R v Dinelli
[2010] VSCA 22
•16 February 2010
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 and Debrincat, who were or had been employees of the supermarket, contributed their knowledge of the manager and his home address, the layout of the supermarket, its security features, and the fact that there was probably cash to be found in the safe. Reid, Dinelli and allegedly Guariglia, went to the supermarket manager's home dressed in overalls and balaclavas, terrorised him, assaulted him, tied him up, abducted him and took him to the supermarket where they hoped to enrich themselves from the safe. Reid was to carry a firearm.
All of the participants who pleaded guilty to this criminal activity and two others who were involved with some of them in other criminal activity agreed to co-operate with police, not only in the prosecution of Dinelli and Guariglia with respect to the supermarket matter, but also in the investigation and prosecution of a large number of other unsolved crimes in which some of them were personally involved. They were able to give extremely valuable assistance to investigators and prosecutors.
Judge Hampel took that cooperation and promises of future cooperation into account in sentencing each of them with whom she dealt. Her Honour accepted that, without their admissions and subsequent statements, investigators had little evidence in respect of a large number of these unsolved crimes. Her Honour said:
[50] In addition to what it means in personal terms so far as sentencing each of you is concerned, there are important public policy reasons why the sentences to be imposed on each of you must recognise and reflect the importance of encouraging people involved in serious criminal activities such as these, not only to acknowledge their own wrongdoing by pleading guilty, and admitting your (sic.) own role, but by implicating their co-offenders. In such cases a plea of guilty does more than save a considerable cost in court time, police and witness time, legal costs and other resources of what would have been a series of trials involving multiple offences and multiple offenders. It also spares the victims from having to give evidence, and this is particularly significant in offences such as these as for many victims, especially those of violent offences such as armed robberies, kidnaps and false imprisonments, giving evidence at committal and a trial becomes for them another ordeal, one which often re-traumatises the victims by the need to recount and relive the experience and by being challenged on their accounts.
[51]The course that each of you has committed yourselves to involves assistance of the highest order. As soon as each of you were questioned, each of you also implicated your co-offenders, the others here today and AB, and where you had the relevant knowledge, CD and EF. The investigating authorities were thereby provided with information which identified them and enabled them, too, to be questioned and charged.
[52]Each of you did this at a time when you were unaware of what other information or evidence the police had. The value, therefore, to be given to that assistance alone is clearly very high, but each of you have done more than that by making your sworn statements, confirming the truth of what you have said in your interviews, knowing that they were made for the purpose of providing not just information but evidence against the others, and your agreeing to give evidence in proceedings against the others elevates your cooperation to what is properly described as assistance of the highest level. None of you has wavered from your early resolve, as evidenced by the sworn evidence before me, and the undertakings.
[53]It has long been recognised that there is significant public benefit when wrongdoers not only inform on their co-offenders, but take the extra and very large step of being prepared to give evidence against the co-offenders. Giving evidence against co-offenders helps break down the mythology that suggests that there is a sort of honour or glory in criminals not implicating their co-offenders. Such conduct is to be encouraged and the sentences that I impose must therefore not only reflect that, that is what you have done, but serve as encouragement to others in your position to do the same.
In sentencing each of the offenders, her Honour recognised that there was danger, when dealing with a large number of offences, of contravening the principle of proportionality. She also specifically referred to the question of parity as between those she was sentencing and the need to reflect the similarities and differences between them.
Dinelli's complaint to this Court is that in sentencing him subsequently, Judge Douglas failed to take into account appropriately the parity principle when comparing his criminality to that of Peter Reid, having regard to the sentence imposed upon Reid by Judge Hampel in respect of the supermarket matter. Peter Reid was acknowledged by Judge Hampel to have been a criminal of considerable experience with numerous convictions for violence and other offences, including a conviction for murder for which he was sentenced to life imprisonment in 1983. Her Honour sentenced him in respect of some 27 serious offences which included armed robberies, theft, handling stolen goods, possession of an unregistered firearm, conspiracy, false imprisonment and conduct endangering life. This list included six counts relating to the supermarket matter – that is to say, all of those to which Dinelli eventually pleaded guilty, and a sixth count of being a prohibited person in possession of a firearm.
