Salvaggio v The Queen

Case [2022] VSCA 88


SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0262

GARY STEPHEN SALVAGGIO Applicant
v
THE QUEEN Respondent

---

JUDGES: MAXWELL P, KYROU and NIALL JJA
WHERE HELD: MELBOURNE
DATE OF HEARING: 22 March 2022
DATE OF JUDGMENT: 13 May 2022
MEDIUM NEUTRAL CITATION: [2022] VSCA 88
JUDGMENT APPEALED FROM: [2018] VCC 1313 (Judge Riddell)

---

CRIMINAL LAW – Appeal – Conviction – Application for extension of time to file application for leave to appeal – Applicant convicted on one charge of aggravated burglary, one charge of rape and one charge of sexual assault – Sentenced to 14 years’ imprisonment with 11 years non-parole period – Proposed ground of appeal that conviction on rape charge unsafe and unsatisfactory because evidence did not establish penetration – Proposed ground of incompetency of trial counsel – Delay of over two years in filing application for leave to appeal – Extension of time granted – Leave to appeal refused.

CRIMINAL LAW — Appeal – Sentence – Whether individual sentences on aggravated burglary, rape and stalking were manifestly excessive – Whether sentence of 14 years’ imprisonment with 11 years non-parole manifestly excessive – Appeal allowed – Applicant resentenced to 11 years’ imprisonment with 8 years and 6 months non-parole period.

---

APPEARANCES: Counsel Solicitors
For the Applicant Mr R F Edney Stary Norton Halphen
For the Respondent Mr J McWilliams Ms A Hogan, Solicitor for Public Prosecutions

MAXWELL P
KYROU JA
NIALL JA:

  1. On 16 May 2018, the applicant was found guilty by a jury empanelled on his trial in the County Court to one charge of aggravated burglary with intent to sexually assault,[1] one charge of rape,[2] and one charge of sexual assault.[3]  At the same time as his plea on sentence for these charges, he also pleaded guilty to one charge of stalking in relation to a different victim.[4]  On 23 August 2018, the applicant was sentenced to a total effective sentence of 14 years’ imprisonment and a non-parole period of 11 years was set.

    [1]Crimes Act 1958, s 77.

    [2]Ibid s 38.

    [3]Ibid s 40.

    [4]Ibid s 21A.

Extension of time

  1. On 23 December 2020, the applicant applied for leave to appeal both his conviction and sentence.  The two applications are more than two years out of time and he seeks an extension of time to bring them.  The principles that apply to the exercise of the very broad discretionary power to extend time are not in doubt.[5] 

    [5]See Madafferi v The Queen [2017] VSCA 302, [11] (Priest, Hansen and Coghlan JJA).

  1. The application for an extension was supported by an affidavit of the applicant’s current solicitor, Alana Reader.  Ms Reader set out, in some detail, the chronology of events following the conviction and sentence of the applicant.  According to her affidavit, on 29 August 2018, trial counsel provided to the applicant’s trial solicitor a memorandum of advice recommending an appeal against conviction.  The applicant’s then solicitor told the applicant’s mother that he would provide a brief…

Continue reading Salvaggio v The Queen

Sign in free to access the full text

Details
AGLC
Salvaggio v The Queen [2022] VSCA 88
Case
[2022] VSCA 88
Decision Date

CaseChat Overview and Summary

The appellant, Mr Salvaggio, was convicted by the County Court of Victoria on one charge of aggravated burglary, one charge of rape and one charge of sexual assault. He was sentenced to 14 years’ imprisonment with an 11-year non-parole period. Mr Salvaggio appealed against his conviction and sentence to the Court of Appeal. The central legal issues were whether the trial court erred in finding Mr Salvaggio guilty of rape and whether the sentence was manifestly excessive.

The court first considered whether to grant an extension of time for Mr Salvaggio to file his application for leave to appeal. The application was filed more than two years after the sentencing date. However, the court accepted that the delay was due to circumstances beyond Mr Salvaggio’s control and granted the extension. The court then denied leave to appeal on the ground that the conviction for rape was safe and satisfactory, as the evidence did support the finding of penetration. The court also rejected the claim of incompetency of trial counsel, finding that the counsel’s performance was not deficient. The court then turned to the sentence, finding that the sentence of 14 years’ imprisonment with an 11-year non-parole period was manifestly excessive. The court allowed the appeal and resentenced Mr Salvaggio to 11 years’ imprisonment with an 8-year and 6-month non-parole period.

In summary, the court granted an extension of time for the application for leave to appeal but denied leave on the merits. The court found no error in the conviction for rape but accepted that the sentence was manifestly excessive and reduced it accordingly.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.