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Comensoli v The Queen

Comensoli v The Queen

Case [2020] VSCA 2 30 January 2020

Appeal

Sentencing

Aggravated & Exemplary Damages

Specific Deterrence

Community Protection

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2019 0218

BILLIE COMENSOLI	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P and WHELAN JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 January 2020
DATE OF JUDGMENT:	30 January 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 2
JUDGMENT APPEALED FROM:	[2019] VCC 1741 (Judge Wraight)

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CRIMINAL LAW – Appeal – Sentence – Aggravated burglary and related dishonesty offences – Forced entry into victim’s home – Intent to steal – Victim present with two young children – Applicant on bail – Extensive history of drug–related offending – Prior conviction for aggravated burglary – Total effective sentence 3 years and 3 months, non-parole period 1 year and 3 months – Whether individual sentence of 3 years and resulting non-parole period manifestly excessive – No error in assessment of seriousness – Specific deterrence and community protection – Sentence within range – Leave to appeal refused – Hogarth v The Queen (2012) 37 VR 658; [2012] VSCA 302, DPP v Meyers (2014) 44 VR 486; [2014] VSCA 314 considered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Portelli	C Marshall & Associates
For the Respondent	Ms D Piekusis QC	Ms A Hogan, Acting Solicitor for Public Prosecutions

MAXWELL P
WHELAN JA:

Summary

The applicant pleaded guilty to five charges of theft, one charge of intentionally damage property, one charge of aggravated burglary, one charge of dishonestly handling stolen goods and related summary offences. He was sentenced to a total effective sentence of 3 years and 3 months’ imprisonment, with a non-parole period of 1 year and 8 months’ imprisonment.

The base sentence was the sentence of 3 years’ imprisonment imposed on the charge of aggravated burglary. It is that sentence to which the application for leave to appeal is directed. The principal complaint is that the judge erred in his assessment of the seriousness of the offence.

For reasons which follow, leave to appeal must be refused. The sentencing judge was right to treat this as a serious instance of aggravated burglary. The applicant entered the premises by force, at night, aware that someone was likely to be at home. The householder lived there with her two young children. She was in bed when she saw a shadow near the door. She then saw the applicant with her purse in his mouth and screamed. As his Honour said, the applicant’s actions ‘resulted in what would have been a very frightening experience for the victim’.[1]
[1]DPP v Comensoli [2019] VCC 1741, [27] (‘Reasons’).

This was, in many respects, the archetypal aggravated burglary. The offender makes a forced entry to premises at night, intending to steal, well aware that there are likely to be persons present. It is the kind of offending which strikes terror into the hearts of members of the community.

The sentence of 3 years’ imprisonment must be regarded as lenient, in our view, given what was said in Hogarth v The Queen[2] and Director of…

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 Comensoli v The Queen

Details

AGLC: Billie Comensoli v The Queen [2020] VSCA 2
Case: [2020] VSCA 2
Decision Date: 30 January 2020

CaseChat Overview and Summary

In the matter of Comensoli versus The Queen, the defendant appealed against the sentence imposed for aggravated burglary and related dishonesty offences, committed under circumstances that included forced entry into the victim's home while the victim was present with two young children. The applicant had a significant history of drug-related offending and a prior conviction for aggravated burglary. The trial judge sentenced the applicant to a total effective sentence of 3 years and 3 months, with a non-parole period of 1 year and 3 months. The applicant contended that the individual sentence and the resulting non-parole period were manifestly excessive.

The central legal issues that the court had to address were whether the sentence imposed was manifestly excessive, and whether the trial judge had erred in assessing the seriousness of the offence. The court needed to consider the principles of specific deterrence and community protection, and whether the sentence fell within the appropriate range for the crimes committed. The court referred to previous cases such as Hogarth v The Queen and DPP v Meyers to assist in its reasoning.

The court found that there was no error in the trial judge's assessment of the seriousness of the offence, and that the sentence was within the appropriate range. The court took into account the specific deterrence and community protection factors, and determined that the sentence was proportionate to the crimes committed. The court also considered the applicant's history of drug-related offending and prior conviction for aggravated burglary. The appeal against sentence was dismissed, and leave to appeal was refused. The final orders of the court were that the sentence imposed by the trial judge was upheld.

Orders