Vinaisi v The Queen - [2021] NSWCCA 134

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Vinaisi v R [2021] NSWCCA 134
Hearing dates: 23 June 2021
Date of orders: 23 June 2021
Decision date: 23 June 2021
Before: Payne JA, Price J, Wright J
Decision:
(1) Leave to appeal against sentence granted;
(2) Appeal dismissed.

Catchwords:
CRIME – appeals – appeal against sentence – where applicant has spent short amounts of time in community between periods in custody – whether sentencing judge erred in not sufficiently taking into account pattern of recidivism

Legislation Cited:
Crimes Act 1900 (NSW), ss 111(2), 148, 192E(1)(b)
Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A(d)
Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases Cited:
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Elshaimy v R [2018] NSWCCA 169

Category: Principal judgment
Parties: Jake Vinaisi (Applicant)
Crown (Respondent)
Representation:
Counsel:
P Segal (Applicant)
S Traynor (Crown)
Solicitors:
Criminal & Traffic Law (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2018/392993
Publication restriction: Nil.
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

21 May 2020

Before:

Judge Noman SC

File Number(s):

2018/392993

Judgment – EX TEMPORE

[Amended in accordance with the principles in Bar-Mordecai v Rotman [2000] NSWCA 123 at [194]]

PAYNE JA: This decision is delivered ex tempore as the non-parole period of the applicant expires on 5 July 2021. The Court was informed at the outset of the hearing that arrangements have been made for the applicant’s residential accommodation and supervision dating from 5 July 2021.
The applicant seeks leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) against the sentence imposed on him by her Honour Judge Noman SC on 21 May 2020.
The applicant pleaded guilty on the first day of trial to one count of “enter with intent to commit a serious indictable offence, namely larceny, in circumstances of aggravation”, contrary to s 111(2) of the Crimes Act 1900 (NSW) which carries a maximum penalty of 14 years’ imprisonment. The applicant asked that two further offences be taken into account on a Form 1, namely, stealing property in a dwelling-house contrary to s 148 of the Crimes Act which carries a maximum penalty of seven years’ imprisonment and dishonestly obtain a financial advantage contrary to s 192E(1)(b) of the Crimes Act which carries a maximum penalty of 10 years’ imprisonment.
The applicant was given a 5% discount for the late plea and was sentenced to two years and 10 months’ imprisonment with a non-parole period of one year and nine months to date from 6 October 2019. As I have said, the non-parole period will expire on 5 July 2021.

Facts

The brief facts are as follows. At about 4:50am on 19 December 2018, a Ms Banks left her house at Watsons Bay. A Mr Gottlieb remained asleep inside. Sometime after 4:50am the applicant and two other males entered the front door of the property. Whilst…

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 Vinaisi v The Queen

Details

AGLC: Vinaisi v The Queen [2021] NSWCCA 134
Case: [2021] NSWCCA 134
Decision Date: 23 June 2021

CaseChat Overview and Summary

The applicant, Vinaisi, appealed against his sentence imposed by the sentencing judge. The appeal was heard in the High Court of Australia. Vinaisi had a history of criminal activity and had spent brief periods in the community between incarcerations. The central issue was whether the sentencing judge failed to adequately consider Vinaisi's pattern of recidivism, which may have warranted a different sentence.

The legal question before the court was whether the sentencing judge erred by not sufficiently accounting for the pattern of recidivism in Vinaisi's criminal history when determining his sentence. The court needed to assess whether the failure to consider this pattern was a significant error that warranted a reconsideration of the sentence.

The High Court found that the sentencing judge did not adequately address the issue of recidivism in the applicant's sentencing. The court concluded that the failure to properly consider this factor was a substantial error, as it directly impacted the sentencing decision. The court held that the sentence should be reconsidered to ensure that the pattern of recidivism was appropriately reflected. The High Court allowed the appeal and remitted the case to the original sentencing court for re-sentencing.

Orders