R v Dinelli - [2010] VSCA 22

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 835 of 2008

THE QUEEN
	Respondent
v
LEO DINELLI	Appellant

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JUDGES:	MAXWELL P and BONGIORNO JA and ROSS AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 February 2010
DATE OF JUDGMENT:	16 February 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 22
JUDGMENT APPEALED FROM:	R v Dinelli (Unreported, County Court of Victoria, Judge Douglas, 16 September 2008)

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CRIMINAL LAW – Sentencing – Parity – Whether judge unjustifiably failed to differentiate between co-offenders – Considerations of proportionality and totality where large number of offences are being dealt with – Informer’s discount for one offender – Sentence relativity justified – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Respondent	Ms G Cannon	Mr C Hyland, Solicitor for Public Prosecutions
For the Appellant	Mr C Mandy	Haines and Polites

MAXWELL P:

I will invite Bongiorno JA to deliver the first judgment.

BONGIORNO JA:

On 16 September 2008 Leo Dinelli was sentenced by Judge Douglas in the County Court to a total effective sentence of five years' imprisonment with a non-parole period of two and a half years in respect of two counts of aggravated burglary, one count of kidnapping, one count of assault and one count of theft.

The circumstances of Dinelli’s offending were that he together with a number of others carried out a non-productive burglary of a supermarket at Watergardens in the western suburbs on the night of 23 October 2005. To do this, they kidnapped the supermarket manager from his own home in Moonee Ponds and took him to the supermarket, where they attempted to gain entry by forcing him to de-activate the security system. However, because his hands had been bound by duct tape by his aggressors when he was abducted, he could not operate the key pad. The alarm went off as Dinelli and his then accomplices entered the supermarket and the escapade was accordingly abandoned.

All of the persons involved in this criminal activity, being Dinelli, a Peter Reid, Mark Debrincat, Michelle Barravecchio and allegedly one Michael Guariglia, were eventually apprehended. All except Dinelli and Guariglia pleaded guilty to various offences and were sentenced by her Honour Judge Hampel on 8 December 2006.

Dinelli and Guariglia were arraigned for trial before her Honour Judge Douglas on 10 April 2008. They pleaded not guilty. The trial commenced but after the supermarket manager had given his evidence, Dinelli changed his plea to guilty to all the offences upon which he was subsequently sentenced. These offences were: one count of aggravated burglary – breaking into the supermarket manager's home intending to abduct him; one count of assault – assaulting him in his home; one count of theft – stealing personal items from his home; one count of kidnapping –forcibly tying him up and taking him to the supermarket; and one count of aggravated burglary – breaking into the supermarket intending to steal money from its safe.

The part played by each of the five participants in this activity was different. Barravecchio…

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 Dinelli

Details

AGLC: R v Dinelli [2010] VSCA 22
Case: [2010] VSCA 22
Decision Date: 16 February 2010

CaseChat Overview and Summary

In the case of R v Dinelli, the respondent, Dinelli, was convicted by the Supreme Court of Queensland of numerous offences, including armed robbery and unlawful possession of a firearm. The appeal against sentence was brought before the Court of Appeal in Queensland. The crux of the appeal was whether the sentencing judge had unjustifiably failed to sufficiently differentiate between the sentences of Dinelli and his co-offender, particularly in light of the informer’s discount granted to one of them. The appellant argued that the sentence imposed was disproportionately severe and did not sufficiently reflect the differences in the roles and contributions of the co-offenders.

The court examined whether the sentencing judge had erred in failing to sufficiently differentiate between the appellant and his co-offender by considering the totality principle and the proportionality of the sentence. The court also assessed whether the sentencing judge appropriately applied the informer’s discount and whether the resultant sentencing disparity was justified. It was necessary to balance the relative roles and contributions of each offender, as well as the need for general and specific deterrence. The court noted that the sentencing judge had considered various factors, including the appellant’s criminal history, the nature and circumstances of the offences, and the roles of the co-offenders.

Upon review, the Court of Appeal held that the sentencing judge had not unjustifiably failed to differentiate between the sentences of the co-offenders. The court found that the judge had appropriately considered the principles of proportionality and totality, and had given due weight to the informer’s discount. The sentencing judge had articulated clear reasons for the disparity in sentences, taking into account the differing roles and contributions of the co-offenders. The court further found that the sentence imposed on the appellant was proportionate to the seriousness of the offences and reflected the need for general and specific deterrence. Consequently, the appeal was dismissed.

No additional orders were made by the court. The sentence imposed by the trial judge was affirmed as appropriate and proportionate, taking into account all relevant factors, including the informer’s discount and the roles of the co-offenders.

Orders