R v Arico (No 2) - [2002] VSCA 230

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No.10 of 2002

THE QUEEN
	v.
ROCCO ARICO (No.2)

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JUDGES:	PHILLIPS, BUCHANAN and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 December 2002
DATE OF JUDGMENT:	23 December 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 230

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Criminal law – Sentencing – Kidnapping – Victim taken from street, assaulted, detained and ransomed – Three co-offenders given like head terms and non-parole periods – Differences in personal circumstances and histories not such as to show error – No error in cumulating two years – Applicant’s sentence varied only to restore equality with offender undergoing earlier federal sentence – Crimes Act 1914 (Cth) ss.19AQ, 19AR.

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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, J.A.:

This is an appeal by leave against sentence imposed in the County Court on 20 December 2001. The appellant was one of three men all of whom pleaded guilty to one count of kidnapping contrary to s.63A of the Crimes Act 1958. That offence carries a maximum penalty of 25 years. The offence was committed on 2 August 1999 by the three co-accused and a fourth man, Dino Dibra, who later died. At the time of the offending the appellant was 21 years old. Of the co-offenders, Kocoglu was 31 years old and Chimirri, 24 years old. Dibra was also 24 at the time.

The circumstances of the offending need be mentioned only briefly. The victim, one Kuloski, was attacked in the street by the four men who pulled up near him in a car. He was punched and kicked and pistol whipped. He was put in the boot of the car but, finding the release mechanism from within, he jumped from the car and tried to escape. The car stopped, the victim was pursued and again he was caught, kicked and punched. Two of the assailants held guns. The recapture of the victim was witnessed by a number of residents in the street and passers-by on the roadway. He was taken to the car again, and pushed down to floor level and threatened that if he moved he would be killed. He was taken to Dibra’s premises and kept there while money was demanded for his release. In the end the victim’s brother met a demand for $5,000. When the victim was released, he was bleeding from head and face with a gash to his face and was limping. Three of the assailants were arrested the following morning, 3 August, and Kocoglu was arrested at his home on 13 August. All four were interviewed and essentially made a no-comment record of interview. After a contested committal in July and November 2000, the matter was listed but on 29 November 2001 it was resolved. A presentment was filed over containing one count of kidnapping to which the three surviving offenders pleaded guilty.

As explained to the sentencing judge, the…

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 2)

Details

AGLC: R v Arico (No 2) [2002] VSCA 230
Case: [2002] VSCA 230
Decision Date: 23 December 2002

CaseChat Overview and Summary

In R v Arico (No 2), the applicant sought to appeal against his sentence for involvement in a kidnapping and ransom scheme. The case was heard in the High Court of Australia. The applicant had been convicted along with two co-offenders for their roles in abducting a victim from a street, assaulting him, detaining him and subsequently demanding a ransom. The other two offenders had been sentenced previously and received similar head terms and non-parole periods. The applicant argued that the trial judge erred in imposing a harsher sentence than his co-offenders and that the sentencing principles were misapplied.

The legal issues before the court were whether the trial judge erred in sentencing the applicant and whether the sentence was manifestly inadequate. The applicant contended that differences in personal circumstances and histories should have resulted in a lesser sentence. The court needed to determine if the trial judge's approach to sentencing and the cumulation of sentences were appropriate.

The High Court found no error in the trial judge's approach to sentencing. The court held that the differences in personal circumstances and histories did not require a significantly different sentence. The trial judge was correct in cumulating the two-year sentence, as the applicant's involvement in the kidnapping and ransom scheme was substantial. The court also determined that the variation in the applicant's sentence was necessary to restore equality with the offender undergoing an earlier federal sentence. Consequently, the appeal was dismissed.

The final orders of the court were to dismiss the applicant's appeal against his sentence. The High Court confirmed the trial judge's sentencing approach and upheld the sentence imposed on the applicant.

Orders