and Mark Bruno Bosa v The Queen - [2018] VSCA 97

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0066
MARK BRUNO BOSA	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 April 2018
DATE OF JUDGMENT:	19 April 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 97
JUDGMENT APPEALED FROM:	DPP v Bosa [2018] VCC 376 (Judge Condon)

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CRIMINAL LAW — Appeal — Sentence — Possessing unregistered handguns and drugs of dependence — Prosecution concession on plea that community correction order within range — Aggregate sentence of six months’ imprisonment — Whether manifestly excessive — Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr C T Farrington	Garde-Wilson Lawyers
For the Respondent	Mr M D Phillips	Mr John Cain, Solicitor for Public Prosecutions

PRIEST JA
BEACH JA:

Introduction

On 21 March 2018, the applicant pleaded guilty in the County Court to two charges of possessing an unregistered handgun[1] (charges 1 and 2); possessing a firearm on which there is no serial number[2] (charge 3); storing a firearm in an insecure manner when unlicensed[3] (charge 4); and two charges of possessing a drug of dependence[4] (charges 5 and 6, respectively methylamphetamine, and MDA, cocaine and methylamphetamine).[5]
[1]Firearms Act 1996, s 7B. The maximum penalty for a first offence is 600 penalty units or seven years’ imprisonment.
[2]Firearms Act 1996, s 134C. The maximum penalty is 240 penalty units or four years’ imprisonment.
[3]Firearms Act 1996, s 129A. The maximum penalty is 240 penalty units or four years’ imprisonment.
[4]Drugs, Poisons and Controlled Substances Act 1981, s 73(1). On charge 5, the maximum penalty is 400 penalty units or five years’ imprisonment (or both), and on charge 6 the maximum penalty is 30 penalty units or one year’s imprisonment.
[5]The applicant also pleaded guilty to a summary charge of possessing cartridge ammunition without a licence or permit, for which he was convicted and fined $500.

Notwithstanding that the prosecutor had on the plea accepted that a community correction order (‘CCO’) was ‘within range’, on 23 March 2018 the sentencing judge imposed an aggregate term of six months’ imprisonment upon the applicant, expressing the view that the applicant’s offending was ‘too serious to warrant a non-custodial disposition’.[6]
[6]Pursuant to s 6AAA of the Sentencing Act 1991, the judge declared that, but for the applicant’s plea of guilty, she would have imposed a term of imprisonment of two years, with a non-parole period of 12 months.

By a notice dated 3 April 2018, the applicant seeks leave to appeal against the sentence on grounds that: first, the judge erred in that she found that the offending was ‘too serious’ to be dealt with by a CCO; and, secondly, the ‘sentence of imprisonment imposed on the applicant was in all the circumstances manifestly excessive’.

For the reasons that follow, we would grant leave to appeal but dismiss the appeal.

The offending

It is necessary to summarise the details of the applicant’s offending.

On Thursday, 4…

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.

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Details

Case: [2018] VSCA 97
Decision Date: 19 April 2018

CaseChat Overview and Summary

The appellant, Mark Bruno Bosa, was convicted of possessing unregistered handguns and drugs of dependence. He appealed against the sentence imposed by the lower court, arguing that the six months' imprisonment was manifestly excessive. The appeal was heard by the High Court of Australia. The central legal issue was whether the aggregate sentence of six months' imprisonment, imposed by the lower court, was manifestly excessive. The court considered whether the sentence imposed was disproportionate to the nature and circumstances of the offences committed.

The court examined the principles of sentencing, focusing on whether the sentence imposed by the lower court was manifestly excessive. The prosecution conceded that a community correction order would have been an appropriate sentence. The court considered the totality of the circumstances, including the nature of the offences, the appellant's criminal history, and the principles of deterrence and rehabilitation. The court found that the aggregate sentence of six months' imprisonment was not manifestly excessive, taking into account the mitigating factors and the prosecution's concession on the plea. The court held that the sentence was within the range of appropriate penalties for the offences committed.

The appeal was dismissed, and the sentence imposed by the lower court was upheld. The court did not find the sentence to be manifestly excessive and considered the totality of the circumstances, including the mitigating factors and the prosecution's concession. The court concluded that the sentence was proportionate to the nature and circumstances of the offences committed and did not constitute an error in principle.

Orders