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Russo v The King

Russo v The King

Case [2024] VSCA 55 28 March 2024

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0156

JOSHUA VINCENT RUSSO	Applicant
v
THE KING	Respondent

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JUDGES:	TAYLOR and T FORREST JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	13 March 2024
DATE OF JUDGMENT:	28 March 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 55
JUDGMENT APPEALED FROM:	Director of Public Prosecutions v Joshua Russo (County Court of Victoria, Judge Wischusen, 31 July 2023)

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CRIMINAL LAW – Appeal – Sentence – Common assault – Causing serious injury recklessly – Applicant hit male victim with metal bar to the jaw and pushed female victim to the throat in unprovoked attack following verbal exchange in response to insults to nearby women – Applicant pleaded guilty to one charge of common assault and one charge of causing serious injury recklessly – Sentenced to nine months’ imprisonment and 18-month community correction order (with treatment conditions) – Whether sentencing judge failed to take Verdins limb three into account – Whether sentence manifestly excessive – No failure to consider to Verdins limb three – Sentence not manifestly excessive– Leave to appeal refused.

Crimes Act 1958, ss 15, 17.

Minutolo v The King [2023] VSCA 300, applied; R v Verdins (2007) 16 VR 269, DPP v Russell [2014] VSCA 308, discussed.

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Counsel
Applicant:		Mr J Manning
Respondent:		Ms D Piekusis KC
Solicitors
Applicant:	Doogue & George Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

TAYLOR JA
T FORREST JA:

On 31 July 2023, after a plea of guilty, the applicant was sentenced for one charge of common assault and one charge of causing serious injury recklessly. The details of the sentence are set out in the table below.

Charge on Indictment	Offence	Max Penalty	Sentence
1	Common assault[1]	5 years	Aggregate sentence of 9 months’ imprisonment and an 18-month community correction order (with treatment conditions)
2	Causing serious injury recklessly[2]	15 years
Total Effective Sentence:		9 months’ imprisonment and 18-month community correction order (with conditions)
Section 6AAA Statement:		4 years’ imprisonment with a non-parole period of 2 years and 3 months
Other Relevant Orders: Disposal order pursuant to s 78(1) of the Confiscation Act 1997.

[1]Contrary to Common Law.

[2]Contrary to s 17 of the Crimes Act 1958.

The applicant seeks leave to appeal on the following grounds:
Ground 1 – The learned sentencing judge erred by failing to take into account the third of the Verdins[3] principles.
Ground 2 – The aggregate sentence imposed on charges 1 and 2 is manifestly excessive.

The offending[4]

[3]R v Verdins (2007) 16 VR 269, 276 [32].

[4]This description of the offending is drawn from the Summary of Prosecution Opening, which was tendered as Exhibit 1 on the plea.

At about 4.40 pm on 23 October 2021, Jason Jessup and his fiancée Tiffany Brochus attended at the Carrum Downs Plaza. Ms Brochus attended a pharmacy. Mr Jessup waited outside the pharmacy.
An elderly blue Holden Commodore owned by the applicant cruised into the Plaza area.…

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 55
Case: [2024] VSCA 55
Decision Date: 28 March 2024

CaseChat Overview and Summary

The applicant, Russo, appealed against his sentence for an unprovoked attack where he struck a male victim with a metal bar to the jaw and pushed a female victim to the throat. The incident followed a verbal exchange in response to insults directed at nearby women. Russo pleaded guilty to charges of common assault and causing serious injury recklessly. The County Court sentenced him to nine months' imprisonment and an 18-month community correction order, including treatment conditions. The appeal focused on whether the sentencing judge failed to consider the Verdins limb three in sentencing and whether the sentence was manifestly excessive.

The legal issues for the court to determine were whether the sentencing judge had overlooked Verdins limb three in the sentencing process and whether the sentence was manifestly excessive. Verdins limb three refers to the principle that a sentence should not be higher than what is necessary to achieve the purposes of punishment, retribution, deterrence, and rehabilitation. The court examined if the sentence imposed was proportionate to the crime committed and if it sufficiently reflected the offender's culpability and the impact on the victims.

The Court of Appeal determined that there was no failure to consider Verdins limb three, as the sentencing judge had adequately addressed the relevant factors in imposing the sentence. The court held that the sentence was not manifestly excessive given the severity of the assault and its impact on the victims. The appeal was dismissed, and leave to appeal to the High Court was refused. The court found that the sentence appropriately balanced the need for punishment, deterrence, and rehabilitation, and was proportionate to the nature and circumstances of the offence.

Orders