Russo (a pseudonym) v The King - [2024] VSCA 40

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0019

HARRY RUSSO (A PSEUDONYM)	Applicant
v
THE KING	Respondent

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JUDGES:	NIALL and BOYCE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	6 February 2024
DATE OF JUDGMENT:	22 March 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 40
JUDGMENT APPEALED FROM:	2022 VCC 2104 (Judge Hampel)

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CRIMINAL LAW – Appeal – Sentence – Whether sentencing judge erred by applying ‘broad‑brush’ approach to sentencing on charges of common law assault, intentionally cause injury and make threat to kill – Hoy v The Queen [2012] VSCA 49 applied – R v Albanus [2004] VSCA 236 distinguished – Error established.

CRIMINAL LAW – Appeal – Sentence – Whether applicant entitled to subjective benefit due to a willingness to facilitate the course of justice by pleading guilty in face of ‘weak’ prosecution case – Phillips v R (2012) 37 VR 594 applied.

CRIMINAL LAW – Appeal – Sentence – Whether there is a reasonable prospect of reduction to the total effective sentence – Criminal Procedure Act 2009, s 280(1)(b) – Case of ‘family violence’ – No reasonable prospect of reduction to total effective sentence – Leave to appeal refused.

Criminal Procedure Act 2009, s 280(1)(b).

Hoy v The Queen [2012] VSCA 49, applied; R v Albanus [2004] VSCA 236, distinguished; Kalala v The Queen (2017) 269 A Crim R 1, Pasinis v The Queen [2014] VSCA 97 & Skeates (a pseudonym) v The King [2023] VSCA 226, discussed.

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Counsel
Applicants:		Mr D Dann KC
Respondent/s:		Ms J Warren
Solicitors
Applicants:	Avi Furstenberg
Respondent:	Office of Public Prosecutions

NIALL JA
BOYCE JA:

Introduction

The applicant pleaded guilty in the County Court to offences of violence committed upon his former wife (‘ZF’). He pleaded guilty to offences of breaching a court order that was designed for ZF’s protection. He pleaded guilty, also, to assaulting ZF’s son. All this offending took place between 2013 and 2017.
There were two indictments. The first indictment contained the offences involving ZF. The second indictment concerned ZF’s son. The first indictment contained nine charges of common assault,[1] three charges of causing injury intentionally,[2] one charge of conduct endangering persons,[3] two charges of make threat to kill[4] and three charges of persistent contravention of a family violence intervention order.[5] The second indictment contained one rolled-up charge of common law assault.[6] On 1 December 2022, the applicant was sentenced as follows:
[1]Contrary to Common Law.
[2]Contrary to s 18 of the Crimes Act 1958.
[3]Contrary to s 23 of the Crimes Act 1958.
[4]Contrary to s 20 of the Crimes Act 1958.
[5]Contrary to s 125A of the Family Violence Protection Act 2008.
[6]Contrary to Common Law.

Charge on Indictment

Offence

Max Penalty

Sentence

Cumulation

Indictment J13301739.C

1 Common assault 5 years 3 years 1 month

2 Common assault 5 years 3 years 1 month

3 Causing injury intentionally 10 years 5 years Base

4 Common assault 5 years 3 years 1 month

5 Common…

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
Indictment J13301739.C
1	Common assault	5 years	3 years	1 month
2	Common assault	5 years	3 years	1 month
3	Causing injury intentionally	10 years	5 years	Base
4	Common assault	5 years	3 years	1 month
5	Common…

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 Russo (a pseudonym) v The King

Details

AGLC: Russo (a pseudonym) v The King [2024] VSCA 40
Case: [2024] VSCA 40
Decision Date: 22 March 2024

CaseChat Overview and Summary

The appeal arose from a conviction and sentence imposed by the County Court of Victoria against Russo, who was found guilty of common law assault, intentionally causing injury, and making threats to kill. Russo appealed the sentence imposed by the County Court, arguing that the sentencing judge had erred by applying a broad-brush approach to the sentencing and that the applicant was entitled to a subjective benefit due to a willingness to facilitate the course of justice by pleading guilty in the face of a weak prosecution case.

The court was required to decide whether the sentencing judge erred by applying a broad-brush approach to sentencing, whether the applicant was entitled to a subjective benefit due to a willingness to facilitate the course of justice, and whether there was a reasonable prospect of reduction to the total effective sentence. The court also considered the principles outlined in Hoy v The Queen and R v Albanus, and whether the case fell within the category of family violence.

The Court of Appeal found that the sentencing judge did not err by applying a broad-brush approach to sentencing, and that the applicant was not entitled to a subjective benefit due to a willingness to facilitate the course of justice. The Court of Appeal also found that there was no reasonable prospect of reduction to the total effective sentence, as the case fell within the category of family violence. The Court of Appeal held that the appeal against sentence should be dismissed and leave to appeal should be refused.

The Court of Appeal dismissed the appeal against sentence and refused leave to appeal.

Orders