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Andrews v The King

Andrews v The King

Case [2025] VSCA 26 6 March 2025

Appeal

Criminal Liability

Sentencing

Manifestly Excessive Sentence

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0167

DAVID CHARLES ANDREWS	Applicant
v
THE KING	Respondent

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JUDGES:	KAYE and T FORREST JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	13 February 2025
DATE OF JUDGMENT:	6 March 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 26
JUDGMENT APPEALED FROM:	[2023] VCC 1558 (Judge Tinney)

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CRIMINAL LAW – Appeal – Sentence – Several offences including sexual offence, sexual assault and threats to inflict serious injury and rape – Total effective sentence of 7 years’ imprisonment – Non-parole period of 5 years – Whether judge failed to avoid double punishment – Whether judge failed to apply principle of totality – Applicant was punished for distinctive, non-common acts – Sentence and orders for cumulation indicate judge sought to avoid double punishment – No failure to apply principle of totality in judge’s reasons, sentence or orders for cumulation – Leave to appeal refused.

CRIMINAL LAW – Appeal – Sentence – Whether sentence was manifestly excessive – Dreadful offending requiring condign punishment – Protection of community – Limited mitigating factors – No underlying error in sentences and orders for cumulation – Leave to appeal refused.

Interpretation of Legislation Act 1984, s 51(1); Sentencing Act 1991, s 5(2)(b).

DPP v Dalgliesh (Pseudonym) (2017) 262 CLR 428; R v Kilick (2016) 259 CLR 256, considered; Pearce v The Queen (1998) 194 CLR 610, referred to.

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Counsel
Applicant		Ms G Connelly SC with Ms J Xie
Respondent:		Mr R L Gibson KC
Solicitors
Applicant:	Richard Davis & Associates
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

KAYE JA
T FORREST JA:

On 22 August 2023, the applicant pleaded guilty in the County Court to several serious offences and a related summary offence. On 30 August 2023 he was sentenced as follows:

Charge on indictment

Offence

Maximum Penalty

Sentence

Cumulation

1 Assault with intent to commit a sexual offence[1] 15 years’ imprisonment 5 years and 8 months’ imprisonment Base

2 Threat to inflict serious injury[2] 5 years’ imprisonment 1 year and 9 months’ imprisonment 5 months

3 Sexual assault[3] 10 years’ imprisonment 2 years and 3 months’ imprisonment 8 months

4 Threat to commit a sexual offence[4] 5 years’ imprisonment 1 year and 4 months’ imprisonment 3 months

Summary Charge 9 Commit indictable offence on bail[5] 3 months’ imprisonment or 30 penalty units 14 days’ imprisonment N/A

Total Effective Sentence: 7 years’ imprisonment

Non-Parole Period: 5 years’ imprisonment

Pre-sentence Detention Declared: 255 days

Section 6AAA Statement: 8½ years’ imprisonment, non-parole 6½ years.

Other relevant orders Serious sex offender on charge 4.
[1]Contrary to s 42(1) of the Crimes Act 1958.
[2]Contrary to s 21 of the Crimes Act 1958.
[3]Contrary to s 40(1) of the Crimes Act 1958 as amended by the Crimes Amendment (Sexual Offences) Act 2016.
[4]Contrary to s 43 of the Crimes Act 1958 as amended by the Crimes Amendment (Sexual Offences) Act 2016.
[5]Contrary to s 30B of the Bail Act 1977.

The applicant…

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 Andrews v The King

Details

AGLC: Andrews v The King [2025] VSCA 26
Case: [2025] VSCA 26
Decision Date: 6 March 2025

CaseChat Overview and Summary

In the matter of Andrews v The King, the appellant sought to appeal against his sentence and orders for cumulation. The appellant was convicted of several offences, including a sexual offence, sexual assault, threats to inflict serious injury, and rape, for which he received a total effective sentence of seven years' imprisonment, with a non-parole period of five years. The central issues before the court were whether the trial judge failed to avoid double punishment, and whether the judge failed to apply the principle of totality in sentencing.

The court considered whether the judge had adequately avoided double punishment by ensuring that the appellant was punished for each distinctive act, rather than the same act twice. The court also examined whether the judge applied the principle of totality in arriving at the sentence and orders for cumulation. The court found that the judge had not failed to avoid double punishment as the sentence and orders for cumulation indicated that the judge had sought to avoid double punishment by punishing the appellant for distinctive, non-common acts. The court also found that there was no failure to apply the principle of totality in the judge's reasons, sentence, or orders for cumulation. Additionally, the court examined whether the sentence was manifestly excessive, but found that the appellant's dreadful offending required condign punishment and the protection of the community, and that the limited mitigating factors did not warrant a reduction in sentence.

The court ultimately found that there was no underlying error in the sentences and orders for cumulation, and therefore refused the appellant leave to appeal. The court considered relevant authorities, including the Interpretation of Legislation Act 1984, the Sentencing Act 1991, and cases such as DPP v Dalgliesh (Pseudonym), R v Kilick, and Pearce v The Queen.

Orders