Natale v The Queen; Stallone v The Queen - [2011] VSCA 28

SUPREME COURT OF VICTORIA

COURT OF APPEAL

DOMENIC NATALE	S APCR 2008 0838
DOMENIC NATALE	v
THE QUEEN
S APCR 2008 0839
MARIA ANGELINA STALLONE
v
THE QUEEN

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JUDGES	MAXWELL P, ASHLEY and BONGIORNO JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	7 February 2011
DATE OF JUDGMENT	11 February 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 28
JUDGMENT APPEALED FROM	[2008] VSC 634 (King J)

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CRIMINAL LAW – Sentence – Incitement to murder – Whether sentencing judge erred having regard to tariff for sentences for conspiracy to murder or attempted murder – Appeal allowed – Appellants resentenced.

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Appearances:	Counsel	Solicitors
For the Appellant Natale	Mr O P Holdenson QC	Theo Magazis & Assoc
For the Appellant Stallone	Mr M J Croucher	Dean Cole & Assoc
For the Crown	Mr S Cooper	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P:

I agree with Ashley JA.

ASHLEY JA:

Dominic Natale and Maria Stallone seek leave to appeal against sentence passed upon them, on a plea of guilty, on a count of incitement to murder their father, Dominic Natale Senior. The offence was committed between 11 and 20 September 2006.

The maximum penalty for the offence is imprisonment for life. That has been the maximum penalty since 1997.[1]
[1]See s 321I(1)(ba) Crimes Act 1958, as substituted by No 48/1997.

On 25 September 2008, each applicant was sentenced by a judge in the Trial Division to nine years’ imprisonment with a six year non-parole period.

The applicants sought leave to appeal against sentence, on the single ground that the sentence passed was manifestly excessive. A judge of this Court refused leave to appeal.

The applicants have elected to have their applications heard by a Court of three. If successful, they seek that their appeals be allowed and that they be re-sentenced. The applicants rely upon the ground originally articulated and a second ground:

1 The head sentence and the non-parole period are manifestly excessive.
2The learned judge erred in her approach to current sentencing practices by relying on sentences passed in cases of conspiracy to murder and by failing adequately to consider sentences passed in cases of incitement to murder.

Circumstances

The circumstances of the offending and its aftermath were broadly as follows:

The applicants are brother and sister. Dominic Natale was born on 16 August 1962, and was thus 46 years old at the time of sentence. Maria Stallone was born on 2 March 1964, and so was aged 44 years at the time of sentence.

The applicants’ mother died intestate in 2005. At the time of her death the mother, together with her husband, owned two properties. One was in Preston, the other in North Fitzroy.

The father and the applicants were on bad terms. That was a long-standing situation. The applicants considered, with apparent justification, that their father had treated their mother, themselves and their two siblings very badly over a long period of time. His mistreatment had included physical abuse, denial of paternity, and in the course of…

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.

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Details

Case: [2011] VSCA 28
Decision Date: 11 February 2011

CaseChat Overview and Summary

The appellants, Natale and Stallone, appealed their sentences in the High Court of Australia. They were convicted for their involvement in a conspiracy to murder and were sentenced by the sentencing judge. The nature of the appeal focused on the appropriateness of the sentences imposed in light of the established sentencing principles and the applicable tariff for similar crimes. The court was tasked with determining whether the sentencing judge had erred in assessing the appropriate punishment for the appellants' criminal activities.

The central legal issue before the court was whether the sentencing judge had made an error in determining the appropriate sentence for the appellants. The court needed to assess if the sentences were commensurate with the severity of the crime, considering the established sentencing principles and the tariff for similar offences such as conspiracy to murder or attempted murder. The appellants argued that the sentences were excessive and did not align with the principles set out in previous case law. The court's role was to review the sentencing process and ensure that it was conducted in accordance with the law and that the sentences were just and appropriate.

In delivering the judgment, the court found that the sentencing judge had indeed erred in the application of the sentencing principles. The court emphasised that the sentencing judge must consider the totality of the circumstances, including the nature of the offence and the culpability of the offender. The court held that the sentences imposed were not aligned with the established tariff for similar crimes, which should have been taken into account. Consequently, the appeal was allowed, and the appellants were resentenced. The court provided detailed reasons for the appropriate sentence, ensuring that the resentencing process adhered to the correct legal principles and reflected the gravity of the offence.

Orders