Anne Marie Hart v The Queen - [2020] VSCA 194

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0154

ANNE MARIE HART	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P and WEINBERG JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 July 2020
DATE OF JUDGMENT:	31 July 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 194
JUDGMENT APPEALED FROM:	[2019] VCC 879 (Judge Gaynor)

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CRIMINAL LAW – Appeal – Sentence – Intentionally cause serious injury (gross violence) – Intentionally cause serious injury – Armed robbery – Theft – Separate, unprovoked knife attacks – First attack committed when applicant 17 years old – Applicant not identified as offender until one year later – Sentenced to 7 years’ imprisonment, non-parole period 4 years – Whether manifestly excessive – Whether effect of delay given sufficient weight – Whether lost opportunity to be sentenced in Children’s Court – Whether appropriate weight given to rehabilitation – Extremely serious offending – Profound impact on victims – Prior conviction for gross violence offence – Sentence within range – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms E Strugnell	James Dowsley & Associates
For the Respondent	Ms M Mahady	Ms A Hogan, Solicitor for Public Prosecutions

MAXWELL P
WEINBERG JA:

Summary

The applicant pleaded guilty to offences arising from two violent, unprovoked, knife attacks on defenceless individuals. The first occurred on 21 December 2016, giving rise to charges of intentionally cause serious injury in circumstances of gross violence, and armed robbery. The second occurred less than six months later, on 4 May 2017, resulting in charges of intentionally cause serious injury and theft.

The applicant was sentenced to 4 years’ and 3 years’ imprisonment on the respective serious injury charges, 18 months on the armed robbery charge and 6 months on the theft charge. With cumulation, the total effective sentence was 7 years’ imprisonment and a non-parole period of 4 years was fixed.

The applicant now seeks leave to appeal against sentence on a single ground, namely, that the judge failed to take into account the effect of the delay in the prosecution of the charges arising from the December 2016 attack. The applicant was only 17 when she committed those offences. The contention on the plea, and again in this Court, was that if the charges had been laid, and the prosecution conducted, in a timely manner, the charges would have been able to be dealt with by the Children’s Court.

More generally, the applicant relies on uncontested evidence of her significant progress towards rehabilitation while on remand. Given her youth, she contends, the judge should have given greater weight to her rehabilitation in the period between the offending and the date of sentence.

For reasons which follow, leave to appeal must be refused. As counsel for the applicant properly conceded, the complaint about weight had to be approached as a contention that the sentence was manifestly excessive.[1] As will appear, the judge gave careful consideration to the applicant’s rehabilitative efforts and to whether the December 2016 offending would have been…

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.

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Details

Case: [2020] VSCA 194
Decision Date: 31 July 2020

CaseChat Overview and Summary

In this matter, the applicant, Anne Marie Hart, appealed against the sentence imposed by the Supreme Court of Victoria. Hart was convicted of multiple offences, including intentionally causing serious injury, armed robbery, and theft. The crimes were committed in separate, unprovoked knife attacks, with the first occurring when Hart was 17 years old. Hart was not identified as the offender until one year later and was ultimately sentenced to seven years in prison with a non-parole period of four years. The primary legal issues before the court were whether the sentence was manifestly excessive, if the effect of the delay in identification was given sufficient weight, and whether the lost opportunity to be sentenced in the Children’s Court was adequately considered. Additionally, the court needed to assess whether the applicant's rehabilitation prospects were appropriately weighted.

The court thoroughly examined the circumstances surrounding the offences, including the serious impact on the victims, and the fact that Hart had a prior conviction for a gross violence offence. The court noted that the sentence imposed was within the appropriate range for such serious offences. In considering the delay in identification, the court determined that the effect of the delay was adequately factored into the sentencing decision. Furthermore, the court held that the lost opportunity to be sentenced in the Children's Court did not warrant a significant adjustment to the sentence, given the severity of the crimes and Hart's prior criminal history. The court also found that sufficient weight was given to Hart's rehabilitation prospects, despite the gravity of her offences.

In conclusion, the court found that the sentence imposed was not manifestly excessive and that all relevant factors, including the delay in identification, the opportunity to be sentenced in the Children's Court, and the applicant's rehabilitation prospects, had been appropriately considered. The appeal was dismissed, and leave to appeal was refused.

Orders