Russo v The Queen

Case [2021] VSCA 244


SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0266

ROCKIE RUSSO Appellant
v
THE QUEEN Respondent

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JUDGES: PRIEST and EMERTON JJA
WHERE HELD: MELBOURNE
DATE OF HEARING: 23 August 2021
DATE OF JUDGMENT: 2 September 2021
MEDIUM NEUTRAL CITATION: [2021] VSCA 244
JUDGMENT APPEALED FROM: [2020] VCC 1894 (Judge Mason)

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CRIMINAL LAW – Appeal – Sentence – Carjacking (charge 1), conduct endangering life (charge 2) and fail to stop vehicle on police request (charge 3) – Appellant accosted victim in victim’s driveway at night and stole vehicle – Appellant drove stolen vehicle erratically and at excessive speeds while pursued by police – Total effective sentence of 4 years’ imprisonment with non-parole period of 3 years – Whether sentence on charge 1 (3 years) and non-parole period manifestly excessive – Maximum penalty for carjacking 15 years – Medium range car-jacking offence – Notwithstanding mitigating factors, sentence of 4 years open to sentencing judge – Limited role of comparable cases in sentencing – Non-parole period of 75 per cent of the head sentence manifestly excessive – Shorter non-parole period required in the interests of the appellant’s rehabilitation and reintegration into the community – Sentence affirmed, non-parole period fixed at 2 years, 6 months.

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APPEARANCES: Counsel Solicitors
For the Appellant Mr M Stanton
and Ms B East
Stary Norton Halphen
For the Respondent Ms M Mahady Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA:

  1. I agree with the reasons of Emerton JA and with the orders her Honour proposes.

EMERTON JA:

  1. On 27 October 2020, the appellant pleaded guilty to one charge of carjacking, one charge of conduct endangering life and one charge of fail to stop vehicle on police request.  The appellant was sentenced on 26 November 2020 as follows:

Charge on Indictment L11130820 Offence Maximum Penalty Sentence Cumulation

1

Carjacking (contrary to s 79 of the Crimes Act 1958)

15 years

3 years

Base

2

Conduct endangering life (contrary to s 22 of the Crimes Act 1958)

10 years

2 years

1 year

Summary charge 6

Fail to stop vehicle on police request (contrary to s 64A(1) of the Road Safety Act 1986)

12 months[1]

2 months

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Total effective sentence

4 years’ imprisonment

Non-parole period

3 years

Pre-sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991

199 days

6AAA Statement

6 years’ imprisonment, with a non-parole period of 4 years

Other relevant orders Nil

[1]This penalty applies pursuant to s 64A(1) of the Road Safety Act 1986 as it was a subsequent offence, as opposed to a maximum of 6 months’ imprisonment with respect to a first offence.

  1. The appellant has been granted leave to appeal against both the sentence on charge 1 and the non-parole period on the ground that each of them is manifestly excessive.

Background

  1. At approximately 10:55 pm on 11 May 2020, Mr Malinga De Silva drove home from the car wash in his 1998 Nissan Skyline and turned into his driveway.  He turned…

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AGLC
Russo v The Queen [2021] VSCA 244
Case
[2021] VSCA 244
Decision Date

CaseChat Overview and Summary

Russo appealed against the sentence imposed by the Court of Appeal, which had affirmed the primary judge's sentencing of three years' imprisonment for the charge of carjacking, and a total effective sentence of four years with a non-parole period of three years. The appellant had accosted the victim in their driveway at night and stolen their vehicle. He then drove the stolen vehicle erratically and at excessive speeds while being pursued by police. The appeal was concerned with the severity of the sentence, specifically whether the sentence for the carjacking charge and the non-parole period were manifestly excessive.

The legal issues for the court to decide were whether the sentence on the carjacking charge and the non-parole period were manifestly excessive. The maximum penalty for carjacking is 15 years' imprisonment, and the offence was classified as a medium-range carjacking. The court considered the mitigating factors presented but found that the sentence of four years was within the sentencing judge's discretion. The court also noted that while comparable cases could provide some guidance, they were not determinative of the appropriate sentence. The non-parole period of 75% of the head sentence was considered manifestly excessive, as it did not adequately balance the appellant's rehabilitation and reintegration into the community.

The court found that the total effective sentence of four years was not manifestly excessive, but the non-parole period of three years was. The court held that a shorter non-parole period was required in the interests of the appellant's rehabilitation and reintegration into the community. The appeal was ultimately dismissed, and the non-parole period was fixed at two years and six months. This decision emphasises the importance of balancing the severity of the offence with the appellant's prospects for rehabilitation and reintegration into society when determining an appropriate non-parole period.

Orders

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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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