Bruno Strangio v The Queen - [2016] VSCA 286

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0197

BRUNO STRANGIO	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST and KYROU JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 November 2016
DATE OF JUDGMENT:	23 November 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 286
JUDGMENT APPEALED FROM:	R v Strangio (Unreported, County Court of Victoria, Judge Chettle, 24 August 2016)

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CRIMINAL LAW – Appeal – Sentence – Judicial monitoring report obtained following plea hearing – Report provided to parties but not referred to by judge – Error in failing to do so – Appeal allowed – Matter remitted to County Court for resentence.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D A Dann QC	Armour Legal
For the Respondent	Ms F L Dalziel	Mr J Cain, Solicitor for Public Prosecutions

PRIEST JA:

Introduction

Two indictments were filed against the applicant in the County Court. The first indictment[1] charged him with obtaining, and attempting to obtain, property by deception; and the second[2] charged him with attempting to pervert the course of justice.
[1]No A12504795.6.
[2]No G10117028.

Following a trial on the first indictment, on 3 August 2016 a jury found the applicant guilty of eight charges of obtaining property by deception[3] (charges 1 to 4, and 6 to 9), and one charge of attempting to obtain property by deception[4] (charge 5). A little over a week later, on 11 August 2016 — which was the first day that the trial on the second indictment was listed to commence — the applicant pleaded guilty to a charge of attempting to pervert the course of justice.[5]
[3]Crimes Act 1958, s 81. The maximum penalty is 10 years’ imprisonment.
[4]Crimes Act 1958, s 321M and s 81. The maximum penalty is five years’ imprisonment.
[5]Attempting to pervert the course of justice is a common law offence. By virtue of s 320 of the Crimes Act 1958, the maximum penalty is 25 years’ imprisonment.

On 24 August 2016, the applicant was sentenced to an aggregate sentence of nine months’ imprisonment on the nine deception charges, and for six months on the charge of attempting to pervert the course of justice. Three months of the sentence on the second indictment was ordered to be served cumulatively with the aggregate sentence on the first. The total effective sentence was thus 12 months’ imprisonment, upon which the judge fixed a non-parole period of six months’ imprisonment.

The applicant sought leave to appeal against the sentence on a ground which asserts that the sentencing discretion miscarried in that the judge ‘failed to have regard to a second Judicial Monitoring Report’.

For the reasons that follow, I would grant leave to appeal and allow the appeal. In the unusual circumstances of this case, I would remit the matter to the County Court for further hearing.

The applicant’s offending

The applicant’s offending may be briefly summarised.

The deception charges

On 11 August 2006, the applicant registered a company named ‘Midland Plant Hire Pty…

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 Bruno Strangio v The Queen

Details

AGLC: Bruno Strangio v The Queen [2016] VSCA 286
Case: [2016] VSCA 286
Decision Date: 23 November 2016

CaseChat Overview and Summary

Bruno Strangio has appealed against his sentence following a conviction for criminal offences, with the matter now before the Court of Appeal. The respondent, The Queen, is represented by the Director of Public Prosecutions. The dispute centres on the correctness of the sentence imposed by the County Court, which the appellant argues was not properly informed by a judicial monitoring report that had been obtained and provided to the parties following the plea hearing.

The central legal issue before the Court of Appeal was whether the County Court erred in failing to refer to the judicial monitoring report when sentencing the appellant. The Court considered whether this omission constituted a significant procedural error that impacted the fairness or appropriateness of the sentence. The appellant argued that the report contained information that could have led to a more lenient sentence, and the court’s failure to consider it was a material error.

The Court of Appeal found that the judicial monitoring report was indeed a significant document that the sentencing judge should have considered. The report contained critical information about the appellant's background, which could have influenced the sentence imposed. The court held that the failure to refer to this report was a significant procedural error that undermined the fairness of the sentencing process. Consequently, the Court of Appeal allowed the appeal and remitted the matter to the County Court for resentencing, ensuring that the judicial monitoring report is properly considered in the new sentencing process.

Orders