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Liberatore v The King

Liberatore v The King

Case [2024] VSCA 263 11 November 2024

Post-traumatic Stress Disorder

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0121

ANGELA LIBERATORE	Applicant
v
THE KING	Respondent

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JUDGES:	Kenny JA
WHERE HELD:	Melbourne
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	11 November 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 263
JUDGMENT APPEALED FROM:	[2024] VCC 231 (Judge Trapnell)

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009

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CRIMINAL LAW – Appeal – Sentence – Obtaining property by deception – Obtaining financial advantage by deception – Victims were family members – Breach of trust – Found guilty at trial – Relevant prior criminal history – Lack of insight and remorse – Symptoms of post-traumatic stress disorder – Delay – Total effective sentence of 5 years and 3 months – Non-parole period 3 years and 8 months – Whether sentence manifestly excessive – Whether sentencing judge gave insufficient weight to the principle of totality – Whether sentencing judge gave insufficient weight to current sentencing practice – Whether sentencing judge gave insufficient weight to delay – Leave to appeal refused.

Criminal Procedure Act 2009 ss 278, 280, 315.

DPP v Merryfull and Bloomfield [2023] VSCA 244, applied; Tones v The Queen [2017] VSCA 118, applied; Wilson v The Queen [2022] VSCA 2, applied, Postiglione v The Queen (1997) 189 CLR 295, considered; Mill v The Queen (1988) 166 CLR 59, considered; DPP v Mastrangelo [2018] VCC 87, distinguished; Kotsifas v The Queen [2021] VSCA 368, distinguished; Taylor v The Queen (2019) 59 VR 163, distinguished; Friel v The Queen [2018] VSCA 48, distinguished; DPP v Cappelli [2019] VCC 2118, distinguished.

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Counsel for written submissions
Applicant:		Ms G Morgan
Respondent:		Mr J O’Toole
Solicitors
Applicant:	Giorgianni & Liang Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

KENNY JA:

Introduction and overview

On 16 August 2023, the applicant was found guilty at trial in the County Court of Victoria of 33 charges of obtaining a financial advantage by deception and two charges of obtaining property by deception.
On 7 March 2024, the applicant was sentenced as follows:

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
2	Obtaining property by deception (Crimes Act 1958, s 81(1))	10 years’ imprisonment	4 months’ imprisonment	3 months
3	Obtaining property by deception (Crimes Act 1958, s 81(1))	10 years’ imprisonment	4 months’ imprisonment	3 months
5	Obtaining financial advantage by deception (Crimes Act 1958, s 82(1))	10 years’ imprisonment	2 years’ imprisonment	1 year
6–30, 32–37	Obtaining financial advantage by deception (Crimes Act 1958, s 82(1))	10 years’ imprisonment	Aggregate sentence of 1 year and 6 months’ imprisonment	9 months
31	Obtaining financial advantage by deception (Crimes Act 1958, s 82(1))	10 years’ imprisonment	3 years’ imprisonment	Base
Total Effective Sentence:		5 years and 3 months’ imprisonment
Non-Parole Period:		3 years and 8 months
Pre-sentence Detention Declared:		204 days
Section…

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 Liberatore v The King

Details

AGLC: Liberatore v The King [2024] VSCA 263
Case: [2024] VSCA 263
Decision Date: 11 November 2024

CaseChat Overview and Summary

The appellant was convicted of obtaining property by deception and obtaining a financial advantage by deception. The victims of the appellant's crimes were family members, and the crimes amounted to a breach of trust. The appellant was sentenced to a total effective sentence of 5 years and 3 months, with a non-parole period of 3 years and 8 months. The appellant appealed the sentence, arguing that it was manifestly excessive and that the sentencing judge gave insufficient weight to the principle of totality, current sentencing practice, and the delay. The High Court refused leave to appeal.

The legal issues before the court were whether the sentence was manifestly excessive, and whether the sentencing judge gave insufficient weight to the principle of totality, current sentencing practice, and the delay. The appellant argued that the sentence was manifestly excessive and that the sentencing judge did not consider the totality principle, current sentencing practice, and the delay. The appellant submitted that the sentence was excessive because it did not reflect the appellant's limited criminal history, lack of insight and remorse, and symptoms of post-traumatic stress disorder. The appellant also submitted that the delay in the prosecution of the offences should have been taken into account by the sentencing judge.

The court considered the submissions made by the appellant and the authorities cited. The court noted that the appellant had a limited criminal history, but also noted that the crimes were serious and involved a breach of trust. The court also noted that the appellant had shown no insight or remorse for the crimes, and that the delay in the prosecution of the offences did not warrant a reduction in sentence. The court held that the sentence was not manifestly excessive and that the sentencing judge had given sufficient weight to the principle of totality, current sentencing practice, and the delay. The court held that the sentence was appropriate in all the circumstances, and that the appeal should be dismissed.

Orders