Gugliucciello v The King - [2023] VSCA 247

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0090

MARIO GUGLIUCCIELLO	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST and TAYLOR JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	17 October 2023
DATE OF JUDGMENT:	17 October 2023
DATE OF REASONS:	19 October 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 247
JUDGMENT APPEALED FROM:	DPP v Gugliucciello [2023] VCC 779 (Judge Tinney)

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CRIMINAL LAW – Application for leave to appeal – Sentence – Charges of indecent act with child under 16, indecent assault and indecent act with 16/17 year old child under care, supervision or authority – Offending spanning period from 2002 to 2008 and 2013 – Victims female staff or clients in applicant’s hair salon aged between 13 to 17 – Total effective sentence of 3 years and 2 months’ imprisonment with non-parole period of 18 months – Whether sentence manifestly excessive – Leave to appeal granted – Appeal allowed – Applicant resentenced to 5 months’ imprisonment.

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Counsel
Applicant:	Ms C A Boston SC with Mr D Zajd
Respondent:	Ms J Warren
Solicitors
Applicant:	Dribbin & Brown Criminal Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
TAYLOR JA:

On 10 November 2022 and 17 February 2023, the applicant pleaded guilty to the offences set out in the table below.
Following a plea on 8 May 2023, he was sentenced on 12 May 2023 as follows:

Charge	Offence	Maximum	Sentence	Cumulation
*Indictment No. L12644493.A1*
1	Indecent act with a child under 16 years	10 years	9 months	3 months
2	Indecent assault	10 years	5 months	2 months
3	Indecent act with a child under 16 years	10 years	9 months	3 months
4	Indecent act with a child under 16 years	10 years	10 months	Base
5	Indecent act with or in the presence of a child aged 16–17 years under care, supervision or authority	5 years	9 months	3 months
TES on Indictment L12644493.A1:		1 year and 9 months
*Indictment No. L12644493.3*
1	Indecent act with a child under 16 years	10 years	9 months	2 months
2	Indecent act with a child under 16 years	10 years	22 months	Base
TES on Indictment L2644493.3:		2 years
Cumulation as between indictments:		14 months of the TES on Indictment L12644493.A1 be served cumulatively of the TES on Indictment L2644493.3
Total Effective Sentence:		3 years and 2 months’ imprisonment
Non-Parole Period:		18 months’ imprisonment
Section 6AAA Statement:		5 years and 6 months’ imprisonment with a non‑parole period of 4 years’ imprisonment
Other relevant orders:		Registration and reporting period of life pursuant to s 34 of the Sex Offenders Registration Act 2004.

The applicant sought leave to appeal against sentence on the single ground that the individual sentences, orders for cumulation, total effective sentence and non-parole period are manifestly excessive in light of the principle of totality and the significant factors in mitigation, including the applicant’s guilty pleas, rehabilitation, and increased burden of imprisonment.
At the conclusion of the hearing of the application for leave…

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.

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Details

Case: [2023] VSCA 247
Decision Date: 17 October 2023

CaseChat Overview and Summary

The case of Gugliucciello v The King involved the applicant appealing against his sentence for multiple charges related to indecent acts with children under his care or authority. The offences occurred over two distinct periods, from 2002 to 2008 and again in 2013. The victims were female staff or clients in the applicant's hair salon, aged between 13 and 17. The applicant was convicted on multiple counts of indecent acts with a child under 16, indecent assault, and indecent acts with a 16 or 17 year old under care, supervision, or authority. The original sentence imposed was three years and two months' imprisonment with a non-parole period of 18 months. The applicant sought leave to appeal on the basis that the sentence was manifestly excessive.

The central legal issue before the court was whether the sentence imposed was manifestly excessive, thus warranting an appeal. The applicant's counsel argued that the original sentence was disproportionate to the crimes committed, taking into account the nature of the offences and the applicant's personal circumstances. The Crown maintained that the sentence was appropriate given the gravity of the offences and the need for deterrence and denunciation. The court had to weigh these arguments and determine if the sentence imposed was manifestly excessive, thereby justifying an appeal.

In its decision, the court recognised the severity of the crimes but also considered the personal circumstances of the applicant and the overall sentence imposed. The court found that the original sentence of three years and two months with an 18-month non-parole period was indeed manifestly excessive. The court granted leave to appeal and allowed the appeal, resentencing the applicant to five months' imprisonment. The court's reasoning emphasised the need for proportionality in sentencing and the importance of individualised sentencing that appropriately balances the needs of deterrence, denunciation, and rehabilitation.

Orders