Natano v The King - [2023] VSCA 261

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0052

ELIAS NATANO	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST and TAYLOR JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	19 October 2023
DATE OF JUDGMENT:	31 October 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 261
JUDGMENT APPEALED FROM:	DPP v Natano [2023] VCC 283 (Judge Dalziel)

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CRIMINAL LAW – Application for leave to appeal – Sentence – Charges of arson, aggravated carjacking with offensive weapon, intentionally cause serious injury, negligently cause serious injury, fail to render assistance, criminal damage, make threat to kill and conduct endangering life – Related summary charges – Total effective sentence of 15 years and 3 months’ imprisonment with non-parole period of 12 years – Whether sentencing judge erred in treatment of remorse as mitigating factor – Whether judge failed to give notice before qualifying remorse – Whether proper weight given to totality – Whether sentence manifestly excessive – Leave to appeal refused.

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Counsel
Applicant:	Mr RF Edney
Respondent:	Mr CB Boyce KC
Solicitors
Applicant:	Emma Turnbull Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
TAYLOR JA:

On 8 February 2023 the applicant pleaded guilty to 16 indictable offences and three related summary charges. The offending occurred in six separate incidents within a four hour period on a single day.
Following the plea hearing, he was sentenced on 3 March 2023 as follows:

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Arson	15 years	12 months	N/A
2	Negligently causing serious injury	10 years	5 years	24 months
3	Fail to render assistance after an accident contrary to s 61(3) of the Road Safety Act 1986	10 years	3 years	6 months
4	Damaging property	10 years	8 months	N/A
5	Causing serious injury intentionally	20 years	9 years	Base
6	Make threat to kill	10 years	2 years	3 months
7	Reckless conduct endangering life	10 years	3 years	6 months
8	Fail to render assistance after an accident contrary to s 61(3) of the Road Safety Act 1986	10 years	3 years	3 months
9	Damaging property	10 years	16 months (aggregate)	4 months (aggregate)
10	Damaging property	10 years
11	Damaging property	10 years
12	Damaging property	10 years
13	Damaging property	10 years
14	Damaging property	10 years
15	Aggravated carjacking — Offensive Weapon	25 years	5 years	18 months
16	Reckless conduct endangering life	10 years	3 years	9 months
Related Summary Offences
34	Fail to render assistance after accident contrary to s 61(1)(b) of the Road Safety Act 1986	8 months’ imprisonment or 80 penalty units	2 months	1 month
35	Resist police officer contrary to s 52(1) of the Summary Offences Act 1966	6 months’ imprisonment or 60 penalty units	3 months	1 month
36	Learner driver driving without supervision contrary to r 47(2) of the Road Safety (Drivers) Regulations 2019	20 penalty units	Convicted and fined $3000	N/A
Total Effective Sentence:		15 years and 3 months’ imprisonment
Non-Parole Period:		12 years
Pre-sentence…

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 Natano v The King

Details

AGLC: Natano v The King [2023] VSCA 261
Case: [2023] VSCA 261
Decision Date: 31 October 2023

CaseChat Overview and Summary

The applicant, Natano, was convicted of a series of serious offences including arson, aggravated carjacking, and causing serious injury. He appealed against his sentence, arguing that the sentencing judge erred in the treatment of his remorse as a mitigating factor and failed to give adequate notice before qualifying the extent of the remorse. The High Court was asked to consider whether the sentence was manifestly excessive and whether the totality principle was properly applied. The court was required to determine if the sentence of 15 years and 3 months’ imprisonment with a non-parole period of 12 years was appropriate, given the totality of the offending and the mitigating factors presented.

The court considered the arguments presented by Natano and found that the sentencing judge had properly considered the mitigating factors, including the applicant's remorse. The court held that the judge did not err in qualifying the extent of the remorse and that there was no requirement to give specific notice before doing so. The court also found that the sentencing judge had given proper weight to the totality of the offending and the mitigating factors, and that the sentence was not manifestly excessive. The court concluded that the sentence reflected the gravity of the offences and the need for general deterrence.

In light of the above, the High Court refused the applicant leave to appeal against his sentence. The court determined that the sentencing judge had correctly applied the relevant principles and principles of sentencing in reaching the sentence imposed. The court noted that the sentence was within the range of sentences that could be considered appropriate for the offending and that the mitigating factors had been properly taken into account. The decision reinforces the importance of considering the totality of the offending and the need to balance the interests of the community with the individual circumstances of the offender.

Orders