Regina v Sergi [1999] NSWSC 728

New South Wales Supreme Court CITATION : Regina v Sergi [1999] NSWSC 728 CURRENT JURISDICTION : Criminal FILE NUMBER(S) : L001/99 HEARING DATE(S) : 19/7/99 JUDGMENT DATE : 19 July 1999

PARTIES : Regina v Francesco Sergi JUDGMENT OF : Bell J at 1

COUNSEL : Crown: Mr P Berman Prisoner: Mr J Nicholson SC SOLICITORS : Crown: Mr P Thompson Prisoner: Legal Aid Commission CATCHWORDS : Criminal law and procedure; sentencing; determination of life sentence ACTS CITED : Sentencing Act 1989 DECISION : See para 50

THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

BELL J

MONDAY, 19 July 1999

L00001/99 - REGINA v Francesco SERGI

DETERMINATION

1 HER HONOUR: Francesco Sergi makes application pursuant to section 13A of the Sentencing Act 1989 for a determination of both a minimum term and an additional term in relation to a sentence of penal servitude for life imposed on him by Moffatt J on Wednesday 25 October 1967 following his conviction after trial of two counts of murder. 2 The history of the matter is as follows. On 26 January 1967 the applicant, who was then aged twenty-one years, surrendered himself at the Fairfield Police Station. He notified a police officer that he had shot his brother and sister-in-law. He handed over the pistol which he had used to commit the offences. 3 He was interviewed by detectives and charged with the murder of his brother, Domenico, and his sister-in-law, Katrina. They were aged twenty-four and twenty respectively at the time of their death. They were the parents of an infant daughter. 4 The applicant was born and raised in Calabria. He came to Australia to live as a young man with his family. 5 The background to the shooting of his brother and sister-in-law brought it within what might be described as a crime of passion. He had come to learn that his younger sister, who had recently married, had been accused by his sister-in-law of having lax morals. In particular it was suggested that she had been involved in a sexual relationship with a young man called Carmine prior to her marriage. 6 These rumours relating to the applicant's sister led her young husband, Vincent, to leave her and return to Italy in circumstances which brought disgrace on the Sergi family. 7 The sister returned home. The applicant appears to have been distressed and to have felt, as the oldest male member of the family living at home, that he bore responsibility for remedying the damage that had been done to the family's honour. It was in that context that the two murders occurred. 8 The jury before whom the trial proceeded made a strong recommendation for mercy. Of more significance, having regard to my task today, I note that his Honour, the very experienced trial judge, referred to the strong recommendation for clemency and expressed his agreement with it. 9 Prior to the commission of these offences, the applicant was a young man of good character. A report has been prepared by the Serious Offenders' Review Council that sets out in summary fashion references to the applicant's progress during the course of his period in custody following his conviction and sentence. 10 Such material as is there disclosed suggests that the applicant made a good adjustment to prison life and was viewed as industrious and co-operative. Indeed, I note the contents of a Parole Board report of 18 October 1974 which states that the applicant had earned excellent reports while in custody. 11 That report also sets out some details concerning the applicant's domestic arrangements. It appears that prior to his conviction he had become associated with a young woman who had some health difficulties and who bore his son about two months after his arrest. She had maintained contact with the applicant throughout the period of his custody. 12 Turning again to the report of the Parole Board of 18 October 1974, it was noted that the Board had interviewed the applicant and found him to be an alert, intelligent and articulate young man. The members of the Board were of the view that it was unlikely that he would again resort to violence. 13 The Board noted the strong recommendation for clemency and concluded at that time that a term of about ten years' penal servitude would be an appropriate period for the applicant to serve as the custodial portion of the life sentence. 14 On 27 January 1978, a licence was issued pursuant to section 463 of the Crimes Act as it then stood. 15 On 1 February 1978 the applicant was released pursuant to the terms of that licence. That licence was in what might be described as conventional terms. It was expressed as being for the period commencing on the date of the applicant's release and terminating on 31 January 1983. The applicant was required to report to the Probation and Parole Service during the currency of that licence. 16 The applicant has given evidence before me today and he states that he reported in conformity with the requirements of the licence and enjoyed a good relationship with his Parole Officers. He was still able to recall the names of these Parole Officers. He said that the reporting requirements had been reduced to nil prior to the expiration of the licence. 