Tyson Folino v The Queen - [2017] VSCA 295

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0169

TYSON FOLINO	Applicant
V
THE QUEEN	Respondent

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JUDGE:	SANTAMARIA JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 October 2017
DATE OF JUDGMENT:	19 October 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 295
JUDGMENT APPEALED FROM:	[2017] VCC 1019 (Judge Davis)

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE (DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009)

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CRIMINAL LAW – Application for leave to appeal against sentence – Aggravated burglary – Prohibited person in possession of firearm – Possession of unregistered handgun – Assault of police officer in execution of duty – Related summary charges – Two indictments – Sentence of 7 years and 6 months’ imprisonment with non-parole period of 5 – Whether base sentence for aggravated burglary on one indictment manifestly excessive – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P J Smallwood	Furstenberg Law
For the Respondent	Mr M D Phillips	Mr J Cain, Solicitor for Public Prosecutions

SANTAMARIA JA:

The applicant, now aged 29, pleaded guilty in the County Court to five charges and five related summary charges arising from two indictments. On the first indictment, he was sentenced on one charge of aggravated burglary. On the second indictment, he was sentenced on one charge of aggravated burglary, one charge of possessing a firearm as a prohibited person, one charge of possessing an unregistered handgun and one charge of assaulting a police officer in the execution of duty. He was also sentenced on four related summary charges of trespass and one related summary charge of committing an indictable offence whilst on bail.

The applicant was sentenced on each indictment as follows:

Charge Offence Maximum penalty Sentence Cumulation

Indictment no. C1610576

2 Aggravated burglary [Crimes Act 1958
s 77(1)] 25 years’ imprisonment 4 years’ imprisonment 1 year and 6 months’ imprisonment

Indictment no. G12034353

1 Aggravated burglary [Crimes Act 1958
s 77(1)] 25 years’ imprisonment 5 years’ imprisonment Base

2 Prohibited person possess firearm [Firearms Act 1996 s 5(1)] 1200 penalty units or 10 years; imprisonment Aggregate sentence of three months’ imprisonment -

3 Possess unregistered handgun [Firearms Act 1996 s 7B(1)] 1200 penalty units or 10 years; imprisonment

4 Assault police officer in execution of duty [Crimes Act 1958
s 31(1)(b)] 5 years’ imprisonment 2 years’ imprisonment 1 year imprisonment

Related summary charges

8 Trespass 25 penalty units or 6 months’ imprisonment Aggregate sentence of two months’ imprisonment -

9 Trespass 6 months’ imprisonment or 25 penalty units

10 Trespass 6 months’ imprisonment or 25 penalty units

11 Trespass 6 months’ imprisonment or 25 penalty units

12 Commit indictable offence whilst on bail 30 penalty units or 3 months’ imprisonment 1 month imprisonment N/A

Total effective sentence: 7 years and 6 months’ imprisonment

Non-parole period: 5 years’ imprisonment

Pre-sentence detention declaration 358 days

Section 6AAA Statement 10 years’ imprisonment

Other relevant orders Disposal order and forfeiture order

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 Tyson Folino v The Queen

Details

AGLC: Tyson Folino v The Queen [2017] VSCA 295
Case: [2017] VSCA 295
Decision Date: 19 October 2017

CaseChat Overview and Summary

The appellant, Tyson Folino, appealed against the sentence imposed by the Court of Appeal of the Supreme Court of South Australia. Folino was convicted of multiple offences, including aggravated burglary, possession of a firearm by a prohibited person, possession of an unregistered handgun, and assault of a police officer in the execution of duty. The appellant was sentenced to 7 years and 6 months' imprisonment with a non-parole period of 5 years and 4 months. Folino sought leave to appeal against his sentence, arguing that the base sentence for the aggravated burglary charge was manifestly excessive.

The legal issues before the court were whether the sentence imposed by the primary judge was manifestly excessive and whether leave to appeal should be granted. The court considered the seriousness of the offences, the culpability of the offender, and the principles of sentencing and proportionality. The court also took into account the cumulative effect of the charges and the need for general and specific deterrence.

The court found that the sentence imposed was not manifestly excessive. The appellant's offending was serious and involved multiple charges with significant aggravating factors. The court considered the totality of the offending and the need for general and specific deterrence in determining the appropriate sentence. The court also noted that the sentence reflected the gravity of the offences and the appellant's culpability. The court held that the sentence was proportionate to the seriousness of the offending and did not warrant an appeal. Leave to appeal was refused.

No orders were made regarding the appeal or the sentence. The sentence imposed by the primary judge remained unchanged.

Orders