De Luca v The King

Case [2023] VSCA 44


SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0074
RICHARD DE LUCA Appellant
v
THE KING Respondent

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JUDGES: TAYLOR and KAYE JJA
WHERE HELD: Melbourne
DATE OF HEARING: 1 March 2023
DATE OF JUDGMENT: 9 March 2023
MEDIUM NEUTRAL CITATION: [2023] VSCA 44
JUDGMENT APPEALED FROM: [2022] VCC 703 (Judge Dalziel)

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CRIMINAL LAW – Appeal – Sentence – Indictment charges of attempted trafficking in a drug of dependence, trafficking in a drug of dependence, being a prohibited person in possession of a firearm, theft and knowingly dealing with the proceeds of crime – Summary offences of dangerous driving, unlicenced driving, and driving while exceeding the prescribed concentration of drugs – Early guilty plea – Appellant sentenced to 6 years and 3 months’ imprisonment with a non-parole period of 4 years and 3 months – Whether the judge erred in the application of the principal of totality – Whether sentence manifestly excessive – Appeal dismissed.  

Akoka v The Queen [2017] VSCA 214; DPP (Commonwealth) v Maxwell (2013) 228 A Crim R 218; Clarkson v The Queen (2011) 32 VR 361; DPP v Macarthur [2019] VSCA 71; Mill v The Queen (1988) 166 CLR 59; Director of Public Prosecutions v Grabovac [1998] 1 VR 664; Director of Public Prosecutions v Jones (2013) 40 VR 267; Worboyes v The Queen [2021] VSCA 169.

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Counsel

Appellant: Mr R Nathwani and Ms H Canham
Respondent: Ms J Warren

Solicitors

Appellant: Sarah Tricarico Lawyers
Respondent: Ms A Hogan, Solicitor for Public Prosecutions

TAYLOR JA
KAYE JA:

  1. In February 2022, the appellant pleaded guilty in the County Court to five charges on an indictment, namely, attempted trafficking in a drug of dependence, trafficking in a drug of dependence, being a prohibited person in possession of a firearm, theft and knowingly dealing with the proceeds of crime. He also pleaded guilty to three related summary offences, namely, dangerous driving, unlicenced driving, and driving while exceeding the prescribed concentration of drugs.

  2. After a plea made on his behalf, the appellant was sentenced to a total effective sentence of 6 years and 3 months’ imprisonment with a non-parole period of 4 years and 3 months. That sentence was constituted as follows:

Charge on Indictment

Offence

Max Penalty

Sentence

Cumulation

1 Attempting to traffick in a drug of dependence 15 years 3 years and 6 months Base
2 Theft 10 years 1 year 6 months
3 Prohibited person possess a firearm 10 years 2 years and 6 months 12 months
4 Traffick in a drug of dependence 15 years 9 months 2 months
5 Knowingly deal with proceeds of crime 15 years 18 months 6 months
RSO Drive in a manner dangerous 2 years 12 months 6 months
RSO Drive whilst unlicenced 6 months 3 months 1 month
RSO Drive motor vehicle while exceeding prescribed drug concentration 12 penalty units $750 fine –
Total Effective Sentence: 6 years and 3 months’ imprisonment
Non-Parole Period: 4 years…

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De Luca v The King [2023] VSCA 44
Case
[2023] VSCA 44
Decision Date

CaseChat Overview and Summary

In De Luca v The King, the appellant, De Luca, faced multiple charges including attempted trafficking in a drug of dependence, trafficking in a drug of dependence, being a prohibited person in possession of a firearm, theft, and dealing with the proceeds of crime. Additional charges involved dangerous driving, unlicenced driving, and driving while exceeding the prescribed concentration of drugs. The case was heard in the Supreme Court of Victoria where De Luca appealed against his sentence, arguing that the judge had erred in applying the principle of totality and that the sentence was manifestly excessive.

The court needed to determine whether the judge correctly applied the principle of totality in sentencing and whether the overall sentence was excessive, considering all charges and the appellant's early guilty plea. The principle of totality ensures that the cumulative effect of multiple sentences is considered to avoid undue punishment. The court also had to weigh the nature and gravity of the offences against the appellant's culpability and any mitigating factors.

The court found that the judge had appropriately considered the principle of totality in arriving at the sentence. It held that the sentence was not manifestly excessive, taking into account the totality of the offences, the appellant’s early guilty plea, and other relevant factors. The court also noted the seriousness of the offences, particularly those involving drugs and firearms, and the appellant's criminal history. In light of these considerations, the court dismissed the appeal.

The final orders confirmed the sentence of 6 years and 3 months’ imprisonment with a non-parole period of 4 years and 3 months. The court upheld the original sentence, affirming that it was proportionate to the severity of the offences committed.

Orders

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