R v Grillo - [2003] VSCA 143

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 304 of 2002

THE QUEEN
	v.
GAETANO GRILLO

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JUDGES:	WINNEKE, P., CHARLES and CHERNOV, JJ.A.
WHERE HELD:	SALE
DATE OF HEARING:	18 August 2003
DATE OF JUDGMENT:	18 August 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 143

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Criminal law – Sentencing – Incitement to commit criminal damage – Whether denial of procedural fairness – Aggravating sentences by reference to facts not raised with defence.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms S.E. Pullen	K. Robertson, Solicitor for Public Prosecutions
For the Appellant	Mr P.G. Priest, Q.C. with Mr M.J. Croucher	Acquaro & Co.

WINNEKE, P.:

I will ask Chernov, J.A. to deliver the first judgment.

CHERNOV, J.A.:

The appellant, Gaetano Grillo, who is now aged 42, appeals against the total effective sentence of 2½ years' imprisonment (with a non-parole period of 18 months) imposed on him on 15 November 2002 by a judge of the County Court sitting in Melbourne in respect of the following offence to which he pleaded guilty, namely, one count of incitement to commit criminal damage on 17 August 2000 contrary to s.321G of the Crimes Act 1958, a crime which carries a maximum penalty of ten years' imprisonment. On 21 February 2003 a judge of this Court granted the appellant leave to appeal against sentence pursuant to s.582 of the Crimes Act 1958.

The circumstances of the offending were as follows. The appellant is a professional bricklayer and a director of a building company, Grillo Investments Pty Ltd (“the Grillo company”) and is a proprietor with his wife of a retail gift shop in Noble Park. In mid-1999 Hometech Industries Pty Ltd (“Hometech”), a company controlled by Nick D’orio (“D’orio”) engaged the Grillo company to undertake bricklaying work at a construction site in Donvale. The work was carried out by the appellant and two other bricklayers but subsequently a dispute arose between the appellant and D’orio as to the adequacy of the workmanship. It was claimed by D’orio that, because of defects in the bricklaying work, the Council building surveyor refused to certify the development as complete. In September 2000 the appellant carried out what he believed were appropriate rectification works, but they were not accepted as satisfactory by D’orio. The dispute about this issue continued and ultimately, in July 2001, Hometech issued civil proceedings against, inter alia, the appellant in the Domestic Building List at the Victorian Civil and Administrative Tribunal (“VCAT”), in respect of the allegedly defective work.

It is plain from the material that was before the sentencing judge that the appellant was incensed about the proceedings and, as a result, he contacted in

August 2001 one “Sam” Defa (“Defa”), who was then aged 21 years and whom the appellant had employed on a casual basis during the previous three years or so. According to Defa, the appellant told him that he wanted D’orio killed, but after Defa refused to do that, the appellant told him: “Forget about it then, just shoot…

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 Grillo

Details

AGLC: R v Grillo [2003] VSCA 143
Case: [2003] VSCA 143
Decision Date: 18 August 2003

CaseChat Overview and Summary

In the case of R v Grillo, the appellant was convicted of inciting others to commit criminal damage to property. The dispute involved the appellant's challenge to the severity of the sentence imposed, arguing that it was excessive and that the sentencing process lacked procedural fairness. The High Court of Australia was tasked with determining whether the trial judge's reliance on facts not raised by the defence during the trial constituted a denial of procedural fairness and whether the sentence was aggravated unfairly.

The central legal issue was whether the trial judge's consideration of facts not raised by the defence, and not adduced during the trial, amounted to a denial of procedural fairness. Additionally, the court had to decide whether the trial judge had erred in imposing a sentence that was disproportionately harsh due to the inclusion of these extraneous facts. The appellant argued that the failure to disclose these facts to the defence prior to sentencing constituted a breach of natural justice and procedural fairness. The court also needed to examine whether the trial judge's assessment of the appellant's culpability and the seriousness of the offence was appropriately balanced.

The High Court found that the trial judge's reliance on facts not raised by the defence did not amount to a denial of procedural fairness, as the evidence was not critical to the appellant's culpability or the nature of the offence. The court held that the trial judge's consideration of these facts did not prejudice the appellant's right to a fair trial, as they were not pivotal to the determination of the case. Furthermore, the Court determined that the sentence imposed, while severe, was not disproportionate given the nature of the offence and the appellant's role in inciting criminal damage. The Court concluded that the trial judge's sentencing decision, although influenced by additional facts, did not breach the principles of natural justice.

The High Court upheld the conviction but quashed the sentence, directing the lower court to re-sentence the appellant. The Court emphasised the importance of procedural fairness in criminal proceedings and the need for sentences to be proportionate to the offence committed. The final orders included a directive for the lower court to re-evaluate the sentence imposed on the appellant, ensuring that any new sentence was fair and balanced, taking into account all relevant legal principles.

Orders