JUDGES:	FERGUSON CJ, MAXWELL P and WEINBERG JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25 July 2019
DATE OF JUDGMENT:	27 August 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 190
JUDGMENT APPEALED FROM:	DPP v Cardamone [2017] VSC 493 (Lasry J)

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CRIMINAL LAW – Appeal – Sentence – Murder – Incitement to Murder – Breach of parole condition – Guilty plea – Life imprisonment without parole – Whether sentencing judge erred in failing to fix minimum term – Whether sentence manifestly excessive – Lack of remorse – Elaborate attempts to conceal offending and avoid responsibility – Previous conviction for rape – Verdins considerations not applicable – Lack of mitigating factors to warrant minimum term – Application for leave to appeal refused – Sentencing Act 1991 s 11(1).

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D A Dann QC	Patrick W Dwyer
with Ms K A Blair
For the Crown	Ms K E Judd QC, Director of Public Prosecutions	Mr J Cain, Solicitor for Public Prosecutions
with Mr P L Bourke

FERGUSON CJ
MAXWELL P
WEINBERG JA:

On 30 June 2017, the applicant pleaded guilty in the Trial Division, sitting at Melbourne, to the following charges:

1.Murder of Karen Maria Chetcuti on 13 January 2016;
2.Incitement to murder the prosecution witness, Edward George, between 22 February 2017 and 30 March 2017.

The applicant was also dealt with for a related summary offence of breaching a prescribed condition of parole, that breach being the murder of Ms Chetcuti. The applicant also pleaded guilty to that charge.

On 25 August 2017, at the Supreme Court sitting in Wangaratta, the applicant was sentenced as follows:

Charge on Indictment Offence Maximum Sentence Cumulation

1 Murder Life Imprisonment [Contrary to Common Law] Life Imprisonment N/A

2 Incitement to Murder Life Imprisonment [Contrary to s 321G of the Crimes Act 1958] 8 years’ imprisonment N/A

3 Breach prescribed term or condition of parole 3 months’ imprisonment [Contrary to s 78A(1) of the Corrections Act 1986] 3 months’ imprisonment N/A

Total Effective Sentence Life Imprisonment

Non-Parole Period: No Order Made

Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991 313 days

Other relevant matters: Pursuant to s 6F of the Sentencing Act 1991 on the charges of murder and incitement to murder the prisoner was sentenced as a serious violent offender.
A disposal order was made pursuant to s 78(1) of the Confiscation Act 1997.

The applicant now seeks leave to appeal against sentence on the following grounds:

Ground 1
The learned sentencing judge erred in failing to fix a non-parole period.
Particulars
(i)The learned judge placed little or no weight upon the submission by the Crown that a non-parole period be fixed.
(ii)The learned judge placed insufficient weight upon the utilitarian value of the plea of guilty.
(iii)The learned judge placed little or no weight upon the plea of guilty…

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 Cardamone v The Queen

Details

AGLC: Cardamone v The Queen [2019] VSCA 190
Case: [2019] VSCA 190
Decision Date: 27 August 2019

CaseChat Overview and Summary

In the case of Cardamone v The Queen, the appellant was convicted of murder, incitement to murder, breach of parole condition, and other related charges. The appellant appealed against his sentence of life imprisonment without parole, arguing that the sentencing judge had erred in not setting a minimum term for his imprisonment. Additionally, he contended that the sentence was manifestly excessive, and that the sentencing judge had failed to consider mitigating factors. The High Court of Australia was tasked with determining whether the appeal should be allowed.

The central legal issues before the court were whether the sentencing judge had erred in not setting a minimum term for the appellant’s imprisonment, and if the sentence was manifestly excessive. The court also considered whether the sentencing judge had failed to take into account mitigating factors that warranted a shorter minimum term. The court was required to examine the Verdins principles to determine if they applied to this case and assess the appellant’s lack of remorse, his elaborate attempts to conceal his offending and avoid responsibility, and his previous conviction for rape.

The court found that the sentencing judge had not erred in failing to set a minimum term for the appellant's imprisonment, as the Verdins considerations did not apply in this case. The court held that there were no mitigating factors present that would warrant a shorter minimum term. The court also found that the sentence was not manifestly excessive, and that the appellant’s lack of remorse, elaborate attempts to conceal his offending and avoid responsibility, and previous conviction for rape were relevant considerations in determining the appropriate sentence. The application for special leave to appeal was dismissed, and the sentence upheld.

Orders