| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2024 0076 |
| ADRIAN HASSALL | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | PRIEST and KAYE JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 15 July 2024 |
| DATE OF JUDGMENT: | 16 July 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 163 |
| JUDGMENT APPEALED FROM: | DPP v Hassall [2024] VCC 331 |
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CRIMINAL LAW – Sentence – Appeal – Contravention of Community Corrections Order imposed for aggravated burglary, intentionally destroying property, assaulting police on duty, and theft – Aggregate sentence of 2 years and 10 months – Whether sentencing judge erred in imposing aggregate sentence – Whether judge erred in ordering sentence wholly cumulative on current sentence being served by applicant – Appeal allowed – Applicant resentenced.
Sentencing Act 1991 (Vic), ss 9(1), 16(1) – DPP v Frewstal Pty Ltd (2015) 47 VR 660; Fitzpatrick v The Queen [2016] VSCA 63; DPP v Rivette [2017] VSCA 150; Cocakar v The Queen [2019] VSCA 178; R v Mantini [1998] 3 VR 340 considered.
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| Counsel | |||
| Applicant: | Mr D Hannan and Mr J Allen | ||
| Respondent: | Ms D Piekusis KC | ||
Solicitors | |||
| Applicant: | Sarah Tricarico Lawyers | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
PRIEST JA
KAYE JA:
The applicant was charged, on indictment, with one charge each of aggravated burglary, intentionally destroying property, assaulting police on duty, and theft. He pleaded guilty to those charges at a committal mention on 30 August 2018. On 7 April 2020, he was sentenced, by Judge Ryan of the County Court, to an aggregate term of imprisonment of 528 days, and a Community Corrections Order (‘CCO’) of 3 years’ duration.
On 19 March 2024, the applicant pleaded guilty, before Judge Tinney of the County Court, to the offence of contravention of the CCO. The breach was particularised as both a failure to comply with the conditions of the CCO, and a breach by further offending.
On 19 March 2024, Judge Tinney, after hearing a plea on behalf of the applicant, re-sentenced the applicant to a total effective sentence of 2 years and 10 months’ imprisonment, with a non-parole period of 1 year and 8 months. That sentence was constituted as follows:
| Charge | Offence | Maximum | Sentence | Cumulation |
| Indictment J10777517 | ||||
| 1 | Aggravated Burglary – Offensive Weapon (contrary to s 77 of the Crimes Act 1958) | 25 years’ imprisonment | 2 years 10 months’ imprisonment (aggregate) | Base |
| 2 | Intentionally Destroy Property (contrary to s 197(1) of the Crimes Act 1958) | 10 years’ imprisonment | ||
| 3 | Assault Police on Duty (contrary to s 31(1)(b) of the Crimes Act 1958) | 5 years’ imprisonment | ||
| 4 | Theft (contrary to s 74(1) of the Crimes Act 1958) | 10 years’ imprisonment | 7 days’ imprisonment | - |
| 5 | Contravene Community Correction Order (contrary to s 83AD(1) of the Sentencing Act 1991) | 3 months’ imprisonment | 14 days’ imprisonment | - |
| Total Effective Sentence: | 2 years 10 months’ imprisonment | |||
| Non-Parole Period: | 1 year 8 months | |||
| Pre-Sentence Detention declaration pursuant to s 18(1) of the Sentencing Act 1991: | 515 days | |||
| Section… | ||||
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- AGLC
- Adrian Hassall v The King [2024] VSCA 163
- Case
- [2024] VSCA 163
- Decision Date
CaseChat Overview and Summary
The Court found that the sentencing judge had indeed erred in imposing the aggregate sentence. The Court considered that the sentence was manifestly inadequate, taking into account the seriousness of the offending and the need for general deterrence. The Court noted that the sentencing judge had not properly considered the relevant sentencing principles and had failed to adequately justify the sentence imposed. The Court also found that the sentencing judge had erred in ordering that the sentence be wholly cumulative with the current sentence being served by the applicant. The Court held that the sentence should not have been wholly cumulative, as this would result in an excessive punishment for the applicant.
The Court allowed the appeal and remitted the matter to the County Court for resentencing. The Court noted that the resentencing should take into account the principles of proportionality and the need for general deterrence, and that the sentence should not be wholly cumulative with the current sentence being served by the applicant. The Court also noted that the resentencing should be informed by the principles set out in relevant case law, including DPP v Frewstal Pty Ltd, Fitzpatrick v The Queen, DPP v Rivette, Cocakar v The Queen, and R v Mantini.
The final orders of the Court were that the appeal be allowed, the conviction be affirmed, and the matter be remitted to the County Court for resentencing. The Court also noted that the resentencing should be informed by the principles set out in relevant case law, and that the sentence should not be wholly cumulative with the current sentence being served by the applicant.
Orders
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