SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0169
| DAVID ANTHONY | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | REDLICH and BEACH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 18 February 2016 |
| DATE OF JUDGMENT: | 1 March 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 22 |
| JUDGMENT APPEALED FROM: | DPP v Anthony; DPP v Gow [2015] VCC 1116 |
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CRIMINAL LAW – Sentence – Application for leave to appeal against sentence – Applicant pleaded guilty to aggravated burglary and recklessly causing serious injury – Co-offender pleaded guilty to aggravated burglary and common assault – Applicant sentenced to 5 years’ imprisonment with non-parole period of 2 years and 8 months – Co-offender sentenced to 3 months’ imprisonment followed by CCO of 3 years – Parity – Whether parity principle infringed – Significant difference in roles and circumstances of offending – Significant differences in criminal histories – Parity complaint not reasonably arguable – No arguable error in sentence imposed – Application for leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | In person | |
| For the Respondent | Mr B Sonnett | Mr J Cain, Solicitor for Public Prosecutions |
REDLICH JA:
BEACH JA:
Introduction
On 16 July 2015, the applicant and a co-offender, Ashley Gow (‘Gow’), each pleaded guilty in the County Court to a charge of aggravated burglary. The applicant also pleaded guilty to a charge of recklessly causing serious injury, and Gow pleaded guilty to a charge of common assault. On 10 August 2015, the applicant was sentenced as follows:
| Charge on Indictment | Offence | Maximum | Sentence | Cumulation |
| 1. | Aggravated Burglary | 25 years’ imprisonment | 4 years’ imprisonment | Base sentence |
| 2. | Recklessly cause serious injury | 15 years’ imprisonment | 18 months’ imprisonment | 12 months’ imprisonment |
| Total Effective Sentence: | 5 years’ imprisonment | |||
| Non-Parole Period: | 2 years 8 months’ imprisonment | |||
| Pre-sentence detention declared: | Nil | |||
| 6AAA Statement: 6 years’ imprisonment with a non-parole period of 4 years’ imprisonment | ||||
| Other relevant orders: Disposal order | ||||
For his offending, Gow was sentenced to an aggregate sentence of three months’ imprisonment, on his release to be followed by a Community Correction Order of three years’ duration. Conditions of the Community Correction Order required Gow to undergo treatment and rehabilitation for alcohol abuse or dependency.
On 7 September 2015, the applicant filed a notice of application for leave to appeal against sentence. The applicant’s sole proposed ground of appeal was as follows:
The learned trial judge erred in his application of the parity principle.
On 12 November 2015, Priest JA refused the applicant’s application for leave to appeal. Pursuant to s 315(2) of the Criminal Procedure Act 2009, the applicant has elected to renew his application.
On the hearing of the applicant’s renewal application, the applicant was unrepresented. While the applicant’s written case (prepared by his former lawyers) directs argument only to the applicant’s proposed ground of appeal, at the hearing of the renewal application, the applicant sought to advance a broader case that raised a range of personal and family issues that would effectively require this Court to rehear the…
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- AGLC
- Anthony v The Queen [2016] VSCA 22
- Case
- [2016] VSCA 22
- Decision Date
CaseChat Overview and Summary
The legal issue at the heart of the appeal was whether the parity principle had been infringed in the sentencing process. The parity principle, as established in the High Court's decision in R v Devitt, requires that offenders in similar circumstances be treated similarly. The applicant argued that the significant differences in their roles, the circumstances of their offending, and their respective criminal histories should have resulted in a more lenient sentence. However, the court considered whether the parity complaint was reasonably arguable and whether there was an arguable error in the sentence imposed.
The court examined the sentencing decisions and found that the sentencing judge had appropriately considered the factors relevant to each offender’s culpability and circumstances. The court determined that the differences in the roles and the criminal histories of the offenders justified the disparity in the sentences imposed. The court concluded that the parity complaint was not reasonably arguable and found no arguable error in the sentence imposed on the applicant. Consequently, the application for leave to appeal was refused.
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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