R v Vitale - [2018] VSC 197

IN THE SUPREME COURT OF VICTORIA

Not restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2017 0065

Between:

THE QUEEN
-and-
CRAIG VITALE	Accused

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JUDGE:	Croucher J
WHERE HELD:	Melbourne
DATE OF HEARING:	23 March 2018
DATE OF SENTENCE:	27 April 2018
CASE MAY BE CITED AS:	R v Vitale
MEDIUM NEUTRAL CITATION:	[2018] VSC 197

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CRIMINAL LAW – Sentence following trial – Armed robbery – Intentionally causing serious injury – In 2011, accused, armed with loaded sawn-off shotgun, and brother robbed bottle shop proprietor – Accused fired gun at cash register in course of offence – No one endangered but shopkeeper frightened – After leaving bottle shop, accused fired shot into window of car in public street, causing serious injury to driver’s wrist/thumb – Very serious offences – Deprived childhood – Limited prior and subsequent criminal history – Long delay in bringing charges – Considerable reform in ensuing years – Very strong prospects of rehabilitation – Hardship of imprisonment because of psychological afflictions – Relevance of parity given co-accused brother’s sentence – Importance of general deterrence, denunciation, just punishment and rehabilitation – Less weight than otherwise to protection of community and specific deterrence because of such strong prospects of rehabilitation – Totality – Sentence of nine years’ imprisonment on intentionally causing serious injury; six years’ imprisonment on armed robbery (two years cumulative); total effective sentence of eleven years’ imprisonment; non-parole period of seven years – Sentencing Act 1991 (Vic), ss 5 & 18.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M. Rochford QC with Ms S. Coombes	John Cain, Solicitor for Public Prosecutions
For the Accused	Mr A. Patton	Valos Black & Associates

HIS HONOUR:

Overview

At about 7:45 p.m. on Saturday 1 October 2011, the evening following the AFL Grand Final, Wayne Vitale and his brother Craig Vitale drove to the Do Bottle Shop in Kingsville in their mother’s white Saab motor car. They were there to commit an armed robbery. Wayne entered the bottle shop first. He was meant to create a distraction for his older brother, who followed fifteen seconds later. Each man had his face covered, was wearing a hood of sorts, and carried a bag. Craig was also carrying a loaded sawn-off double-barrelled shotgun.

Immediately upon entry, Craig pointed the gun at the shopkeeper Thi Kim Luong. He put his bag on the counter and motioned at her aggressively to open the cash register. So scared was Ms Luong that all she could do was wave her hands in fright. Impatient with her, Craig then fired a shot at the cash register, which bent its steel frame. The shot also disintegrated other items on the counter into a confetti-like cloud. He then demanded money. Ms Luong told him there was none, while appearing to feign an attempt to open the till – although her fumbling may have been a result of terror. Craig then made a rather desultory attempt to open the till himself, but he too failed.

In the meantime, Wayne…

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 Vitale

Details

AGLC: R v Vitale [2018] VSC 197
Case: [2018] VSC 197
Decision Date: 27 April 2018

CaseChat Overview and Summary

The case of R v Vitale involved the appellant, who was convicted of armed robbery and intentionally causing serious injury. The court was tasked with determining an appropriate sentence following a trial. The appellant, along with his brother, had robbed a bottle shop in 2011, during which the appellant fired a loaded sawn-off shotgun at the cash register. Although no one was endangered, the shopkeeper was frightened. After leaving the bottle shop, the appellant fired a shot into the window of a car on a public street, causing serious injury to the driver’s wrist and thumb.

The central legal issues revolved around the principles of sentencing in the context of serious criminal offences. The court had to balance the principles of general and specific deterrence, denunciation, just punishment, and the prospects for rehabilitation, with particular attention to the totality of the appellant’s offending and the impact of his psychological afflictions. The court also considered the appropriate weight to be given to the principle of parity, given the sentence imposed on the co-accused brother. The appellant’s deprived childhood and limited prior and subsequent criminal history, as well as the significant delay in bringing the charges, were also factors that influenced the sentencing decision.

The court concluded that while the offences were very serious, the appellant’s strong prospects for rehabilitation, coupled with the hardships he would face in prison due to his psychological afflictions, warranted a sentence that placed less emphasis on the protection of the community and specific deterrence. The court sentenced the appellant to nine years’ imprisonment for intentionally causing serious injury and six years’ for armed robbery, with the latter to be served cumulatively with the former, resulting in an effective sentence of eleven years’ imprisonment. The non-parole period was set at seven years, in accordance with the provisions of the Sentencing Act 1991 (Vic), sections 5 and 18.

Orders