JUDGES:	NEAVE, MANDIE and HARPER JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 February 2012
DATE OF JUDGMENT:	3 August 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 170	First Revision: 13 August 2012 (Catchwords)
JUDGMENT APPEALED FROM:	DPP v Bonacci and Vasile (Unreported, County Court of Victoria, Judge Dean, 4 March 2011)

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CRIMINAL LAW – Sentence – Aggravated burglary, common assault and armed robbery – Crimes Act 1958, s 77(1) – Additional charges faced by Vasile of being a prohibited person in possession of an unregistered firearm and possession of a prohibited substance – Home invasion of occupied premises while disguised and carrying unloaded firearm, a crowbar and a hunting knife – Indictment did not include reference to knowledge or expectation that persons were present at the premises in the charge of aggravated burglary – Pleas of guilty – Both offenders sentenced to same sentences for offences for which they were jointly indicted – Vasile sentenced to total effective sentence of imprisonment for eight years six months – Non-parole period of six years – Bonacci sentenced to total effective sentence of imprisonment for eight years – Non-parole period of five years – Whether sentencing judge erred in taking into account that persons were present at the premises when imposing sentence for aggravated burglary – R v De Simoni (1981) 147 CLR 383 and R v Newman and Turnbull [1997] 1 VR 146 distinguished – Parity – Prospects of rehabilitation, relevance of prior convictions and effect of Vasile giving evidence about remorse – Appeals dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant Bonacci	Mr P J Matthews	Marich Legal Pty Ltd
For the Appellant Vasile	Mr M J Croucher SC	Robert Stary Lawyers
For the Respondent	Mrs C M Quin	Mr C Hyland, Solicitor for Public Prosecutions

NEAVE JA
MANDIE JA

HARPER JA:

At some point in their lives most people probably try, with some success, to imagine what it would be like. It is dark, because sunrise is hours away. A masked stranger is at the end of the bed. His or her mere presence (although the presence is seldom that of a female) is more than a direct and immediate violation of one’s privacy – it is a massive insult to one’s sense of self. And its inherent menace is magnified when physical harm is threatened; or, worse, inflicted.

This was the reality for Mr Dennis Antonopoulos and his wife Akridi Antonopoulos in the early hours of Monday 19 April 2010. They were elderly. They were asleep upstairs when two intruders, the present appellants, used a crowbar to force open the front door of their home. In addition to the crowbar, the intruders were armed with an unloaded sawn-off double-barrel shotgun and a hunting knife. Both were wearing black beanies, pulled over their faces. After a day spent drinking…

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 Bonacci v The Queen

Details

AGLC: Bonacci v The Queen; Vasile v The Queen [2012] VSCA 170
Case: [2012] VSCA 170
Decision Date: 3 August 2012

CaseChat Overview and Summary

The appellants, Vasile Bonacci and another individual, were convicted of multiple serious criminal offences, including aggravated burglary, common assault, and armed robbery. They were also found guilty of being a prohibited person in possession of an unregistered firearm and possession of a prohibited substance. The case was heard in the Court of Appeal of the Supreme Court of Victoria. The primary dispute in the case centred on whether the sentencing judge made an error in considering the presence of other individuals at the premises during the aggravated burglary when determining the sentence for this offence. This was a significant issue given that the indictment did not explicitly state that the offenders knew or expected that people would be present.

The legal issues before the court involved the interpretation and application of sentencing principles, particularly in relation to aggravated burglary. The appellants argued that the sentencing judge erred in taking into account the presence of other individuals during the burglary, as this was not specified in the indictment. They contended that the absence of this detail in the indictment should have precluded the sentencing judge from considering it in determining the appropriate sentence. Additionally, the court needed to address whether the sentences imposed were proportionate and whether the parity between the sentences of the two offenders was justified.

The court examined the sentencing principles and precedents, distinguishing the case from R v De Simoni and R v Newman and Turnbull. It concluded that the sentencing judge did not err in considering the presence of other individuals at the premises. The court found that the totality of the circumstances and the nature of the offences warranted a sentence that reflected the seriousness of the crimes. The sentencing judge was entitled to consider all relevant factors, including the presence of other individuals, in determining the appropriate punishment. Furthermore, the court upheld the parity of the sentences, considering the prospects of rehabilitation, prior convictions, and the effect of one of the offenders giving evidence about remorse. Ultimately, the appeals were dismissed, and the sentences were affirmed.

Orders