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R v Bagnato

R v Bagnato

Case [2024] NSWSC 1674 20 December 2024

Criminal Liability

Sentencing

Joint Criminal Enterprise

Fleeing Jurisdiction

Parity with Co-offender

Special Circumstances

Criminal Law

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Supreme Court

New South Wales

Medium Neutral Citation: R v Bagnato [2024] NSWSC 1674
Hearing dates: 18 October 2024
Date of orders: 20 December 2024
Decision date: 20 December 2024
Jurisdiction: Common Law
Before: Cavanagh J
Decision:
The offender is sentenced to a term of imprisonment commencing from 25 February 2021 consisting of a non-parole period of 12 years with a balance of term of 5 years and 3 months. The offender will be first eligible for parole on 24 February 2033. His total sentence will expire on 24 May 2038.

Catchwords:
CRIME – sentencing – murder – joint criminal enterprise to inflict grievous bodily harm – where offender fled to Thailand shortly after commission of the offence – offender subsequently convicted of further offences in Thailand – parity with co-offender – special circumstances

Legislation Cited:
Crimes Act 1900 (NSW), ss 18, 19A
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 54A
Crimes (High Risk Offenders) Act 2006 (NSW)

Cases Cited:
Bugmy v The Queen (2013) 249 CLR 571
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462
Lloyd v R [2022] NSWCCA 18
Mill v The Queen (1988) 166 CLR 59
Muldrock v The Queen (2011) 244 CLR 120
Postiglione v The Queen (1997) 189 CLR 295
Veen v The Queen (No 2) (1988) 164 CLR 465
R v Blanco (1999) 106 A Crim R 303
R v Botrus (No 6) [2021] NSWSC 199
R v Carbone [2018] NSWSC 331
R v Hazairin Iskandar [2012] NSWSC 1324
R v Kearns (No 2) [2013] NSWSC 1652
R v Olbrich (1999) 199 CLR 270
R v Safarjalani (No 2) [2019] NSWSC 105
R v Wilkinson (No 5) [2009] NSWSC 432
R v Willmott [2012] NSWSC 824

Category: Sentence
Parties: Rex (Crown)
Antonio Bagnato (Offender)
Representation:
Counsel:
E Curran (Crown)
S Buchen SC with G Huxley (Offender)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Blair Criminal Lawyers (Offender)

File Number(s): 2016/00013338
Publication restriction: Nil

JUDGMENT

On 11 August 2014, Bradley Dillon (“the deceased”) was murdered in a Leichhardt underground carpark by Antonio Bagnato (“the offender”) and his first cousin, Diego Carbone (“the co-offender”). The deceased died as a result of multiple gunshot and sharp force wounds of the thorax. In other words, he was both stabbed and shot.
The offender has been charged with his murder. Murder is an offence contrary to s 18(1)(a) of the Crimes Act 1900 (NSW). The maximum penalty for murder is life imprisonment (s 19A of the Crimes Act) and the offence carries a standard non-parole period of 20 years imprisonment (s 54A of the Crimes (Sentencing Procedure) Act 1999 (NSW)).
The maximum penalty and standard non-parole period serve as legislative guideposts when determining the sentence to be imposed on the offender (Muldrock v The Queen (2011) 244 CLR 120 at [27]).
The offender entered a plea of guilty to the offence on 14 December 2023 at the Downing Centre Local Court and later adhered to that plea in this…

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 Bagnato

Details

AGLC: R v Bagnato [2024] NSWSC 1674
Case: [2024] NSWSC 1674
Decision Date: 20 December 2024

CaseChat Overview and Summary

The case of R v Bagnato involved the defendant, Bagnato, who was convicted of murder and several other offences. The court was required to determine the appropriate sentence for Bagnato, considering the nature and circumstances of the offence, as well as the defendant's conduct post-commission of the crime. Bagnato had participated in a joint criminal enterprise with co-offenders, with the intent to cause grievous bodily harm. However, shortly after the offence, Bagnato fled to Thailand, where he was subsequently convicted of further offences. The court was tasked with considering whether Bagnato's actions post-offence should impact his sentence and whether parity should be maintained with his co-offenders. Additionally, the court needed to determine if there were any special circumstances that warranted a departure from the usual sentencing principles.

The primary legal issues the court addressed were whether Bagnato's flight to Thailand and subsequent convictions there constituted special circumstances that warranted a departure from the usual sentencing principles, and whether his actions post-offence warranted a higher sentence. The court also needed to consider the principle of parity with co-offenders and whether Bagnato's sentence should reflect his level of culpability in comparison to his co-offenders. In reaching its decision, the court had to balance these factors against the principles of justice and deterrence in sentencing.

In determining the appropriate sentence, the court considered the severity of the offence, Bagnato's role in the joint criminal enterprise, and his flight to Thailand post-offence. The court found that Bagnato's flight and subsequent convictions did constitute special circumstances that warranted a departure from the usual sentencing principles. However, the court also emphasised the need for parity with co-offenders, ensuring that Bagnato's sentence reflected his level of culpability. Ultimately, the court decided that while Bagnato's actions warranted a higher sentence, the special circumstances and the need for parity necessitated a balanced approach. The court ordered a sentence that reflected both the gravity of the offence and the mitigating factors, ensuring that Bagnato's culpability was appropriately addressed.

Orders