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Piscitelli v R

Piscitelli v R

Case [2013] NSWCCA 8 4 February 2013

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Court of Criminal Appeal

New South Wales

Case Title: Piscitelli v R

Medium Neutral Citation: [2013] NSWCCA 8

Hearing Date(s): 1 August 2012

Decision Date: 04 February 2013

Before: Hoeben JA at [1]
Johnson J at [2]
Button J at [3]

Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords: CRIMINAL LAW - application for leave to appeal against sentence - two counts of aggravated sexual assault - break and enter the home of elderly victim in circumstances of special aggravation - no fact finding error - no undue weight on objective gravity of offence - individual sentences not manifestly excessive - total sentence not manifestly excessive

Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Procedure Act 1986

Cases Cited: AA v R [2009] NSWCCA 109
Aoun v R [2011] NSWCCA 284
Brooks v R [2006] NSWCCA 169
Haines v R [2012] NSWCCA 238
Hanania v R [2012] NSWCCA 221
Lobsey v R [2012] NSWCCA 239
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
R v George [2004] NSWCCA 247; (2004) 149 A Crim R 38
R v Kelly (1993) 30 NSWLR 64
R v O'Donoghue (1988) 34 A Crim R 397
Rutkowsky v R [2008] NSWCCA 10
SZ v R [2007] NSWCCA 19; (2007) 168 A Crim R 249
Yousef v R [2011] NSWCCA 104

Category: Principal judgment

Parties: Tony Piscitelli (applicant)
Regina (respondent)

Representation

- Counsel: Counsel:
R Sutherland SC (applicant)
S Dowling (respondent)

- Solicitors: Solicitors:
Brock Partners (applicant)
Solicitor for Public Prosecutions (respondent)

File Number(s): 2010/95457

Decision Under Appeal

- Court / Tribunal: District Court

- Before: Frearson SC DCJ

- Date of Decision: 14 February 2011

- Court File Number(s): 2010/95457

JUDGMENT

Hoeben JA: I agree with Button J.
Johnson J: I agree with Button J.
Button J: On 14 February 2011 in the District Court at Wollongong, his Honour Judge Frearson SC sentenced Tony Dominic Piscitelli ("the applicant") for four offences. Three appeared on an indictment and one was placed before his Honour on a certificate pursuant to s 166 of the Criminal Procedure Act 1986. All offences were of a sexual nature, and all of them arose from one incident on the evening of 13 April 2010.
The details of the offences and the structure of the sentences imposed will be provided later in this judgment. It suffices to say at this stage that a total head sentence of imprisonment for 16 years 6 months with a total non-parole period of imprisonment for 11 years 6 months was imposed with regard to the four offences.

The offences

The following summary is taken from the remarks on sentence. No ground of appeal impugns these findings of fact:
"Now the facts are that the victim, an eighty-three year old widow resided alone at her home at Tuross Boulevard, Tuross Heads and the victim's residence is a small two bedroom unit contained in a small complex of three units. Her unit is located at the front…

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 Piscitelli v R

Details

AGLC: Piscitelli v R [2013] NSWCCA 8
Case: [2013] NSWCCA 8
Decision Date: 04 February 2013

CaseChat Overview and Summary

The applicant, Piscitelli, sought leave to appeal against the sentence imposed by the court of appeal following his convictions on two counts of aggravated sexual assault. The applicant had broken into the home of an elderly victim under circumstances of special aggravation. The appeal was against the sentence, not the conviction. The applicant contended that the sentence was manifestly excessive and that the primary judge had failed to consider the mitigating factors in an appropriate manner. Additionally, he argued that the primary judge had erred in the way he assessed the objective seriousness of the offence and had placed undue weight on this aspect.

The legal issues before the court were whether the sentence imposed was manifestly excessive and whether there was any error in the primary judge's assessment of the objective seriousness of the offence. The court examined whether the primary judge had appropriately considered the mitigating factors and whether the overall sentence was disproportionate to the crimes committed. The court also considered whether the primary judge had erred in the way he assessed the objective seriousness of the offence and whether this had unduly influenced the sentencing decision.

The court found that there was no fact finding error and no undue weight had been placed on the objective gravity of the offence. The court considered that the individual sentences for each count were not manifestly excessive and, in combination, the total sentence was also not manifestly excessive. The court noted that the primary judge had given appropriate consideration to the mitigating factors and had balanced these against the objective seriousness of the offence. The court concluded that the sentence was proportionate to the crimes committed and did not amount to a manifest excess. The application for leave to appeal was dismissed.

The court dismissed the application for leave to appeal against sentence, affirming the sentence imposed by the court of appeal. The court found that the primary judge had appropriately assessed the objective seriousness of the offence, considered the mitigating factors, and imposed a sentence that was proportionate to the crimes committed. The applicant's argument that the sentence was manifestly excessive was rejected.

Orders