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
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- AGLC
- Tyson Folino v The Queen [2017] VSCA 295
- Case
- [2017] VSCA 295
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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