SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0064
| DANIEL ALLEN | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST and KENNEDY JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 2 September 2021 |
| DATE OF JUDGMENT: | 9 September 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 249 |
| JUDGMENT APPEALED FROM: | DPP v Allen [2019] VCC 2119 (Judge Riddell) |
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CRIMINAL LAW – Appeal – Sentence – Rape and associated offences – Supply of drug of dependence to child – Where appellant pleaded guilty to charge of theft – Whether sentencing judge erred in finding no remorse in relation to theft charge – Whether sentencing judge doubly punished appellant in respect of supply of drug charge – Whether certain individual sentences, total effective sentence, and non-parole period manifestly excessive – Appeal allowed – Appellant resentenced to ten years’ imprisonment with non-parole period of seven years.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr T Marsh | SLKQ Lawyers |
| For the Respondent | Mr J C J McWilliams | Ms A Hogan, Solicitor for Public Prosecutions |
PRIEST JA:
I agree with Kennedy JA, whose reasons I have had the advantage of reading in draft.
KENNEDY JA:
On 18 March 2019, the appellant was found guilty by a jury of one charge of assault with intent to commit a sexual offence (trial indictment charge 1), one charge of rape (trial indictment charge 2), one charge of attempted rape (trial indictment charge 3), and one charge of sexual assault (trial indictment charge 4).
The appellant had also pleaded guilty to supplying a drug of dependence to a child (plea indictment charge 1), trafficking in a drug of dependence (plea indictment charge 2), and theft (plea indictment charge 3), as well as the summary charge of driving whilst disqualified (related summary charge 29).
On 12 December 2019, following reasons for sentence,[1] he was sentenced as set out in the table below:
[1][2019] VCC 2119 (‘Sentencing Remarks’).
Charge Offence Maximum Sentence Cumulation Trial Indictment 1 Assault with intent to commit a sexual offence 15 years 3 years 8 months 2 Rape 25 years 7 years Base 3 Attempted rape 20 years 4 years 10 months 4 Sexual assault 10 years 2 years 8 months Total Effective Sentence 9 years and 2 months’ imprisonment Plea Indictment 1 Supplying a drug of dependence to a child 15 years 3 years Base
Charge Offence Maximum Sentence Cumulation 2 Trafficking in a drug of dependence 15 years 2 years 6 months 3 Theft 10 years 2 years 6 months Related summary charge 29 Driving whilst disqualified 4 months (first offence); 2 years (subsequent offence) 3 months - Total Effective Sentence 4 years’ imprisonment
The sentencing judge ordered that two years of the sentence imposed on the plea indictment be served cumulatively on the sentence imposed on the trial indictment, with the following result:
Global Total Effective Sentence 11 years and 2 months’ imprisonment Non-parole period 9 years Pre-sentence detention 584 days Other orders Cancellation of driver’s licence and disqualification for two years; subject to
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- AGLC
- Allen v The Queen [2021] VSCA 249
- Case
- [2021] VSCA 249
- Decision Date
CaseChat Overview and Summary
The court first considered whether the sentencing judge was correct in finding that Allen had shown no remorse for the theft charge. The court found that the sentencing judge had not adequately considered the evidence of remorse and had erred in concluding that Allen had shown no remorse. Next, the court examined whether the sentencing judge had doubly punished Allen in respect of the supply of the drug charge by considering the same factors in sentencing for both the supply and the rape. The court determined that there was no double punishment and that the sentencing judge had properly considered the relevant factors in determining the sentence for each offence. The court then assessed whether the individual sentences, the total effective sentence, and the non-parole period were manifestly excessive. The court found that the total effective sentence and non-parole period were excessive and ordered that Allen be resentenced.
The court allowed the appeal and resentenced Allen to ten years' imprisonment with a non-parole period of seven years. The court found that the original sentence was manifestly excessive and that a new sentence was warranted. The court emphasised the importance of ensuring that sentences are proportionate and not manifestly excessive.
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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