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DPP v Granata

DPP v Granata

Case [2016] VSCA 190 8 August 2016

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0117

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
ALFIO ANTHONY GRANATA	Respondent

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JUDGES:	MAXWELL P, REDLICH and OSBORN JJA
WHERE HELD:	MELBOURNE
DATES OF HEARING:	3 December 2015, 16 March 2016, 25 May 2016
DATE OF JUDGMENT:	8 August 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 190
JUDGMENT APPEALED FROM:	[2015] VCC 699 (Judge Gucciardo)

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CRIMINAL LAW – Appeal – Sentence – Crown appeal – Rape (9), threat to kill (2), threat to inflict serious injury, theft, intentionally causing serious injury, possess drug of dependence (2) – Sentence of 17 years’ imprisonment, non-parole period of 13 years – Individual rape sentences of eight years – Whether sentence manifestly inadequate – Objective gravity of offending – Sustained, violent, worst category offending – Severe impact on victim – Offender affected by methylamphetamine – Whether psychological difficulties contributed – Fresh evidence on resentencing – Appeal allowed – Respondent resentenced to 23 years’ imprisonment with non-parole period of 17 years – Sentencing Act 1991 ss 6B, 6D, 6E.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr G J C Silbert QC with Mr B L Sonnet	Mr John Cain, Solicitor for the Office of Public Prosecutions
For the Respondent	Mr P J Morrissey SC with Mr L J D Howson	Ann Valos Criminal Law

MAXWELL P:

I have had the considerable advantage of reading in draft the reasons of Osborn JA. For the reasons his Honour gives, I too would allow the appeal and would resentence the respondent as his Honour proposes.

REDLICH JA:

For the reasons given by Osborn JA, which I have had the advantage of reading in draft, I agree that the appeal should be allowed, and the respondent sentenced as Osborn JA proposes.

OSBORN JA:

Introduction

The respondent is a 48 year old man. In January 2015, he pleaded guilty to nine charges of rape, one charge of intentionally causing serious injury, one charge of theft, two charges of make threat to kill, one charge of threat to inflict serious injury and two charges of possession of drugs of dependence.

Following a plea hearing in March 2015, he was sentenced by Judge Gucciardo in the County Court on 25 May 2015 as follows:

Indictment D10391034.2
Charge	Offence	Maximum	Sentence	Cumulation
1	Rape [Crimes Act 1958 s 38(1)]	25 years [Crimes Act 1958 s 38(1)]	8 years	6 months
2	Theft [Crimes Act 1958 s 74(1)]	10 years [Crimes Act 1958 s 74(1)]	9 months	3 months
3	Rape	25 years	8 years	6 months
4	Rape	25 years	8 years	6 months
5	Rape	25 years	8 years	6 months

6	Make threat to kill [Crimes Act 1958 s 20]	10 years [Crimes Act 1958 s 20]	3 years	6 months
7	Rape	25 years	8 years	6 months
8	Rape	25 years	8 years	6 months
9	Rape	25 years	8 years	6 months
10	Rape	25 years	8 years	6 months
11

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 DPP v Granata

Details

AGLC: DPP v Granata [2016] VSCA 190
Case: [2016] VSCA 190
Decision Date: 8 August 2016

CaseChat Overview and Summary

In this case, the Director of Public Prosecutions appealed against the sentence given to the respondent who had been found guilty of multiple serious offences including rape, threats to kill, theft and drug possession. The Supreme Court of Victoria heard the appeal and assessed whether the original sentence of 17 years was appropriate. The court considered the severity of the crimes committed, the impact on the victims, and the offender's psychological state and drug use. It concluded that the original sentence did not adequately reflect the gravity of the offences. The court found that the crimes were sustained and violent, falling into the worst category, and had a severe impact on the victims. While the offender's psychological difficulties and drug use were taken into account, they did not sufficiently mitigate the severity of the crimes. The court found that the sentence was manifestly inadequate and allowed the appeal. The respondent was resentenced to 23 years’ imprisonment with a non-parole period of 17 years.

The legal issues before the court were whether the sentence was manifestly inadequate and if the objective gravity of the offending was properly considered. The court examined the principles set out in the Sentencing Act 1991, particularly sections 6B, 6D, and 6E, which relate to the objective gravity of the offending, the need for denunciation, and the need for the offender to be punished and rehabilitated. The court considered the cumulative effect of the multiple offences and the impact on the victims. It also assessed whether the offender's psychological difficulties and drug use adequately reflected in the original sentence. The court determined that the original sentence did not sufficiently reflect the objective gravity of the offending and that the need for denunciation and punishment was not adequately addressed.

The court found that the original sentence did not adequately reflect the objective gravity of the offending. The crimes committed were sustained, violent, and severe, impacting the victims significantly. The court considered the impact on the victims, the need for denunciation, and the necessity for the offender to be punished and rehabilitated. While the offender's psychological difficulties and drug use were acknowledged, they were not deemed sufficient to mitigate the severity of the crimes. The court concluded that the sentence was manifestly inadequate and allowed the appeal. The respondent was resentenced to 23 years’ imprisonment with a non-parole period of 17 years, reflecting the objective gravity of the offending and the need for adequate punishment and denunciation.

Orders