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Aitkin v the Queen

Aitkin v the Queen

Case [2017] VSCA 103 8 May 2017

Sentencing

Appeal

Miscarriage of Justice

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0243

DARREN AITKIN	Appellant
V
THE QUEEN	Respondent

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JUDGES:	WEINBERG AND KYROU JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 MAY 2017
DATE OF JUDGMENT:	8 MAY 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 103
JUDGMENT APPEALED FROM:	DPP v Aitkin [2016] VCC 1653 (Judge Hampel)

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CRIMINAL LAW – Sentence – Appellant convicted of a charge of blackmail for which he was sentenced to 5 years’ imprisonment and a charge of breaching a personal safety intervention order for which he was sentenced to 6 months’ imprisonment – Total effective sentence of 5 years and 6 months with a non-parole period of 3 years and 6 months – Sentencing discretion miscarried in relation to blackmail charge because judge impermissibly relied on matters external to the charged conduct – Sentence for blackmail manifestly excessive – Appeal allowed – Appellant resentenced to total effective sentence of 4 years with non-parole period of 2 years and 9 months.

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APPEARANCES:	Counsel	Solicitors
For the appellant	Mr S R Johns	Leanne Warren & Associates
For the Crown	Mr M D Phillips	J Cain, Solicitor for Public Prosecutions

WEINBERG JA
KYROU JA:

Introduction and Summary

On 12 August 2016, the appellant pleaded guilty to a charge of blackmail[1] and two uplifted summary charges. Following a plea hearing on 12 August 2016 and 27 October 2016, he was sentenced by a County Court judge on 3 November 2016 as follows:[2]
[1]Pursuant to s 87(1) of the Crimes Act 1958, a person is guilty of blackmail ‘if, with a view to gain for himself or another or with intent to cause loss to another, he makes any unwarranted demand with menaces’.
[2]DPP v Aitkin [2016] VCC 1653 (‘Sentencing remarks’).

Charge

Offence

Maximum

Sentence

Cumulation

1

Blackmail

[s 87 Crimes Act 1958]

15 years

5 years

Base

Uplifted summary charge 4

Breach Personal Safety Intervention Order

[s 100 Personal Safety Intervention Orders Act 2010]

2 years

6 months

6 months

Uplifted summary charge 6

Possess cartridge ammunition

[s 124 Firearms Act 1996]

40 penalty units

$500 fine

Total Effective Sentence: 5 years and 6 months’ imprisonment

Non-Parole Period: 3 years and 6 months’ imprisonment

Pre-sentence detention declaration: 231 days

Section 6AAA statement: Total effective sentence of 8 years’ imprisonment with a non-parole period of 5 years and 6 months.

On 2 March 2017, Priest JA granted the appellant leave to appeal against his sentence on four grounds, the main ones being that the judge impermissibly relied on matters external to the charged conduct, that she inappropriately rejected psychological evidence, and that the sentence is manifestly excessive.

For the reasons that follow, the appeal will be allowed and the appellant will be resentenced in accordance with the table at [116] below.

Circumstances of offending

The precise scope of the charged conduct is central to the appellant’s contention that the judge impermissibly relied on matters external to that conduct. Accordingly, we set out below the relevant…

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 Aitkin v the Queen

Details

AGLC: Aitkin v the Queen [2017] VSCA 103
Case: [2017] VSCA 103
Decision Date: 8 MAY 2017

CaseChat Overview and Summary

In the case of Aitkin v the Queen, the appellant was convicted of blackmail and breaching a personal safety intervention order. The appellant was sentenced to 5 years’ imprisonment for the blackmail charge and 6 months’ imprisonment for the breach of the intervention order. The total effective sentence was 5 years and 6 months with a non-parole period of 3 years and 6 months. The appellant appealed the sentence, arguing that the sentencing discretion miscarried due to the judge's reliance on matters external to the charged conduct and that the sentence for the blackmail charge was manifestly excessive.

The court had to determine whether the judge misapplied the sentencing discretion by considering external factors not relevant to the blackmail charge and whether the sentence was manifestly excessive. The court also needed to consider whether the overall sentence was appropriate in light of the seriousness of the crimes and the appellant's criminal history. The central issue was whether the total sentence imposed was commensurate with the crimes and the appellant's culpability.

The court found that the judge had indeed misapplied the sentencing discretion by considering external factors. The court concluded that the sentence for the blackmail charge was manifestly excessive. The court resentenced the appellant to a total effective sentence of 4 years with a non-parole period of 2 years and 9 months. This decision was based on the principle that the sentence should reflect the gravity of the offences and the appellant's culpability without undue influence from external factors. The court emphasised the importance of ensuring that sentences are proportionate and commensurate with the crimes committed.

Orders