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.
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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:
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.
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]
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…
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
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.