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…
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- AGLC
- DPP v Marino [2011] VSCA 133
- Case
- [2011] VSCA 133
- Decision Date
CaseChat Overview and Summary
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
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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