were persistent and prolonged. You attacked Mrs Galiano-Vuocolo on three separate occasions, being hampered on two of them by your father and restrained on the third by the intervention of Mr Durrant. In these circumstances the jury have found that you had the intention to kill her.
Insofar as your father Romano Vuocolo is concerned, the jury have clearly entertained a doubt about whether you intended to kill him. This may well be because your initial attacks upon him occurred when he attempted to frustrate your assault upon Mrs Galiano-Vuocolo and because, subsequently having chased him from the scene, you appeared to have left him alone before turning your attentions once again to Mrs Galiano-Vuocolo.
It is fortunate that your parents' injuries were not more serious than they ultimately proved to be. Apart from multiple bruising to the chest and back, Mrs Galiano-Vuocolo received several small stab wounds to the head just behind her right ear as well stab wounds to the back and upper left arm. There were also incised wounds to both hands. Although some of these injuries may be regarded as potentially life-threatening, the medical evidence was that there was no danger of death once the hospital assessment had occurred. However, microsurgery was required for two fingers as well as a skin graft to the right hand. As a result there has been a loss of gripping power in her hand.
In the case of Romano Vuocolo, his principal injuries were two stab wounds to the chest, one to the left armpit and three to the back. The medical evidence was that none of the wounds was life-threatening, and he was discharged from Box Hill Hospital the next day.
However, the physical injuries occasioned to your parents are only part of the aftermath of these assaults. As the Victim Impact Statements indicate, each of them still experiences the unpleasant memories of what occurred. Each is anxious about the security of their household and fearful of the slightest noise at night. For Mrs Galiano-Vuocolo there is a feeling of loss of independence, an inability to concentrate and make decisions, and a withdrawal from social life. She takes medication for anxiety. Romano Vuocolo feels depressed, guilty at what happened to his partner, and distressed at the way these events have divided his family. Clearly these were traumatic events from which your parents will never fully recover.
The offences of which you have been convicted are both serious ones. Your attack had a degree of premeditation, it was prolonged, it was directed against relatively elderly persons who trusted you, and had its genesis in what should have been the sanctity of their home. These are factors which point towards a severe sentence, and indeed one in which the sentencing provisions of the Part 2A of the Sentencing Act may be applied. However, the whole story of your offending cannot be confined solely to the offences themselves.
In endeavouring to find an explanation for your conduct it is pertinent to examine your personal history. You are presently 40 years old having been born in Naples in July 1963. Your father Romano and your natural mother Maria operated a fruit shop, but your father was also a versatile worker in the building industry, having skills as a tiler, plasterer, concreter and bricklayer. You have one brother Aldo who is three years your junior and who gave powerful evidence on your plea on your behalf. He is now a builder with his own company Whitsun Pty Ltd.
In 1968 the family migrated to Australia. You attended various primary schools in the Fitzroy/Brunswick area before undertaking your secondary education at Brunswick High School where you completed Year 10. At the age of 16 you commenced an apprenticeship as a plasterer with Terra Nova, (a Northcote firm), also attending Collingwood Technical School. In your fourth year you changed companies and took up a second job as a chef.
In 1980 your mother Maria died and, according to your brother Aldo, you were emotionally traumatised by this event. Indeed this is confirmed by Mrs Galiano-Vuocolo who told the court of you being taken by you father to Brunswick Community Health Centre for counselling because you were restless and grief-stricken.
Following your mother's death, your father, who was clearly an extremely hard working man, immersed himself in the building industry and he also developed a relationship with Josephine Galiano-Vuocolo who was a widow. The perception of your brother Aldo is that, whilst your father provided the house in which you lived and money for the basics, you and he were essentially left to fend for yourselves. You looked after him and provided him with pocket money from your apprentice's wage.
In about 1984 your father, who had been living at Mrs Galiano-Vuocolo's Mount Waverley address for some years, sold the family home in Glenmorgan Street, East Brunswick and invested the proceeds in a property in Sussex Street, Coburg. He put this property in his own name and that of you and your brother, before later giving his share to you both. Eventually you brought out Aldo's share. Shortly thereafter, in 1985, you married Soula Theodosiou, who had been your childhood sweetheart since 1978. You commenced your own plastering business while working second jobs at night, first for Pizza Napoli in the city, and later at Leo's Spaghetti Bar in St Kilda.
In about 1987 you experienced grave financial difficulties when the builder who had engaged you on a large project at Westmeadows went bankrupt. You in turn were bankrupted and, disastrously, you lost the Sussex Street house. According to Aldo your father could not handle this situation and you became a failure in his eyes. Thereafter you lived first with your mother-in-law and later in a Brunswick unit.
The reaction of your father was confirmed by his evidence and Mrs Galiano-Vuocolo stated that, following the loss of Sussex Street, there was a period of three to four years when communication between you and your father effectively ceased. It did not resume until your daughter Maria was born in November 1992. Earlier you had harboured resentment against your father because, as you told the police in your record of interview, you believed that he had bribed a lawyer to have your late mother change her will, disinheriting you and your brother. According to Aldo, the true situation was that she wished to change her will in favour of her children but could not do so because a brain tumour had affected her testamentary capacity. The latter seems the likely situation but, in any event, I accept that your resentment was real.
From 1990 to 1992, you worked in your brother's then establishment, the Emerald Hill coffee shop, and he credits your culinary skills with turning that enterprise into a successful business which he was subsequently able to sell at a profit. Later you continued to work hard as a chef, successively at Vivaldis in the city, Caf Florentino in Brighton and Miettas in Fitzroy.
In about 1998 your father built three townhouses on a block of land that he owned in Glenmorgan Street, East Brunswick. For sound financial reasons, specifically the considerable mortgage payments he was required to make, he declined to give you and Aldo one each of the three townhouse that he had built. This frustrated an expectation you had built up. Your antagonism was exacerbated when, in light of your financial situation, your father also declined your offer to rent one of the units, (or on another version of the evidence to rent another house he had renovated in Glenmorgan Street). Moreover, on your account to the police, it was your perception that Josephine was instrumental in your father withholding financial assistance to you.
However, being the traditionally dutiful Italian eldest son, you repressed you resentment and life proceeded in an ostensibly friendly manner. Indeed, Aldo Vuocolo described you as essentially a respectful and peaceful person; and your wife Soula spoke of you as a person who was very forgiving and who would not hurt a fly. The relationship with your parents was, in the ensuing years, cemented by their love for your daughter Maria.
At the end of 1999, a car accident ended your career as a chef and you were off work for a number of months. You next sought employment as a plasterer travelling as far afield as Norseman in Western Australia, before regaining employment in Victoria.
In January 2000, you were employed by Murex Pty Ltd, a solid plastering company. On 28 February of that year you were involved in an industrial accident when you fell down 22 steps while carrying a bag of cement. You lost consciousness and were taken to Epworth Hospital where soft tissue damage to the neck, back and right knee was diagnosed.
Up until this time your life had generally been a happy and fulfilling one. You had a loving marriage of 15 years' duration and a daughter you adored. You were a hard worker who enjoyed his work and a good provider for your family. You had a number of recreations which included keeping fit, practising the martial arts in which you had a black belt in Ninjitsu, bike riding with your daughter, taking a yearly skiing holiday and indulging in meditation. You assisted with household activities including cooking, and you helped your daughter with her homework. Your brother Aldo described you as the life of the party. Mr Jeffrey Harrod, who employed your wife in his international freight company, and became a family friend, told the court that you were a happy, positive person who was mentally sharp.
It is very clear that your accident marked a dramatic turning point in your life. It is not necessary to canvass in great detail your deteriorating physical and mental state as deposed to by your treating doctors. Dr Alice Glover, your general practitioner, attested to your sleep difficulties, your pain, and your pessimism about the future, leading to problems of depression. This eventually resulted in treatment by Dr Christopher Martin, a consultant psychiatrist, for a major depressive illness. This treatment commenced in April 2000, continuing without success at the time of these offences. The persistence of the constant pain, sleep problems and your depression, was manifested in the deterioration of your physical relationship with your wife, social withdrawal and suicidal ideation. These factors were ongoing and it appeared to Dr Martin that your behaviour was becoming more childlike, increasing the burden of family responsibility upon your wife.
Over the period of time preceding these offences you had been prescribed a plethora of medication for pain, sleeplessness, anxiety and depression. It is not necessary to list them all. In summary they did not succeed in alleviating your depression. In the months prior to this incident you commenced self-medicating with alcohol. You told your wife: "I just want to be comfortably numb. I don't want to feel my pain." apparently on three occasions you sought pain relief through heroin use. Additionally, it appears you were, on occasions, consuming quantities of medication above the prescribed dosages.
Friends such as Mr Harrod and your brother saw in you a man who was the reverse of your pre-accident self. Indeed, the former described you as person who "seemed to have given up".
Following an episode of bizarre behaviour in December 2001, possibly associated with the abuse of your drug regime, Dr Glover, who regarded you as a deeply troubled and ill individual, told the court that she had concerns about unpredictable behaviour by you. Indeed she told the court that she was considering obtaining the services of a Community Assessment Treatment team.
On the day of this offence, you had not apparently taken any medication at all. It was put by your counsel that the withdrawal from such drugs as Luvox (Fluvoxamine), and Kalma (Alprazolam) which you had been taking for depression and anxiety, may well have produced a paradoxical disinhibiting or aggressive effect upon your conduct. Professor Drummer, the expert forensic pharmacologist and toxicologist called by the Crown, pointed to the rarity of such a reaction. Although a possible influence on your behaviour, the trigger for your conduct may well have been much more mundane.
In this regard I refer to the evidence of Ms Ornela Totino, the book-keeper at Murex Pty Ltd. She told the court that on the day of the stabbings you attended at the firm expecting to receive backpay of $7,000. This amount was disputed by the relevant workers compensation insurance company and you were required to return later in the day. On doing so you only received a total of $1,929, being $3,081 less tax. Mr s Totino described your reaction at this financial setback as one of disappointment. I think it highly probable that for you this constituted the final psychological blow. It was a powerful reminder of your parlous social and financial position which contrasted vividly with that of your parents. It would not be surprising if the resentments you had felt towards them and suppressed over the years re-surfaced, driving you to you commit the acts of violence which bring you before this court.
Whilst you were not suffering from the type of serious psychiatric illness which could warrant a total reduction of that element of sentencing attributable to general deterrence, I accept that you were suffering from a major depressive illness at the time you committed these offences and that this was one of the factors contributing to your state of mind when you embarked upon your course of action. Whether or not the withdrawal from your medication also played a role in your behaviour cannot be conclusively determined but, in any event, the description of your behaviour given by your parents reinforces the view that you were in a deeply disturbed state at this time. In those circumstances the weight to be accorded to general deterrence in the sentence imposed may, to a degree, be moderated. Moreover, I am of the view that your level of moral culpability is reduced to some extent. Further, the weight to be given to specific deterrence is also lessened.
You have lived 40 years of your life without any prior convictions and there is no doubt that your actions were out of character. References from Ezio Totino, director of Murex Pty Ltd and a close family friend, together with a close family friend of 20 years, Ms Ida Maher, emphasised this point.
I also accept that you are deeply remorseful at what you have done. A letter you wrote to the court, and which was tendered on your plea, sets out your regret and shame at your conduct, professes your love for your parents and seeks their forgiveness for the pain and suffering you have caused them.
You have the ongoing love and support of your wife and daughter. Diary entries made by your daughter without any knowledge of their subsequent use in these proceedings speak eloquently of your relationship with her. Your brother is also totally supportive of you and has indicated his willingness to employ you upon your release from prison. Not long ago this would have seemed a fanciful prospect, but as a letter from Dr Eugenie Tuck, Director of Medical Services at St Vincent's Correctional Health Service confirms, you have taken yourself off all routine analgesic and antidepressant medication since July 2003. Additionally, you are engaged in an exercise regime to regain muscular tone and strength.
While in prison you have become a kitchen billet and your efforts have been noted favourably in the Office of Corrections file provided to the court. You have also recently filled the position of a "prison listener", a role which is designed to help other prisoners with their problems. In short you are making a determined effort to rehabilitate yourself, and your prior history, as I have recorded it, makes the prospects of such rehabilitation excellent.
Moreover, the factors I have enumerated, particularly your remorse and potential for rehabilitation, reduce the weight that needs to be accorded to specific deterrence.
This is a distressing case. It is, of course, extremely sad for your parents and the physical and psychological pain they have suffered is patent. But it is also very sad for you. It is impossible not to be moved by the misfortune that has resulted in the unravelling of your life from model family man, worker and athlete to violent offender. In my view, this is a case where justice may, to some extent, be tempered by mercy.
Your case represents a very difficult sentencing exercise. However, balancing as best I can the principles enunciated in the Sentencing Act, I have concluded that the appropriate sentences are as follows: For the offence of the attempted murder of Giueseppina Galiano-Vuocolo, you are sentenced to be imprisoned for eight years; for the offence of intentionally causing serious injury to Romano Vuocolo, you are sentenced to be imprisoned for five years.
I direct that two years of the second sentence be served cumulatively with the first sentence resulting in a total effective sentence of ten years. I fix a lower than normal non-parole period of five years. Further, I declare that the period to be reckon as already served under that sentence is 657 days, inclusive of today's today. I direct that there be noted in the records of the court the fact that this declaration is made and its details.
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