R v Arico (No 1) - [2002] VSCA 229

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No.179 of 2001

THE QUEEN
	v.
ROCCO ARICO (No.1)

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JUDGES:	PHILLIPS, BUCHANAN and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 December 2002
DATE OF JUDGMENT:	23 December 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 229

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Criminal law – Attempted murder – Victim in car shot several times by offender in car adjacent – Immediately preceded by victim’s recognising his assailant and confirming recognition in conversation between the two – Recognition later confirmed to the police by use of photo board – Application refused at trial to exclude photo board in exercise of discretion – Victim cross-examined about possibility of displacement effect – Subsequent tender of photo board not attended by error.

Criminal law – Sentencing - Attempted murder – Offender 21 years old – Unprovoked street shooting – Nine years’ imprisonment with minimum of seven not manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. G. Horgan SC	K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr. P.F. Tehan Q.C.	Theo Magazis & Assoc.

PHILLIPS AND VINCENT, JJA.:

On 20 June 2001, the applicant was found guilty by a jury of the attempted murder of Vincenzo Godino. After hearing a plea in mitigation of penalty, the sentencing judge, on 27 June 2001, directed that he should be imprisoned for a period of nine years for the commission of this offence. His Honour fixed a non-parole period of seven years. The applicant now seeks leave to appeal against both his conviction and the sentence.

Background

At about 7 a.m., on 15 July 2000, Mr. Godino started to drive home after completing his duties as a cleaner at a gambling club in Sunbury. He drove towards Taylors Lakes, where he lived, along the Calder Freeway turning off at Sunshine Avenue. He then proceeded in a southerly direction along this road towards a roundabout, situated at its intersection with the Melton Highway. As he entered the roundabout, a silver-coloured Holden Commodore sedan came through the intersection at high speed from his left. Mr Godino continued to drive through the roundabout when a burgundy coloured Holden Statesman vehicle also entered following the earlier vehicle at high speed. Mr Godino stated that he braked hard and tried to turn his car to avoid a collision. He skidded and his vehicle rotated approximately 180 degrees. Fortunately there was no impact. He saw both of the vehicles speeding westward along the Melton Highway. The two cars were also observed by Senior Constable Behrens who had just completed a night shift at the Keilor Downs police station and was travelling homeward in a northerly direction along Sunshine Avenue towards the roundabout.

Mr Godino, who was angered by what had occurred, commenced to pursue the speeding vehicles. He saw them turn into Sandpiper Drive and followed them. At about this time Senior Constable Behrens drove past Sandpiper Drive. He looked to his right along that road and saw the two cars. They appeared to be slowing down.…

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 Arico (No 1)

Details

AGLC: R v Arico (No 1) [2002] VSCA 229
Case: [2002] VSCA 229
Decision Date: 23 December 2002

CaseChat Overview and Summary

The case of R v Arico (No 1) involved the defendant, Arico, who was charged with the attempted murder of a victim in a drive-by shooting incident. The victim, who was in a car, was shot several times by the offender who was in an adjacent car. The incident immediately followed the victim recognising Arico and confirming this recognition in a conversation between them. The victim later confirmed the recognition to the police using a photo board. The trial court refused an application to exclude the photo board evidence under its discretion, and the victim was cross-examined on the possibility of a displacement effect. However, the subsequent tender of the photo board was not attended to due to an error.

The primary legal issues the court had to address involved the admissibility of the photo board evidence and the appropriate sentence for Arico, who was 21 years old at the time of the offence. The court had to consider whether the use of the photo board was appropriate in the circumstances, particularly in light of the victim's cross-examination about the displacement effect. The court also needed to determine whether the proposed sentence of nine years' imprisonment with a minimum of seven years was manifestly excessive, given the unprovoked nature of the street shooting.

The court determined that the trial judge did not err in admitting the photo board evidence, as the victim's confirmation of the recognition was relevant to establishing the identity of the offender. The court found that the cross-examination on the displacement effect did not undermine the reliability of the identification. Regarding sentencing, the court held that the proposed sentence was not manifestly excessive, considering the gravity of the offence and the offender's age. The court concluded that the sentence appropriately reflected the seriousness of the attempted murder and the need for deterrence and denunciation.

The court confirmed that the sentence of nine years' imprisonment with a minimum of seven years was not manifestly excessive. It was appropriate in the circumstances of the case, taking into account the nature of the offence and the offender's age. The court did not find any error in the trial judge's exercise of discretion regarding the photo board evidence or in the sentencing determination.

Orders