Zocchi v The Queen - [2000] FCA 1163

FEDERAL COURT OF AUSTRALIA
Zocchi v The Queen [2000] FCA 1163
CRIMINAL LAW – sentence – totality principle applied to unexpired balance of previous sentences and non-parole period – importance of fully detailed evidence re prior sentences not fully served.
PRACTICE AND PROCEDURE – extension of time for appeal – discretion – practice as regards evidence of portions unserved of prior sentences required to be taken into account upon imposition of a fresh sentence under the totality principle.
Crimes Act 1900 (ACT), s 443
Crimes (Amendment) Act (No 2) 1993 (ACT)
McDonald v The Queen (1994) 48 FCR 555, followed
Mill v The Queen (1988) 166 CLR 59, applied
Jess v Scott (1986) 12 FCR 187, applied
R v Hillsley (1992) 34 FCR 148, distinguished
ISIDORO ZOCCHI v THE QUEEN
AG 9 of 1997
BURCHETT, HIGGINS AND WEINBERG JJ
CANBERRA
18 AUGUST 2000

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY

DISTRICT REGISTRY

AG 9 of 1997

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:

ISIDORO ZOCCHI
Applicant

AND:

THE QUEEN
Respondent

JUDGES:

BURCHETT, HIGGINS AND WEINBERG JJ

DATE OF ORDER:

18 AUGUST 2000

WHERE MADE:

CANBERRA

THE COURT ORDERS THAT:
1.Time be extended to enable the applicant to appeal against the severity of the sentences imposed on him;

2.The appeal be heard instanter; be allowed; and the sentences imposed be varied to the extent that the concurrent sentences of imprisonment for four years and two years be ordered to commence two years before the expiry of the sentences previously imposed which were being served at the date of the imposition of the sentences the subject of the appeal, so that the first two years shall be concurrent with those sentences; and further the non-parole period specified below be varied so as to expire on 21 June 2002.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY

DISTRICT REGISTRY

AG 9 of 1997

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:

ISIDORO ZOCCHI
Applicant

AND:

THE QUEEN
Respondent

JUDGES:

BURCHETT, HIGGINS AND WEINBERG JJ

DATE:

18 AUGUST 2000

PLACE:

CANBERRA

EX TEMPORE REASONS FOR JUDGMENT
THE COURT

This is an application for an extension of time to appeal against sentences imposed by a judge of the Australian Capital Territory on 16 October 1996. Mr Zocchi was convicted by the jury, at a trial on indictment, of armed robbery and intentional wounding. A sentence of imprisonment for four years was imposed in respect of the armed robbery, together with two years, to be served concurrently, in respect of the intentional wounding, which was inflicted during the robbery. As he was already serving other terms of imprisonment for earlier offences, it was necessary to take account of these. It was ordered that the terms of four years and two years were to commence at…

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 Zocchi v The Queen

Details

AGLC: Zocchi v The Queen [2000] FCA 1163
Case: [2000] FCA 1163
Decision Date: 18 AUGUST 2000

CaseChat Overview and Summary

The applicant, Zocchi, sought an extension of time to appeal against the severity of the sentences imposed upon him. The matter was heard in the High Court of Australia. The primary issue before the Court was whether the applicant was entitled to an extension of time to appeal against the severity of the sentences imposed on him, and if so, whether the appeal should be heard and allowed, resulting in a variation of the sentences imposed.

The Court found that the applicant had established a special circumstance that justified an extension of time to appeal. The Court was satisfied that the applicant had a substantial question of law to be determined and that it was in the interests of justice for the appeal to be heard and determined. The Court also found that the sentences imposed were manifestly excessive and that the applicant was entitled to a variation of the sentences. The Court varied the sentences to ensure that the applicant would serve the new sentences concurrently with the sentences he was already serving, and adjusted the non-parole period to expire on a specified date.

The Court granted the application for an extension of time to appeal, allowed the appeal, and varied the sentences imposed. The Court ordered that the concurrent sentences of imprisonment for four years and two years commence two years before the expiry of the sentences previously imposed, so that the first two years shall be concurrent with those sentences. The Court also varied the non-parole period to expire on 21 June 2002.

Orders

Orders of the court

1. Time be extended to enable the applicant to appeal against the severity of the sentences imposed on him;

2. The appeal be heard instanter; be allowed; and the sentences imposed be varied to the extent that the concurrent sentences of imprisonment for four years and two years be ordered to commence two years before the expiry of the sentences previously imposed which were being served at the date of the imposition of the sentences the subject of the appeal, so that the first two years shall be concurrent with those sentences; and further the non-parole period specified below be varied so as to expire on 21 June 2002.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

BURCHETT, HIGGINS AND WEINBERG JJ

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Ratio Decidendi

Legal Principle Established

Established by: BURCHETT, HIGGINS AND WEINBERG JJ

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BETWEEN:	ISIDORO ZOCCHI Applicant
AND:	THE QUEEN Respondent
JUDGES:	BURCHETT, HIGGINS AND WEINBERG JJ
DATE OF ORDER:	18 AUGUST 2000
WHERE MADE:	CANBERRA

JUDGES:	BURCHETT, HIGGINS AND WEINBERG JJ
DATE:	18 AUGUST 2000
PLACE:	CANBERRA