Regina v Vincenzo Musso [2002] NSWCCA 487

New South Wales Court of Criminal Appeal

CITATION : Regina v Vincenzo Musso [2002] NSWCCA 487 FILE NUMBER(S) : CCA 60029/02 HEARING DATE(S) : 05/12/02 JUDGMENT DATE : 5 December 2002

PARTIES : Regina (Applicant) Vincenzo Musso (Respondent) JUDGMENT OF : Sully J at 28; Dunford J at 36; Buddin J at 2

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/21/3378 LOWER COURT JUDICIAL Bellear DCJ OFFICER :

COUNSEL : P Barrett (Crown) JS Stratton (Respondent) SOLICITORS : SE O'Connor (Crown) DJ Humphreys (Respondent) CATCHWORDS : Crown appeal against inadequacy of sentence - respondent convicted of three counts of aggravated sexual assault, one count of aggravated indecent assault and one count of act of indecency - victim was fourteen and the respondent was her stepfather - respondent had significant medical problems arising from spina bifida - no prior convictions - Crown appeal allowed - requirements in Pearce not observed - sentences made wholly concurrent - extent of intervention constrained particularly because of Crown's acquiescence and respondent's health. Crimes Act 1900 LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 Dinsdale v The Queen (2000) 202 CLR 321 Everett v The Queen (1994) 181 CLR 295 Griffiths v The Queen (1976-7) 137 CLR 293 Pearce v Queen (1998) 194 CLR 610 R v Allpass (1994) 73 A Crim R 561 CASES CITED: R v Baker [2000] NSWCCA 85 R v BJW (2000) 112 A Crim R 1 R v Burchell (1987) 34 A Crim R 148 R v Qi (1998) 102 A Crim R 172 R v Simpson [2001] 53 NSWLR 704 R v Smith (1987) 44 SASR 589 R v Vachalec (1981) 1 NSWLR 351 DECISION : Crown appeal allowed. The sentence in respect of count 2 is quashed. In lieu thereof the respondent is sentenced to imprisonment for a period of four years and six months to commence on 19 October 2002 and to expire on 18 April 2007 with a non-parole period of two years and six months to expire on 18 April 2005. The sentence in respect of count 3 is quashed. In lieu thereof the respondent is sentenced to imprisonment for a period of four years and six months to commence on 19 April 2003 and to expire on 18 October 2007 with a non-parole period of two years and six months to expire on 18 October 2005 at which time the respondent will be eligible for release on parole. All other sentences are confirmed.