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
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.
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.
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).
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…
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.
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Details
AGLC
Sabbatucci v The Queen [2021] VSCA 340
Case
[2021] VSCA 340
Decision Date
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.