Adrian Hassall v The King - [2024] VSCA 163

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…

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 Adrian Hassall v The King

Details

AGLC: Adrian Hassall v The King [2024] VSCA 163
Case: [2024] VSCA 163
Decision Date: 16 July 2024

CaseChat Overview and Summary

The applicant, Adrian Hassall, appealed against a sentence imposed for contravening a Community Corrections Order, which had itself been imposed for earlier offences of aggravated burglary, intentionally destroying property, assaulting police on duty, and theft. The appeal was heard by the Court of Appeal in Victoria. The primary issue for the Court was whether the sentencing judge had erred in imposing an aggregate sentence of 2 years and 10 months, and in ordering that this sentence be wholly cumulative with the current sentence being served by the applicant.

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