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Minutolo v The King

Minutolo v The King

Case [2023] VSCA 300 7 December 2023

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0183

CARTER MINUTOLO	Applicant
v
THE KING	Respondent

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JUDGES:	KENNEDY JA and KIDD AJA
WHERE HELD:	Melbourne
DATE OF HEARING:	28 November 2023
DATE OF JUDGMENT:	7 December 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 300
JUDGMENT APPEALED FROM:	Director of Public Prosecutions v Carter Minutolo‑Smith (County Court of Victoria, Judge Gaynor, 12 September 2023)

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CRIMINAL LAW – Appeal – Sentence – Application for leave to appeal against sentence –– Third contravention of community corrections order – Applicant resentenced on original charges together with contravention offence – Original charges including theft, criminal damage and go equipped to steal/cheat –– Total effective sentence of 6 months’ imprisonment – Whether applicant resentenced on incorrect factual basis – Whether sentencing judge failed to take into account extent of compliance – Whether sentencing judge misapplied parity principle – Whether sentence manifestly excessive – No error – No reasonable prospect of reduction in sentence – Leave to appeal refused.

Criminal Procedure Act 2009, s 280(1).

Kellway v The Queen [2023] VSCA 109, applied.

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Counsel
Applicant:		Ms E Strugnell
Respondent:		Mr G Buchhorn
Solicitors
Applicant:	James Dowsley & Associates
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

KENNEDY JA
KIDD AJA:

On 12 September 2023 the applicant pleaded guilty to one charge of contravening a community corrections order (‘CCO’) (‘the Order’). Following a plea hearing, the applicant was sentenced on that charge and, after cancelling the Order, was also resentenced in relation to the original charges for which the Order was made, as follows:

Charge	Offence	Max Penalty	Sentence	Cumulation
1	Contravention of a CCO	3 months	2 months	1 month
9	Go equipped to steal/cheat	2 years	5 months (aggregate sentence)	Base
10	Criminal damage	10 years
11	Theft	10 years
12	Criminal damage	10 years
13	Theft	10 years
14	Criminal damage	10 years
15	Theft	10 years
16	Criminal damage	10 years
17	Theft	10 years
18	Criminal damage	10 years
Total Effective Sentence:		6 months’ imprisonment
Section 6AAA Statement:		Total Effective Sentence 12 months’ imprisonment

The applicant now seeks leave to appeal against sentence on the following grounds:
Ground 1.The sentencing judge erred in resentencing the applicant on an incorrect factual basis, in that the incorrect summary for the breaching offence was read by the prosecution into the court record.
Ground 2.The sentencing judge erred by resentencing the applicant on an incorrect factual basis, namely by having regard to the incorrect charge and offence.
Ground 3.The sentencing judge erred by failing to take into account the extent of compliance as required by s 83AS of the Sentencing Act 1991.
Ground 4.The sentencing judge erred in misapplying the parity principle on the resentence, such that a legitimate and justifiable sense of grievance is produced in an objective observer.
Ground 5.In all the circumstances of the case, the sentence imposed is manifestly excessive.
For the reasons that follow, leave to appeal will be refused.

Circumstances of original offending

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 Minutolo v The King

Details

AGLC: Minutolo v The King [2023] VSCA 300
Case: [2023] VSCA 300
Decision Date: 7 December 2023

CaseChat Overview and Summary

The case of Minutolo v The King involves an appellant who was appealing against the sentence imposed by the sentencing judge. The appellant had been convicted on several charges including theft, criminal damage, and being equipped to steal or cheat. This was the appellant’s third contravention of a community corrections order. The sentencing judge resentenced the appellant on the original charges along with the contravention offence, resulting in a total effective sentence of six months’ imprisonment. The appellant argued that the resentencing was based on an incorrect factual basis, that the sentencing judge failed to take into account the extent of compliance with the community corrections order, that the parity principle was misapplied, and that the sentence was manifestly excessive.

The court had to decide whether there was any error in the resentencing process, whether there was a failure to take into account the extent of compliance, whether the parity principle was misapplied, and whether the sentence was manifestly excessive. The court considered the arguments made by the appellant and examined the sentencing remarks of the judge. The court found that there was no error in the resentencing process, that the sentencing judge had taken into account the extent of compliance, that the parity principle was not misapplied, and that the sentence was not manifestly excessive.

The court held that the resentencing was not based on an incorrect factual basis and that the sentencing judge had considered the extent of compliance with the community corrections order. The court also held that the parity principle was not misapplied and that the sentence was not manifestly excessive. The court found that there was no reasonable prospect of a reduction in the sentence and therefore refused the appellant’s application for leave to appeal against the sentence.

The court did not grant leave to appeal and the sentence of six months’ imprisonment stands. The appellant is not permitted to appeal against the sentence any further without the leave of the Court of Appeal. The court’s decision reinforces the importance of ensuring that the sentencing process is fair and just, and that the sentencing judge takes into account all relevant factors when determining the appropriate sentence.

Orders