Judge Hampel sentenced Reid to 11 years in total and fixed a non-parole period of 8 years. On the supermarket matter her Honour imposed various sentences on Reid. For the first aggravated burglary, she imposed a sentence of 3 years; on the assault in the supermarket manager's home, 12 months; for the theft of the supermarket manager's personal property, 6 months; for his kidnapping, 4 years; and for the second aggravated burglary, 3 years. With appropriate cumulation she achieved a total effective sentence of 5 years, of which 18 months was to be cumulative on other presentments upon which she was sentencing.
The task of Judge Hampel was indeed a complex one. She had to have due regard to proportionality, totality and the requirement to avoid a crushing sentence if possible. In fixing each of those sentences, her Honour was mindful not only of the assistance that Reid have given to authorities, but also of the numerous other sentencing principles which applied in his case on that occasion because of the large number of offences which she was dealing with.
The principle of parity is merely a particular application of the general principle of the rule of law that like cases should be treated alike, the corollary of which is that unlike cases should be treated differently. It is an expression of consistency and is recognised as one of the aims of the Sentencing Act1991 (Vic).[1]
[1]Section 1(a) Sentencing Act1991 (Vic).
Disparity of sentences for the same offence only becomes a sentencing error, however, if it is unjustified. Unjustified disparity occurs where a similar sentence should have been imposed on two or more offenders, and it was not. In this case, counsel for the appellant argued that his client was not treated fairly because he got the same total sentence as Reid for the offences in respect of which they were both sentenced; a total effective sentence of 5 years. He argued that Reid was a career criminal who was the leader of this criminal escapade and who exercised power over Dinelli. In sentencing Dinelli, Judge Douglas specifically referred to Reid's total sentence and noted that it totalled 11 years with an 8 year minimum. She was well aware of Reid's position and, it can be inferred, took it into account. That is why she referred to it. She found that Dinelli participated jointly with Reid and Guariglia in the venture, although he was initially not involved in the planning of it. She did not find that Dinelli had been coerced or was the subject of any irresistible pressure to be involved. There was no evidence of any such coercion, although Dinelli had told the psychologist who wrote a report for use in the sentencing court that he was threatened by Reid.
In the course of the plea hearing, Judge Douglas expressed some scepticism as to a submission which sought to raise the question of coercion, saying that she was prepared to accept that Reid encouraged Dinelli. Nevertheless no evidence was put before her to allay her scepticism. Her findings in this regard are unimpeachable.
The essential disparity between Reid and Dinelli was that the former, despite his shocking criminal record and violent antecedents, pleaded guilty to these and a large number of other offences at the earliest possible opportunity, and undertook to assist police and prosecutors in investigating and prosecuting not only the co‑offenders involved in this escapade, but a large number of other crimes as well. Dinelli pleaded guilty to his part in the criminal activity only after the victim of it had gone through the ordeal of giving evidence. And, of course, there was no longer any point in his agreeing to co-operate with police. The case was over.
Her Honour Judge Hampel gave Reid appropriate credit as an informer and adjusted all his sentences accordingly. Appellate judicial decisions in this State and elsewhere have made it clear that such a discount should be a generous one. See for example R v Johnston.[2] Even if Judge Hampel was required to take into account Reid’s comparative moral and other culpability – as held by Nettle JA in R v Johnston – to reach the appropriate discount, such discount would still have been large – more than enough to explain why Reid received a sentence no greater than Dinelli, who was unable to point to the same mitigating factors. And, of course, the complexity of the sentencing exercise which Judge Hampel had to undertake would make sensible comparison extremely difficult, even taking into account Reid’s antecedents.
[2][2008] VSCA 133
There is no unjustifiable disparity in this case. I would dismiss the appeal.
MAXWELL P :
I agree. I too would dismiss the appeal, for the reasons which his Honour has given.
ROSS AJA:
I agree. I too would dismiss the appeal, for the reasons his Honour has given.
MAXWELL P:
The order of the Court is: appeal dismissed.
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