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…
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- AGLC
- Aitkin v the Queen [2017] VSCA 103
- Case
- [2017] VSCA 103
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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