Sabbatucci v The Queen

Case [2021] VSCA 340


SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0155

NATHAN SABBATUCCI Appellant
v
THE QUEEN Respondent

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JUDGES: MAXWELL P and EMERTON JA
WHERE HELD: MELBOURNE
DATE OF HEARING: 28 October 2021
DATE OF JUDGMENT: 7 December 2021
MEDIUM NEUTRAL CITATION: [2021] VSCA 340
JUDGMENT APPEALED FROM: DPP v Sabbatucci (Unreported, County Court of Victoria, Judge Gamble, 15 July 2020)

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CRIMINAL LAW – Appeal – Sentence – Aggravated carjacking – Driving whilst disqualified – Dangerous driving – Appellant sentenced to 5 years and 6 months’ imprisonment with 3 years 6 months non-parole – Whether sentencing judge erred in application of Bugmy v The Queen – No error – Relevant circumstances of appellant’s disadvantage taken into account – Open to conclude that moral culpability not reduced – Whether ‘special reason’ existed justifying imposition of partly non-custodial sentence – Open to sentencing judge to conclude no special reason established – Whether sentencing judge erred in assessing objective gravity – Use of knife to create fear in victim – Serious example of aggravated carjacking – No error – Appeal dismissed – Bugmy v The Queen (2013) 249 CLR 571, DPP v Herrmann [2021] VSCA 160 considered – Sentencing Act 1991 ss 10AD, 10A.

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APPEARANCES: Counsel Solicitors
For the Appellant  Mr M Habib James Dowsley & Associates
For the Respondent Mr J McWilliams Ms A Hogan, Solicitor for Public Prosecutions

MAXWELL P 
EMERTON JA:

Summary

  1. The appellant (‘NS’) pleaded guilty to one charge each of aggravated carjacking, driving whilst disqualified and driving in a manner dangerous.  He received sentences of imprisonment of 5 years, 4 months and 12 months respectively.  With cumulation of 6 months of the sentence for dangerous driving on the sentence for aggravated carjacking, the total effective sentence was 5 years and 6 months’ imprisonment.  A non-parole period of 3 years and 6 months was fixed.

  1. As McLeish and Emerton JJA explained in Mammoliti v The Queen,[1] legislation enacted in 2016 created a special sentencing regime for carjacking.  The offence of aggravated carjacking carries a maximum sentence of 25 years’ imprisonment.[2] Section 10AD of the Sentencing Act 1991 requires the imposition of a term of imprisonment for that offence, and the fixing of a non-parole period of not less than 3 years, unless the court finds under s 10A that ‘a special reason’ exists.

    [1][2020] VSCA 52, [8]–[11].

    [2]Crimes Act 1958 s 79A.

  1. In the present case, NS relied on a combination of factors, one of which was his deprived childhood, in support of a submission to the sentencing judge that he should find that a special reason existed.  If that submission were accepted, it was said, his Honour should consider imposing a combination sentence (imprisonment combined with a community correction order).

  1. As will appear, his Honour rejected the ‘special reason’ submission.  One of the grounds of appeal is that his Honour erred in so doing.  The other grounds contend that the judge erred in not treating NS’s childhood deprivation as engaging…

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Sabbatucci v The Queen [2021] VSCA 340
Case
[2021] VSCA 340
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CaseChat Overview and Summary

The appeal in Sabbatucci v The Queen was brought by the appellant, who had been convicted of multiple serious offences, including aggravated carjacking, driving while disqualified, and dangerous driving. The case was heard in the Court of Appeal, where the appellant contested the severity of the sentence imposed by the sentencing judge. The appellant was sentenced to a total of 5 years and 6 months in imprisonment, with a non-parole period of 3 years and 6 months. The central issues for the court were whether the sentencing judge had correctly applied the principles outlined in Bugmy v The Queen, whether there were special circumstances justifying a partly non-custodial sentence, and whether the judge had appropriately assessed the objective gravity of the crimes committed.

The court examined the sentencing judge's application of Bugmy v The Queen, a case that established that certain disadvantages should be considered when determining an appropriate sentence. The appellant argued that the sentencing judge had failed to sufficiently take into account his disadvantaged background. However, the court found that the sentencing judge had indeed considered the relevant circumstances of the appellant's disadvantage and was open to concluding that the appellant's moral culpability was not reduced. Regarding the imposition of a partly non-custodial sentence, the court noted that it was open to the sentencing judge to conclude that no special reason had been established that would justify such a sentence. The court also determined that the sentencing judge had appropriately assessed the objective gravity of the crimes, particularly the use of a knife to create fear in the victim, and had correctly classified the incident as a serious example of aggravated carjacking.

In light of the findings, the court concluded that the sentencing judge had not erred in his assessment and application of the relevant legal principles. The appeal was dismissed, and the original sentence was upheld. The court referenced Bugmy v The Queen and DPP v Herrmann to support its decision, ensuring that the principles of sentencing under the Sentencing Act 1991 were correctly applied. The final orders confirmed the appellant's sentence, with no changes to the terms of imprisonment or the non-parole period.

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