R v Tinti - [2010] VSCA 9

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 270 of 2007

THE QUEEN

RENATO TINTI

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JUDGES	NETTLE, HARPER JJA and HABERSBERGER AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	2 February 2010
DATE OF JUDGMENT	2 February 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 9
JUDGMENT APPEALED FROM	R v Tinti, Unreported 23 August 2007, County Court of Victoria (Judge White)

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CRIMINAL LAW – Sentencing – Burglary and theft – One count of conspiracy to commit burglary – Sentenced to 20 months’ imprisonment on conspiracy count – Co-offender’s sentence on conspiracy count reduced by Court of Appeal in R v Katsoulas [2008] VSCA 278 – Respondent conceded parity principles meant sentencing discretion re-opened – Applicant re-sentenced.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D A Trapnell SC	Mr C Hyland, Solicitor for Public Prosecutions
For the Applicant	Mr C B Boyce	Slades and Parsons

NETTLE JA:

I invite his Honour Habersberger AJA to deliver the first judgment.

HABERSBERGER AJA:

On 11 April 2007, the applicant, Renato Tinti, pleaded guilty before the County Court to eleven counts of burglary, one count of attempted burglary, eight counts of theft and one count of conspiracy to commit burglary. All of the offences on the presentment, No C 0504427.1 (‘the first presentment’), were committed between 22 January 2005 and 5 February 2005. The plea hearing was adjourned to 10 August 2007. The applicant had been arrested on 6 February 2005, committed for trial on 201 charges, including the 21 counts on the first presentment, on 16 December 2005, and not released on bail until 22 February 2006.

On 10 August 2007, the applicant pleaded guilty before the County Court to one count of burglary, one count of theft and one count of possession of a drug of dependence (cocaine). All of the offences on the presentment, No C 0605182.1 (‘the second presentment’), were committed on 9 June 2006, whilst he was on bail.

On 23 August 2007, after hearing a plea in mitigation of penalty in respect of the offences on both the first and second presentments on 10 August 2007, the applicant was sentenced as follows. In respect of the first presentment he was sentenced to 15 months’ imprisonment on each burglary count, nine months’ imprisonment on the attempted burglary count and on each theft count, and 20 months’ imprisonment on the conspiracy count. The learned sentencing judge ordered that the sentence imposed on the conspiracy count be the base sentence and ordered that four months of each of the 11 burglary sentences, and two months of the attempted burglary sentence and each of the eight theft counts be served cumulatively upon the base sentence and upon each other. That resulted in a total effective sentence of six years and 10 months.

In respect of the second presentment, the applicant was sentenced to 18 months’ imprisonment on the burglary count, nine months’ imprisonment on the theft count and one month’s imprisonment on the possessing of drug of dependence count. His…

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 Tinti

Details

AGLC: R v Tinti [2010] VSCA 9
Case: [2010] VSCA 9
Decision Date: 2 February 2010

CaseChat Overview and Summary

In the case of R v Tinti, the applicant, Tinti, appealed against his sentence for his involvement in a conspiracy to commit burglary. The case was heard in the Court of Appeal. The applicant had been sentenced to 20 months’ imprisonment for his part in the conspiracy. However, this sentence was imposed before a co-offender's sentence for the same conspiracy was reduced by the Court of Appeal in a prior case, R v Katsoulas [2008] VSCA 278. The respondent conceded that the principle of parity in sentencing meant that Tinti's sentence should be reconsidered.

The court had to determine whether the principle of parity applied to Tinti's case, given that the co-offender's sentence had been reduced by the Court of Appeal in a previous case. The court also had to consider the appropriate sentence for Tinti, taking into account the principles of parity and the need to ensure that sentences are proportionate and consistent. The court noted that Tinti had not appealed against the conviction or the sentence initially imposed, and that the reduction in the co-offender's sentence was not due to any error in the original sentencing process.

The court found that the principle of parity did apply to Tinti's case, and that his sentence should be reconsidered in light of the reduced sentence for the co-offender. The court also noted that Tinti had not been sentenced on the basis of any mitigating or aggravating factors that would distinguish his case from that of his co-offender. Therefore, the court re-sentenced Tinti, taking into account the reduced sentence for the co-offender and the need to ensure that sentences are proportionate and consistent. The court imposed a sentence of 16 months’ imprisonment, to be served concurrently with any other sentence Tinti was currently serving.

In conclusion, the court found that the principle of parity applied to Tinti's case, and that his sentence should be reconsidered in light of the reduced sentence for his co-offender. The court imposed a new sentence of 16 months’ imprisonment, to be served concurrently with any other sentence Tinti was currently serving. This decision highlights the importance of ensuring that sentences are proportionate and consistent, and that the principle of parity is applied in all cases where appropriate.

Orders