JUDGES:	BUCHANAN, VINCENT, EAMES, NETTLE and REDLICH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 December 2006
DATE OF JUDGMENT:	23 March 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 49	1^st Revision 23 March 2007

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R v Piacentino

Sentence – Appeal - Statutory interpretation – Re-offending while on parole for a Victorian offence – Theft – Causing injury intentionally – Robbery – Burglary – No action yet taken by Parole Board – Totality principle – Sentencing Act 1991 s 16(3B) – Sentencing judge finds no exceptional circumstances militating against cumulation – Whether sentencing judge obliged to have regard to the possibilities of action by Parole Board, as a general sentencing consideration – Sentencing Act 1991 s 5(2AA) precludes application of totality principle where Parole Board has not yet acted – R v Orphanides (2002) 130 A Crim R 403 overruled – Totality principle relevant where Parole Board has cancelled parole before sentencing for further (breach) offences – R v Hunter [2006] VSCA 129 affirmed – Whether sentence manifestly excessive – 115 prior convictions from 28 appearances – Appeal dismissed.

R v Ahmad

Sentence – Drug offences – Application for leave to appeal – Statutory interpretation – Re-offending by committing first group of offences against Victorian law while on parole for Commonwealth offence – Applicant on bail for Victorian offences when committing second group of offences – Totality principle – Relationship of s 16(3B) of Sentencing Act 1991 to ss 16E, 19AQ, 19AR, 19AS of the Crimes Act 1914 (C’wth) – Commonwealth parole automatically revoked, without executive action – s 5(2AA) of Sentencing Act not apply – Sentencing error in failure of sentencing judge to have regard to totality – Applicant re-sentenced – Whether s 16(3B) relevant on re-sentencing – Commencement of sentences – Sentencing Act 1991 ss 15, 16, 17, 18.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P A Coghlan QC DPP with Mr T Gyorffy	Ms A Cannon Solicitor for Public Prosecutions
For the Appellant (Piacentino)	Mr G J Thomas SC with Mr M G O’Connell	Robert Stary & Associates
For the Applicant (Ahmad)	Mr G J Thomas SC with Mr M G O’Connell	Victoria Legal Aid
Amicus Curiae	Mr N T Robinson	Commonwealth Director of Public Prosecutions

BUCHANAN JA:

I agree with Eames JA.

The words of s 5(2AA) of the Sentencing Act 1991 are clear. If the sentencing court takes into account the possibility that the Parole Board may require an offender who has committed an offence while on parole to serve the unexpired portion of an earlier sentence, it will “have regard to … (a) possibility or likelihood that the length of time actually spent in custody by the offender will be affected by executive action.” That is forbidden by the section, which in my view prohibits not only making a firm or precise prediction,…

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 Piacentino

Details

AGLC: R v Piacentino [2007] VSCA 49
Case: [2007] VSCA 49
Decision Date: 23 March 2007

CaseChat Overview and Summary

The court in R v Piacentino was tasked with examining the legality of a sentence imposed on a defendant who had reoffended while on parole for a prior Victorian offence. The accused was convicted of theft, causing injury intentionally, robbery, and burglary, and the sentence imposed was deemed to be excessive by the defendant. The defendant argued that the sentencing judge should have taken into account the possibility of the Parole Board taking action, as a general sentencing consideration. The defendant appealed against the sentence on the basis that the sentencing judge should have considered the totality principle in sentencing and that the sentence was manifestly excessive. The court was required to decide whether the sentencing judge was obliged to consider the Parole Board’s potential action as a general sentencing consideration and whether the sentencing judge was required to take into account the totality principle in sentencing. The court found that the sentencing judge was not obliged to consider the Parole Board’s potential action as a general sentencing consideration and that the totality principle was relevant in sentencing. The court also found that the sentence was not manifestly excessive. The court held that the sentencing judge was not required to take into account the Parole Board’s potential action as a general sentencing consideration and that the totality principle was relevant in sentencing. The court found that the sentence imposed was not manifestly excessive. The appeal was dismissed. The court found that the sentencing judge was not required to take into account the Parole Board’s potential action as a general sentencing consideration and that the totality principle was relevant in sentencing. The court found that the sentence imposed was not manifestly excessive. The appeal was dismissed.

Orders