Salvaggio v Regina - [2007] NSWCCA 136

New South Wales
Court of Criminal Appeal

CITATION: Salvaggio v Regina [2007] NSWCCA 136
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 10 May 2007

JUDGMENT DATE:
18 May 2007

JUDGMENT OF: Campbell JA at 1; James J at 2; Smart AJ at 3

DECISION: Leave to appeal against sentence granted; appeal against sentence dismissed

CATCHWORDS: Aggravated detain for advantage and two serious assaults occasioning actual bodily harm - No allowance for accumulation of sentences as a special circumstance - Non-parole period and fixed terms totalling 3 1/2 years out of sentences totalling 4 years - Lesser periods in prison could not be imposed otherwise sentences would not reflect the criminality adequately.

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Mental Health Act 1990
Mental Health (Criminal Procedure) Act 1990

CASES CITED: Presta (2000) NSWCCA 40
The Queen v Hudson (1985) FCR 228

PARTIES: Anthony Salvaggio v Regina

FILE NUMBER(S): CCA 2007/386

COUNSEL: (A) Mr M Johnston
(C) M W Dawe QC

SOLICITORS: (A) S E O'Connor
(C) S Kavanagh

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/21/1130

LOWER COURT JUDICIAL OFFICER: Knox DCJ

LOWER COURT DATE OF DECISION: 23 June 2006

2007/386

CAMPBELL JA

JAMES J

SMART AJ

F riday , 18 M ay 2007

A nthony SALVAGGIO v Regina

JUDGMENT

1 CAMPBELL JA: I agree with Smart AJ.

2 JAMES J: I agree with Smart AJ.

3 SMART AJ: Anthony Salvaggio seeks leave to appeal against these sentences of imprisonment, imposed after a trial:

Court	Offence	Sentence
2	Aggravated detain for advantage	Non-parole period of 3 years from 17.1.06, balance of term of 1 year expiring 16.1.2010
2b	Assault occasioning actual bodily harm	Fixed term of 18 months from 17.1.08 to 16.7.09
2c	Assault occasioning actual bodily harm	Fixed term of 18 months from 17.1.08 to 16.7.09

4 Thus the applicant was sentenced in total, by way of non-parole period and fixed terms of imprisonment for 3½ years with a balance of term of 6 months, a total sentence of 4 years. The applicant complained that the effective ratio of non-parole period-fixed term to the total sentence was 87.5 per cent.

The Facts

5 The applicant and VC (a lady) had been in a relationship of some four to five months. VC had been to the applicant’s house on a number of occasions prior to 23 October 2004. On that evening they had been together at a club, consuming a quantity of alcohol. The judge made these findings of fact:

“(i) the parties returned to the offender’s unit. There was tension and subsequent argument between them which occurred at least partly, because the offender thought that men had been speaking to [VC] at the … Club. As a result of those attentions the offender accused her as ‘acting like a whore’;

(ii) In response to this accusation and related accusations which were made at other stages during the evening [VC] said ‘Don’t…

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 Salvaggio v Regina

Details

AGLC: Salvaggio v Regina [2007] NSWCCA 136
Case: [2007] NSWCCA 136
Decision Date: 18 May 2007

CaseChat Overview and Summary

The appellant, Salvaggio, faced the Crown in a case concerning charges of aggravated detain for advantage and two counts of serious assault occasioning actual bodily harm. The matter was heard in the Court of Appeal. The appellant challenged the sentence imposed by the lower court, arguing that the cumulative effect of the sentences was inadequately reflected in the total non-parole and fixed terms. The Crown maintained that the sentence was appropriate given the severity of the offences.

The primary legal issue before the court was whether the trial judge should have considered the accumulation of sentences as a special circumstance. The appellant contended that this factor warranted consideration, which would have resulted in a lesser cumulative sentence. The Crown opposed this, arguing that such a consideration was not appropriate in this case. The court had to determine whether the trial judge erred in not allowing for the accumulation of sentences and, if so, whether this error necessitated a reduction in the sentences imposed.

In reaching its decision, the court found that while the trial judge did not consider the accumulation of sentences as a special circumstance, this oversight did not result in a manifestly unjust outcome. The court observed that the non-parole and fixed terms, totalling 3 1/2 years out of the total 4-year sentence, appropriately reflected the criminality of the offences. The court concluded that imposing lesser periods in prison would not adequately reflect the gravity of the crimes committed. Consequently, the appeal was dismissed, and the original sentences were upheld.

The court did not order any changes to the sentences imposed. The appellant's appeal was dismissed, and the original sentences were upheld as appropriate given the nature and severity of the offences.

Orders