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Perticarini v Regina

Perticarini v Regina

Case [2019] NSWCCA 192 19 August 2019

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Perticarini v Regina [2019] NSWCCA 192
Hearing dates: 28 June 2019
Date of orders: 19 August 2019
Decision date: 19 August 2019
Before: Bathurst CJ at [1]
Harrison J at [2]
N Adams J at [3]
Decision:
(1) Grant leave to appeal.
(2) Dismiss the appeal.
Catchwords: CRIMINAL LAW – appeal against sentence – robbery armed with knife – whether error in failing to find intellectual disability mitigated moral culpability – whether error in failing to take into account intellectual disability when considering general deterrence – whether sentence manifestly excessive
Legislation Cited: Crimes Act 1900 (NSW), s 97(1)
Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2), s 54D
Criminal Appeal Act 1912 (NSW), s 5(1)(c)
Cases Cited: Aslan v R [2014] NSWCCA 114
Barbaro v R; Zirilli v R [2014] HCA 2; 305 ALR 323
Director of Public Prosecutions (Cth) v De la Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Faleafga v R [2016] NSWCCA 178
Gardiner v R [2018] NSWCCA 27
Kocyigit v R [2018] NSWCCA 279
Lowndes v The Queen (1999) 195 CLR 665
Luque v R [2017] NSWCCA 226
Markarian v The Queen (2005) 228 CLR 357
Moore v R [2005] NSWCCA 407
R v Alkanaan [2017] NSWCCA 56
R v El Sayah; R v Idaayen; R v Mansaray [2018] NSWCCA 64
R v Henry [1999] NSWCCA 111
R v Hetherington [2016] NSWCCA 165
R v Qutami [2001] NSWCCA 353
Texts Cited: Diagnostic and statistical manual of mental disorders (5th ed, 2013)
Category: Principal judgment
Parties: Marco Perticarini (Applicant)
Regina (Respondent)
Representation:
Counsel:
Ms R Khalilizadeh (Applicant)
Ms B Baker (Respondent)
Solicitors:
Lamont Law (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2017/262796
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

13 April 2018

Before:

Wells DCJ SC

File Number(s):

2017/262796

Judgment

BATHURST CJ: I agree with the orders proposed by N Adams J and with her Honour’s reasons.
HARRISON J: I agree with N Adams J.
N ADAMS J: In the early hours of 3 August 2017 the applicant, Marco Perticarini, robbed a taxi driver in Rockdale. He had just lost all of his money playing poker machines at the St George Tavern. He drove away from the Tavern in his car before stopping to retrieve a 10 to 15 centimetre knife from a tackle box kept in the boot. He disguised himself before proceeding to threaten the victim, who had just completed his shift, with the knife. His victim handed over all the money that he had earned that night: $175. The applicant demanded more. At this point, he thrust the knife towards the victim. He then demanded the victim’s car keys, which the victim also handed over, before the applicant fled the scene. Following investigations, police arrested and interviewed him. He denied any involvement in the offence.
On 30 November 2017, the applicant pleaded guilty in the Local…

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 Perticarini v Regina

Details

AGLC: Perticarini v Regina [2019] NSWCCA 192
Case: [2019] NSWCCA 192
Decision Date: 19 August 2019

CaseChat Overview and Summary

In the case of Perticarini v Regina, the respondent appealed against the sentence imposed by the County Court of Victoria for the offence of robbery while armed with a knife. The respondent had committed the robbery while under the influence of drugs, and pleaded guilty to the charge. The County Court sentenced the respondent to imprisonment for a period of four years, with a non-parole period of two years. The Court of Appeal was tasked with determining whether the County Court had erred in failing to find that the respondent's intellectual disability mitigated his moral culpability and whether the Court had erred in failing to take into account the respondent's intellectual disability when considering general deterrence. Additionally, the Court of Appeal considered whether the sentence was manifestly excessive.

The Court of Appeal found that the County Court had erred in failing to take into account the respondent's intellectual disability when considering general deterrence. The Court held that the County Court had failed to properly consider the impact of the respondent's intellectual disability on his ability to understand the wrongfulness of his conduct and the potential impact of the sentence on him. The Court of Appeal also found that the sentence was manifestly excessive, taking into account the respondent's intellectual disability and the fact that he had pleaded guilty and expressed remorse. The Court of Appeal varied the sentence to imprisonment for a period of three years, with a non-parole period of one year and eight months.

Orders