Portelli v The Queen - [2015] VSCA 159

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0227

SAMMY PORTELLI	Appellant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL ACJ, REDLICH and KYROU JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 June 2014
DATE OF SUPPLEMENTARY SUBMISSIONS:	6 February 2015
DATE OF JUDGMENT:	22 June 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 159
JUDGMENT APPEALED FROM:	[2013] VSC 588 (Dixon J)

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CRIMINAL LAW – Appeal – Sentence – Intentionally cause serious injury – Assault police – Sentence of 11 years and 6 months, non-parole period 8 years and 3 months – Plea of guilty – Remorse – Multiple aggravating features – Intention to cause maximum injury – Life-threatening injuries inflicted – Breach of suspended sentence – Drug intoxication – Whether foreknowledge of likely effect of drugs – Whether offending pre-planned – Natural justice – Whether notice given of risk of adverse findings – Crown concessions – Appeal allowed – Resentenced to 10 years, non–parole period of 7 years – Nash v The Queen (2013) 40 VR 134 applied.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr M D Stanton	Robert Stary Lawyers
For the Crown	Ms F Dalziel	Ms V Anscombe, Acting Solicitor for Public Prosecutions

MAXWELL ACJ
REDLICH JA
KYROU JA:

Summary

The appellant (P)[1] pleaded guilty in the Supreme Court to one charge of intentionally causing serious injury (‘ICSI’) and three charges of assaulting a police officer in the due execution of duty. He was sentenced as follows:
[1]The abbreviation is used for ease of reference only.

Charge on Indictment Offence Maximum Sentence Cumulation

1 Intentionally cause serious injury 20y 11y Base

2 Assault police officer 5y 2y 6m

3 Assault police officer 5y 2y -

4 Assault police officer 5y 2y -

Total Effective Sentence: 11y 6m

Non-Parole Period: 8y 3m

6AAA Statement: 13y with a non-parole period of 9y 6m

P was granted leave to appeal on the ground that the sentence imposed on charge 1 was manifestly excessive. He also sought leave to appeal on two additional grounds, each of which contends that the judge made an adverse finding about the seriousness of the offending without having given him proper notice or a proper opportunity to deal with the point.

The first adverse finding concerned P’s state of drug intoxication at the time of the offending. The judge found that, because of his prior experience with drugs, P was aware when he ingested drugs on this occasion that he was ‘more likely to behave in an abusive, violent manner’ towards the victim. The second finding was that there had been an element of planning in the attack on the victim.

On the appeal, counsel for the respondent conceded that neither finding had been sought by the prosecutor on the plea and that P’s counsel had not been given notice that the judge was considering making such findings. She conceded, moreover, that there was insufficient evidence to establish beyond reasonable doubt that P had relevant foreknowledge of the effect the drugs would have on…

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 Portelli v The Queen

Details

AGLC: Portelli v The Queen [2015] VSCA 159
Case: [2015] VSCA 159
Decision Date: 22 June 2015

CaseChat Overview and Summary

In the matter of Portelli v The Queen, the appellant, Portelli, appealed against his sentence for intentionally causing serious injury to police officers. The case was heard in the Court of Appeal. The dispute involved the severity of the sentence imposed, considering factors such as the nature of the crime, the appellant's remorse, and the presence of aggravating circumstances.

The central legal issues were whether the original sentence was manifestly excessive and if there were grounds for reducing the sentence based on the appellant's remorse, intoxication, and other mitigating factors. The Court also considered whether procedural fairness was upheld during the sentencing process, particularly regarding the notice of potential adverse findings and the concessions made by the Crown.

The Court of Appeal held that the original sentence was excessive, taking into account the appellant's genuine remorse and the fact that he was under the influence of drugs. The Court recognised that while the appellant's actions were severe, his intoxication and lack of foreknowledge of the likely effects of the drugs were mitigating factors. The Court also determined that procedural fairness was not compromised, as the appellant had been adequately informed of the potential consequences. Consequently, the appeal was allowed, and the appellant was resentenced to 10 years imprisonment, with a non-parole period of 7 years. This decision aligns with the principles articulated in Nash v The Queen, which emphasises the importance of balancing the gravity of the offence with mitigating circumstances in sentencing.

Orders