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Tognolini v The Queen (No 2)

Tognolini v The Queen (No 2)

Case [2012] VSCA 311 14 December 2012

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0012

TERRENCE RAYMOND TOGNOLINI	Applicant
	v
THE QUEEN (NO 2)	Respondent

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JUDGES	MAXWELL P, BUCHANAN and REDLICH JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	30 May 2012, 29 January 2013
DATE OF JUDGMENT	14 December 2012
DATE OF ORDERS	14 December 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 311 1^st Revision 18 June 2013
JUDGMENT APPEALED FROM	R v Tognolini (Unreported, County Court of Victoria, Judge Pilgrim, 19 January 2010)

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CRIMINAL LAW – Appeal – Sentence – Arson – Total effective sentence 12 years, 8 months – Applicant already serving sentence for other offences (‘first sentence’) – Non‑parole period not completed – 2 years, 7 months already served – Additional non‑parole period fixed at 8 years – Application for leave to appeal against arson sentence – Notice of abandonment subsequently filed – Application dismissed – Appeal against first sentence subsequently succeeded – Tognolini v The Queen [2011] VSCA 113 – First sentence reduced – Whether abandoned application for leave to appeal against arson sentence can be reinstated – Application reinstated – Leave to appeal granted – Onerous conditions in custody – Appeal allowed – New single non‑parole period fixed at 8 years – R v McNamara (No 2) [1997] 1 VR 257 applied – Sentencing Act 1991 (Vic) s 14(1) – Supreme Court (Criminal Procedure) Rules 2008 rr 2.40, 2.41.

CRIMINAL LAW – Sentence – Non-parole period – Pre-sentence detention – Offender still serving non-parole period fixed under prior sentence – Sentencing judge obliged to fix ‘new single non-parole period’ in respect of all sentences – Commencement date of new non-parole period – Whether date of sentencing or date of prior sentencing – Whether period since previous sentencing can be declared as pre-sentence detention – R v Rich (No 2) (2002) 4 VR 155, R v Stares (2002) 4 VR 314 considered – Sentencing Act 1991 (Vic) ss 14(1), 18.

PRACTICE AND PROCEDURE – Criminal law – Appeal – Reinstatement – Application for leave to appeal against sentence – Application abandoned – Taken to be dismissed – Inherent power of Court of Appeal to permit withdrawal of notice of abandonment – Power to prevent miscarriage of justice – Leave granted to withdraw notice of abandonment – Sentencing Act 1991 (Vic) s 14(1) – Supreme Court (Criminal Procedure) Rules 2008 rr 2.40, 2.41.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T Kassimatis	Galbally Rolfe
For the Crown	Mr O P Holdenson QC	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P
BUCHANAN JA
REDLICH JA:

In March 2009, the applicant was convicted after a trial in the County Court of one count of committing an indecent act with a child under 16, and one count of attempting to pervert the course of justice. He also pleaded guilty to 18 counts of supplying a drug of dependence to a child.

He was sentenced by Judge Sexton to be imprisoned for four years on each of the counts of…

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 Tognolini v The Queen (No 2)

Details

AGLC: Tognolini v The Queen (No 2) [2012] VSCA 311
Case: [2012] VSCA 311
Decision Date: 14 December 2012

CaseChat Overview and Summary

The case of Tognolini v The Queen (No 2) concerns an application by the applicant, Tognolini, for leave to appeal against a sentence for arson, and subsequently, an appeal against a separate sentence. The matter was before the Victorian Court of Appeal, where the applicant was already serving a sentence for other offences. The application for leave to appeal against the arson sentence was initially abandoned and dismissed, but was later reinstated at the applicant's request, following the successful appeal against the first sentence.

The primary legal issues involved the fixing of a non-parole period for the arson sentence in the context of the applicant already serving a prior sentence, and the applicability of pre-sentence detention in calculating the non-parole period. The court had to determine whether the non-parole period should be calculated from the date of the arson sentencing or from the date of the prior sentencing, and whether the time spent in custody before the arson sentencing could be considered as pre-sentence detention.

The court held that it had the inherent power to permit the withdrawal of the notice of abandonment of the appeal application. This power was exercised to prevent a miscarriage of justice, given the successful appeal against the first sentence. The court applied the principle in R v McNamara (No 2) [1997] 1 VR 257, which held that the sentencing judge is obliged to fix a 'new single non-parole period' in respect of all sentences. The court also considered the provisions of the Sentencing Act 1991 (Vic) s 14(1) and the Supreme Court (Criminal Procedure) Rules 2008 rr 2.40, 2.41, to determine the appropriate commencement date of the new non-parole period and the calculation of pre-sentence detention.

The court allowed the appeal and fixed a new single non-parole period of 8 years for the arson sentence, considering the period since the previous sentencing as pre-sentence detention. The court's decision was based on the principles in R v Rich (No 2) (2002) 4 VR 155 and R v Stares (2002) 4 VR 314, which were applied to the facts of this case. The court granted leave to appeal and directed that the new non-parole period should commence from the date of the arson sentencing.

Orders