Minutolo v The King

Case [2023] VSCA 300


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:

  1. 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
  1. 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.

  2. For the reasons that follow, leave to appeal will be refused.

Circumstances of original offending

  1. In…

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Minutolo v The King [2023] VSCA 300
Case
[2023] VSCA 300
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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

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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