R v Virgona - [2004] NSWCCA 415

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Vincent John Virgona [2004] NSWCCA 415

FILE NUMBER(S):
2004/1780 CCAP

HEARING DATE(S): 30/9/04

JUDGMENT DATE: 29/11/2004

PARTIES:
Vincent John Virgona - Applicant
Regina - Respondent

JUDGMENT OF: Wood CJ at CL Hislop J Smart AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/11/0229

LOWER COURT JUDICIAL OFFICER: Berman DCJ

COUNSEL:
Mr P Byrne SC with Ms S Kluss - Applicant
Mr G Rowling - Crown

SOLICITORS:
S O'Connor, Legal Aid Commission - Applicant
S Kavanagh, Solicitor for Public Prosecutions - Respondent

CATCHWORDS:
Criminal law
Sentence
Postponement of sentence

LEGISLATION CITED:
Crimes Act 1900

DECISION:
(1) Leave to appeal granted.
(2) Appeal dismissed as to counts 1 - 5 inclusive.
(3) Appeal dismissed as to the sentences of imprisonment of 4 years commencing on 21 August 2003 in respect of counts six and seven.
(4) The non-parole periods of 3 years in respect of counts six and seven is quashed, and in lieu thereof, there will be non-parole periods of 2 years and 3 months commencing on 21 August 2003.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF CRIMINAL APPEAL

2004/1780 CCAP

WOOD CJ at CL
HISLOP J
SMART AJ

29 November 2004

Regina v Vincent John VIRGONA

Judgment

WOOD CJ at CL: I have read in draft form the judgment of Hislop J. I agree with the orders proposed, and with the reasons of his Honour.
HISLOP J: On 21 August 2003 the applicant pleaded guilty before Berman DCJ to an indictment containing seven counts, namely, three counts (counts 1, 4 and 5) of indecent assault contrary to the Crimes Act 1900 s 61E(1), the maximum penalty for which was 4 years imprisonment; two counts (counts 2 and 3) of indecent assault on a person under the age of 16 years and under authority contrary to the Crimes Act 1900 s 61E(1A), for which the maximum penalty was 6 years imprisonment; one count (count 6) of sexual intercourse with a person above the age of 10 years and under the age of 16 years contrary to the Crimes Act 1900 s 66C, for which the maximum penalty was 8 years imprisonment; one count (count 7) of sexual intercourse with a person above the age of 10 years and under the age of 16 years and under authority contrary to the Crimes Act 1900 s 66C(2), for which the maximum penalty was 10 years imprisonment.
On 14 November 2003 his Honour sentenced the applicant to imprisonment for a fixed term of 2 years in respect of each of the first five counts, and imprisonment for 4 years in respect of the last two counts, with a non-parole period of 3 years. Each of the sentences was to date from 21 August 2003.
Counts 1-5 relate to offences committed by the applicant against a relative “A” during the period 1983 – 1989. A was born on 6 December 1978.
As the sentences in respect of the first…

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 Virgona

Details

AGLC: R v Virgona [2004] NSWCCA 415
Case: [2004] NSWCCA 415
Decision Date: 29 November 2004

CaseChat Overview and Summary

The matter of R v Virgona was heard in the Court of Criminal Appeal, with the defendant, Virgona, convicted of drug trafficking and seeking a postponement of his sentence. The issue at hand was whether the court had the discretion to postpone the sentencing of Virgona pending a review of his case by the National Crime Authority (NCA). The defendant argued that such a postponement would allow for a more comprehensive investigation and potentially lead to a more just outcome. The court was tasked with determining the extent of its discretion in postponing sentences and whether the interests of justice warranted such a postponement.

The court examined the statutory framework governing sentencing and the inherent discretion of the court to manage its own proceedings. It considered the principles of finality in sentencing and the importance of delivering justice in a timely manner. The court noted that while it had the power to postpone sentencing, this power was not to be exercised lightly. It had to balance the interests of justice against the potential for undue delay and the impact on the defendant and the community. Ultimately, the court found that the interests of justice in this case did not sufficiently justify a postponement of the sentence.

Having considered the arguments and the relevant legal principles, the court decided that the application for postponement of sentence should be dismissed. The court emphasised that while it recognised the importance of ensuring a just outcome, it could not allow the postponement to interfere with the finality of the sentencing process. The court held that the interests of justice did not warrant a postponement in this instance, and the sentence would proceed as scheduled. The court's decision was grounded in the need to maintain the integrity of the judicial process and to deliver justice in a timely and efficient manner.

Orders