R v Aquilina - [2010] VSCA 6

SUPREME COURT OF VICTORIA

COURT OF APPEAL

THE QUEEN	No 526 of 2008
	v
LUKE AQUILINA

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JUDGES:	NETTLE and NEAVE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 February 2010
DATE OF JUDGMENT:	2 February 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 6
JUDGMENT APPEALED FROM:	R v Aquilina, Unreported 21 December 2007, County Court of Victoria (Judge Howard)

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CRIMINAL LAW – Sentencing – Intentionally causing serious injury – Appellant sentenced to six and a half years’ imprisonment with a non-parole period of four and a half years – Parity – Whether judge failed to accord sufficient parity in relation to co-offender – Whether judge erred in treating the consumption of ‘ice’ by appellant as an aggravating factor – DPP v Lawrence (2004) 10 VR 125, DPP v Smeaton [2007] VSCA 256 followed – Appeal allowed – Appellant resentenced to six years’ imprisonment with a non-parole period of four years.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr S M Cooper	Mr C Hyland, Solicitor for Public Prosecutions
For the Appellant	Mr R F Edney	Robert Stary & Associates

NETTLE JA:

This is an appeal against a sentence of six and a half years' imprisonment with a non-parole period of four and a half years imposed on the appellant on conviction following trial of one count of intentionally causing serious injury.

The circumstances of the offending

The circumstances of the offence were described by the sentencing judge as follows. The victim of the offence was one Jeffery Neville Watts and the appellant committed the offence against him at the home of one Anthony Sheehan.

On Friday 28 October 2005 a number of people were present at Mr Sheehan's home, including the victim, and five other persons who gave evidence below. Between 4.15 and 4.30 pm on that day, the appellant drove to Mr Sheehan's home and went to the front door and asked for ‘Tony’. As part of his attempt to speak to ‘Tony’, the appellant threatened that, ‘Someone better open this fucking door or I am going to start smashing some fucking heads in.’ The victim responded with words to the effect, ‘Fuck off or I'll get the 32.’ And with that the appellant went back to his vehicle.

At much the same time one Michael Sheehan and his girlfriend were arriving at the house and saw the appellant and his co-accused drive away. But a short time later, they returned armed with metal bars and levers – the appellant with an iron bar about three feet long and his co-accused with a tyre lever – and moved towards the front door of the house.

The door was open and the victim saw them approaching. He decided to tackle them, so as to give others inside, including the mother of a young child, the opportunity to shut the door and secure the premises. But the appellant and his co-accused had no difficulty in overpowering the victim and then they began to walk around him hitting him repeatedly…

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 R v Aquilina

Details

AGLC: R v Aquilina [2010] VSCA 6
Case: [2010] VSCA 6
Decision Date: 2 February 2010

CaseChat Overview and Summary

In this case, the appellant, Aquilina, appealed against the sentence imposed on him for intentionally causing serious injury to another individual. The trial judge had sentenced Aquilina to six and a half years’ imprisonment, with a non-parole period of four and a half years. The appellant argued that the trial judge had failed to accord sufficient parity with the sentence imposed on his co-offender and that the consumption of ‘ice’ by Aquilina should not have been treated as an aggravating factor. The appeal was heard by the court of appeal.

The legal issues before the court were whether the trial judge had erred in not considering the sentences of the co-offenders and whether the consumption of ‘ice’ by the appellant should have been considered an aggravating factor. The appellant argued that the trial judge had not considered the sentences of the co-offenders, which was a factor that should have been considered in determining the sentence. The appellant also argued that the consumption of ‘ice’ should not have been considered an aggravating factor because it was not a relevant factor in determining the severity of the sentence.

The court of appeal found that the trial judge had erred in not considering the sentences of the co-offenders and in treating the consumption of ‘ice’ by the appellant as an aggravating factor. The court held that the consumption of ‘ice’ should not have been considered an aggravating factor as it was not a relevant factor in determining the severity of the sentence. The court also held that the trial judge had not accorded sufficient parity with the sentence imposed on the co-offender. The appeal was allowed, and the appellant was resentenced to six years’ imprisonment with a non-parole period of four years.

The court of appeal emphasised the importance of considering the sentences of co-offenders and the need to avoid double counting of aggravating factors. The court also noted that the consumption of drugs should not be considered an aggravating factor unless it is relevant to the severity of the sentence. The court of appeal allowed the appeal and resentenced the appellant to six years’ imprisonment with a non-parole period of four years.

Orders