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Anderson v The Queen

Anderson v The Queen

Case [2014] VSCA 255 23 October 2014

Criminal Liability

Sentencing

Aggravated & Exemplary Damages

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0097

BENJAMIN ANDERSON

Appellant

THE QUEEN

Respondent

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JUDGES:	WEINBERG and SANTAMARIA JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 October 2014
DATE OF JUDGMENT:	23 October 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 255
JUDGMENT APPEALED FROM:	DPP v Anderson [2014] VCC 524 (Judge Patrick)

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CRIMINAL LAW – Sentence appeal – Aggravated burglary and other related offences – Victims included appellant’s former intimate partner – Sentence of three years’ imprisonment for aggravated burglary – Whether sentencing judge erred in application of Hogarth v The Queen (2012) 37 VR 658 – Whether principles in Hogarth limited to ‘confrontational aggravated burglaries’ as opposed to ‘intimate relationship aggravated burglaries’ – Whether former class of aggravated burglaries objectively more serious than latter category – Whether sentence for aggravated burglary manifestly excessive – Principles in Hogarth of general application to both categories of aggravated burglary – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr A V Chernok	Warren Graham and Murphy
For the Respondent	Mr P B Kidd SC	Mr C Hyland, Solicitor for Public Prosecutions

WEINBERG JA
SANTAMARIA JA:

The appellant, now aged 27, pleaded guilty in the County Court at Bairnsdale to the following charges and was sentenced, on 15 April 2014, as set out in the table below:

Charge on Indictment Offence Maximum Sentence Cumulation

1 Aggravated burglary [Crimes Act 1958 s 77(1)] 25 years’ imprisonment 3 years Base

2 Recklessly causing injury [Crimes Act 1958 s 18] 5 years’ imprisonment 10 months 2 months

3 Intentionally damage property [Crimes Act 1958 s 197(1)] 10 years’ imprisonment 6 months 1 month

4 Intentionally damage property 10 years’ imprisonment 6 months 1 month

Related Summary Offences

6 Fail to store firearm correctly [Firearms Act 1996 s 121(1)] 60 penalty units or 12 months’ imprisonment $750.00 fine -

7 Fail to store ammunition correctly [Firearms Act 1996 s 121(1A)] 60 penalty units or 12 months’ imprisonment $350.00 fine -

Total Effective Sentence: 3 years and 4 months’ imprisonment

Non-Parole Period: 20 months

Pre-sentence Detention Declared: 5 days

6AAA Statement: 4 years and 2 months’ imprisonment with a non-parole period of 2 years and 8 months

Other orders:

Forensic procedure order under the Crimes Act 1958 s 464ZF(2)

Compensation orders on charges 3 and 4

On 20 August 2014, Whelan JA granted leave to appeal on the following grounds:

1. That the learned sentencing Judge erred in her application of Hogarthv The Queen[1] in passing sentence on the appellant.
2. That the individual sentence on charge 1 and the non-parole period set are manifestly excessive.
[1](2012) 37 VR 658 (‘Hogarth’).

Circumstances surrounding the offending

On the night of 16 August 2013, the appellant was out drinking with friends. Throughout the course of the evening, he sent 21 abusive text messages to his ex-girlfriend, Danielle McNamara, with whom he had had a young child. Their relationship had broken down and they…

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: Anderson v The Queen [2014] VSCA 255
Case: [2014] VSCA 255
Decision Date: 23 October 2014

CaseChat Overview and Summary

In Anderson v The Queen, the appellant appealed against his sentence for aggravated burglary and related offences, with the victims including his former intimate partner. The County Court of Victoria sentenced Anderson to three years’ imprisonment for the aggravated burglary. The core issue before the court was whether the sentencing judge had erred in applying the principles set out in Hogarth v The Queen. Specifically, the court needed to determine whether the principles in Hogarth were limited to ‘confrontational aggravated burglaries’ and not applicable to ‘intimate relationship aggravated burglaries’. Another question was whether the former category of aggravated burglaries was objectively more serious than the latter. The court also needed to consider whether the sentence for the aggravated burglary was manifestly excessive.

The court found that the principles in Hogarth were of general application to both categories of aggravated burglary. The court held that there was no basis to distinguish between different types of aggravated burglaries for the purposes of applying the Hogarth principles. The court held that the principles in Hogarth applied equally to both confrontational and intimate relationship aggravated burglaries. Therefore, the sentencing judge did not err in applying Hogarth in this case. The court also held that the sentence for the aggravated burglary was not manifestly excessive. The appeal was dismissed, and the original sentence was upheld.

The court dismissed the appeal and affirmed the sentence imposed by the County Court of Victoria. The reasoning of the court was that the principles in Hogarth were applicable to all aggravated burglaries, including those involving former intimate partners. The court held that there was no basis to distinguish between different types of aggravated burglaries when applying the Hogarth principles. The sentence for the aggravated burglary was considered appropriate and not manifestly excessive.

Orders