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Anderson v The Queen

Anderson v The Queen

Case [2019] VSCA 42 6 March 2019

Appeal

Sentencing

Breach of Trust

Arson and Attempted Arson

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0258

CRAIG ANDERSON	Appellant
v
THE QUEEN	Respondent

S APCR 2017 0268

PETER GEORGE SMITH	Appellant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST and HARGRAVE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 February 2019
DATE OF JUDGMENT:	6 March 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 42
JUDGMENT APPEALED FROM:	DPP v Anderson (Unreported, County Court of Victoria, Judge Hampel, 10 November 2017); DPP v Smith (Unreported, County Court of Victoria, Judge Hampel, 24 November 2017)

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CRIMINAL LAW – Appeal – Sentence – Arson and Attempted Arson – Arson for hire – Appellants commissioned by another to carry out arson attacks on premises of business rivals – Use of Molotov cocktails – Another arson by appellant Anderson for purposes of insurance fraud by another – Appellant Anderson sentenced on 10 charges to total effective sentence of 11 years and 9 months’ imprisonment with non-parole period 8 years and 9 months – Appellant Smith sentenced on two charges to 3 years and 6 months’ imprisonment with non-parole period of 2 years — Whether sentencing judge failed to give proper weight to assistance to authorities – Whether sentence manifestly excessive – Whether principle of parity infringed in appellant Smith’s case — Appeals allowed — Appellant Anderson resentenced to 8 years and 6 months’ imprisonment with non-parole period of 5 years and 6 months – Appellant Smith resentenced to 2 years and 4 months’ imprisonment with non-parole period of 16 months.

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APPEARANCES:	Counsel	Solicitors
For the Appellant Anderson	Ms G Connelly	Doogue + George
For the Appellant Smith	Mr P G Nash QC with Ms J Swiney	Chris McLennan & Co
For the Respondent	Mr J McWilliams	Mr John Cain, Solicitor for Public Prosecutions

PRIEST JA
HARGRAVE JA:

Introduction

Pursuant to leave granted by Santamaria JA,[1] the appellants Craig Anderson (for convenience, ‘Anderson’) and Peter Smith (also for convenience, ‘Smith’), appeal against sentences imposed upon them by a judge of the County Court on charges of arson[2] (and, in Anderson’s case, charges also of attempted arson).[3]
[1]Anderson v The Queen; Smith v The Queen (Unreported, Court of Appeal, 16 March 2018, Santamaria JA).
[2]Crimes Act 1958, ss 197(1) and 197(6). By virtue of s 197(7), the maximum penalty is 15 years’ imprisonment.
[3]By virtue of ss 321M and 321P of the Crimes Act 1958, the maximum penalty is 10 years’ imprisonment.

Anderson’s grounds contend, first, that the individual sentences on each charge, the orders for cumulation, the total effective sentence and non-parole period, are manifestly excessive; and, secondly, that the sentencing judge failed to give proper weight to Anderson’s ‘substantial and significant assistance to the authorities’. Smith’s single ground of appeal contends that the sentencing judge erred by imposing a sentence upon him that gives rise to a justifiable sense of grievance in light of the sentence imposed upon Anderson.

In our opinion both appeals must succeed and the appellants be resentenced in the manner later…

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 Anderson v The Queen

Details

AGLC: Craig Anderson v The Queen [2019] VSCA 42
Case: [2019] VSCA 42
Decision Date: 6 March 2019

CaseChat Overview and Summary

The case of Anderson v The Queen involved two appellants who had been convicted for their involvement in a series of arson attacks. Anderson and Smith were found guilty of commissioning and executing arson attacks on the premises of their business rivals, as well as an additional arson committed by Anderson for insurance fraud purposes. Both appellants used Molotov cocktails in their attacks. Anderson was sentenced to a total effective sentence of 11 years and 9 months' imprisonment, with a non-parole period of 8 years and 9 months, while Smith received a sentence of 3 years and 6 months' imprisonment, with a non-parole period of 2 years. Both appellants challenged their sentences on appeal, claiming that the sentencing judge did not adequately consider their assistance to the authorities and that the sentences were manifestly excessive and violated the principle of parity.

The legal issues before the court were whether the sentencing judge appropriately took into account the appellants' assistance to the authorities, whether the sentences were manifestly excessive, and whether the principle of parity had been infringed in Smith's case. The principle of parity requires that similar offenders be sentenced in a similar manner, taking into account any mitigating factors. The court examined the appellants' level of involvement in the crimes, the nature and extent of their assistance to the authorities, and the principles of sentencing.

The court found that the sentencing judge had not sufficiently considered the appellants' assistance to the authorities in determining their sentences. The court also found that the sentences were manifestly excessive given the appellants' level of involvement and the mitigating factors present in their cases. In relation to the principle of parity, the court determined that Smith's sentence was disproportionate when compared to Anderson's sentence, despite their similar levels of involvement in the crimes. The appeals were allowed, and the appellants were resentenced. Anderson's sentence was reduced to 8 years and 6 months' imprisonment, with a non-parole period of 5 years and 6 months. Smith's sentence was reduced to 2 years and 4 months' imprisonment, with a non-parole period of 16 months.

Orders