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R v Musso

R v Musso

Case [2002] NSWCCA 487 5 December 2002

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CITATION: Regina v Vincenzo Musso [2002] NSWCCA 487

FILE NUMBER(S): CCA 60029/02

HEARING DATE(S): 05/12/02

JUDGMENT DATE:
5 December 2002

PARTIES :

Regina (Applicant)
Vincenzo Musso (Respondent)

JUDGMENT OF: Sully J at 28; Dunford J at 36; Buddin J at 2

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 01/21/3378

LOWER COURT JUDICIAL
OFFICER : Bellear DCJ

COUNSEL : P Barrett (Crown)
JS Stratton (Respondent)

SOLICITORS: SE O'Connor (Crown)
DJ Humphreys (Respondent)

CATCHWORDS: Crown appeal against inadequacy of sentence - respondent convicted of three counts of aggravated sexual assault, one count of aggravated indecent assault and one count of act of indecency - victim was fourteen and the respondent was her stepfather - respondent had significant medical problems arising from spina bifida - no prior convictions - Crown appeal allowed - requirements in Pearce not observed - sentences made wholly concurrent - extent of intervention constrained particularly because of Crown's acquiescence and respondent's health.

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912

CASES CITED:
Dinsdale v The Queen (2000) 202 CLR 321
Everett v The Queen (1994) 181 CLR 295
Griffiths v The Queen (1976-7) 137 CLR 293
Pearce v Queen (1998) 194 CLR 610
R v Allpass (1994) 73 A Crim R 561
R v Baker [2000] NSWCCA 85
R v BJW (2000) 112 A Crim R 1
R v Burchell (1987) 34 A Crim R 148
R v Qi (1998) 102 A Crim R 172
R v Simpson [2001] 53 NSWLR 704
R v Smith (1987) 44 SASR 589
R v Vachalec (1981) 1 NSWLR 351

DECISION: Crown appeal allowed. The sentence in respect of count 2 is quashed. In lieu thereof the respondent is sentenced to imprisonment for a period of four years and six months to commence on 19 October 2002 and to expire on 18 April 2007 with a non-parole period of two years and six months to expire on 18 April 2005. The sentence in respect of count 3 is quashed. In lieu thereof the respondent is sentenced to imprisonment for a period of four years and six months to commence on 19 April 2003 and to expire on 18 October 2007 with a non-parole period of two years and six months to expire on 18 October 2005 at which time the respondent will be eligible for release on parole. All other sentences are confirmed.

60424/02

SULLY J
DUNFORD J
BUDDIN J
5 DECEMBER 2002

REGINA v VINCENZO MUSSO

Judgment

1 SULLY J: The Court is in a position to give judgment in this matter. Justice Buddin will give the first judgment.

2 BUDDIN J: This is an appeal by the Director of Public Prosecutions, pursuant to section 5D of the Criminal Appeal Act 1912 against sentences imposed upon the respondent at the Parramatta District Court.

3 On 17 April 2002 the Crown presented an indictment against the respondent containing three counts of aggravated sexual assault, one count of aggravated indecent assault and one count of…

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 Musso

Details

AGLC: R v Musso [2002] NSWCCA 487
Case: [2002] NSWCCA 487
Decision Date: 5 December 2002

CaseChat Overview and Summary

The case of R v Musso involved the Crown appealing the adequacy of a sentence imposed on the respondent, who had been convicted of multiple serious sexual offences against a fourteen-year-old girl, his stepdaughter. The respondent, suffering from spina bifida, had no prior convictions. The Crown argued that the sentences imposed by the lower court were insufficient and did not adequately reflect the gravity of the offences. The appeal was heard in the relevant appellate court, which was tasked with determining whether the sentences were appropriate and whether the lower court had erred in its sentencing.

The court had to consider whether the sentences were inadequate given the seriousness of the crimes, the vulnerability of the victim, and the respondent's health condition. Additionally, the court examined whether the lower court had complied with the principles established in Pearce, which are relevant to the process of determining an appropriate sentence. The court needed to assess whether the lower court had adequately considered the need for deterrence and denunciation and whether it had appropriately balanced these considerations with the respondent's health issues and the Crown's acquiescence.

The court found that the sentences were inadequate and did not meet the requirements set out in Pearce. The sentences had been made wholly concurrent, which the court considered insufficient given the severity of the offences. The court was constrained in its ability to intervene due to the Crown's acquiescence and the respondent's health, but ultimately concluded that the sentences did not adequately reflect the seriousness of the crimes. The court allowed the appeal, and as a result, the sentences were adjusted to better reflect the gravity of the offences committed.

The final orders of the court mandated that the sentences be recalculated and made to reflect a more appropriate level of punishment, taking into account the principles of deterrence, denunciation, and the respondent's health condition. The court emphasised the need for the sentences to appropriately balance these considerations and to adequately reflect the seriousness of the crimes.

Orders