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R v Bortoli

R v Bortoli

Case [2006] VSCA 62 17 March 2006

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 48 of 2005
No. 220 of 2005

THE QUEEN
	v
AARON BORTOLI

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JUDGES:	MAXWELL, P, BUCHANAN, JA and REDLICH, AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 February 2006
DATE OF JUDGMENT:	17 March 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 62	2nd Revision, 2 May 2006

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Criminal law – Sentence – Counts of armed robbery and conspiracy to commit armed robbery – Serious offences.

Later proceedings – Sentences for possession of a loaded shotgun and theft – Manifest excess.

Fixing a new non-parole period – Section 14 Sentencing Act 1991 – Application of ss.11 and 15 of the Sentencing Act 1991 – Method of calculation.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J D McArdle QC	Mr S Carisbrooke, Acting Solicitor for Public Prosecutions
For the Applicant	Mr C B Boyce	Victoria Legal Aid

MAXWELL, P:

I have had the advantage of reading in draft the reasons for judgment of Redlich, AJA. I agree that, for the reasons which his Honour gives, the appeal should be allowed and the appellant re-sentenced as his Honour proposes.

BUCHANAN, JA:

In my opinion the appeal should be allowed for the reasons stated by Redlich, AJA. I would re-sentence the appellant as his Honour proposes.

REDLICH, AJA:

On 3 September 2004, the appellant was sentenced in the County Court to a total effective sentence of six years and nine months’ imprisonment, with a non-parole period of five years, on two counts of armed robbery and five counts of conspiracy. The appellant had pleaded guilty to those counts and had undertaken to give evidence against an alleged co-offender. (I shall refer to this as “the first proceeding”).

On 8 September 2004, the appellant was sentenced in the County Court to six months’ imprisonment for contempt arising out of his evidence at the trial of the co-offender. The Judge directed that three months of that sentence be served cumulatively upon the sentence he was undergoing. His Honour purported to fix a new single non-parole period, pursuant to s.14 of the Sentencing Act 1991 (“the Act”), of “five years and three months from today”. (I shall refer to this as “the contempt proceeding”).

On 22 July 2005, the appellant was sentenced in the County Court to a total effective sentence of two years and three months’ imprisonment on a count of possession of an unregistered firearm and a count of theft. The Judge directed that one year and three months of that sentence be served cumulatively upon the sentence the appellant was then undergoing. The Judge purported to set a new single non-parole period, in respect of that sentence and the sentence imposed on 3 September 2004, of five years and six months commencing from that day. (I shall refer to this as “the second proceeding”).

The first proceeding

By leave granted on 4 November 2005, the appellant appeals against the sentence imposed in each of the first proceeding and the second proceeding. It will be…

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 Bortoli

Details

AGLC: R v Bortoli [2006] VSCA 62
Case: [2006] VSCA 62
Decision Date: 17 March 2006

CaseChat Overview and Summary

In this case, Bortoli faced the court on multiple counts, including armed robbery, conspiracy to commit armed robbery, possession of a loaded shotgun, and theft. The legal dispute centred on the calculation of his sentence, specifically the determination of a new non-parole period under sections 11 and 15 of the Sentencing Act 1991. The court had to decide whether the sentences for the possession of a loaded shotgun and theft were manifestly excessive, and if so, how to adjust the non-parole period accordingly.

The court examined the principles surrounding the calculation of non-parole periods and the application of section 14 of the Sentencing Act 1991. It assessed whether the sentences imposed on Bortoli for the possession of a loaded shotgun and theft were so disproportionate that they warranted a reduction in the non-parole period for the more serious offences of armed robbery and conspiracy. The court considered the need for consistency in sentencing and the overarching objective of ensuring that the punishment fits the crime.

After careful deliberation, the court found that the sentences for the lesser offences were indeed manifestly excessive. It concluded that a reduction in the non-parole period was warranted to ensure proportionality and fairness in sentencing. The court recalculated the non-parole period, taking into account the seriousness of the armed robbery and conspiracy charges, and set a new, more appropriate non-parole period for Bortoli.

The final orders of the court included the determination of a new non-parole period for Bortoli, reflecting the proportionality and fairness in his sentencing, and providing clear guidelines for future sentencing in similar cases.

Orders