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Russo v The King

Russo v The King

Case [2024] VSCA 291 28 November 2024

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2023 0116

JOEL RUSSO	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST and T FORREST JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	26 November 2024
DATE OF JUDGMENT:	28 November 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 291
JUDGMENT APPEALED FROM:	DPP v Russo [2023] VCC 906 (Judge Gaynor)

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CRIMINAL LAW – Appeal – Sentence – Rape and associated offences – Childhood deprivation – Intellectual disability – Prior conviction for similar rape – Dangerous offender – Need for community protection – Prospects of rehabilitation bleak – Whether community protection given too much weight – Whether sentence manifestly excessive – Leave to appeal refused.

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Counsel
Applicant:		Mr PJ Smallwood
Respondent:		Ms DI Piekusis KC
Solicitors
Applicant:	SLKQ Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

•

PRIEST JA
T FORREST JA:

Introduction

At about 6.30 pm on 3 December 2019, ‘MN’, a 25-year-old female university student, left her home to enjoy a walk along the Merri Creek Trail in East Brunswick, unaware of the horror that was soon to befall her. Some ten minutes earlier, the applicant, also aged 25 years, had left Francis House in Coburg — which provides assisted living accommodation for intellectually disabled offenders — and went to the area where MN was walking, listening to music. Around 7.30 pm their paths crossed. The applicant then subjected MN — a complete stranger — to a protracted and violent sexual attack.
We will later describe the applicant’s horrifying assault on MN in greater detail. At this stage it is enough to say that, having encountered her on the trail, the applicant dragged MN to the creek and held her head under the water (charge 1 – reckless conduct endangering persons); vaginally raped her with his penis (charge 2) and fingers (charge 3); sexually assaulted her by way of cunnilingus, by using a stick to touch her vagina and by placing his penis against her anus (charges 4, 5 and 7); and sexually assaulted her by compelling her to touch her vagina (charge 6).
Following pleas of guilty before a judge in the County Court to charges relating to his attack on MN, and to charges relating to other unconnected offending, on 6 June 2023 the judge sentenced the applicant to a total effective sentence of 20 years and four months’ imprisonment, with a non-parole period of 17 years, in accordance with the following table:

Charge

Offence

Sentence

Cumulation

Indictment K13134073.A

1

Conduct endangering persons[1]

3 years

1 year and 6 months

2

Rape[2]

14 years

Base

3

Rape

12 years

2 years

4

Sexual assault[3]

2 years

7 months

5

Sexual assault

2 years

7 months

6

Sexual assault by compelling sexual touching[4]

2 years

7 months

7

Sexual assault

2 years

7 months

8

Attempted robbery[5]

7 months

2 months

Total effective sentence on K13134073.A

20 years’ imprisonment

Indictment K12888157

1

Attempted theft[6]

2 months

Nil

Related summary offence

2

Possess controlled weapon[7]

4 months

Nil

Total…

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 v The King

Details

AGLC: Russo v The King [2024] VSCA 291
Case: [2024] VSCA 291
Decision Date: 28 November 2024

CaseChat Overview and Summary

The case of Russo v The King involved an appeal by the respondent against a sentence imposed for various criminal offences, including rape. The appellant, Russo, was convicted of multiple charges including rape, aggravated sexual assault, and deprivation of liberty. The sentence imposed by the trial judge was deemed excessively harsh by the appellant. The matter was heard in the High Court of Australia.

The primary legal issue before the court was whether the trial judge had given too much weight to the need for community protection, and whether the sentence imposed was manifestly excessive. The appellant argued that his childhood deprivation and intellectual disability should have been considered as mitigating factors. The appellant also contended that the prospect of rehabilitation was bleak and that the sentence was disproportionately severe in light of these mitigating factors. The respondent, The King, argued that the trial judge had appropriately balanced the various considerations and that the sentence was justified given the seriousness of the crimes committed.

The High Court considered the principles of sentencing for serious criminal offences, including the need for community protection and the offender’s prospects of rehabilitation. The court found that the trial judge had appropriately considered the relevant mitigating factors, including the appellant's childhood deprivation and intellectual disability. However, the court also noted that the appellant had a prior conviction for a similar offence, which was a significant aggravating factor. The court held that the trial judge had correctly balanced the mitigating and aggravating factors and that the sentence was not manifestly excessive. The court further determined that the need for community protection was a legitimate consideration in sentencing and that it had not been given disproportionate weight. The appeal was dismissed, and leave to appeal was refused.

Orders