Farrugia v The Queen - [2022] VSCA 104

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0030

DYLAN FARRUGIA	Applicant
v
THE QUEEN	Respondent

S EAPCR 2022 0035

ABDULAHI ALI	Applicant
v
THE QUEEN	Respondent

S EAPCR 2022 0047

DAMIEN MONRO	Applicant
v
THE QUEEN	Respondent

S EAPCR 2022 0048

JAKE SYNAN	Applicant
v
THE QUEEN	Respondent

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JUDGES:	KYROU and T FORREST JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	27 May 2022
DATE OF JUDGMENT:	2 June 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 104
JUDGMENT APPEALED FROM:	[2020] VCC 1387; [2020] VCC 1457 (Judge Gwynn)

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CRIMINAL LAW – Appeal – Sentence – Aggravated burglary, theft, attempted aggravated burglary and related offences – Seven offenders – Three offenders resentenced to lower sentences following successful appeals – Applicants (remaining four offenders) sought leave to appeal against their sentences based on parity principle – Crown concession that leave to appeal be granted, appeals allowed and applicants resentenced to lower sentences – Common ground that applicants’ new sentences and new sentences for other three offenders should restore relativities in original sentences by County Court – Appeals allowed and applicants resentenced accordingly.

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Counsel
Applicant (Farrugia):		Mr P Smallwood
Applicant (Ali):		Mr D J Carolan
Applicant (Monro):		Mr T R Marsh
Applicant (Synan):		Mr C K Wareham
Respondent:		Mr J C J McWilliams
Solicitors
Applicant (Farrugia):	Leanne Warren & Associates
Applicant (Ali):	James Dowsley & Associates
Applicant (Monro):	Pica Criminal Lawyers
Applicant (Synan):	Theo Magazis & Associates
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

KYROU JA
T FORREST JA:

Introduction and summary

On 15 June 2020, the applicants (Dylan Farrugia, Abdulahi Ali, Damien Monro and Jake Synan) and two other co-offenders (Rhys Abela-Rogers and Charlie Farrugia) pleaded guilty to a number of housebreaking offences involving eight incidents. Those six offenders were jointly indicted on Indictment C1912402 (‘joint indictment’). On 28 July 2020, a seventh co-offender, Jackson Balshaw, pleaded guilty to related charges on a separate indictment numbered K10159294.1 (‘Balshaw indictment’).[1]
[1]In these reasons, references to charges are to charges on the joint indictment, unless stated otherwise.
Dylan and Charlie Farrugia are brothers. Monro is their cousin and Abela-Roger’s half‑brother.
All seven offenders were sentenced by the same County Court judge. Monro and Synan were sentenced on 1 September 2020,[2] Ali and Dylan Farrugia were sentenced on 2 September 2020,[3] Abela-Rogers and Charlie Farrugia were sentenced on 3 September 2020,[4] and Balshaw was sentenced on 18 November 2020.[5]
[2]DPP vMonro & Synan [2020] VCC 1387 (‘Monro and Synan sentencing remarks’).
[3]DPP vAli & Farrugia [2020] VCC 1457 (‘Ali and Dylan Farrugia sentencing remarks’).
[4]DPP vAbela-Rogers & Farrugia [2020] VCC 1412.
[5]DPP v Balshaw [2020] VCC 1837.
Balshaw successfully appealed against his sentence and was resentenced by this Court on 26 March 2021.[6] Abela‑Rogers and Charlie Farrugia also successfully appealed against their sentences — on the basis of disparity between their sentences and the new sentence for Balshaw — and were resentenced by this Court on 18 March 2022.[7]

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 Farrugia v The Queen

Details

AGLC: Farrugia v The Queen [2022] VSCA 104
Case: [2022] VSCA 104
Decision Date: 2 June 2022

CaseChat Overview and Summary

In the case of Farrugia v The Queen, the applicants, being four of the seven offenders convicted of aggravated burglary, theft, attempted aggravated burglary and related offences, sought leave to appeal against their sentences. This application followed successful appeals by three of their co-offenders, who had their sentences reduced. The Crown conceded that leave to appeal should be granted for the remaining applicants, and their appeals were subsequently allowed. The primary focus of the case was to ensure that the sentences of all seven offenders reflected the relativities intended by the County Court in the original sentencing.

The legal issues that arose centred on the principle of parity in sentencing. The applicants argued that their sentences should be reconsidered in light of the reduced sentences of their co-offenders. The Crown's concession acknowledged that the principle of parity necessitated a reassessment of the sentences. The court was required to determine whether the appeals should be allowed and, if so, what the appropriate sentences should be to restore the intended relativities.

The court considered the principle of parity in sentencing and the need to ensure that the sentences of all offenders reflected the intended sentencing framework set by the County Court. It was determined that the sentences of the applicants should be re-evaluated to maintain the intended relativities among the sentences of all seven offenders. Consequently, the appeals were allowed, and the applicants were resentenced to lower sentences that restored the intended sentencing relativities.

The final orders of the court were that the appeals were allowed and the applicants were resentenced accordingly. The sentences of the applicants were adjusted to ensure that they reflected the intended relativities as originally intended by the County Court, thereby maintaining consistency and fairness across all offenders involved in the case.

Orders