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R v Cerantonio & Ors

R v Cerantonio & Ors

Case [2019] VSC 284 3 May 2019

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2017 0078; S CR 2017 0079

S CR 2017 0080; S CR 2017 0081

S CR 2017 0082; S CR 2017 0104

Between:

THE QUEEN

-and-

ROBERT EDWARD CERANTONIO

PAUL JAMES DACRE

ANTONINO ALFIO GRANATA

SHAYDEN JAMIL THORNE

KADIR KAYA &

MURAT KAYA

Accused

JUDGE:

Croucher J

WHERE HELD:

Melbourne

DATES OF HEARING:

18-19, 21, 22, 25 & 26 February and 15 March 2019

DATES OF SENTENCES:

22 & 26 February and 3 May 2019

DATE OF REASONS:

3 May 2019

CASE MAY BE CITED AS:

R v Cerantonio & Ors

MEDIUM NEUTRAL CITATION:

[2019] VSC 284

First revision: 26 June 2019

CRIMINAL LAW — Sentencing — Six men, by joint commission, committed offence of engaging in conduct preparatory to offence of entering the Philippines with intention of engaging in a hostile activity, namely encouraging others to achieve overthrow of the Philippines Government by force or violence — Preparatory conduct included buying SUV and boat and (except in case of one accused, who decided against going to the Philippines) travelling to Queensland with boat in tow — Five accused did not themselves intend to provide encouragement to others to overthrow government by force or violence but intended their principal would do so, albeit with unknown persons, by unknown means and at an indeterminate time — While serious aspects of offending, offences by five accused towards lower end of gravity — Principal accused’s offence substantially more serious, mainly because of his greater moral culpability — Pleas of guilty — No (or no relevant) prior convictions — Delay between arrest and sentence — Court not satisfied of renunciation of extremist views, but accused showing signs of positive change — Good prospects of rehabilitation for five accused — Reasonable to moderate prospects of rehabilitation of principal accused — Court not satisfied of exceptional hardship to family but offenders’ time in custody not without difficulties — One accused’s time in custody particularly difficult as a result of serious back injury and related consequences — Relevance of general deterrence, specific deterrence, curial denunciation, protection of the community and rehabilitation — Parity — Crown concessions in response to defence submissions on sentence.

SENTENCES — On each of three accused (Paul Dacre, Antonino Granata and Kadir Kaya), sentence of four years’ imprisonment with non-parole period of three years — In each case, but for plea of guilty, sentence of six years’ imprisonment with non-parole period of four years and six months.

SENTENCE — On accused who decided against going to the Philippines (Murat Kaya), sentence of three years and eight months’ imprisonment with non-parole period of two years and nine months — But for plea of guilty, sentence of five years and six months’ imprisonment with non-parole period of four years and one-and-a-half months.

SENTENCE — On accused who suffered hardship of back injury in custody (Shayden Thorne), sentence of three years and ten months’ imprisonment with non-parole period of two years and…

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 Cerantonio & Ors

Details

AGLC: R v Cerantonio & Ors [2019] VSC 284
Case: [2019] VSC 284
Decision Date: 3 May 2019

CaseChat Overview and Summary

The case of R v Cerantonio & Ors involved six men who were convicted for their involvement in an offence preparatory to entering the Philippines with the intention of engaging in hostile activities. The defendants planned to encourage others to overthrow the Philippines Government by force or violence. The preparatory steps included purchasing an SUV and a boat, and, with the exception of one accused who decided against going to the Philippines, travelling to Queensland with the boat in tow. The five accused who participated in the preparatory steps did not intend to directly provide encouragement to others to overthrow the government by force or violence, but they intended for their principal to do so, albeit with unknown persons, by unknown means and at an indeterminate time. The principal accused, however, had a greater moral culpability, which made his offence substantially more serious.

The legal issues the court had to decide included the appropriate weight to be given to the various sentencing principles, including general and specific deterrence, denunciation, protection of the community, and rehabilitation. The court also needed to consider the defendants' pleas of guilty, their lack of prior convictions, and the delay between their arrest and sentencing. The court took into account the defendants' renunciation of their extremist views, their prospects of rehabilitation, and the exceptional hardship their imprisonment caused their families. The Crown's concessions in response to the defence submissions on sentence were also considered.

The court found that the defendants showed varying degrees of remorse and positive change, with the five accused having good prospects of rehabilitation and the principal accused having reasonable to moderate prospects. While the court was not satisfied that the defendants' families faced exceptional hardship, it did acknowledge that the offenders' time in custody was not without difficulties, particularly for one accused who suffered a serious back injury. The court ultimately sentenced the accused to terms of imprisonment ranging from three years and ten months to seven years, with varying non-parole periods, reflecting the different roles and culpability of each defendant in the offending. The sentences also took into account the defendants' pleas of guilty and the delay in sentencing.

Orders