Marasco v The Queen - [2016] VSCA 85

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…

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 Marasco v The Queen

Details

AGLC: Marasco v The Queen [2016] VSCA 85
Case: [2016] VSCA 85
Decision Date: 27 April 2016

CaseChat Overview and Summary

In the case of Marasco v The Queen, the applicant, Marasco, sought leave to appeal against his conviction and sentence for obtaining financial advantage by deception. The case was heard in the High Court of Australia. The primary issue before the court was whether the trial judge had misapprehended the explanation for the five-year delay in bringing the case to trial and, if so, whether this misapprehension had led to an inappropriate sentencing outcome. The applicant argued that the delay in bringing the case to trial had exacerbated his anxiety and depression, which should have been considered as a mitigating factor in his sentencing.

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