R v Cosseddo [2000] NSWSC 446

New South Wales Supreme Court

CITATION : R v Cosseddo [2000] NSWSC 446 revised - 25/05/2000 FILE NUMBER(S) : SC 70012/97 HEARING DATE(S) : 1 May 2000-23 May 2000, 25 May 2000 JUDGMENT DATE : 25 May 2000

PARTIES : Regina Francesco Cosseddo JUDGMENT OF : Studdert J

COUNSEL : P.S. Dare (Crown) P.F. Joseph (Offender) SOLICITORS : Office of the Director of Public Prosecutions (Crown) Thorneycroft Appleton Solicitors (Offender) CATCHWORDS : Special hearing - finding on limited evidence available that offender committed crime of murder - nomination of "limiting term" - principles applicable - Mental Health (Criminal Procedure) Act, ss 23,24 Mental Health (Criminal Procedure) Act Sentencing Act LEGISLATION CITED : Crimes (Sentencing Procedure) Act Mental Health Act Coroner's Act Criminal Procedure Act CASES CITED : R v Mitchell [1999] NSWCCA 120 R v Holyoak (1985) 82 A Crim R 502 DECISION : See paras 37-38

IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

STUDDERT J

Thursday 25 May 2000 70012/97 REGINA v FRANCESCO COSSEDDO

JUDGMENT

1 HIS HONOUR: In stating these reasons, I will refer to Francesco Cosseddo as the offender, using the language of the new sentencing regime. 2 Following a special hearing conducted in accordance with the provisions of the Mental Health (Criminal Procedure) Act, 1990, the jury on Tuesday last, 23 May 2000, found on the limited evidence available that the offender, Francesco Cosseddo, committed the crime of murder. The victim was the wife of the offender, Maria Cosseddo. 3 The finding of the jury enlivens the application of s 23 of the Mental Health (Criminal Procedure) Act. Under s 23(1) the Court: "(a) must indicate whether, if the special hearing had been a normal trial of criminal proceedings against a person who was fit to be tried for the offence which the person is found to have committed, it would have imposed a sentence of imprisonment; and (b) where the Court would have imposed such a sentence, must nominate a term, in this section referred to as 'a limiting term', in respect of that offence, being the best estimate of the sentence the Court would have considered appropriate if the special hearing had been a normal trial of criminal proceedings against a person who was fit to be tried for that offence and the person had been found guilty of that offence." 4 Had this special hearing been a normal trial of criminal proceedings against a person fit to be tried for the offence the jury has found the offender committed, I would have imposed a sentence of imprisonment upon the offender. I am therefore required by s 23(1)(b) to nominate a "limiting term" under that sub-section. My task is to make the best estimate of the sentence I would have considered appropriate if the special hearing had been a normal trial of a person fit to be tried who had been found guilty of murder. 5 Following the verdict of the jury, the offender was taken into custody, to be detained at the hospital attached to the prison at Long Bay. However, until then the offender had been on bail since the date of his arrest on 9 August 1996. The limiting term which I nominate should therefore date from 23 May 2000. 6 The approach to be taken in arriving at a limiting term was considered by the Court of Criminal Appeal in R v Mitchell [1999] NSWCCA 120. Mitchell was concerned with a sentence imposed when the 1989 Sentencing Act regime was in place, but the principles expressed in this decision are still relevant under the Crimes (Sentencing Procedure) Act, 1999. This is because the offender may be released prior to the expiry of the limiting term, pursuant to the six monthly review procedure which will operate under the Mental Health Act, 1990. By contrast to the sentencing procedure under s 44 of the Crimes (Sentencing Procedure) Act, 1999, where the Court is required, having set the term of the sentence, to set a non parole period in respect of that sentence, "a limiting term is the period beyond which a person cannot be detained for the offence which was the subject of the special hearing. As Hunt CJ at CL said in R v Parker (1990) 19 NSWLR 177, in respect of Part XIA of the Crimes Act 1900 (the predecessor to the MH(CP) Act) at 188 '[t]hat right to release is fundamental to the whole structure of the legislation'. A person may be released prior to the expiry of the limiting term pursuant to the six monthly review procedure referred to above." (See Mitchell at para 30) 7 The next point to be noted from Mitchell is that I should, so far as is possible, have regard to normal sentencing principles in arriving at a limiting term. As to this, the court said in Mitchell at paras 35-36: "As s 23 requires that the best estimate be made of the sentence the appellant would have received after a normal criminal trial, the trial judge must have regard to usual sentencing principles. In R v Maclay the Court (Gleeson CJ, Hunt CJ at CL and Loveday J) said, at 122-123, that in sentencing under s 5 of the Sentencing Act, the sentencing judge is to give: '…appropriate weight to well-established principles of sentencing, including those which require him to pay due regard to the maximum penalty provided by the statute for the offence in question, the gravity of the objective features of the case, and all relevant subjective considerations relating to the offender, [following which the sentencing judge] is to determine what is an appropriate term during which the offender is to remain in custody before being eligible to be released on parole.' The 'well established principles of sentencing' were identified in Veen (No. 2) (1988) 164 CLR 465 at 476 to be the 'protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform'." 