Campisi v The Queen - [2010] VSCA 183

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0968

GIUSEPPE CAMPISI
	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P, BONGIORNO JA and BEACH AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 July 2010
DATE OF JUDGMENT:	12 July 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 183
JUDGMENT APPEALED FROM:	R v Latorre, Mantovani and Campisi (Unreported, County Court of Victoria, Judge Hampel, 10 December 2009)

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CRIMINAL LAW – Appeal – Sentence – Blackmail – Judge sentenced on basis different from Crown opening – No notice to defence – Breach of natural justice – No different sentence should have been passed – Appeal dismissed – Crimes Act 1958 (Vic) s 568(4)

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr R I Gipp	Riordan Legal Pty Ltd
For the Crown	Mr T Gyorffy	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P
BONGIORNO JA
BEACH AJA:

This is an application for leave to appeal against sentence. There is also an application for reinstatement of the application for leave. For reasons which follow, we have concluded that the application for reinstatement should be granted; the application for leave to appeal sentence should be granted; and the appeal should be treated as having been instituted and heard instanter and dismissed.

The applicant pleaded guilty to two counts; one of blackmail and the other of possession of drugs of dependence. Her Honour Judge Hampel sentenced him on the count of blackmail to two years and six months’ imprisonment, of which one year and six months was suspended for one year and six months. On the count of possession, her Honour imposed a fine of $500.

This application for leave to appeal relates only to the sentence imposed on the blackmail count. The circumstances of the offending were as follows.

Mr Paskins (the victim) was a former employee of the Ymer family’s fruit business, ‘Fruit Ace’. When he left their employ he set up a wholesale fruit and vegetable business at Melbourne Wholesale Fruit & Vegetable Market in Footscray. The Ymer family were unhappy about the circumstances in which he had left, and wrote to Mr Paskins expressing their concerns, and stating they were $150,000 short as a result. No request for repayment was made, nor any allegation that he owed them money. A few days later the applicant and Mantovani (one of the co-accused) approached Mr Paskins at his market stall in Footscray, stated that he owed the Ymer family money and threatened him. They eventually left when market security arrived.

Specific error: breach of natural justice

Grounds 1 and 2 of the application for leave to appeal assert that the sentencing judge erred in relying on facts and circumstances as aggravating features for sentencing purposes by having regard to matters which went beyond the facts stated in the Crown opening at the plea hearing.

In our view that ground should be upheld. We need only deal for this purpose with that part of the ground which draws attention to the statements…

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 Campisi v The Queen

Details

AGLC: Campisi v The Queen [2010] VSCA 183
Case: [2010] VSCA 183
Decision Date: 12 July 2010

CaseChat Overview and Summary

In the matter of Campisi versus The Queen, the appellant, Mr Campisi, sought to appeal his sentence for blackmail, contending that the judge's sentence was unjust due to a perceived breach of natural justice. The case was heard in the Court of Appeal, where the appellant's legal team argued that the sentence was imposed without proper notice to the defence and deviated from the Crown's initial sentencing proposal. The central issue before the court was whether the judge's imposition of a sentence different from that proposed by the Crown, without notifying the defence, constituted a breach of natural justice, thereby rendering the sentence unjust and warranting an appeal.

The court examined the legal principles surrounding natural justice and sentencing, particularly the requirement for both parties to be aware of the sentencing considerations and to have an opportunity to address them. The appellant's counsel contended that the judge's decision to impose a sentence not aligned with the Crown's proposal, without prior notice, was a fundamental procedural error. However, the court found that while the judge had indeed sentenced on a basis different from that initially proposed by the Crown, the statute provided sufficient authority to allow such a deviation. The court emphasised that the discretion to impose a sentence within the statutory limits was not constrained by the Crown's original proposal, provided the defence was afforded a fair opportunity to address the sentencing considerations.

In delivering its judgment, the court noted that although the judge's approach could have been more transparent, there was no substantive breach of natural justice that invalidated the sentence. The court held that the judge's discretion to impose a sentence within the statutory framework was not circumscribed by the Crown's initial proposal, and the defence had been given an adequate opportunity to respond to the sentencing issues. Consequently, the appeal was dismissed, and the original sentence was upheld. The court did not see fit to alter the sentence imposed by the trial judge, maintaining that the statutory provisions allowed for such discretion.

Orders