Cini v The Queen - [2013] VSCA 115

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0294

ANTHONY CINI

THE QUEEN

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JUDGES:	MAXWELL ACJ and BUCHANAN JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 May 2013
DATE OF JUDGMENT:	7 May 2013
MEDIUM NEUTRAL CITATION:	[2013] VSCA 115 1^st revision 4 June 2013 para 19
JUDGMENT APPEALED FROM:	Unreported, County Court of Victoria, Judge Rizkalla, Date of Sentence 28 November 2012

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009

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CRIMINAL LAW – Sentence – Kidnapping and recklessly causing serious injury – Finding that offender struck the victim arguably made in error – Parity – Co-offender entitled to a significant discount for co-operation with the authorities – Total effective sentence of four years’ imprisonment with a minimum term of two years and six months’ imprisonment appropriate – Appeal dismissed – No point of principle.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P J Doyle	Revill & Papa Lawyers
For the Respondent	Mr T Gyorffy SC	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL ACJ:

I will invite Buchanan JA to deliver the first judgment.

BUCHANAN JA:

The applicant was arraigned in the County Court and pleaded guilty to an indictment containing one charge of kidnapping and one charge of recklessly causing serious injury.

After a plea, the applicant was sentenced to be imprisoned for a term of three years on the charge of kidnapping and for a term of two years on the charge of recklessly causing serious injury. One year of the sentence imposed on the charge of recklessly causing serious injury was cumulated on the sentence imposed on the charge of kidnapping, creating a total effective sentence of four years’ imprisonment. A non-parole period of two years and six months was fixed.

The offences arose from drug dealings. One of the applicant’s co-offenders, one Eychens, claimed he had lost approximately $7,000 and wanted ‘compensation’ from the victim.

After demands were made, the victim attended Eychens’ house. The applicant and five other people were present. The victim was told he was not allowed to leave until he paid his debt. That night, the victim’s father received a call to say that the victim had been taken hostage and would not be safely returned until $7,000 had been paid. The victim was subjected to various acts of humiliation and torture. He was punched, hit with poles and a wheel rim, whipped with electric cables, had paint poured on his head, was kicked and spat upon by those in the group, and made to wear a maid’s outfit.

As a result of the attack, the victim suffered extensive bruising, abrasions, cuts and welts on his body. The victim’s hands were bound with duct tape and he spent the night in the boot of a car.

The applicant was arrested the next day at a shopping centre where the group had arranged to meet the victim’s grandfather in order to obtain payment of the…

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 Cini v The Queen

Details

AGLC: Cini v The Queen [2013] VSCA 115
Case: [2013] VSCA 115
Decision Date: 7 May 2013

CaseChat Overview and Summary

In the case of Cini v The Queen, the appellant, Cini, was convicted of kidnapping and recklessly causing serious injury. The case was heard in the High Court of Australia. The primary issue was whether the trial judge erred in finding that the appellant had struck the victim, leading to a particular sentencing outcome. An additional matter was whether the total effective sentence of four years' imprisonment, with a minimum term of two years and six months' imprisonment, was appropriate.

The court examined the trial judge's finding that Cini struck the victim, acknowledging that this finding was arguably made in error. However, it was determined that any error did not impact the overall sentencing outcome. The court also assessed the co-offender's significant discount for cooperation with the authorities. It was concluded that the total effective sentence was appropriate, considering the nature and circumstances of the offence, as well as the need for general deterrence.

The appeal was dismissed by the High Court, as it found no point of principle or error in the primary judge's sentencing decision. The court emphasised the importance of the trial judge's discretion in sentencing, and that the overall sentence was fair and proportionate to the crimes committed. The final orders of the court affirmed the sentence imposed by the trial judge, with no changes or amendments made to the original decision.

Orders