Allen v The Queen - [2021] VSCA 249

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
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

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 Allen v The Queen

Details

AGLC: Allen v The Queen [2021] VSCA 249
Case: [2021] VSCA 249
Decision Date: 9 September 2021

CaseChat Overview and Summary

The appellant, Allen, was convicted of multiple offences, including rape and supplying a drug of dependence to a child, as well as theft. Allen appealed against his sentence, arguing that the sentencing judge had erred in several respects. The High Court of Australia was tasked with determining whether the sentencing judge had made errors in assessing remorse, in sentencing for the supply of the drug, and in the overall severity of the sentence and non-parole period.

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