| 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…
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- AGLC
- Russo (a pseudonym) v The King [2024] VSCA 40
- Case
- [2024] VSCA 40
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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