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David Dughetti v The Queen

David Dughetti v The Queen

Case [2019] VSCA 217 2 October 2019

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0150

DAVID DUGHETTI	Appellant
V
THE QUEEN	Respondent

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JUDGES:	TATE AP, WEINBERG JA and TINNEY AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 September 2019
DATE OF JUDGMENT:	2 October 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 217
JUDGMENT APPEALED FROM:	DPP v Dughetti (Unreported, County Court of Victoria, Judge Stuart, 4 July 2018)

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CRIMINAL LAW – Sentence – Aggravated burglary, handling stolen goods, theft, dangerous or negligent driving while being pursued by police, causing injury recklessly, damaging property – Further 18 summary offences – Offences committed whilst on bail – Offender aged 22 at time of conduct – Pleas of guilty – Sentenced to a total effective sentence of 8 years and 8 months’ imprisonment – Non-parole period of 5 years and 6 months – Sentence to be served in addition to earlier sentence for breach of community correction order – Manifest excess – Totality – Whether circumstances of aggravated burglary rendered it a less serious instance of offence – Whether insufficient weight given to steps taken towards rehabilitation whilst on remand and to prospects of rehabilitation – Total effective sentence a function of the sheer number of crimes committed by the appellant, and the resultant number of charges he faced – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms E Clark	Balmer & Associates
For the Respondent	Mr P Bourke	Mr J Cain, Solicitor for Public Prosecutions

TATE AP
TINNEY AJA:

Introduction

In April 2018, the appellant pleaded guilty before a judge in the County Court to 13 charges contained on two indictments, and to 18 related summary offences.

On 4 July 2018, the judge sentenced the appellant to be imprisoned for eight years and eight months, with a non-parole period of five years and six months, according to the following table:

Charge Offence Maximum Penalty Sentence Cumulation

Indictable offences:

1 Dangerous or negligent driving while being pursued by police 3 years 20 months 6 months

1 Theft 10 years 3 months 1 month

2 Handling stolen goods 15 years 3 months 1 month

3 Causing injury recklessly 5 years 9 months 3 months

4 Theft 3 years 12 months 4 months

5 Dangerous or negligent driving while being pursued by police 3 years 15 months 6 months

6 Theft 10 years 12 months 4 months

7 Conduct endangering persons 5 years 2 years 6 months 10 months

8 Damaging property 10 years 9 months 3 months

9 Damaging property 10 years 3 months -

10 Aggravated burglary 25 years 4 years 2 months Base

11 Theft 10 years 12 months 4 months

12 Handling stolen goods 15 years 3 months 1 month

Summary offences:

51 Commit indictable offence whilst on bail 30 penalty units and/or 3 months 2 months 2 months
Aggregate S.1

52 Driving whilst disqualified 240 penalty units and/or 2 years 2 months 2 months
Aggregate S.2

53 Contravene conduct condition of bail 30 penalty units and/or 3 months 2 months 2…

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 David Dughetti v The Queen

Details

AGLC: David Dughetti v The Queen [2019] VSCA 217
Case: [2019] VSCA 217
Decision Date: 2 October 2019

CaseChat Overview and Summary

In the case of David Dughetti v The Queen, the appellant, David Dughetti, was convicted of multiple criminal offences including aggravated burglary, handling stolen goods, theft, dangerous or negligent driving while being pursued by police, causing injury recklessly, and damaging property. Additionally, Dughetti faced 18 summary offences. These offences were committed while he was on bail. The appellant, who was 22 years old at the time of the conduct, entered pleas of guilty to all charges. The court sentenced him to a total effective term of 8 years and 8 months’ imprisonment, with a non-parole period of 5 years and 6 months. This sentence was to be served in addition to an earlier sentence for breach of a community correction order. Dughetti appealed against the severity of the sentence, arguing that the totality principle should have been applied more rigorously, and that the court had not sufficiently taken into account his steps towards rehabilitation while on remand and his prospects of rehabilitation.

The primary legal issue before the court was whether the sentence imposed was manifestly excessive under the totality principle. Dughetti contended that the nature of the aggravated burglary did not make it a particularly serious instance of the offence, and that insufficient weight had been given to his efforts towards rehabilitation and his prospects of rehabilitation. The court needed to assess whether the total effective sentence was a function of the sheer number of crimes committed by the appellant, and the resultant number of charges he faced. Additionally, the court had to consider whether the circumstances of the aggravated burglary warranted a different assessment of the seriousness of the offence.

The court held that the sentence was not manifestly excessive. It reasoned that the totality of the appellant's criminal conduct warranted a significant sentence. The court noted the seriousness of the offences, including the fact that they were committed while Dughetti was on bail. The court also acknowledged the appellant's efforts towards rehabilitation but found that these did not significantly mitigate the severity of his criminal behaviour. The court concluded that the total effective sentence was a function of the number and nature of the crimes committed, and that the sentence imposed was appropriate in light of the totality principle. The appeal was dismissed.

The court did not make any further orders beyond dismissing the appeal against the sentence. The appellant was to serve the sentence imposed by the trial judge, with the non-parole period set at 5 years and 6 months.

Orders