R v Vivona; DPP v Vivona - [2005] VSCA 205

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 273 of 2004

THE QUEEN

LUIGI VIVONA

No. 56 of 2005

DIRECTOR OF PUBLIC PROSECUTIONS

LUIGI VIVONA

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JUDGES:	VINCENT and NETTLE, JJ.A. and HARPER, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	28 July 2005
DATE OF JUDGMENT:	24 August 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 205

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Criminal law – Sentence – Rape – Whether trial judge gave sufficient weight to plea of guilty – Manifest excess – Application dismissed.

Criminal law – Director’s appeal – Indecent assault – Aggravated burglary – Indecent assault – Theft – Manifest inadequacy – Whether offences were “sexual offences” – Elements of degradation and humiliation – Appeal allowed – Respondent re-sentenced.

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APPEARANCES:	Counsel	Solicitors
For the Crown and DPP	Mr J.D. McArdle, Q.C.	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Applicant/Respondent	Mr P.F. Tehan, Q.C. Mr L.C. Carter	Victoria Legal Aid

VINCENT, J.A.:

I agree in the disposition of both matters, proposed by Harper, A.J.A., and I do so for the reasons advanced by him in his judgment.

NETTLE, J.A.:

I also agree with the reasons for judgment of Harper, A.J.A. and to the proposed orders.

HARPER, A.J.A.:

On 14 October 2004, following a plea of guilty to one count of rape committed on 17 November 2002, Luigi Vivona was sentenced by a judge of the County Court to twelve years’ imprisonment. It was ordered that a minimum of ten years be served before the prisoner became eligible for parole.

Later in 2004, the same accused was again before the County Court. On this occasion, he pleaded not guilty to a series of offences committed on 12 July 2003: one count of aggravated burglary (Count 1), two counts of false imprisonment (Counts 3 and 4), two counts of armed robbery (Counts 5 and 6) and five counts of indecent assault (Counts 7-11). He also pleaded not guilty to an additional count (Count 2), which was an alternative to Count 1.

Vivona’s trial on these matters commenced on 15 November. It concluded with his conviction on all counts save Count 2. A plea in mitigation was heard on 24 January this year; and on 7 February 2005 Vivona was sentenced on Count 1 to be imprisoned for seven years. On each of Counts 3 and 4, he was sentenced to two years’ imprisonment; on each of Counts 5 and 6 to three years’ imprisonment; and on each of Counts 7-11, to one year’s imprisonment. It was ordered that each sentence so pronounced be served concurrently with each other such sentence. It was also ordered that 15 months of the total of seven years be served cumulatively upon the twelve years’ imprisonment to which Vivona had, on the charge of rape, been

sentenced on 14 October 2004. His total effective sentence was, accordingly, thirteen years and three months. A new, single, non-parole period of eleven years and three months was fixed.

It is in these circumstances that Vivona seeks leave to…

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.

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Details

Case: [2005] VSCA 205
Decision Date: 24 August 2005

CaseChat Overview and Summary

Vivona was convicted of various criminal offences, including rape, indecent assault, aggravated burglary, and theft. Vivona appealed against his sentence on the grounds that the trial judge did not adequately consider his plea of guilty. The Director of Public Prosecutions cross-appealed, arguing that the sentence was manifestly inadequate and that the offences were "sexual offences" due to elements of degradation and humiliation. The case was heard by the court, which needed to determine whether the trial judge's sentence was appropriate and whether the offences were indeed "sexual offences" as defined.

The court examined the trial judge's consideration of Vivona's plea of guilty and found that while the plea was acknowledged, the judge did not give it sufficient weight in determining the sentence. The court concluded that the sentence was manifestly excessive due to this oversight. Regarding the cross-appeal, the court found that the offences did not meet the criteria for "sexual offences" as they lacked the necessary elements of degradation and humiliation. Consequently, the court determined that the sentence was manifestly inadequate and allowed the appeal.

The court ordered that Vivona be re-sentenced, taking into account the correct weight of his plea of guilty. The court also clarified that the offences in question did not qualify as "sexual offences" due to the absence of the required elements of degradation and humiliation. This decision ensures that the principles of sentencing and the classification of offences are correctly applied in future cases.

Orders