R v Fagone

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 465 of 2007

THE QUEEN
	v
ROBERT FAGONE

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JUDGES:	ASHLEY and NEAVE JJA and MANDIE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 August 2008
DATE OF JUDGMENT:	19 September 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 175

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Criminal law – Conviction – Sexual penetration of female under the age of 16 - Whether evidence of drug possession and use by applicant should have been excluded as irrelevant, or because its probative force was outweighed by its potential for prejudice - Whether evidence had prejudicial impact - Whether misdirection by failure to direct as to relevance of intoxication to applicant’s belief concerning complainant’s age - Whether failure of adequate direction as to applicant’s belief, on reasonable grounds, that complainant was aged 16, or older – Whether failure of adequate direction as to prior inconsistent statements – Application for leave to appeal against conviction refused.

Criminal law - Sentence – Relevance of applicant’s mental illness to general and specific deterrence and to burden of imprisonment - Whether sentencing judge failed to take applicant’s mental illness into account – Whether evidence of deterioration in applicant’s mental condition since sentence – Whether individual sentences, order for cumulation, total effective sentence and non-parole period manifestly excessive - Application for leave to rely upon further evidence and application for leave to appeal against sentence refused.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M A Gamble SC	Mr S Ward, Acting Solicitor for Public Prosecutions
For the Applicant	Mr S Johns	Victoria Legal Aid

ASHLEY JA:

Robert Fagone, the applicant, was presented in the County Court on four counts, namely that on 20 January 2006 he –

-raped LB (count 1);[1]
-took part in an act of sexual penetration with LB, a female then aged under 16 (count 2);[2]
-had in his possession a drug of dependence, cannabis (count 3);[3]
-had in his possession a drug of dependence, amphetamine (count 4).[4]

[1]Crimes Act 1958 (Vic) s 38(1), maximum penalty 25 years’ imprisonment.

[2]Crimes Act 1958 (Vic) s 45(1), maximum penalty 10 years’ imprisonment.

[3]Drugs, Poisons & Controlled Substances Act 1981 (Vic), s73(1)(a), maximum penalty 5 penalty units.

[4]Drugs, Poisons & Controlled Substances Act 1981 s73(1)(b), maximum 30 penalty units and/or 1 years’ imprisonment.

He pleaded guilty to counts 3 and 4 and stood his trial on counts 1 and 2. He was acquitted on count 1 but found guilty on count 2.

After a plea, the applicant was sentenced on 19 December 2007 to 20 months’ imprisonment on count 2, a fine of $400 on count 3, and 4 months’ imprisonment on count 4. The learned judge cumulated 2 months of the sentence on count 4 on the sentence on count 2. The total effective sentence was 22 months’ imprisonment. His Honour fixed a non-parole period of 12 months’ imprisonment, and made consequential orders.

Now the applicant seeks leave to appeal against both conviction on count 2 and sentence generally - but…

CaseChat Overview and Summary

In the case of R v Fagone, the appellant was convicted of sexual penetration of a female under the age of 16. The appellant sought leave to appeal against both his conviction and sentence, as well as leave to rely upon further evidence. The Court of Appeal was required to consider whether the trial judge erred in various respects, including in the admission of evidence, directions given to the jury, and the sentence imposed.

The central issues included whether evidence of drug possession and use by the appellant should have been excluded as irrelevant or because its probative force was outweighed by its potential for prejudice. Additionally, the Court had to determine whether there was a prejudicial impact, whether the trial judge failed to properly direct the jury on the relevance of intoxication to the appellant’s belief concerning the complainant’s age, and whether there was an adequate direction as to the appellant’s belief, on reasonable grounds, that the complainant was aged 16 or older. Furthermore, the Court considered whether the trial judge failed to adequately direct the jury on the appellant’s prior inconsistent statements. In addressing the sentence, the Court examined whether the sentencing judge failed to take into account the appellant’s mental illness and whether the individual sentences, order for cumulation, total effective sentence, and non-parole period were manifestly excessive.

The Court of Appeal held that the trial judge did not err in admitting evidence of drug use and possession, nor in failing to give a direction as to the relevance of intoxication to the appellant’s belief about the complainant’s age. The Court found no misdirection regarding the appellant’s belief that the complainant was aged 16 or older, or as to prior inconsistent statements. In relation to the sentence, the Court found that the sentencing judge appropriately took into account the appellant’s mental illness and that there was no error in the sentences imposed. Consequently, the Court refused the appellant’s applications for leave to appeal against conviction and sentence and to rely upon further evidence.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established