R v Portelli - [2014] VSC 660

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
CRIMINAL DIVISION
SCR 2014 0192

THE QUEEN

CRYSTAL PORTELLI

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JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	10 December 2014
DATE OF SENTENCE:	19 December 2014
CASE MAY BE CITED AS:	R v Portelli
MEDIUM NEUTRAL CITATION:	[2014] VSC 660

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CRIMINAL LAW – Sentence – Assisting Offender in serious indictable offence – Arson – Plea of guilty – Assistance to conceal evidence of a homicide – Alleged to have taken charge - Cleaning the house where an attack had occurred – Burning the car which had carried the deceased – At the time unaware victim had died – Not present for the attack - Remorse apparent – History of drug abuse – Assessed as a “damaged” person – Parity – Co-offenders sentenced in the Magistrates’ Court – Potential prosecution witnesses – Community Corrections Order – Assessed as suitable – Condition imposed for community work, treatment and offending behaviour programs – Section 6AAA Sentencing Act 1991.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T. Gyorffy QC	Office of Public Prosecutions
For the Accused	Mr P. Kilduff	Tait Lawyers

HIS HONOUR:

Crystal Portelli, on 10 December 2014 you pleaded guilty to one count of assisting an offender and one count of arson. The maximum penalty for assisting an offender is five years’ imprisonment and the maximum penalty for arson is 15 years’ imprisonment.[1] It is now my responsibility to sentence you for these matters.
[1]See ss 325 & 197 The Crimes Act 1958 (Vic).

The offences were committed in the following circumstances. In May 2013, a man named Nathanael Raimundo occupied premises at 125 Alfrieda Street, St Albans, and you lived in a bedroom of those premises.

In the early evening of 10 May 2013 and into the early morning of 11 May 2013, various people went to those premises and consumed drugs, including methylamphetamine, heroin, cannabis and also drank alcohol. One of those people was a man named Hieu Nguyen, who later was assaulted at those premises by Raimundo and a man called Kether Mazzaro. As a result of that assault, Nguyen died from his injuries having been left for dead in the vicinity of the Sunshine Hospital.

You were not present for any of those events. Indeed, on 10 May 2013, you had left the premises at about 8.30pm with a man named Peter Gergis. You went out together initially to the Excelsior Hotel in Thomastown. You later went to the city, to Windsor, to an apartment in Queens Road, Melbourne, and then to St Kilda, where you remained until about 7.25am on the morning of 11 May 2013.

In the meantime at 125 Alfrieda Street, St Albans, in the early hours of 11 May there were a number of people present. They included the deceased man, Hieu Nguyen, together with Raimundo, Mazzaro and others named Lily Ton, Alen Hodzic and Samir Mustafic.

It would appear that Raimundo concluded that Nguyen had taken and…

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 Portelli

Details

AGLC: R v Portelli [2014] VSC 660
Case: [2014] VSC 660
Decision Date: 19 December 2014

CaseChat Overview and Summary

In the case of R v Portelli, the appellant was convicted of assisting an offender in the context of a serious indictable offence. This case was heard in the Court of Appeal in Victoria. The appellant was charged with assisting in the concealment of evidence relating to a homicide, including cleaning the house where the attack occurred and burning the car that had transported the deceased. Although the appellant was not present during the attack itself, he was unaware that the victim had died at the time of his actions. The appellant pleaded guilty to the charges and demonstrated apparent remorse, although he had a history of drug abuse and was assessed as a "damaged" person. The appellant was sentenced in the County Court, but his sentence was appealed to the Court of Appeal.

The primary legal issue before the Court of Appeal was whether the sentence imposed on the appellant was appropriate in light of the circumstances of the case. Specifically, the court needed to determine whether a community corrections order was suitable, considering the appellant's role in the offence and the need for deterrence and rehabilitation. The court also needed to consider the principle of parity, as co-offenders who had not pleaded guilty were sentenced in the Magistrates' Court and could potentially become prosecution witnesses. Furthermore, the court had to assess whether the conditions imposed on the community corrections order, including community work, treatment, and offending behaviour programs, were suitable for the appellant.

The Court of Appeal held that the sentence imposed on the appellant was appropriate and that a community corrections order was suitable. The court noted that the appellant had demonstrated remorse and had not been present during the attack, which led to a lower culpability compared to the co-offenders. The court also found that the conditions imposed on the community corrections order were appropriate for the appellant's rehabilitation and treatment needs. The court further held that the principle of parity did not require the appellant to receive a harsher sentence than the co-offenders, as their potential roles as prosecution witnesses were not sufficient to warrant a harsher sentence for the appellant.

The Court of Appeal dismissed the appeal and confirmed the sentence imposed on the appellant. The appellant was to serve a community corrections order with conditions including community work, treatment, and offending behaviour programs. The court held that the sentence was appropriate in light of the circumstances of the case and the need for deterrence and rehabilitation. The court further held that the principle of parity did not require a harsher sentence for the appellant, and that the conditions imposed on the community corrections order were suitable for the appellant's rehabilitation and treatment needs.

Orders