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Luciano v The Queen

Luciano v The Queen

Case [2015] VSCA 173 26 June 2015

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0020

ORLANDO LUCIANO	Appellant
v
THE QUEEN	Respondent

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JUDGES:	REDLICH and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 June 2015
DATE OF JUDGMENT:	26 June 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 173
JUDGMENT APPEALED FROM:	DPP v Luciano (Unreported, County Court of Victoria, Judge Hannan, 16 September 2014)

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CRIMINAL LAW – Sentence – Arson – Make threat to kill – Recklessly cause injury – Assault – Victim impact statements – Victim impact statements containing inadmissible material – Judge stated that regard had to victim impact statements only so far as they were relevant and admissible – No objection taken by appellant's counsel on the plea – Whether judge had regard to inadmissible material – Whether sentencing discretion miscarried – No error established – Appeal dismissed – Sentencing Act 1991, ss 8L and 8Q.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr R F Edney	Doogue O’Brien George
For the Respondent	Mr B F Kissane QC	Ms V Anscombe, Acting Solicitor for Public Prosecutions

REDLICH JA
BEACH JA:

Introduction

On 16 September 2014, the appellant pleaded guilty in the County Court to one charge of assault, one charge of recklessly causing injury, one charge of making a threat to kill and one charge of arson. Immediately following a plea, the appellant was sentenced as follows:

Charge on Indictment Offence Maximum Sentence Cumulation

1 Common Law Assault [Common Law] 5 years [s 320 Crimes Act 1958] 3 months —

2 Recklessly Cause Injury [s 18 Crimes Act 1958] 5 years [s 18 Crimes Act 1958] 8 months 4 months

3 Make Threat to Kill [s 20 Crimes Act 1958] 10 years [s 20 Crimes Act 1958] 10 months 4 months

4 Arson [s 197(7) Crimes Act 1958] 15 years [s 197(7) Crimes Act 1958] 4 years 2 months Base

Total Effective Sentence: 4 years 10 months

Non-Parole Period: 3 years

Pre-sentence detention: 73 days

6AAA Statement: 6 years 10 months imprisonment (NPP: 4 years 10 months)

Other orders:

Forfeiture Order;

Disposal Order;

Compensation Order; and

Forensic Sample Order.

On 15 April 2015, Osborn JA gave the appellant leave to appeal against his sentence on the following ground:

The sentencing discretion miscarried because of the introduction into the sentencing hearing of irrelevant and highly prejudicial material in victim impact statements and a failure by the trial judge to determine what material in those statements was ‘relevant and admissible’ for the purposes of sentencing.[1]
[1]Luciano v The Queen [2015] VSCA 69 (‘Leave Reasons’).

Circumstances of the offending

In granting leave to appeal, Osborn JA described the circumstances of the appellant’s offending as follows:

The victim with respect to charges 1 to 3 was the [appellant’s] estranged wife. He had married her in 2004 and they have one daughter, who was born on 12 May 2011. On a date between 22 and 24 May 2011 the [appellant’s] wife was lying on a…

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 Luciano v The Queen

Details

AGLC: Luciano v The Queen [2015] VSCA 173
Case: [2015] VSCA 173
Decision Date: 26 June 2015

CaseChat Overview and Summary

Luciano has appealed against the sentence imposed by the Supreme Court of Victoria for multiple criminal offences, including arson, making a threat to kill, recklessly causing injury, and assault. The decision of the Court of Appeal provides clarity on the proper consideration of victim impact statements during sentencing, particularly when such statements contain inadmissible material.

The legal issues before the Court of Appeal centred on whether the trial judge had regard to inadmissible material from the victim impact statements and whether this constituted a miscarriage of the sentencing discretion. The appeal also examined whether the judge should have directed the jury to disregard the inadmissible material, as the appellant's counsel did not object on the plea.

The Court of Appeal found that the judge had correctly stated that regard could only be had to the victim impact statements to the extent that they were relevant and admissible. Given that the appellant's counsel did not object to the inadmissible material during the plea, no error was established in the judge's consideration of the victim impact statements. Consequently, the Court held that there was no miscarriage of the sentencing discretion and dismissed the appeal. The Court of Appeal's decision reinforces the importance of objecting to inadmissible material at the trial court level to preserve the right to appeal on such grounds.

Orders