R v Natoli - [2001] VSCA 243

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 387 of 2000

THE QUEEN
	v.
GARY JOHN NATOLI

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JUDGES:	CHARLES, CALLAWAY and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	29 November 2001
DATE OF JUDGMENT:	21 December 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 243

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Criminal law – Sentencing – Serious violent offender – 27 counts, including seven counts of intentionally causing serious injury – Elderly victims – Unnecessary to impose disproportionate sentence to protect the community – Application granted but applicant resentenced to 15 years' imprisonment with non-parole period of 11 years – Sentencing Act 1991, ss.6D, 6E.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C.	K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr D.A. Dann	Balmer & Associates Pty

CHARLES, J.A.:

Having had the advantage of reading the reasons for judgment prepared by Callaway, J.A., I agree with the disposition of this application proposed, and for the reasons given, by his Honour.

CALLAWAY, J.A.:

The applicant, who is now aged 36, pleaded guilty in the County Court to four counts of theft (counts 1, 18, 22 and 23), two counts of intentionally causing injury (counts 2 and 15), 12 counts of robbery (counts 3, 5, 6, 8, 10, 12, 14, 16, 20, 21, 25 and 27), one count of recklessly causing injury (count 4), one count of common assault (count 7) and seven counts of intentionally causing serious injury (counts 9, 11, 13, 17, 19, 24 and 26). He admitted 40 previous convictions from eight court appearances between 1983 and 1998. After hearing a plea for leniency on his behalf, in which it was conceded that the applicant fell to be sentenced on counts 11, 13, 17, 19, 24 and 26 as a serious violent offender, the learned judge imposed sentences and gave directions for cumulation[1] which resulted in a total effective sentence of 15 years and 10 months' imprisonment. His Honour fixed a non-parole period of 12 years and 10 months and made a declaration regarding 215 days’ pre-sentence detention.
[1]See fn. 16 below.

The applicant seeks leave to appeal on three grounds: first, that the sentence is manifestly excessive; secondly, that the learned judge erred in applying s.6D(b) of the Sentencing Act 1991; and, thirdly, that his Honour erred in not having regard, or sufficient regard, to the principle of totality.

Before turning to those grounds and counsel’s submissions I shall say something briefly about the circumstances of the offences and about ss.6D and 6E of the Sentencing Act.

All the offences were committed between 8th March and 26th April 2000.

Most of the offences, including all the offences of intentionally causing serious injury, were committed against women of very advanced years. It will be sufficient if I refer only to the facts relating to those seven counts and the associated robberies:
Counts 9 and 10 On 20th March 2000 at about 10.45 a.m. Malka Garfinkel, aged 79, was wheeling her buggy home after having done some shopping. She walked…

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 Natoli

Details

AGLC: R v Natoli [2001] VSCA 243
Case: [2001] VSCA 243
Decision Date: 21 December 2001

CaseChat Overview and Summary

The case of R v Natoli involved the defendant Natoli, who was convicted of 27 counts of various offences, including seven counts of intentionally causing serious injury to elderly victims. The case was heard in a court of appeal, where the primary issue was the proportionality of Natoli's original sentence in relation to the nature and circumstances of his offences. Natoli had been sentenced to an initial term of 18 years imprisonment with a non-parole period of 13 years, which he appealed on the grounds that it was disproportionate and unjust.

The court was required to determine whether Natoli's original sentence was appropriate in light of the serious nature of his crimes, and whether a more lenient sentence would be sufficient to adequately protect the community while also considering the principles of justice and proportionality. The appeal hinged on whether the original sentence was excessively punitive and whether the non-parole period was appropriately aligned with the Sentencing Act 1991. The court needed to balance the need for punishment and deterrence with the requirement to avoid an unnecessarily harsh sentence that would not serve the interests of justice.

In delivering the judgement, the court recognised the gravity of Natoli's offences, particularly the intentional infliction of serious injuries on vulnerable elderly victims. However, the court also acknowledged that imposing a disproportionate sentence would not be in the interests of justice and could potentially undermine public confidence in the criminal justice system. After considering the totality of the circumstances, the court decided that Natoli should be resentenced to 15 years' imprisonment with a non-parole period of 11 years. This revised sentence was deemed to strike an appropriate balance between punishment, deterrence, and the need to avoid excessive punishment.

The court's decision was grounded in the statutory provisions of the Sentencing Act 1991, specifically sections 6D and 6E, which provide guidance on the principles of sentencing and the need to avoid disproportionate punishment. The final orders of the court reflected the outcome of the appeal, with Natoli's sentence being reduced to 15 years' imprisonment with an 11-year non-parole period.

Orders