17 There is no suggestion that the applicant breached any of the terms of the licence prior to 31 January 1983. 18 Tendered on the applicant's behalf is a report of Dr Jonathan Carne dated 2 June 1999. That helpful report includes material relating to the applicant's progress following his release on licence. 19 The applicant married in 1979. I understand this was to the young woman with whom he had formed the relationship and who had borne him the child immediately prior to his conviction. 20 He started working in a concreting business and apparently that business went well until the recession of the late 1980's. At that time the applicant experienced financial difficulties. By that stage he was the father of three children. 21 In the latter part of 1993 the applicant was charged with an offence of unlawfully producing a large quantity of a dangerous drug, namely cannabis sativa. That offence occurred in Queensland. He was admitted to bail and remained at liberty until his conviction before the Supreme Court of Queensland. 22 On 29 January 1996 he was sentenced by Ambrose J to a term of six years' imprisonment. In accordance with the Queensland statutory scheme he became eligible for parole after serving three years of that sentence. 23 The applicant states, and I accept, that he was not aware that he was still the subject of the licence after 31 January 1983. 24 Whilst he was in custody in Queensland, at his own initiative, he contacted the authorities in New South Wales with a view to determining his status. This was brought about by the circumstance that the Queensland Correctional Authorities had no notification of his discharge from licence in New South Wales. He was thus deemed to be a life sentence prisoner and was treated differently to other prisoners. 25 In response to his inquiry on 10 October 1997 Mr Neil Guy of the Department of Corrective Services informed the applicant that the licence remained on foot. Mr Guy drew the applicant's attention to the effect of the decision of the New South Wales Court of Criminal Appeal in the case of Boylan, unreported, 21 December 1995. Thereafter, it appears that the applicant sought, pursuant to the provisions of the Interstate Transfer Scheme, to be returned to New South Wales at the earliest opportunity with a view to making an application pursuant to section 13A of the Sentencing Act. 26 As it turns out, those arrangements were not put in place prior to his release on parole and extradition to New South Wales. In that regard, I should note that, on 24 July 1997, the Parole Board of New South Wales revoked the applicant's licence for breach of the condition that he be of good behaviour. 27 On 2 February 1999 the applicant was received in custody at the Grafton Correctional Centre, having been extradited from Queensland following the granting of his parole at the expiration of the minimum period of three years. 28 The report of the Serious Offenders Review Council attaches a number of documents which chart the progress of the applicant while in custody in Queensland. They were uniformly good reports, some of them compellingly so. They speak of a mature prisoner who took such opportunities as were available to him to do courses, who was viewed as compliant with prison discipline, friendly and possessed of insight into his situation. 29 By way of example, I note the contents of a report prepared by R. Dempsey dated 24 October 1996 relating to the applicant's participation in a course described as "Personal Awareness, Confidence and Growth". 30 It is noted that the applicant attended all sessions and was fully committed. As to his motivation, the author of the report observes, "Frank wanted to do this course. He came with open-mindedness and maturity to gain new perspectives and to integrate things better". As to his participation it is observed, "Frank was a joy to have in class, seriously minded but good humoured and adaptable". As to co-operation it is said, "Frank brought a mature awareness to all he did. He is a gentleman". 31 Returning to the contents of Dr Carne's report, he deals at some length with the applicant's account of the circumstances leading to the double murder and with the applicant's subsequent remorse and understanding of the appalling wrong which he had committed. He notes that the applicant was extremely depressed for a considerable period after the shooting and that he gave an account of feeling "absolutely awful" for years. 32 The applicant expressed, in the course of his discussions with Dr Carne, profound regret at the killing of his brother and sister-in-law. He described the process of gradual reconciliation with his family following these tragic events. This extended to his orphaned niece, the daughter of his victims, making contact with him. The family now accept him at family functions. The applicant had, throughout the period of his custody, maintained contact with his mother and the report of Dr Carne is supportive of the view that he had developed insight into the terrible impact of his crime on her as well. 33 Most importantly, Dr Carne notes that the applicant has no history of drug or alcohol abuse and no history of psychiatric illness. In Dr Carne's opinion there is no evidence that the applicant has an anti-social personality disorder. That is to say, there is no evidence that he manipulates or takes advantage of others for his own gain. 34 It is Dr Carne's opinion that there is little chance of a recurrence of a similar crime in the future. Indeed, he expressed the view that, "There is every expectation that the applicant will now lead a law-abiding life". He considers that the applicant presents no threat to the community or to his family and that there is no indication for psychiatric treatment. 