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Spiteri v The Queen

Spiteri v The Queen

Case [2011] VSCA 33 21 February 2011

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0538
MATTHEW RINO SPITERI	Appellant
v
THE QUEEN	Respondent

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JUDGES	NETTLE and NEAVE JJA and KYROU AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	2 February 2011
DATE OF JUDGMENT	21 February 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 33
JUDGMENT APPEALED FROM	R v Spiteri (Unreported, County Court of Victoria, Judge Murphy, 19 February 2009)

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CRIMINAL LAW – Sentence – Cultivating a large commercial quantity of a drug of dependence – Theft of electricity – Appellant sentenced to seven years and 11 months’ imprisonment with a non-parole period of four years and nine months – Whether judge erred in reducing the weight to be accorded to the appellant’s plea of guilty and remorse on the strength of the Crown case and on the basis of the appellant’s admissions – R v Pajic (2009) 23 VR 527 considered – Parity – Whether sentences infringed the principle of parity given the later sentencing of co-offender – Co-offender effectively sentenced to seven years and two months’ imprisonment for the same counts – Appellant pleaded guilty and made admissions, whereas co-offender pleaded not guilty and did not make admissions – Appeal allowed – Appellant re-sentenced to seven years’ imprisonment with a non-parole period of four years and two months.

CRIMINAL LAW – Sentence – Observations about the adequacy of current sentencing practices for offence of cultivating a large commercial quantity of a drug of dependence.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr M J Croucher	Theo Magazis & Associates
For the Respondent	Mr S M Cooper	Mr C Hyland, Solicitor for Public Prosecutions

NETTLE JA:

I have had the advantage of reading in draft the reasons for judgment of Kyrou AJA and I agree in substance with what his Honour says about Grounds 2 and 3 and in the orders he proposes.

For the sake of completeness, however, I should say that I do not share Kyrou AJA’s views concerning proposed Ground 1, and I would not uphold it. In my view, the sentencing judge did not err in his assessment of the strength of the Crown case – it was indeed a strong case – and I am not persuaded that his Honour erred in taking it into account in setting the discount to be allowed for the appellant’s plea of guilty.

Although this court held in Pajic[1] that the utilitarian value of a plea of guilty is not affected by the strength of the Crown case, authority makes clear that the strength of the Crown case may cast doubt on the extent of an offender’s remorse, genuine contrition, acceptance of responsibility and willingness to facilitate the course of justice,[2] and thereby warrant a lesser discount than might otherwise be thought appropriate.[3]
[1]R v Pajic (2009) 23 VR 527, 532 [20].
[2]Cameron v The Queen (2002) 209 CLR 339, 346 [22].
[3]Siganto v The Queen (1998) 194 CLR 656, 663–4 [22]–[23]; R v…

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 Spiteri v The Queen

Details

AGLC: Spiteri v The Queen [2011] VSCA 33
Case: [2011] VSCA 33
Decision Date: 21 February 2011

CaseChat Overview and Summary

The appellant, Spiteri, was convicted of cultivating a large commercial quantity of a drug of dependence, among other offences. Spiteri appealed against his sentence of seven years and 11 months’ imprisonment, with a non-parole period of four years and nine months, contending that the judge erred in reducing the weight to be accorded to his plea of guilty and remorse, and that his sentence was not in parity with that of his co-offender who was sentenced to seven years and two months for the same counts. The co-offender had pleaded not guilty and did not make admissions, unlike Spiteri who had pleaded guilty and made admissions. Spiteri also made observations about the adequacy of current sentencing practices for the offence of cultivating a large commercial quantity of a drug of dependence.

The legal issues before the court were whether the trial judge erred in the weight given to the appellant’s plea of guilty and remorse, and whether the sentence imposed infringed the principle of parity. The court considered the case of R v Pajic, which held that the principle of parity required that like cases be treated alike unless there are good reasons for treating them differently. The court also noted that the sentence imposed must be proportionate to the offence, and must also take into account any mitigating factors, such as a plea of guilty and remorse.

The court held that the trial judge had erred in reducing the weight to be accorded to the appellant’s plea of guilty and remorse, and that the sentence imposed infringed the principle of parity. The court found that the co-offender’s sentence was manifestly inadequate, and that the appellant’s sentence should be proportionate to the offence, taking into account the mitigating factors. The court also noted that the appellant had made admissions which assisted the prosecution, and that the sentence should reflect this. The appeal was allowed, and the appellant was re-sentenced to seven years’ imprisonment, with a non-parole period of four years and two months.

The final orders of the court were that the appeal be allowed, the appellant’s sentence be quashed, and the appellant be re-sentenced to seven years’ imprisonment, with a non-parole period of four years and two months. The court also noted that there may be a need for a review of current sentencing practices for the offence of cultivating a large commercial quantity of a drug of dependence.

Orders