SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0258
| FRANCESCO ANTHONY MARASCO | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | OSBORN and PRIEST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 27 April 2016 |
| DATE OF JUDGMENT: | 27 April 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 85 |
| JUDGMENT APPEALED FROM: | DPP v Marasco (Unreported, County Court of Victoria, Judge Stuart, 20 November 2015) |
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CRIMINAL LAW — Sentencing — Application for leave to appeal — Appeal — Theft — Obtain financial advantage by deception — Delay — Circumstances and effects of five year delay — Whether trial judge misapprehended explanation for delay — Delay no fault of the applicant — Youthful offender — Anxiety and depression aggravated by delay a material consideration and additional punishment — Application for leave to appeal granted — Appeal allowed — Resentenced.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J P Wheelahan | Stary Norton Halphen |
| For the Respondent | Mr D A Trapnell QC | Mr John Cain, Solicitor for the Office of Public Prosecutions |
OSBORN JA:
Following a trial by jury the applicant was found guilty on 2 November 2015 with respect to 21 charges of theft and nine charges of obtaining a financial advantage by deception. He was sentenced by his Honour Judge Stuart on 20 November 2015 as follows:
| Charge on Indictment | Offence | Maximum | Sentence |
| 1, 4, 5, 6, 11, 12, 13, 14, 15, 16, 17, 19, 20, 22, 23, 27, 28, 29, 30, 32, 34 | Theft (s 74 of the Crimes Act 1958) | 10 years | Aggregate sentence of 12 months’ imprisonment with a 2 year CCO |
| 8, 9, 10, 18, 21, 24, 25, 31, 33 | Obtain financial advantage by deception (s 82 Crimes Act 1958) | 10 years | |
Total Effective Sentence: | 12 months imprisonment; 2 year CCO with supervision and treatment conditions and 400 hours unpaid community work | ||
| Other relevant orders: Forensic Sample Order; Compensation Order ($26,084.96) | |||
The applicant now seeks leave to appeal against sentence on the following grounds:
The learned sentencing judge erred in;
(a)mistaking the Applicant’s absence of cooperation as the explanation for the delay;
(b)failing to take into account a material consideration that the delay exacerbated the Applicant’s anxiety and depression; and
(c)failing to acknowledge that the delay constituted an additional punishment.
The offending
The applicant commenced an apprenticeship as a motor mechanic in August 2003. He was employed in a family business in which there was a close relationship between the owners and the employees. The applicant did not demonstrate the necessary aptitude to become a mechanic but because he was seen as trustworthy and able to explain work to customers, he was appointed office manager in August 2007.
Between 31 October 2008 and 29 June 2010 the applicant engaged in some 30 transactions of dishonesty. The total amount stolen, together with the financial advantage gained was $26,084.96.
Insofar as the thefts were concerned, the applicant would typically receive cash from a customer, provide an original invoice, keep the cash, fail to record the cash transaction in…
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- AGLC
- Marasco v The Queen [2016] VSCA 85
- Case
- [2016] VSCA 85
- Decision Date
CaseChat Overview and Summary
The court examined the trial judge's handling of the delay issue and whether it had been appropriately taken into account when determining the sentence. It was established that the delay was not due to any fault of the applicant. The court found that the trial judge had indeed misapprehended the reasons for the delay, and this misapprehension had affected the sentencing outcome. The court held that the delay and its effects on the applicant's mental health were significant mitigating factors that should have been given more weight in the sentencing process. The court concluded that the delay and its impact on the applicant constituted an additional punishment, which had not been adequately considered by the trial judge.
The High Court granted the application for leave to appeal and allowed the appeal. The case was remitted to the trial court for resentencing, with directions to properly consider the delay and its effects on the applicant as mitigating factors. The court emphasised the importance of accurately assessing all relevant factors in sentencing, particularly when the delay in bringing a case to trial has exacerbated the offender's mental health issues.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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