Orlando Luciano v The Queen - [2015] VSCA 69

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0020

ORLANDO LUCIANO	Applicant
v
THE QUEEN	Respondent

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE
(DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315
OF THE CRIMINAL PROCEDURE ACT 2009)

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JUDGE:	OSBORN JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 April 2015
DATE OF JUDGMENT:	15 April 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 69
JUDGMENT APPEALED FROM:	DPP v Luciano (Unreported, County Court of Victoria, Judge Hannan, 16 September 2014)

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CRIMINAL LAW – Sentence – Application for leave to appeal against sentence – Common assault, recklessly cause injury, threat to kill and arson – Sentence of four years’ 10 months imprisonment with non-parole period of three years imposed – Whether sentence manifestly excessive – Whether sentencing discretion miscarried because of the introduction into the sentencing hearing of irrelevant and highly prejudicial material in victim impact statements – Sentence not manifestly excessive – Reasonably arguable that sentencing hearing sufficiently miscarried so as to involve an error in the sentence first imposed – Leave to appeal granted.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr R Edney	Doogue O’Brien George
For the Respondent	Ms D Piekusis	Ms V Anscombe, Acting Solicitor for the Office of Public Prosecutions

OSBORN JA:

Following pleas of guilty, the applicant was sentenced on 16 September 2014 by her Honour Judge Hannan in the County Court as follows:

Charge on Indictment B12891771	Offence	Maximum	Sentence	Cumulation
1.	Common Law Assault [Common Law]	5 years [s 320 Crimes Act 1958]	3 months	—
2.	Recklessly Cause Injury [s 18 Crimes Act 1958]	5 years [s 18 Crimes Act 1958]	8 months	4 months
3.	Make Threat to Kill [s 20 Crimes Act 1958]	10 years [s 20 Crimes Act 1958]	10 months	4 months
4	Arson [s 197(7) Crimes Act 1958]	15 years [s 197(7) Crimes Act 1958]	4 years 2 months	Base
Total Effective Sentence:		4 years 10 months
Non-Parole Period:		3 years
Pre-sentence detention declared:		73 days
6AAA Statement: Pursuant to s 6AAA of the Sentencing Act 1991, but for the plea of guilty, the Learned Sentencing Judge declared that the applicant would have been sentenced to a term of imprisonment of 6 years 10 months imprisonment with a direction that the applicant served 4 years 10 months in prison before becoming eligible for parole.
Other relevant orders: Forfeiture Order pursuant to s 32 of the Confiscation Act 1997; Disposal Order pursuant to s 77 of the Confiscation Act 1997; Compensation Order pursuant to s 86 of the Sentencing Act 1991; Forensic Sample Order pursuant to s 464ZF(2) of the Crimes Act 1958.

The applicant now seeks leave to appeal against sentence on two grounds:

Ground 1 — The sentences imposed on the charges of common assault, recklessly cause injury, threat to kill and criminal damage by fire and the orders for cumulation:
(i) were manifestly excessive; and
(ii)outside the range…

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: [2015] VSCA 69
Decision Date: 15 April 2015

CaseChat Overview and Summary

Orlando Luciano has applied for leave to appeal against his conviction and sentence in relation to common assault, recklessly causing injury, threatening to kill, and arson. The appeal was heard in the High Court of Australia. Luciano was sentenced to a total of four years and ten months imprisonment, with a non-parole period of three years. The primary issues before the court were whether the sentence was manifestly excessive and whether the sentencing process was flawed due to the introduction of irrelevant and highly prejudicial material in the victim impact statements.

The court examined whether the sentence was manifestly excessive. It considered the nature of the offences, the need for general and specific deterrence, and the principles of parity. The court concluded that the sentence was not manifestly excessive, taking into account the severity of the crimes and the need to protect society. However, the court also considered whether the sentencing process was affected by the introduction of irrelevant and highly prejudicial material in the victim impact statements. It was determined that there was a reasonable arguable basis that the sentencing hearing was sufficiently miscarried due to this material.

Given the findings, the court held that there was a reasonably arguable basis that the sentencing discretion had miscarried due to the introduction of the prejudicial material. The court granted leave to appeal on the basis that the sentencing process was sufficiently flawed. The appeal would allow for a review of the sentence to ensure it is appropriate and just, considering the miscarried process.

The court's final orders were that leave to appeal against the sentence was granted. The appeal would address the question of whether the sentence was manifestly excessive and whether the sentencing discretion was miscarried by the introduction of prejudicial material in the victim impact statements.

Orders