De Luca v The King - [2022] VSCA 224

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…

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 [2022] VSCA 224
Case: [2022] VSCA 224
Decision Date: 19 October 2022

CaseChat Overview and Summary

The appellant, De Luca, was convicted and sentenced in the Supreme Court of Victoria on multiple charges including attempted trafficking in a drug of dependence, theft, possession of a firearm by a prohibited person, trafficking in a drug of dependence, and knowingly dealing with the proceeds of crime. De Luca was also convicted on three related summary offences. The case was heard on appeal in the High Court of Australia, where the appellant contested the severity of the sentence imposed, arguing it was manifestly excessive.

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