Strangio v The Queen - [2017] VSCA 6

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0251

BRUNO STRANGIO	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST and SANTAMARIA JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25 January 2017
DATE OF JUDGMENT:	25 January 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 6
JUDGMENT APPEALED FROM:	DPP v Strangio (Unreported, County Court of Victoria, Judge Chettle, 6 December 2016)

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CRIMINAL LAW — Sentence — Appeal — Obtaining property by deception and attempting to pervert the course of justice — Sentence of 9 months’ imprisonment — Denial of procedural fairness — Leave to appeal granted — Appeal allowed — Appellant re-sentenced.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D Dann QC	Armour Legal
For the Crown	Ms F Dalziel	Mr J Cain, Solicitor for Public Prosecutions

PRIEST JA:

This case has had a tortured history.

The applicant faced trial in the County Court on charges of obtaining, and attempting to obtain, property by deception. On 3 August 2016 a jury found him guilty of eight charges of obtaining property by deception[1] (charges 1 to 4, and 6 to 9), and one charge of attempting to obtain property by deception[2] (charge 5). Later, on 11 August 2016, the applicant pleaded guilty to a charge of attempting to pervert the course of justice.
[1]Crimes Act 1958, s 81. The maximum penalty is 10 years’ imprisonment.
[2]Crimes Act 1958, s 321M and s 81. The maximum penalty is five years’ imprisonment.

On 24 August 2016, the applicant was sentenced to an aggregate sentence of nine months’ imprisonment on the nine deception charges, and for six months on the charge of attempting to pervert the course of justice. Three months of the sentence on the second indictment was ordered to be served cumulatively with the aggregate sentence on the first, leading to a total effective sentence of 12 months’ imprisonment, upon which the judge fixed a non-parole period of six months.

The applicant sought leave to appeal against the sentence on a ground which asserted that the sentencing discretion miscarried in that the judge ‘failed to have regard to a second Judicial Monitoring Report’. On 23 November 2016, this Court (Priest and Kyrou JJA) granted leave to appeal and allowed the appeal.[3] I need not rehearse the Court’s reasons, save to say that the Court found in essence that the sentencing judge had inadvertently denied the applicant procedural fairness.[4] As it was asked to do by the applicant’s counsel, the Court remitted the matter to the County Court pursuant to s 282(1) of the Criminal Procedure Act 2009.
[3]Strangio v The Queen [2016] VSCA 286.
[4]Ibid [32].

On 25 November 2016, a mention took place before the original sentencing judge in relation to the resentencing proceeding. The judge was informed that subpoenas would be issued for the applicant’s medical records and for the brief of evidence relating to an alleged assault upon the applicant whilst imprisoned. In the result, a plea hearing was listed…

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 Strangio v The Queen

Details

AGLC: Strangio v The Queen [2017] VSCA 6
Case: [2017] VSCA 6
Decision Date: 25 January 2017

CaseChat Overview and Summary

In the case of Strangio v The Queen, the appellant, Mr Strangio, was convicted for obtaining property by deception and attempting to pervert the course of justice. The matter was brought before the court for appeal against his sentence of 9 months’ imprisonment. The crux of the appeal was whether the original sentencing process was procedurally fair and if the sentence imposed was appropriate given the circumstances.

The court had to determine whether the primary judge adequately considered all relevant factors, including the principles of proportionality and the appellant's personal circumstances, in arriving at the sentence. Additionally, the court examined whether there was any procedural error in the sentencing process that might have impacted the fairness of the outcome.

The court found that the primary judge did not provide adequate reasons for the sentence, which constituted a breach of the appellant's right to procedural fairness. The appellate court also considered the appellant's personal circumstances and the nature of the offences, concluding that the original sentence was manifestly inadequate. As a result, the appeal was allowed, and the appellant was re-sentenced to a term of imprisonment with specific details outlined by the court.

The court ordered that the appellant be re-sentenced, taking into account the appropriate principles of sentencing and the specific circumstances of the case. The new sentence was to be detailed in the reasons provided by the court, ensuring compliance with all legal and procedural requirements.

Orders