Minotto v The Queen

[2010] VSCA 310

SUPREME COURT OF VICTORIA

COURT OF APPEAL

PAUL MINOTTO	S APCR 2009 0628
	Appellant
v
THE QUEEN	Respondent

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JUDGES	NETTLE and BONGIORNO JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	16 November 2010
DATE OF JUDGMENT	29 November 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 310
JUDGMENT APPEALED FROM	R v Minotto (Unreported, County Court of Victoria, Judge Wilmoth, 24 April 2009)

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CRIMINAL LAW – Sentencing – Two presentments preferring numerous counts of burglary, theft and attempted theft from ex employer – Appellant sentenced to total effective sentence of five years and two months’ imprisonment – Whether judge gave sufficient weight to matters of totality, delay and rehabilitation – Error in recording non-parole period in respect of one presentment – Appeal allowed – Appellant re-sentenced to original term of imprisonment – Recording error corrected.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr D A Dann	Melasecca Kelly & Zayler
For the Crown	Mr S Cooper	Mr C Hyland, Solicitor for Public Prosecutions

NETTLE JA:

BONGIORNO JA:

Introduction

1. On 17 April 2009, the appellant pleaded guilty before the County Court at Melbourne, on Presentment X00887204, to five counts of burglary, seven counts of theft, five counts of attempted theft, one count of attempted burglary and one count of obtaining property by deception;  and, on Presentment X01679758, to one count of burglary, one count of theft, one count of criminal damage and one count of attempted theft.  He also admitted 126 previous convictions from seven court appearances.

1. Following a plea in mitigation of penalty, on 24 April 2009, he was sentenced as follows:

PRESENTMENT X00887204

Count	Offence	Nature of offending	Max penalty	Sentence	Cumulation
1	Burglary	Entered premises of former employer with intent to steal	10 years imp	2 years imp	3 months
2	Theft	Stole motor cycle from the premises worth $22,000	10 years imp	3 years imp	-
3	Theft	Stole tools from the premises worth $15,000	10 years imp	2 years imp	-
4	Burglary	Rolled-up count entered 3 different areas of premises	10 years imp	3 years imp	3 months
5	Theft	Stole metal valued at $31,000, later sold for $13,000	10 years imp	3 years imp	-
6	Theft	Stole motor vehicle worth $80,000 from premises	10 years imp	3 years imp	-
7	Attempted theft	Tried to break into a truck at premises causing damage	5 years imp	1 year imp	3 months
8	Attempted theft	Tried to break into a truck at premises causing damage	5 years imp	1 year imp	-
9	Attempted theft	Tried to break into a truck at premises causing damage	5 years imp	1 year imp	-
10	Attempted theft	Tried to break into a truck at premises causing damage	5 years imp	1 year imp	-
11	Attempted theft	Tried to break into a truck at premises causing damage	5 years imp	1 year imp	-
12	Theft	Returned to same premises stole 2 welders	10 years imp	1 year imp	1 month
13	Burglary	Entered premises — broke…