Dante Morello (a pseudonym)[1] v The Queen - [2021] VSCA 225

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0054

DANTE MORELLO (a pseudonym)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure there is no possibility of identification of the victim of sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the applicant’s name.

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JUDGE:	McLEISH JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	20 August 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 225
JUDGMENT APPEALED FROM:	[2020] VCC 1835 (Judge Marich)

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CRIMINAL LAW – Leave to appeal – Sentence – Five counts of indecent act with child – Applicant treated as victim’s father – Offending spanning seven years – Various uncharged acts – Escalating and demeaning sexual abuse – Fundamental and damaging breach of parental trust and responsibility – Total effective sentence of 3 years and 6 months’ imprisonment with non-parole period of 2 years and 3 months – Whether sentences manifestly excessive – Serious offending – Sentences within available range even accounting for mitigatory factors – Whether error in imposing same sentence for charges said to differ in seriousness – No error shown – Any error would not have affected order for cumulation – Whether failure to consider combination sentence – No error shown – Leave to appeal refused.

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WRITTEN SUBMISSIONS:	Counsel	Solicitors
For the Applicant	Mr J Lavery	Ann Valos Criminal Law
For the Respondent	Ms E Drake	Ms A Hogan, Solicitor for Public Prosecutions

McLEISH JA:

On 9 November 2020, before a judge of the County Court, the applicant pleaded guilty to five charges of an indecent act with a child under the age of 16.[2]
[2]Contrary to Crimes Act 1958 s 47(1), as it existed at the time of the offences.

On 18 November 2020, he was sentenced as follows:[3]
[3]DPP v Morello (a pseudonym) [2020] VCC 1835 (‘Sentencing Remarks’).

Charge on Indictment Offence Maximum Sentence Cumulation

1. Indecent act with a child under the age of 16 10 years’ imprisonment 18 months’ imprisonment 3 months

2. Indecent act with a child under the age of 16 10 years’ imprisonment 12 months’ imprisonment 2 months

3. Indecent act with a child under the age of 16 10 years’ imprisonment 12 months’ imprisonment 1 month

4. Indecent act with a child under the age of 16 10 years’ imprisonment 2 years and 6 months’ imprisonment Base

5. Indecent act with a child under the age of 16 10 years’ imprisonment 2 years and 6 months’ imprisonment 6 months

Total Effective Sentence: 3 years and 6 months’ imprisonment

Non-Parole Period: 2 years and 3 months’ imprisonment

Pre-sentence Detention Declared: Nil

Section 6AAA Statement: 4 years and 3 months’ imprisonment with a non-parole period of 3 years

Other Relevant Orders: Sentenced as a serious sexual offender in respect of charges 3, 4 and 5.

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1.	Indecent act with a child under the age of 16	10 years’ imprisonment	18 months’ imprisonment	3 months
2.	Indecent act with a child under the age of 16	10 years’ imprisonment	12 months’ imprisonment	2 months
3.	Indecent act with a child under the age of 16	10 years’ imprisonment	12 months’ imprisonment	1 month
4.	Indecent act with a child under the age of 16	10 years’ imprisonment	2 years and 6 months’ imprisonment	Base
5.	Indecent act with a child under the age of 16	10 years’ imprisonment	2 years and 6 months’ imprisonment	6 months
Total Effective Sentence:	3 years and 6 months’ imprisonment
Non-Parole Period:	2 years and 3 months’ imprisonment
Pre-sentence Detention Declared:	Nil
Section 6AAA Statement:	4 years and 3 months’ imprisonment with a non-parole period of 3 years
Other Relevant Orders:	Sentenced as a serious sexual offender in respect of charges 3, 4 and 5.

The applicant seeks leave to appeal against his sentence on three grounds set out later in these reasons. In my view, none of the grounds has merit and leave…

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.

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Details

Case: [2021] VSCA 225
Decision Date: 20 August 2021

CaseChat Overview and Summary

In the case of Dante Morello (a pseudonym) v The Queen, the applicant sought leave to appeal against his conviction and sentence for five counts of indecent acts with a child under the age of 16. The applicant, represented by counsel, argued that his sentence was manifestly excessive. The Court of Appeal, presided over by the Honourable Justices, was tasked with determining whether the sentences imposed were excessively harsh, whether there was an error in the imposition of the same sentence for charges of differing seriousness, and whether the trial judge failed to consider a combination sentence.

The primary legal issues before the Court of Appeal were whether the sentences imposed by the trial judge were manifestly excessive, whether the trial judge erred in imposing the same sentence for charges of differing seriousness, and whether the trial judge failed to consider a combination sentence. The Court considered the gravity of the offending, the cumulative nature of the sentences, and the available sentencing range.

The Court of Appeal found that the trial judge had appropriately considered the seriousness of the offending, the cumulative nature of the sentences, and the available sentencing range. The Court held that the sentences were within the available range, even when accounting for the various mitigating factors. The Court also found no error in the imposition of the same sentence for charges of differing seriousness, as the trial judge had adequately addressed the differences in the charges. Additionally, the Court found no error in the trial judge's consideration of a combination sentence, as the trial judge had appropriately exercised their discretion in imposing the sentences. Consequently, the Court refused the applicant leave to appeal.

The Court of Appeal did not make any specific orders beyond refusing the applicant leave to appeal. The applicant's conviction and sentence for five counts of indecent acts with a child under the age of 16 remained in place.

Orders