Alexander v The Queen - [2021] VSCA 140

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0263

ROSIE ALEXANDER (A PSEUDONYM)	Applicant
v
THE QUEEN	Respondent

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JUDGE:	NIALL JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	21 May 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 140
JUDGMENT APPEALED FROM:	DPP v Alexander(a pseudonym) (Unreported, County Court of Victoria, Judge C J Ryan, 30 November 2020)

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CRIMINAL LAW – Application for leave to appeal against sentence – One charge of criminal damage (3 months), one charge of aggravated burglary (intention to assault and possession of an offensive weapon) (2 years, 6 months) and one charge of intentionally causing injury (12 months) – Total effective sentence of 3 years with non-parole period of 18 months – Whether individual sentences on aggravated burglary and intentionally causing injury, total effective sentence, non-parole period and/or cumulation manifestly excessive – Whether aggravated burglary was a serious example of offence – Whether sufficient weight given to certain sentencing considerations including application of R v Verdins (2007) 16 VR 269 – Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
No appearances.

NIALL JA:

On 23 September 2020, the applicant pleaded guilty to three charges — criminal damage,[1] aggravated burglary (intention to assault and possession of an offensive weapon)[2] and intentionally causing injury[3] — arising from a single incident that took place on 21 February 2020.
[1]Crimes Act 1958 s 197(1).
[2]Ibid s 77(1).
[3]Ibid s 18.

The victim was the applicant’s former partner — they had been in a relationship for approximately 18 months which ended in November 2019.

On the evening of 21 February 2020 the applicant drove to the victim’s home in Rosebud. At approximately 9 pm the victim heard the applicant’s vehicle pull up. The applicant approached the victim’s front door and yelled: ‘come out’. The victim opened the front door and saw that the applicant was holding a nail gun in her right hand.

The applicant approached the front door and fired two to three nails in the direction of the victim. One of those nails hit a glass window, next to the victim’s door, which caused it to smash (charge 1, criminal damage). The victim tried to close the front door and retreated to the doorway of the front spare bedroom which was around the corner from the front door to try to protect himself. The applicant approached the front door and used the nail gun to smash the broken window further.

The applicant reached through the window into the house with both arms and continued firing the nail gun (charge 2, aggravated burglary). The nails hit doors, furniture and one embedded itself into an internal wall.

The victim believes that he was standing approximately 1.5 m away from the applicant when he was hit in the face by a nail which the applicant had fired. This caused injury to the victim’s left upper lip, gum and looseness in his top left tooth (charge 3, intentionally cause…

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 Alexander v The Queen

Details

AGLC: Alexander v The Queen [2021] VSCA 140
Case: [2021] VSCA 140
Decision Date: 21 May 2021

CaseChat Overview and Summary

The appellant, Alexander, appealed against his sentence for various criminal offences, arguing that the total effective sentence and non-parole period were manifestly excessive and that insufficient weight was given to certain sentencing considerations. The charges against Alexander included criminal damage, aggravated burglary, and intentionally causing injury, for which he received sentences of three months, two years and six months, and twelve months respectively. The total effective sentence was three years, with a non-parole period of eighteen months. Alexander contested the appropriateness of the sentences, arguing that the individual sentences on aggravated burglary and intentionally causing injury were excessive and that the cumulative sentence was also disproportionate. He further argued that the aggravated burglary was not a serious example of the offence and that insufficient weight was given to certain sentencing considerations, including the application of R v Verdins (2007) 16 VR 269.

The court was required to determine whether the individual sentences, the total effective sentence, the non-parole period and/or the cumulation were manifestly excessive. The court also had to consider whether the aggravated burglary was a serious example of the offence and whether sufficient weight was given to certain sentencing considerations, including the application of R v Verdins. In assessing these issues, the court considered the nature and circumstances of the offences, the appellant's criminal history, and the principles of sentencing set out in relevant legislation and case law.

The court found that the sentences imposed on Alexander were not manifestly excessive and that the cumulative sentence was appropriate. The court held that the aggravated burglary was a serious example of the offence and that sufficient weight was given to the relevant sentencing considerations, including the application of R v Verdins. The court also considered the need to deter Alexander and others from engaging in similar criminal conduct. Consequently, the application for leave to appeal against the sentence was refused.

No orders were made as the application for leave to appeal was refused.

Orders