8 Consistently with what the Court of Criminal Appeal said in Mitchell, I must have regard to those well established principles of sentencing identified in Veen. Again, mindful of what was said in Mitchell, I consider firstly the objective features of this crime. 9 This crime was committed at the home where the offender lived with his wife and children at 10 Iris Street, Guildford and it was committed on 12 January 1995. The case presented against the offender was based upon circumstantial evidence. The police and ambulance services were alerted shortly after 5.30 pm on the evening of 12 January 1995 to attend at 10 Iris Street, Guildford, and the body of the deceased was found lying fully clothed on her bed in the master bedroom. Dr Ellis, who conducted the post mortem examination, estimated the time of death as being earlier that day, between 1.30 pm and 4.30 pm. 10 Dr Ellis did not give evidence at the trial, being absent overseas, but his statement to the police, his report under the Coroner's Act, and his evidence at the committal proceedings were admitted into evidence pursuant to ss 112 and 116 of the Criminal Procedure Act. Transcript of part of the evidence given by Dr Ellis before the Coroner was tendered by the offender and also admitted into evidence with the consent of the Crown. Dr Ellis considered, and the jury plainly accepted, that the direct cause of death of the deceased was manual strangulation. When the body was examined bruising was detected around the left eye of the deceased, on her forehead, and elsewhere on her person. It is unnecessary to describe this bruising in close detail but external examination of the neck prompted Dr Ellis to record in his formal report to the Coroner: "The right side of the neck contains a number of fine petechial haemorrhages fairly diffusely distributed covering much of the mid level of the right side. Examination of the left side of the neck reveals a linear superficial abrasion 1.1 cm long which is located 9 cm immediately below the external auditory orifice. No other abnormalities are observed on the left side of the neck." 11 Then upon internal examination Dr Ellis made the following findings in the neck region: "Examination of the soft tissues of the neck reveal a number of scattered haemorrhages at all levels. There are blotchy haemorrhages of varying sizes covering the mid sections of both sternomastoid muscles, both in front of and behind both thyrohyoid muscles as well as both sternothryroid muscles. There are also blotchy haemorrhages just over the prominence of the thyroid cartilage and over the greater horns of both sides of the thyroid cartilage. The left greater horn is fractured with some associated bruising. The hyoid bone is intact although there are a number of tiny bruises around both greater cornu. A number of small bruises are noted on the posterior surface of the larynx. There is no laryngeal obstruction and the epiglottis and the mucosal surface of the larynx and trachea are normal." 12 When asked at the committal proceedings to estimate the time it took for the strangulation to cause death, Dr Ellis was unable to be precise, stating a range from a few seconds to a few minutes. The presence of petechial haemorrhages he described indicated that death had not occurred "straight away", because if death had occurred "straight away" the petechial haemorrhages would not have occurred. 13 Dr Ellis, at the committal proceedings, considered the amount of force required to cause death. He said that the physical force required to cause the bruising of the neck would not have been "enormous". The bony fracture of the left greater horn would have required somewhat greater force, but allowance had to be made for the age of the deceased, and the doctor said: "Given that the deceased was not a young lady, therefore the voice box may be a little bit more brittle so may break more easily." 14 The offender at all times denied having caused the death of his wife, and the evidence does not reveal precisely whereabouts or in what circumstances the crime was committed. The offender consistently maintained that he had found his wife's body in the laundry when he returned home from Fairfield, but the verdict of the jury makes it clear that version of events was rejected. There were no signs of a struggle found in the laundry or elsewhere in the house and there was no other pointer to precisely where the killing took place. 15 This much however has been proved: that the offender caused the death of his wife by manual strangulation and that he did so either intending to kill her or at least intending to cause her grievous bodily harm. I must heed the gravity of these objective features. 16 The maximum penalty for the crime of murder is, of course, imprisonment for life. 17 The offender was born in Italy on 8 July 1930 and he came to Australia in 1966. He married the deceased in 1968. The deceased was born on 3 April 1932. There were three children of the marriage, all of whom lived with their parents at 10 Iris Street, Guildford prior to their mother's death and all of whom gave evidence at the special hearing. The family lived at Iris Street for some ten years before the deceased died, but it is plain from the evidence that for many years the offender and the deceased had led separate lives. The offender washed and cooked for himself, dining alone. Indeed, it would seem from the evidence of the children that the offender and the deceased rarely communicated except to quarrel. There were numerous quarrels but none of the children ever saw their father use force on their mother. Through the evidence of the children, a number of topics emerged as matters about which quarrels occurred: