Legal Research
Cases
Fasciale v The Queen

Fasciale v The Queen

Case [2010] VSCA 337 9 December 2010

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No S APCR 2008 0992

SPARTACO FASCIALE	Appellant
	v
THE QUEEN	Respondent

---

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	1^st Revision, 13 December 2010
JUDGMENT APPEALED FROM	R v Fasciale (Unreported, County Court of Victoria, Judge Wood, 17 December 2008)

---

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.

---

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…

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 Fasciale v The Queen

Details

AGLC: Fasciale v The Queen [2010] VSCA 337
Case: [2010] VSCA 337
Decision Date: 9 December 2010

CaseChat Overview and Summary

The appellant, Mr Fasciale, appealed against his sentence imposed by the Court of Appeal of the Supreme Court of South Australia. He had been convicted of multiple fraud offences under both State and Commonwealth legislation, and was sentenced to six years' imprisonment with an effective minimum term of four years and six months. Mr Fasciale contended that the sentencing judge made several errors, including improperly cumulating Commonwealth sentences with the State non-parole period, misapplying the principles for fixing a non-parole period, incorrectly assessing the quantum of the fraud, and imposing a manifestly excessive sentence.

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