SUPREME COURT OF VICTORIA
COURT OF APPEAL
No S APCR 2008 0992
| SPARTACO FASCIALE | Appellant |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | ASHLEY and WEINBERG JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 22 October 2010 | |
DATE OF JUDGMENT: | 9 December 2010 | |
| MEDIUM NEUTRAL CITATION | [2010] VSCA 337 | 1st Revision, 13 December 2010 |
| JUDGMENT APPEALED FROM | R v Fasciale (Unreported, County Court of Victoria, Judge Wood, 17 December 2008) | |
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CRIMINAL LAW – Appeal against sentence – State and Commonwealth fraud offences – Appellant sentenced to six years’ imprisonment with an effective minimum term of four years and six months – Whether sentencing judge erred by cumulating Commonwealth sentences upon State non-parole period – Whether sentencing judge erred in his approach to the fixing of a non-parole period – Whether sentencing judge erred in assessing quantum of fraud – Whether sentence manifestly excessive – Appeal dismissed.
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| APPEARANCES: | COUNSEL | SOLICITORS |
| For the Appellant | Ms H Spowart | Victoria Legal Aid |
| For the Crown | Mr S Kirne | Commonwealth Director of Public Prosecutions |
ASHLEY JA:
I have read in draft the reasons for judgment of Weinberg JA, and I respectfully agree with them.
WEINBERG JA:
On 10 November 2008, following a trial lasting some three and a half weeks, the appellant, Spartaco Fasciale, was found guilty in the County Court at Melbourne of ten counts of obtaining property by deception contrary to s 81 of the Crimes Act 1958 (counts 1 to 7, 10, 13 and 14), four counts of obtaining financial advantage by deception contrary to s 82 of that Act (counts 8, 9, 11 and 12), and 14 counts of dishonestly using his position as a director of a corporation with intent to gain an advantage contrary to s 184(2)(a) of the Corporations Act 2001 (Cth) (counts 15 to 21, and 26 to 32). He was acquitted of four other counts, one by direction, and three by the jury (counts 22 to 25).
The maximum penalty for the two State offences is ordinarily ten years’ imprisonment. However, as a result of the convictions on counts 1 and 2, and by virtue of the operation of ss 6H and 6I of the Sentencing Act 1991, the maximum penalty for counts 1 to 14 (inclusive) was in fact 20 years’ imprisonment. The appellant was erroneously sentenced on the basis that the heavier maximum only applied to counts 3 to 14. Coincidently, the decision of this Court in R v Roussety,[1] to the effect that all counts were amenable to the 20 year maximum, was delivered on the same day that the appellant was sentenced. Accordingly, the appellant received the benefit of an erroneous interpretation of the key provisions. Of course, he cannot be heard to complain about that error.
[1](2008) 24 VR 253.
Finally, it should be noted that the maximum penalty for each of the Commonwealth counts is five years’ imprisonment.
In relation to the State counts, on each of counts 10, 12 and 14, the appellant was sentenced…
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- Fasciale v The Queen [2010] VSCA 337
- Case
- [2010] VSCA 337
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the sentencing judge erred in cumulating the Commonwealth sentences upon the State non-parole period, whether the judge erred in his approach to fixing the non-parole period, whether there was an error in assessing the quantum of the fraud, and whether the sentence was manifestly excessive. The court needed to determine if these alleged errors warranted a departure from the sentence imposed. The appellant argued that the sentencing judge should have considered the Commonwealth sentences separately and not cumulated them with the State non-parole period. However, the court found that the sentencing judge was entitled to cumulate the sentences, as the crimes were part of a single course of conduct and the appellant's offending was continuous.
The court further considered whether the sentencing judge erred in his approach to fixing the non-parole period. The appellant submitted that the sentencing judge failed to consider the principles of totality and proportionality. However, the court held that the sentencing judge had appropriately considered these principles and had not erred in fixing the non-parole period. Regarding the quantum of the fraud, the appellant argued that the sentencing judge had miscalculated the amount of the fraud. The court found that the sentencing judge had correctly calculated the amount, and therefore, there was no error in this respect. Finally, the court examined whether the sentence was manifestly excessive. It concluded that the sentence was not manifestly excessive, taking into account the seriousness of the offending and the need for general deterrence.
In conclusion, the court dismissed the appeal, finding that the sentencing judge did not err in any of the respects argued by the appellant. The original sentence was upheld, and no further orders were made.
Orders
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Background
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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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