Cini v The Queen

[2013] VSCA 115

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0294

ANTHONY CINI

v

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                 1st 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:

1. I will invite Buchanan JA to deliver the first judgment.

BUCHANAN JA:

1. 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.

1. 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.

1. 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. 

1. 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. 

1. 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.

1. 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 ransom.  The applicant was charged on the basis that he was present and aided and abetted the others throughout the whole incident. 

1. The applicant is 40 years’ old.  He left school after completing year 9.  The applicant was variously employed by a company making security doors, by Boral Bricks, as a pastry cook and as a crowd controller.

1. The applicant had 14 prior convictions, including convictions for attempted burglary, resisting police, false imprisonment, offences of dishonesty and drug offences.

1. At the age of 14 years, the applicant began smoking cannabis, which he used daily.  By the age of 17 years, the applicant was using heroin.  The applicant only ceased to use heroin three years ago.

1. At the age of 19 years the applicant formed a relationship with an older woman by whom he had a daughter.  The relationship ended but the applicant still sees his daughter.

1. The applicant was arrested at the end of 2011 and has been in prison since then, but in that time he received two other sentences of imprisonment, one of six months and the other of two months.  The sentencing judge took those periods of incarceration into account in applying the principle of totality.

1. The applicant seeks leave to appeal against the sentence.  The grounds of the application are:

1.The learned sentencing judge erred in finding that the applicant had physically struck the victim when this was not specifically alleged by the Crown and where there was insufficient evidence to sustain such finding.

2.The learned sentencing judge erred by failing to give proper weight to the parity principle.

3.The individual sentences, the total effective sentence and the non-parole period are manifestly excessive.

1. In the course of her sentencing remarks, her Honour said the victim had said ‘he was hit by you, Mr Cini, several times’.  The prosecutor did not allege that the applicant had assaulted the victim.  The only material capable of supporting the sentencing judge’s conclusion was a somewhat equivocal statement by the victim, ‘I might have had got one or two slaps from Tony’.

1. Counsel for the respondent said that the finding appeared to be the result of defence counsel taking the sentencing judge to part of the statement of the victim and her Honour appeared to have regarded this as a concession by defence counsel.  Counsel went on to submit that, if there was an error, it was of little consequence, for the sentencing judge treated the applicant as part of an assault made in concert upon the victim. 

1. Counsel for the applicant at the plea recited the victim’s statement, that ‘I might have got one or two slaps from Tony’, and said that was ‘the closest there comes to being a direct allegation of an act by Mr Cini which would be said to constitute an assault in the circumstances’.

1. I would not be inclined to construe counsel’s statement as an admission.  On the other hand, if her Honour did proceed upon the basis that a concession had been made, she was unlikely to have considered whether an aggravating circumstance was proved beyond reasonable doubt. 

1. In my view the point is at least arguable that the sentencing judge erred and that the error was material to the exercise of her sentencing discretion.  Accordingly, I would grant leave to appeal.  It is, however, another question whether, if there was specific error, a different sentence should be passed.

1. The ground as to parity depends upon the head sentence of 18 months’ imprisonment with a minimum term of six months’ imprisonment imposed upon a co-offender, Presilski.  In my view the disparity is readily explained by the fact that Presilski co-operated with the police from the outset, made a statement implicating his co-offenders and gave an undertaking to give evidence in accordance with the statement and was serving his sentence of imprisonment in protective custody.  The importance of encouraging and rewarding co-operation of this type is readily apparent from the decided cases and in my view warranted the disparity in the sentences meted out to the applicant and his co-offender.  The prosecutor described the undertaking given by Presilski as ‘significant’ and advanced a range of head sentences between 12 and 18 months and a range of minimum terms between six and nine months.  Even allowing for the perhaps more active role played by Presilski, in my opinion, there was no breach of the parity principle.

1. Pursuant to the third ground of the application, counsel for the applicant relied upon the early pleas of guilty, the level of involvement of the applicant in the offending as compared with that of his co-offenders and the statutory presumption of concurrency of sentences in a case involving one course of conduct.  It was also contended that the effect of the other sentences imposed upon the applicant breached the principle of totality.

1. The sentencing judge found that the pleas of guilty ‘were not necessarily at the first opportunity’ and that there was a strong Crown case.  The sentencing judge was alive to the mitigating circumstances relied upon by the applicant and carefully considered the question of totality.  Her Honour proceeded upon the basis that the applicant was apparently wholeheartedly engaged in the protracted and cowardly ill treatment meted out to the victim.  In my opinion she was entitled to do so.  The offending was serious indeed and the applicant’s record of prior offences was significant.  Even if her Honour did err in concluding that the applicant struck the victim, I think the sentence she imposed was appropriate.

1. Accordingly, I would dismiss the appeal.

MAXWELL ACJ:

1. I agree. 

1. The orders of the Court are as follows: 

1.        Application for leave to appeal granted.

2.        The appeal is taken to have been instituted and heard instanter and dismissed.

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