SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2014 0097
| BENJAMIN ANDERSON |
| Appellant |
| v |
| 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…
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- AGLC
- Anderson v The Queen [2014] VSCA 255
- Case
- [2014] VSCA 255
- Decision Date
CaseChat Overview and Summary
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
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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