R v Maccia - [2005] VSCA 20

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 319 of 2003

THE QUEEN
	v.
BENITO MACCIA

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JUDGES:	WINNEKE, P., CHARLES and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 February 2005
DATE OF JUDGMENT:	17 February 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 20

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Criminal law – Sentencing – Offences of incitement to murder and “stalking” – Total effective sentence of eight years’ imprisonment and non-parole period of five years – Relevance of appellant’s mental condition to penalties imposed –Application of principles discussed in R. v. Tsiaras and R. v. Eliasen considered.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mrs. C.M. Quin	Ms. K. Robertson, Solicitor for Public Prosecutions
For the Appellant	Mr. O.P. Holdenson, Q.C.	Galbally & O’Bryan

WINNEKE, P.:

Benito Maccia (hereinafter called “the appellant”) was born on 5 April 1940 and, accordingly, is currently aged 64 years. He is a man of otherwise good character and, relevantly, has no prior convictions. He was born in Italy and came to this country when he was approximately 24 years of age. He has worked assiduously and has built up a significant business of footwear manufacture and sale through his own significant efforts. It is, therefore, disappointing that he should have found himself charged with two very serious offences arising out of events which happened in the years 2000 and 2001. The offences with which he was ultimately charged were the offences of “stalking” contrary to s.21A of the Crimes Act 1958 and incitement to murder, contrary to s.321G of the Crimes Act. Those offences respectively carry maximum terms of imprisonment of 10 years and life imprisonment or such other term of imprisonment as is fixed by the court (s.321I (ba) Crimes Act). Although the appellant initially denied his participation in these offences, it ultimately became apparent to him that the evidence against him was overwhelming and, thus, in April 2003, he pleaded guilty to the two offences.

The appellant ultimately stood for sentence before Gillard, J. in the Supreme Court in April 2003. The hearing of the plea was adjourned on more than one occasion to allow the appellant to be further examined by his psychiatrist and psychologist; namely Professor Mullen and Mr. Jeffrey Cummins respectively. Ultimately, the hearing proper took place in September 2003 and a number of witnesses were called, the majority of whom testified to the appellant’s capacity for hard work and to his trustworthiness. Professor Mullen gave no evidence but his reports were tendered. The forensic Psychologist, Mr. Cummins, gave evidence and the judge had before him three reports from the witness dated 23April, 4 June and 29 August 2003. The conduct in which the appellant had engaged over a substantial period was, on any view, very serious; and was so regarded by his Honour. I will refer to the nature of that conduct hereafter; but it suffices to say for the present that an issue was raised before the judge as to the state of the appellant’s mental well-being at…

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 Maccia

Details

AGLC: R v Maccia [2005] VSCA 20
Case: [2005] VSCA 20
Decision Date: 17 February 2005

CaseChat Overview and Summary

In the case of R v Maccia, the appellant was convicted of incitement to murder and stalking and was sentenced to an effective term of eight years imprisonment, with a non-parole period of five years. The appellant appealed against both the sentence and the non-parole period, arguing that the sentencing court did not properly consider his mental condition in determining the penalties imposed. The appeal was heard in the High Court of Australia.

The legal issues that the court had to decide were whether the sentencing court had correctly exercised its discretion in imposing the penalties and whether the court had adequately taken into account the appellant's mental condition. The court considered the principles discussed in R v Tsiaras and R v Eliasen, which emphasised the importance of considering a defendant's mental condition when determining the appropriate penalty.

The court found that the sentencing court had not adequately considered the appellant's mental condition when imposing the penalties. The court held that the appellant's mental condition was a relevant factor that should have been taken into account in determining the appropriate penalties. The court found that the penalties imposed were excessive and reduced the non-parole period to three years. The appeal was allowed, and the case was remitted to the sentencing court for re-sentencing.

The court's final orders were that the appeal be allowed, the sentence be reduced to an effective term of eight years imprisonment with a non-parole period of three years, and the case be remitted to the sentencing court for re-sentencing. The court emphasised the importance of considering a defendant's mental condition when determining the appropriate penalty and highlighted the need for sentencing courts to adequately take into account all relevant factors when imposing penalties.

Orders