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Gaggioli v R

Gaggioli v R

Case [2014] NSWCCA 246 31 October 2014

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Court of Criminal Appeal

New South Wales

Case Title: Gaggioli v R

Medium Neutral Citation: [2014] NSWCCA 246

Hearing Date(s): 15/09/2014

Decision Date: 31 October 2014

Before: Hoeben CJ at CL at [1];
Fullerton J at [2];
Adamson J at [41]

Decision:
1. Leave to appeal granted.
2. Appeal dismissed.

Catchwords: CRIMINAL LAW - appeal against sentence - aggravated robbery in company - whether a justifiable sense of grievance has been engendered by the differential approach of the prosecution to the facts tendered in the sentence proceedings of the co-offender - whether sentencing judge erred in partially accumulating sentences

Legislation Cited: Crimes Act 1900 (NSW), s 97(2)

Cases Cited: Baquiran v R [2014] NSWCCA 221
Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
Ith v R [2013] NSWCCA 280
Ivory v R [2014] NSWCCA 181
Magaming v The Queen [2013] HCA 40; 302 ALR 461
R v Chandler; Chandler v R [2012] NSWCCA 135
R v Henry (1999) 46 NSWLR 346
R v XX [2009] NSWCCA 115; 195 A Crim R 38
Tan v R [2014] NSWCCA 96
Vaovasa v R [2007] NSWCCA 253; 174 A Crim R 16

Category: Principal judgment

Parties: Angelo Robert Gaggioli (Applicant)
The Crown (Respondent)

Representation

- Counsel: Counsel:
A Bellanto QC/P Rowe (Applicant)
N Adams SC (Crown)

- Solicitors: Solicitors:
Maclarens Lawyers (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2012/313581

Decision Under Appeal

- Court / Tribunal: District Court

- Before: Lerve DCJ

- Date of Decision: 19 July 2013

- Court File Number(s): 2012/313581

JUDGMENT

HOEBEN CJ at CL: I agree with Fullerton J.
FULLERTON J: The applicant seeks leave to appeal sentences imposed in the District Court on 19 July 2013 after pleas of guilty were entered in the Local Court on 23 April 2012 to three counts of aggravated robbery in company, contrary to s 97(2) of the Crimes Act 1900 (NSW). That offence carries a maximum penalty of 25 years imprisonment.
The offences were committed when three persons were robbed at gunpoint. The property stolen consisted of cash, mobile phones and other electronic devices and credit cards. The weapon, described in the particulars of each charge as a "small black handgun" was a dangerous weapon within the meaning of s 4 of the Crimes Act. The particulars of each charge also alleged that it was the co-offender (Zarb) who had possession of the weapon.
On 19 July 2013 the applicant was sentenced as follows:
Count 1: A non-parole period of 3 years commencing on 27 March 2013 and expiring on 26 March 2016 with a balance of term of 2 years and 6 months expiring on 26 September 2018;
Count 2: A non-parole period of 3 years commencing on 27 June 2013 and expiring on 26 June 2016 with a balance of term of 2 years and 6 months expiring on 26 December 2018; and
Count 3: A non-parole period of 3 years commencing on 27…

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 Gaggioli v R

Details

AGLC: Gaggioli v R [2014] NSWCCA 246
Case: [2014] NSWCCA 246
Decision Date: 31 October 2014

CaseChat Overview and Summary

The appeal before the court was brought by the defendant, Gaggioli, against his sentence for aggravated robbery committed in company. The dispute centred on whether the sentencing judge had erred in partially accumulating sentences, and if there was a justifiable sense of grievance created by the prosecution's differential approach to the facts presented in the sentencing proceedings of Gaggioli's co-offender. The case was heard in the High Court of Australia.

The central legal issues the court had to address were whether the sentencing judge had correctly applied the principles of accumulation of sentences and whether the prosecution's differing treatment of facts in the co-offender's sentencing proceedings had engendered a justifiable sense of grievance. The court had to examine whether these issues led to an unjust outcome in the sentence imposed on Gaggioli.

In considering these issues, the court noted that the sentencing judge had partially accumulated sentences, which is generally permissible when certain conditions are met. The court found that the judge had not erred in this respect. Regarding the prosecution's approach, the court held that there was no evidence of a differential treatment that had engendered a justifiable sense of grievance on Gaggioli's part. The court emphasised that any perceived disparity did not reach the threshold of creating a justifiable sense of grievance. Therefore, the appeal was dismissed.

No further orders were made by the court beyond the dismissal of the appeal. The sentence imposed by the sentencing judge was upheld, and Gaggioli's appeal against his sentence was therefore unsuccessful.

Orders