Perri v The Queen - [2016] VSCA 89

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0168

ARMANDO DOMENICO PERRI	Appellant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST, COGHLAN and KYROU JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 April 2016
DATE OF JUDGMENT:	5 May 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 89
JUDGMENT APPEALED FROM:	DPP v Perri (Unreported, County Court of Victoria, Judge Tinney, 26 June 2015)

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CRIMINAL LAW – Appeal – Sentence – Aggravated burglary – Joint criminal enterprise –Sentence of six years and nine months imprisonment with a non-parole period of four years and six months – Parity – Whether disparity of sentence – Whether trial judge had improper regard to s 6AAA declaration of co-accused – Complaint regarding s 6AAA declaration not made out – Disparity of sentence made out – Seriousness of offending among co-accused equal – Sentence imposed on appellant too severe – Appeal allowed – Appellant resentenced to five years and six months imprisonment with a non-parole period of three years – Crimes Act 1958, s 77(1).

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr O P Holdenson QC with Mr T R Alexander	Paul Vale Criminal Law
For the Crown	Mr B L Sonnet	Mr J Cain, Solicitor for Public Prosecutions

PRIEST JA:

Substantially for the reasons advanced by Coghlan JA — whose judgment I have had the advantage of reading in draft — I agree that the appeal should be allowed, and the appellant be resentenced in the manner that his Honour proposes.

COGHLAN JA:

Overview

On 2 December 2015 Osborn JA granted Domenico Perri leave to appeal against the sentence imposed on him on 26 June 2015.

On 29 May 2015, after a trial lasting five days, the appellant had been convicted of one count of aggravated burglary. He was sentenced as follows:

Charges on Indictment
D12876662 Offence Maximum Sentence Cumulation

1. Aggravated Burglary
[s 77(1) of the Crimes Act 1958] 25 years 6 years and 9 months imprisonment ---

Total Effective Sentence: 6 years and 9 months imprisonment

Non-Parole Period: 4 years and 6 months

Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991: 28 days

Other relevant orders:
- Forensic Sample Order made pursuant to s 464ZF Crimes Act 1958

Charges on Indictment D12876662	Offence	Maximum	Sentence	Cumulation
1.	Aggravated Burglary [s 77(1) of the Crimes Act 1958]	25 years	6 years and 9 months imprisonment	---
Total Effective Sentence:	6 years and 9 months imprisonment
Non-Parole Period:	4 years and 6 months
*Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:*	28 days
Other relevant orders: - Forensic Sample Order made pursuant to s 464ZF Crimes Act 1958

The circumstances of the offending are usefully set out in the Registrar’s neutral Summary as follows:

On 13 August 2013, following a lengthy period of planning, the appellant together with two co-offenders, Stuart Martin and Andrew Phillips, committed the offending. Phillips was the godfather of and cousin to Martin.
The victims, Silvio and Cheryl Toffolon, a married couple, were market gardeners who commonly dealt with cash. The appellant had known the male

victim, Silvio, who was 67 years of age, for most of his life. The appellant thought and told his two co-offenders that there were hundreds of thousands of dollars which the victims kept in their possession at their property located in Werribee. However, this belief was mistaken and the victims did not hold large…

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 Perri v The Queen

Details

AGLC: Perri v The Queen [2016] VSCA 89
Case: [2016] VSCA 89
Decision Date: 5 May 2016

CaseChat Overview and Summary

In the case of Perri v The Queen, the appellant was convicted for his involvement in an aggravated burglary as part of a joint criminal enterprise. The case was heard on appeal in the High Court of Australia. The appellant's primary contention on appeal was the severity of his sentence in comparison to that of his co-accused, particularly whether the trial judge had improperly considered a s 6AAA declaration made by the co-accused. Additionally, the appellant argued that the disparity in their sentences was unjust.

The legal issues before the court included whether the trial judge had an improper regard to the co-accused's s 6AAA declaration and whether the disparity in the sentences was justified. The court considered whether the trial judge had appropriately balanced the principles of parity and individual culpability in determining the sentences. The appeal hinged on whether the appellant's sentence was excessive in comparison to that of his co-accused, given that the seriousness of the offending was deemed equal.

The High Court found that the trial judge had not improperly regarded the co-accused's s 6AAA declaration. However, the court determined that the disparity in the sentences was unjust. The seriousness of the offending among the co-accused was considered equal, and the court concluded that the sentence imposed on the appellant was too severe. The appeal was allowed, and the appellant was resentenced to five years and six months imprisonment, with a non-parole period of three years. The court's decision emphasised the need for parity in sentencing among co-offenders where the seriousness of the offending is equal.

Orders