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Fusca v The King

Fusca v The King

Case [2024] VSCA 297 3 December 2024

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0109

DOMINIC FUSCA	Applicant
v
THE KING	Respondent

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JUDGES:	WALKER and T FORREST JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	14 November 2024
DATE OF JUDGMENT:	3 December 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 297
JUDGMENT APPEALED FROM:	DPP v Fusca [2024] VCC 745 (Judge Doyle)

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CRIMINAL LAW – Appeal – Sentence – Applicant pleaded guilty to charges of intentionally causing injury, theft, attempting to pervert the course of justice and persistent contravention of Family Violence Intervention Order – Whether sentences and orders for cumulation imposed in respect of second and third charges manifestly excessive – Relevance of absence of aggravating features – Sentences and orders for cumulation not manifestly excessive – Application for leave to appeal refused.

R v Oksuz (2015) 47 VR 731, discussed; Brown v The Queen [2021] VSCA 204; Adamson v The Queen (2015) 47 VR 268; R v Conos (2021) 294 A Crim R 403; Stephens v The Queen (2016) 50 VR 740, applied; Carter v The Queen [2020] VSCA 15; Dragovic v The King [2024] VSCA 95, referred to.

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Counsel
Applicant:		Ms A Peek-Lasry
Respondent:		Mr JCJ McWilliams
Solicitors
Applicant:	Victoria Legal Aid
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

WALKER JA
T FORREST JA:

Dominic Fusca pleaded guilty in the County Court to one charge of intentionally causing injury, one charge of theft, one charge of attempting to pervert the course of justice and one charge of persistent contravention of a family violence intervention order (‘FVIO’). The offences were committed between 1 July and 7 August 2023.
On 23 May 2024 the applicant was sentenced as follows:

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Intentionally cause injury[1]	10 years	2 years and 2 months	Base
2	Theft[2]	10 years	4 months	1 month
3	Attempt to pervert the course of justice[3]	25 years	18 months	8 months
4	Persistent contravention of family violence intervention order[4]	5 years	6 months	1 month
Total Effective Sentence:		3 years’ imprisonment
Non-Parole Period:		1 year and 10 months
Pre-sentence Detention Declared:		326 days
Section 6AAA Statement:		Total Effective Sentence 4 years and 6 months’ imprisonment Non Parole-Period 3 years and 2 months

[1]Contrary to s 18 of the Crimes Act 1958.

[2]Contrary to s 74 of the Crimes Act 1958.

[3]Contrary to the common law.

[4]Contrary to s 125A(1) of the Family Violence Protection Act 2008.

The applicant now seeks leave to appeal against sentence pursuant to s 278 of the Criminal Procedure Act 2009. His two proposed grounds of appeal are as follows:
Ground 1: The sentence and order for cumulation on Charge 3 of attempting to pervert the course of justice is manifestly excessive.
Ground 2: The sentence and order for cumulation on Charge [2] of theft is manifestly excessive.
For the reasons that follow, we consider that neither ground of appeal has any real prospects of success. We…

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 Fusca v The King

Details

AGLC: Fusca v The King [2024] VSCA 297
Case: [2024] VSCA 297
Decision Date: 3 December 2024

CaseChat Overview and Summary

The applicant, Fusca, appealed against the severity of sentences and orders imposed for multiple criminal offences, including intentionally causing injury, theft, attempting to pervert the course of justice, and persistent contravention of a Family Violence Intervention Order. The Court of Appeal heard the appeal, assessing whether the cumulative sentences and orders were manifestly excessive. The applicant contested the severity of the sentences and orders for the second and third charges, arguing that they were excessively harsh given the absence of aggravating factors. The court was tasked with determining the appropriate threshold for a sentence to be considered manifestly excessive and whether the sentences met this criterion.

In evaluating the appeal, the court referenced several precedent cases to understand the appropriate standards for sentencing in similar circumstances. It noted that the trial judge had meticulously considered the sentencing principles and had a robust basis for imposing cumulative sentences. The court concluded that the sentences were proportionate and not manifestly excessive, as they reflected the gravity of the offences and the need to deter and protect the community. The court also highlighted that the absence of aggravating features did not automatically render the sentences inappropriate, as the cumulative impact of the offences warranted a stringent response.

Given the detailed analysis and the alignment with established legal principles, the Court of Appeal dismissed the application for leave to appeal. The severity of the sentences and orders was deemed appropriate in light of the offences committed and the need for effective deterrence and community protection. The court's decision was grounded in a comprehensive review of relevant case law and the specific circumstances of the applicant's conduct.

Orders