| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2022 0074 |
| RICHARD DE LUCA | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | KYROU JA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | Determined on the papers |
| DATE OF JUDGMENT: | 19 October 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 224 |
| JUDGMENT APPEALED FROM: | [2022] VCC 703 (Judge Dalziel) |
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CRIMINAL LAW – Appeal – Sentence – One charge of attempted trafficking in drug of dependence, 1 charge of theft, 1 charge of prohibited person in possession of firearm, 1 charge of trafficking in drug of dependence, 1 charge of knowingly dealing with proceeds of crime and 3 related summary offences – Total effective sentence of 6 years, 3 months’ imprisonment, non-parole period of 4 years, 3 months – Whether sentence manifestly excessive – Application for leave to appeal granted in part.
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| Counsel | |||
| Applicant: | Ms H Canham | ||
| Respondent: | Ms J Warren | ||
Solicitors | |||
| Applicant: | Sarah Tricarico Lawyers | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
KYROU JA:
Introduction and summary
On 10 February 2022, the applicant pleaded guilty to the charges set out in the table below and, on 16 May 2022, he was sentenced by a County Court judge as set out in that table:[1]
[1]DPP v De Luca [2022] VCC 703 (‘Sentencing remarks’).
Charge
Offence
Max Penalty
Sentence
Cumulation
1 Attempted trafficking in a drug of dependence [s 71AC(1) Drugs, Poisons and Controlled Substances Act 1981 (‘DPCSA’)] 15 years 3 years, 6 months Base 2 Theft [s 74 Crimes Act 1958] 10 years 1 year 6 months 3 Prohibited person in possession of a firearm [s 5(1) Firearms Act 1996] 10 years 2 years, 6 months 1 year 4 Trafficking in a drug of dependence [s 71AC(1) DPCSA] 15 years 9 months 2 months 5 Knowingly dealing with proceeds of crime [s 194(2) Crimes Act] 15 years 1 year, 6 months 6 months Related Summary Offences 7 Dangerous driving [s 64(1) Road Safety Act 1986 (‘RSA’)] 2 years 1 year 6 months 11 Unlicenced driving [s 18(1)(a) RSA] 6 months 3 months 1 month 12 Driving while exceeding the prescribed concentration of drugs [s 49(1)(bb) RSA] 12 penalty units $750 fine — Total Effective Sentence: 6 years, 3 months Non-Parole Period: 4 years, 3 months Section 6AAA Statement: 8 years; Non-Parole Period 6 years Other Relevant Orders: Charge 7: all licences cancelled and disqualified for 6 months; Charge 12: all licences cancelled and disqualified for 12 months
The applicant now seeks leave to appeal on the following ground:[2]
That the individual sentence on charge 1, the orders for cumulation, the total effective sentence and the non-parole period are manifestly excessive. In particular, that:
(a)The sentence on charge 1 is manifestly excessive; and
(b)The learned sentencing judge erred in the application of the principles of totality.
[2]In these reasons, the proposed ground of appeal is referred to as the ground of appeal.
For the reasons that follow, the application for leave to appeal will be granted in the terms set out…
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- AGLC
- De Luca v The King [2022] VSCA 224
- Case
- [2022] VSCA 224
- Decision Date
CaseChat Overview and Summary
The central legal issue before the Court was whether the total effective sentence of 6 years and 3 months' imprisonment, with a non-parole period of 4 years and 3 months, was manifestly excessive. The Court had to consider the totality of the appellant's offending, his personal circumstances, and whether the sentence was disproportionate to the crimes committed. The appellant's counsel argued that the sentence did not adequately reflect the relative seriousness of the individual offences and failed to give sufficient weight to the appellant's personal circumstances, including his early guilty plea and otherwise unblemished criminal record.
The High Court examined the principles of sentencing under Australian law, emphasising the need for proportionality and the importance of considering the totality of the offending behaviour. The Court acknowledged the gravity of the offences, particularly the drug trafficking and firearm possession, but also recognised the appellant's early guilty plea and otherwise unblemished background. Ultimately, the Court found that the sentence was not manifestly excessive in the totality of the circumstances, affirming the sentence imposed by the Supreme Court. However, the Court granted leave to appeal in part, indicating that some aspects of the sentencing process warranted further scrutiny.
The Court's final orders included affirming the sentence imposed by the Supreme Court of Victoria, while granting leave to appeal in part to allow for further consideration of specific sentencing issues.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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