De Luca v The King - [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:

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.
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…

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 De Luca v The King

Details

AGLC: De Luca v The King [2023] VSCA 44
Case: [2023] VSCA 44
Decision Date: 9 March 2023

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