R v Barca - [2007] VSCA 167

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 213 of 2005

THE QUEEN
	v
ROCCO BARCA

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JUDGES:	VINCENT, NETTLE and NEAVE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 August 2007
DATE OF JUDGMENT:	21 August 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 167

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Criminal Law – Application for leave to appeal against sentence – 12 counts including threats to kill (two counts), theft (2 counts), common assault, trafficking in a drug of dependence, obtaining property by deception and being a prohibited person in possession of unregistered firearm (5 counts) – Sentenced to six years’ imprisonment, with a non-parole period of four years and a half years – Serious violent offender - Whether improper imposition of disproportionate sentence - Whether sentence on trafficking count manifestly excessive – Whether total effective sentence manifestly excessive because of orders for cumulation – No disproportionate sentence – Individual sentence and total effective sentence within exercise of judge’s discretion – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T Gyorffy	Ms A Cannon, Solicitor for Public Prosecutions
For the Applicant	Mr D A Glynn	Hale & Wakeling

VINCENT JA:

I invite Neave JA to deliver the first judgment.

NEAVE JA:

The applicant, Mr Rocco Barca, pleaded guilty and was convicted on presentment S01224915 ("the first presentment") of one count of trafficking in a drug of dependence, two counts of being a prohibited person in possession of an unregistered firearm, two rolled-up counts of making a threat to kill, two counts of theft, one count of common assault and one count of obtaining property by deception. The applicant also pleaded guilty and was convicted on presentment 200050121.3 (“the second presentment”) of three counts of being a prohibited person in possession of an unregistered firearm and to a summary offence of possessing a prohibited weapon, namely a samurai sword.

The applicant pleaded guilty to those offences and was sentenced by a judge of the County Court to a total effective sentence of six years' imprisonment, with a non-parole period of four-and-a-half years. This is an application for leave to appeal against the sentences imposed in respect of two counts in the first presentment and the cumulation which produced the total effective sentence for both presentments.[1]
[1]The applicant initially sought leave to appeal against sentence. The application under Crimes Act 1958, s 585 was taken out of the list when the applicant indicated he would be seeking leave for an extension of time to file a notice of appeal against conviction. Leave was granted, but the application for leave to appeal against conviction has now been abandoned.

The facts

The first presentment

The offences in the first presentment, other than count 1, arose out of a series of events in which the applicant victimised a young man, Chris Kennett, and his uncle, Laurence Kennett, and extorted money from them, stole from them and threatened them over a period of approximately eight months.

Chris Kennett, who was then aged 19, and his girlfriend shared a…

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 Barca

Details

AGLC: R v Barca [2007] VSCA 167
Case: [2007] VSCA 167
Decision Date: 21 August 2007

CaseChat Overview and Summary

The case of R v Barca involved the appellant, who was sentenced to six years’ imprisonment, with a non-parole period of four years and a half, for a series of criminal offences. The offences included threats to kill, theft, common assault, trafficking in a drug of dependence, obtaining property by deception, and being a prohibited person in possession of an unregistered firearm. The appellant sought leave to appeal against the sentence, arguing that it was disproportionate and manifestly excessive. The appeal centred on whether the sentence was improperly imposed and whether the sentence on the trafficking count, as well as the total effective sentence due to orders for cumulation, was manifestly excessive.

The legal issues before the court were whether the sentence was disproportionate, whether the sentence on the trafficking count was manifestly excessive, and whether the total effective sentence was manifestly excessive because of the orders for cumulation. The appellant argued that the sentence was disproportionate because the judge did not give sufficient weight to his background, mitigating factors, and prospects of rehabilitation. The appellant also argued that the sentence on the trafficking count was manifestly excessive and that the total effective sentence was manifestly excessive because of the orders for cumulation.

The court examined the principles of sentencing and the discretion of the sentencing judge. It found that the judge had considered the appellant’s background and mitigating factors but had also considered the seriousness of the offences and the need to protect the community. The court found that the sentence on the trafficking count was not manifestly excessive and that the total effective sentence was within the exercise of the judge’s discretion. The court noted that the appellant was a serious violent offender and that the sentence reflected the seriousness of the offences.

The court concluded that the sentence was not disproportionate and that the appellant’s application for leave to appeal against the sentence should be refused. The court found that the individual sentence and the total effective sentence were within the exercise of the judge’s discretion and that there was no basis for interfering with the sentence. The court also noted that the appellant had not demonstrated that the sentence was manifestly excessive or that there was any error in the exercise of the judge’s discretion.

Orders