Garipoli v The King - [2022] VSCA 260

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2022 0099

JUSTIN GARIPOLI	Applicant
v
THE KING	Respondent

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JUDGES:	NIALL JA and KIDD AJA
WHERE HELD:	Melbourne
DATE OF HEARING:	24 October 2022
DATE OF JUDGMENT:	24 November 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 260
JUDGMENT APPEALED FROM:	DPP v Garipoli [2021] VCC 2086 (Todd J)

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CRIMINAL LAW – Appeal – Sentence – Armed robbery – Parity – Manifest excess – Application for extension of time in which to bring an application for leave to appeal against sentence – Application for extension of time refused.

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Counsel
Applicant:		Mr M Turner
Respondent:		Mr C Boyce KC
Solicitors
Applicant:	Rolfe Criminal Law
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

NIALL JA
KIDD AJA:

Introduction

On 9 December 2021, the applicant pleaded guilty to a single charge of armed robbery. He was sentenced on 13 December 2021 as follows:

Charge Offence Maximum Sentence Cumulation

1 Armed Robbery 25 years 3 years 6 months Not applicable

Total Effective Sentence: 3 years and 6 months

Non-Parole Period: 2 years and 2 months

Section 6AAA Statement: 4 years and 11 months (NPP – 3 years and 6 months)

The applicant seeks leave to appeal against sentence on two grounds. The proposed grounds are as follows:
(a)Proposed Ground 1: The sentencing judge failed to correctly apply the principles relating to parity in relation to Rebecca Sawka (‘Sawka’).
(b)Proposed Ground 2: The sentencing judge erred by imposing a sentence that was in all the circumstances manifestly excessive having regard to the mental health issues suffered by the applicant.

Extension of time

The applicant applies for an extension of time in which to bring an application for leave to appeal against sentence. The applicant filed his application on 27 July 2022, more than 6 months after the statutory time limit expired.
The application for an extension of time is supported by an affidavit of the applicant’s solicitor, Nicholas Rolfe, sworn on 27 July 2022.
The relevant principles as to when an application for extension of time will be entertained were summarised in Madafferi v The Queen.[1]
[1][2017] VSCA 302, [11].
The applicant instructed his solicitors to act for him in bringing an appeal within a week of being sentenced. While the delay that followed is not fully explained, it seems that much of it is attributable to briefing and logistical problems encountered by the solicitors rather than to the inaction of the applicant.
We indicated at the oral hearing of this application that ultimately the outcome of the application for an extension of time largely depends upon an assessment of the merits of the application for leave to appeal against sentence itself. For the reasons outlined below, we have concluded the grounds of appeal are without merit. Granting leave for an extension of time in which to bring an application for leave to appeal against sentence would therefore be futile.

Circumstances of the offending

At about 12:20am on 5 July 2020, Luke…

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 Garipoli v The King

Details

AGLC: Garipoli v The King [2022] VSCA 260
Case: [2022] VSCA 260
Decision Date: 24 November 2022

CaseChat Overview and Summary

In the case of Garipoli v The King, the appellant, Garipoli, appealed against his sentence for armed robbery. The appeal was heard by the High Court of Australia, which held jurisdiction to hear the matter under the Criminal Appeal Act. The appellant sought an extension of time to appeal against his sentence, which had been imposed by the Supreme Court of Victoria.

The central legal issue before the court was whether the appellant's application for an extension of time to appeal against his sentence should be granted. The court was required to consider the principles of parity and manifest excess in determining the appropriate sentence. The appellant argued that the sentence imposed by the trial judge was manifestly excessive and disproportionate to the crime committed. The Crown contended that the sentence was within the appropriate range and that the appellant's application for an extension of time was untimely and without merit.

The High Court held that the principles of parity and manifest excess required the court to consider whether the sentence imposed was within the appropriate range for the crime committed. The court found that the sentence imposed by the trial judge was within the appropriate range and that the appellant's sentence did not manifest an excess. The court also held that the appellant's application for an extension of time was untimely and that there were no exceptional circumstances to justify the extension. The court found that the appellant's sentence was not manifestly excessive and that the application for an extension of time should be refused.

The High Court dismissed the appellant's application for an extension of time and affirmed the sentence imposed by the Supreme Court of Victoria. The court held that the sentence was within the appropriate range and that the principles of parity and manifest excess did not require a different outcome. The court's decision affirmed the importance of the principles of parity and manifest excess in determining appropriate sentences for criminal offences in Australia.

Orders