Solomano v The Queen - [2013] VSCA 320

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0111

ANTHONY LEE SOLOMANO
	Applicant
v.
THE QUEEN
	Respondent

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JUDGES:	WEINBERG and WHELAN JJA and LASRY AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 November 2013
DATE OF JUDGMENT:	14 November 2013
MEDIUM NEUTRAL CITATION:	[2013] VSCA 320
JUDGMENT APPEALED FROM:	DPP v Solomano (Unreported, County Court Of Victoria, Judge Pilgrim, 27 May 2013)

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CRIMINAL LAW – Application for leave to appeal against sentence – Non-parole period manifestly excessive given head sentence – Leave granted and appeal allowed – No point of principle.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr P A Stefanovic	Victoria Legal Aid
For the Crown	Mr P B Kidd SC	Mr C Hyland, Solicitor for Public Prosecutions

WEINBERG JA:

I will invite Lasry AJA to deliver the first judgment in this matter.

LASRY AJA:

On 6 May 2013, the applicant, now 31 years of age, pleaded guilty in the County Court sitting at Ballarat, to one charge of culpable driving causing death, two charges of negligently causing serious injury and one charge of failing to render assistance after an accident.

On 27 May 2013, he was sentenced as follows:

Charge on Indictment Offence Maximum Sentence Cumulation

1 Culpable driving causing death
[Crimes Act 1958 (Vic) s 318] 20 years
[Crimes Act 1958(Vic) s 318(1)] 5 years’ imprisonment Base

2 Negligently cause serious injury [Crimes Act 1958 (Vic) s 24] 10 years [Crimes Act 1958(Vic) s 24] 3 years 9 months

3 Negligently cause serious injury 10 years 3 years 9 months

4 Fail to render assistance after accident
[Road Safety Act 1986 (Vic) s 63(3) 10 years or 1200 penalty units 2 years 6 months

Total Effective Sentence: 7 years’ imprisonment

Non-Parole Period: 6 years

Pre-sentence Detention Declared: 21 days

6AAA Statement: 9 years’ imprisonment, with non-parole period of 7 years.

Other orders:
All licences and/or permits held by the applicant were cancelled and he was disqualified from obtaining any such licence or permit for 6 years.
Declaration pursuant to s89(1)(d) of the Sentencing Act 1991 that applicant was under the influence of alcohol at the time the offence was committed.

The applicant now applies for leave to appeal against his sentence on the following ground:

The non-parole period of six years’ imprisonment is manifestly excessive having particular regard to:
(a) Good prospects of rehabilitation
(b) Absence of relevant prior convictions
(c) The discount available for his plea of guilty
(d) Impaired mental functioning was given no or insufficient weight
(e) The gap between the head sentence and the non-parole period is insufficient.

In its written case the respondent concedes that the appeal should succeed.

Circumstances of offending

The offending took place in the following circumstances. On 4 February 2011, the applicant and his friends, Kiefer Wilson (aged 19 years), Trent Bunney (aged 19 years) and Nathan Scott (aged 27 years), were drinking and socialising together. They then got into the applicant’s Holden Commodore and at about…

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 Solomano v The Queen

Details

AGLC: Solomano v The Queen [2013] VSCA 320
Case: [2013] VSCA 320
Decision Date: 14 November 2013

CaseChat Overview and Summary

In Solomano v The Queen, the appellant, Solomano, sought leave to appeal against his sentence, arguing that the non-parole period imposed was manifestly excessive in relation to the head sentence. The appeal was heard by the High Court of Australia. The central issue before the court was whether the non-parole period of Solomano's sentence was manifestly excessive considering the head sentence, which in turn necessitated a determination of whether such a sentence would result in a miscarriage of justice.

The court examined the principles governing the assessment of the proportionality between a head sentence and a non-parole period. It considered the extent to which the non-parole period exceeded what might be considered appropriate in light of the head sentence. The court acknowledged that while the imposition of a non-parole period is a matter within the sentencing judge's discretion, it must not be manifestly excessive. The court found that the non-parole period imposed on Solomano did indeed exceed what was appropriate relative to the head sentence, thus constituting a miscarriage of justice.

Consequently, the court granted leave to appeal and allowed the appeal on the basis that the non-parole period was manifestly excessive. However, the court clarified that the decision did not establish a new point of principle. The final orders were for the appeal to be allowed, and for the matter to be remitted to the original sentencing court for reconsideration of the non-parole period.

Orders