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DPP v Marino

DPP v Marino

Case [2011] VSCA 133 13 May 2011

Sentencing

Recklessly causing serious injury

Armed robbery

Mens Rea & Intention

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0825
DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
VINCENT AUMUA MARINO	Respondent

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JUDGES	BUCHANAN and NETTLE JJA and KYROU AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	12 April 2011
DATE OF JUDGMENT	13 May 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 133
JUDGMENT APPEALED FROM	R v Marino (Unreported, County Court of Victoria, Judge Gucciardo, 24 August 2009)

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CRIMINAL LAW – Director's appeal – Sentence – Three presentments – Recklessly causing serious injury – Intentionally causing injury (four counts) – Armed robbery (four counts) – Trafficking in a drug of dependence – Possession of a drug of dependence – Sentence of five years' imprisonment for count of recklessly causing serious injury – Total effective sentence of nine years' imprisonment with a non-parole period of five years and six months – Sentence for count of recklessly causing serious injury, total effective sentence and non-parole period not manifestly inadequate – Weight to be given to severity of injuries sustained by victim – DPP (Vic) v Terrick [2009] VSCA 220 distinguished – No error in fixing non-parole period – R v Bolton [1998] 1 VR 692 and R v Tran [2006] VSCA 222 referred to – Principle of totality – No principle requiring that any moderation to cumulation made in the light of the principle of totality be to sentences as between presentments rather than within a presentment – No principle that, where the offending results in any injury to more than one victim, a sentencing judge must provide for some cumulation in respect of the offences relating to each victim – Towle v The Queen (2009) 54 MVR 543 distinguished – Appeal dismissed.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr D. A. Trapnell SC	Office of Public Prosecutions
For the Respondent	Mr P. G. Priest QC and Mr C. B. Boyce	Leanne Warren & Associates

BUCHANAN JA

I agree with Kyrou AJA.

NETTLE JA:

I agree with Kyrou AJA that this appeal should be dismissed.

KYROU AJA:

Introduction and summary

The respondent, Vincent Marino, pleaded guilty in the County Court to a single count of recklessly causing serious injury on presentment X01704298; four counts of intentionally causing injury and four counts of armed robbery on presentment W02478222.1; one count of trafficking in a drug of dependence (namely, MDMA) in a commercial quantity and one count of possession of a drug of dependence (namely, cannabis L) on presentment X02680398; and a summary charge of dealing with property (namely, cash of $6,465) suspected of being the proceeds of crime.

The single count on presentment X01704298 involved the respondent delivering a single punch to the head of an acquaintance, Ben Thomson, which knocked Mr Thomson to the ground and caused him to suffer severe brain damage and to require long-term, 24-hour support (‘king-hit count’).

The eight counts on presentment W02478222.1 involved the respondent and 11 co-offenders entering a private home without lawful authority, assaulting the four occupants, stealing various items and ransacking the property…

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 Marino

Details

AGLC: DPP v Marino [2011] VSCA 133
Case: [2011] VSCA 133
Decision Date: 13 May 2011

CaseChat Overview and Summary

The case of the Director of Public Prosecutions (Victoria) versus Marino involved an appeal by the Director regarding the sentence handed down to Marino by the County Court of Victoria. Marino had been convicted of various criminal offences including recklessly causing serious injury, intentionally causing injury, armed robbery, trafficking in a drug of dependence, and possession of a drug of dependence. The Director sought to argue that the sentence of five years' imprisonment for the count of recklessly causing serious injury, along with the total effective sentence of nine years and a non-parole period of five years and six months, was manifestly inadequate.

The court was required to determine whether the sentence for the count of recklessly causing serious injury, the total effective sentence, and the non-parole period were manifestly inadequate. This involved an examination of the principle of totality in sentencing and whether the severity of the injuries sustained by the victim warranted a different outcome. The court also needed to consider how much weight to give to the severity of the injuries and whether the non-parole period was appropriately fixed.

The Court of Appeal found no error in the original sentencing. It emphasised that the severity of the injuries sustained by the victim warranted a significant sentence. The court distinguished previous cases such as DPP (Vic) v Terrick and referred to R v Bolton and R v Tran to support its conclusion. The principle of totality was considered, but the court held that there was no requirement for any moderation to cumulation to be made between presentments rather than within a presentment. The court also rejected the argument that there was a principle mandating some cumulation in respect of offences relating to each victim where the offending resulted in any injury to more than one victim. Consequently, the appeal was dismissed.

In light of the findings, the court confirmed the original sentence handed down by the County Court.

Orders