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Acciarito v The Queen

Acciarito v The Queen

Case [2019] VSCA 264 19 November 2019

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0235

MARIO ACCIARITO	Applicant
v
THE QUEEN	Respondent

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JUDGES:	NIALL and ASHLEY JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	29 October 2019
DATE OF JUDGMENT:	19 November 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 264
JUDGMENT APPEALED FROM:	DPP v Acciarito [2018] VCC 1603 (Judge Murphy)

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CRIMINAL LAW — Sentence — Leave to appeal — Appeal — Whether double punishment — Offender charged with being prohibited person in possession of firearm and trafficking drug of dependence — Whether fact applicant involved in drug offending aggravated offence of possession of the firearm — Whether having taken into account drug offending in sentencing on firearm offence it was permissible to take into account possession of firearm as an aggravating feature of drug offence — Pearce v The Queen (1998) 194 CLR 610; Berichon v The Queen (2013) 40 VR 490 — Whether sentence on possession and trafficking charges and order for cumulation manifestly excessive — Leave to appeal granted — Appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P J Smallwood	Dean Cole & Associates
For the Respondent	Mr J McWilliams	Mr J Cain, Solicitor for Public Prosecutions

NIALL JA
ASHLEY JA:

Having pleaded guilty, Mario Acciarito (‘the applicant’) was sentenced by a County Court judge on 1 October 2018 as follows:

Charge Offence Maximum Penalty Sentence Cumulation

Charges on Indictment No: G12204543.1

1 Resist emergency worker on duty 5 years 3 months

2 Prohibited person possess a firearm 10 years 4 years Base

3 Negligently deal with proceeds of crime 5 years 1 year 3 months

4 Traffick drug of dependence 15 years 3 years 1 year 6 months

Related Summary Charges (County Court Case No: CR-18-00517)

7 Possess prohibited weapon without exemption or approval 2 years 6 months

Total Effective Sentence 5 years 6 months

Non-Parole Period Fixed 3 years 4 months

Pre-Sentence Detention 65 days

6AAA statement 8 years, with a non-parole period of 6 years

Other Orders Disposal order, forfeiture order and forensic sample order
Application for leave to appeal against sentence

The applicant seeks leave to appeal against sentence on the following proposed grounds:[1]
[1]Hereafter, simply ‘grounds’.

Ground 1: The sentencing judge erred by doubly punishing the applicant.
Particulars:
a.The sentencing judge imposed a significantly higher sentence on charge 2 as a result of that offence having been committed in circumstances where the applicant had also trafficked drugs.
b.That the sentencing judge ordered that 18 months of the sentence imposed on charge 4 be served cumulatively to the sentence imposed on charge 2.
c.In order to ensure that the applicant was not punished twice for the same wrongdoing (that is, trafficking drugs), the sentencing judge ought to have modified the sentence imposed on charge 2 and the order for cumulation made on charge 4 in accordance with the precepts explained in Pearce v The Queen (1998) 194 CLR 610 at 623-624 ([40]-[49]).
d.The sentencing judge erred by failing to do so.…

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 Acciarito v The Queen

Details

AGLC: Acciarito v The Queen [2019] VSCA 264
Case: [2019] VSCA 264
Decision Date: 19 November 2019

CaseChat Overview and Summary

The appellant, Mr Acciarito, was found guilty of being a prohibited person in possession of a firearm and trafficking in a drug of dependence. He appealed against his sentence, which was deemed excessive, and sought leave to appeal to the court. The central issue was whether the sentence imposed constituted double punishment by taking into account the possession of the firearm when sentencing for the drug offences and vice versa. The court had to determine whether it was permissible to consider the possession of the firearm as an aggravating feature of the drug offence after already taking into account the drug offending in the sentencing for the firearm possession. The court referenced the decisions in Pearce v The Queen and Berichon v The Queen to assess the matter. The court further examined if the combined sentence for both the possession and trafficking charges, along with the order for cumulation, was manifestly excessive.

The court considered the arguments presented by the appellant regarding the double punishment issue and assessed whether the trial judge had adequately addressed this matter in the sentencing process. The court found that the trial judge had not sufficiently considered the double punishment issue, which warranted a review of the sentence. The court also examined the totality of the sentence and whether it was manifestly excessive. After considering these factors, the court concluded that the sentence was indeed manifestly excessive, and the double punishment issue warranted further examination. Consequently, the court granted leave to appeal and allowed the appeal. The matter was remitted to the trial court for reconsideration of the sentence, taking into account the issues identified by the appellate court.

Orders