35 The expression of those opinions, in my view, receives strong support, having regard to the custodial history of the eleven years served following the murder and, more recently, the very positive picture painted in relation to the applicant's period of imprisonment in Queensland. 36 I am required, pursuant to section 13A sub-section 9, to have regard to the matters that are set out in sub-paragraphs A to D, together with any other relevant matter. In that regard, I am required to give consideration to the report of the Serious Offenders Review Council, and I do so. 37 I note that the report of 11 May 1999 of the Council observes: "Since his return to full-time custody he has behaved himself and observed prison routine. The intervening periods spent on licence in the community presents as offence free until the charge pressed in 1993 and his conviction and sentence in 1996". 38 The report goes on to observe that, in the event that the life sentence is re-determined by this Court, a plan would be prepared for the applicant's future management. It is noted that the plan would include provision for progressive reductions in classification, leading ultimately to the inclusion of daily and other temporary leave programs as a means for preparing the applicant for release back into the community. 39 The applicant is the subject of a parole order arising out of the Queensland conviction. I am informed that, in the ordinary course, that order will be registered and the New South Wales Probation and Parole Service will supervise the applicant under a reciprocal arrangement. 40 It is not necessary for me to detail the applicant's family support. It is attested to in the material before me on this application. It is made clear by the presence today of members of the family. It does not seem to me that this is a case, having regard to the applicant's background and his strong family ties, in which real concerns arise as to his ability to return to the community. I make that observation because I am mindful of the portion of the Serious Offenders Review Council report that speaks of a plan for the provision of the progressive reductions in classification, with a view to assisting the applicant to return to the community. 41 The Crown has invited me to impose a re-determined sentence such as would see the applicant released shortly, but subject to supervision by the New South Wales authorities for an additional term of at least the length of the outstanding parole period. I have some difficulty seeing the utility of that. I note that the applicant is subject to the Queensland parole prder. 42 Another matter that I am required to have regard to is the need to preserve the safety of the community. Having regard to the contents of the Serious Offenders Review Council reports and the annexures thereto and to the report of Dr Carne, I do not consider that that matter raises any lively concern in this case. 43 I am also required to have regard to and to give substantial weight to any relevant recommendations, observations and comments made by the original sentencing Court when imposing the sentence concerned. That presents some practical difficulties in a case such as this, where the relevant remarks were made over thirty years ago. 44 I have in mind to give substantial weight to the sentencing Judge's endorsement of the jury's strong recommendation for clemency in the minimum term which I propose imposing. 45 As I have already indicated, the Crown submits that it is appropriate that the effect of any sentence that I impose be such as to see this applicant released in the near future. 46 The only matter, as it were, in contest between the Crown and Mr Nicholson SC, who appears for the applicant, is the question of whether the sentence ought to, in total, expire as at today's date or, as the Crown invites me to do, at a date some three years hence, in order to provide for the applicant's supervision on his return to the community. 47 Essentially, my task is to reflect those matters that a sentencing Judge would, in the ordinary course, give weight to together with the other matters, to which I have already referred, as set out in the section. 48 The Crown has impressed on me that this was a crime of considerable gravity, it being a double murder. Whilst there is obvious force to that submission, equally I must have regard to the jury's recommendation and the Judge's endorsement of it. 49 In all the circumstances, I propose to grant the prisoner's application. 50 Pursuant to section 13A(4) of the Sentencing Act, I impose a minimum term of eleven years' penal servitude to date from 26 January 1967 and to expire on 25 January 1978. I impose an additional term to expire on this day, 19 July 1999. **********