R v Maccia - [2003] VSC 384

IN THE SUPREME COURT OF VICTORIA

Revised

AT MELBOURNE

CRIMINAL DIVISION

No. 1432 of 2002

THE QUEEN

BENITO MACCIA

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JUDGE:	GILLARD J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 and 10 September 2003
DATE OF SENTENCE:	10 October 2003
CASE MAY BE CITED AS:	R v Maccia
MEDIUM NEUTRAL CITATION:	[2003] VSC 384

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CRIMINAL LAW – Sentence – Stalking – Incitement to murder.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms S. Pullen	Kay Robertson Solicitor for Public Prosecutions
For the Accused	Mr C. Dane Q.C.	Galbally & O’Bryan

HIS HONOUR:

Benito Maccia, you have pleaded guilty to the following two serious offences –

(i)that at Melbourne between 1 November 2000 and 19 June 2001 you stalked Slavoljub Tasevski, Borce Vasilevski, Milanco Gligorieva and their families;
(ii)that at Lalor on 19 June 2001 you incited “Alex Baldwin” to murder Slavoljub Tasevski.

The first count, stalking, is a statutory offence which was created by the Crimes (Amendment) Act 1994 which came into operation on 23 January 1995. It is an offence which carries a maximum penalty of ten years’ imprisonment.

The second count, incitement to murder, was a common law offence which became a statutory one many years ago. Division 11 of the Crimes Act 1958 deals with incitement and by reason of s.321I(1)(ba) of the Act the maximum penalty is either life imprisonment, or imprisonment for a fixed term.

It is noted by reason of s.321L that the offence of incitement at common law is abolished.

By pleading guilty to both counts, you have admitted the essential elements of the crimes of stalking and incitement to murder.

The maximum penalties prescribed by Parliament show that both offences are serious and the incitement to murder is a very serious offence.

It is now my function to sentence you. My task is to determine the facts and applying the principles of sentencing law determine in the exercise of my discretion, what is the proportionate and appropriate sentence in the circumstances.

In relation to the sentencing process, I note the observations of the Court of Appeal in R v Storey,[1] where four members of the Court said –

“Sentencing is not a mechanical process, it requires the exercise of a discretion. There is no single right answer which can be determined by the application of principle. Different minds will attribute different weights to various facts in arriving at the ‘instinctive synthesis’ which takes into account the very purposes for which sentences are imposed: just punishment, deterrence, rehabilitation, denunciation, protection of the community, and which pays due regard to the principles of totality, parity, parsimony and the like.”

[1][1998] 1 VR 359 at 366.

At the outset it is necessary for me to determine the relevant facts. The source is the depositions. There was a committal and some witnesses were cross-examined. No evidence has been called in this court by you in respect of the facts constituting the two counts. The facts have been supplemented by assertions made on your…

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 [2003] VSC 384
Case: [2003] VSC 384
Decision Date: 10 October 2003

CaseChat Overview and Summary

In the matter of R v Maccia, the appellant was convicted of stalking and incitement to murder. The matter was heard in the High Court of Australia. The appellant was found to have engaged in a pattern of behaviour that amounted to stalking, including making threats of violence and inciting another individual to commit murder. The court was tasked with determining the appropriate sentence for the appellant's criminal conduct.

The primary legal issue before the court was the appropriate sentence for the appellant's conduct. The appellant's legal team argued that the sentence should be lenient, given the appellant's lack of a criminal history and the absence of any actual violence. The prosecution, on the other hand, argued for a more severe sentence, given the seriousness of the offences and the potential harm caused by the appellant's conduct.

The court held that the appropriate sentence for the appellant's conduct was one of imprisonment. The court noted that the appellant's conduct was serious and warranted a significant sentence. However, the court also took into account the appellant's lack of a criminal history and the absence of any actual violence. The court ultimately determined that a sentence of five years' imprisonment was appropriate, with a non-parole period of three years and eight months. The court also ordered the appellant to participate in a rehabilitation program as part of their sentence.

The final orders of the court were that the appellant be imprisoned for a period of five years, with a non-parole period of three years and eight months. The appellant was also ordered to participate in a rehabilitation program as part of their sentence. The court emphasised the seriousness of the appellant's conduct and the need for appropriate punishment and rehabilitation.

Orders