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Debono v The Queen

Debono v The Queen

Case [2016] VSCA 16 19 February 2016

Aggravated Burglary

Sentencing

Community Correction Order

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0191

MICHAEL DEBONO	Applicant
v
THE QUEEN	Respondent

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JUDGES:	WEINBERG and McLEISH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 February 2016
DATE OF JUDGMENT:	19 February 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 16
JUDGMENT APPEALED FROM:	DPP v Debono (Unreported, County Court of Victoria, Judge Hannan, 30 June 2015)

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CRIMINAL LAW – Application for leave to appeal – Sentence – Aggravated burglary, conspiracy to commit aggravated burglary and theft – Sentenced to 2 years’ imprisonment and 3 year community correction order with conditions – No non-parole period fixed – Statutory requirement to fix non-parole period – Sentencing discretion miscarried – Resentenced to 22 months’ imprisonment and 3 year community correction order with conditions – Sentencing Act 1991 s 11.

CRIMINAL LAW – Sentence – Community correction order – Combination sentence – Whether non-parole period should be fixed with community correction order – Sentencing Act 1991 ss 11, 44 – Boulton v The Queen [2014] VSCA 342; Deng-Mabior v The Queen [2015] VSCA 179; Baldwin v The Queen [2015] VSCA 299.

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APPEARANCES:	Counsel	Solicitors
For the Applicant:	Mr J D Kantor	Theo Magazis & Associates
For the Crown:	Ms F L Dalziel	Mr J Cain, Solicitor for Public Prosecutions

WEINBERG JA
McLEISH JA:

The applicant (now aged 31) pleaded guilty to one charge of aggravated burglary, one charge of conspiracy to commit aggravated burglary and two charges of theft. He was sentenced in the County Court on 30 June 2015 as follows:

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1	Aggravated Burglary [Crimes Act 1958 s 77(1)]	25 years [Crimes Act 1958 s 77(2)]	18 months’ imprisonment and 3 year CCO	Base
2	Theft [Crimes Act 1958 s 74]	10 years [Crimes Act 1958 s 74(1)]	3 year CCO
3	Conspiracy to commit Aggravated Burglary [Crimes Act 1958 ss 77(1) and 321(1)]	25 years [Crimes Act 1958 ss 77(2) and 321C(1)©]	18 months’ imprisonment and 3 year CCO	6 months’ imprisonment
4	Theft	10 years	3 year CCO
Total Effective Sentence:		2 years’ imprisonment and 3 year Community Correction Order
Non-Parole Period:		N/A
Pre-sentence Detention Declared:		80 days
6AAA Statement:		6 years’ imprisonment with a non-parole period of 4 years

The conditions attached to the community correction order (‘CCO’), apart from the mandatory conditions, were that the applicant perform 100 hours of unpaid community work over a period of 3 years, must be under the supervision of a community corrections officer for a period of 3 years, and must undergo assessment and treatment, including testing for drug and alcohol abuse or dependency, and undergo mental health assessment or treatment and participate in programs or courses, as directed.

One of the applicant’s co-offenders, Trent Vitiello, pleaded guilty to aggravated burglary (related to Charge 1) and was sentenced in the County Court to 20 months’ imprisonment. He was also sentenced for a breach of a CCO at the same time.[1]…

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 Debono v The Queen

Details

AGLC: Debono v The Queen [2016] VSCA 16
Case: [2016] VSCA 16
Decision Date: 19 February 2016

CaseChat Overview and Summary

The respondent, Debono, was convicted of aggravated burglary, conspiracy to commit aggravated burglary and theft. The Victorian Court of Appeal was asked to determine the legality of his sentence and to consider whether the original sentencing discretion had miscarried. The court was also asked to consider whether the non-parole period should be fixed with a community correction order.

The court considered whether the trial judge had miscarried in their sentencing discretion and whether the failure to fix a non-parole period was an error of law. The court also considered whether the non-parole period should be fixed with a community correction order. The court examined the relevant sections of the Sentencing Act 1991 and considered relevant case law.

The court determined that the trial judge had miscarried in their sentencing discretion by failing to fix a non-parole period, which was a statutory requirement. The court also determined that the non-parole period should be fixed with the community correction order. The respondent was therefore re-sentenced to 22 months’ imprisonment and a 3 year community correction order with conditions. The court found that the original sentence was manifestly inadequate.

The court ordered that the respondent be re-sentenced to 22 months’ imprisonment and a 3 year community correction order with conditions, with a non-parole period of 11 months fixed with the community correction order.

Orders