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Anthony v The Queen

Anthony v The Queen

Case [2016] VSCA 22 1 March 2016

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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…

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 Anthony v The Queen

Details

AGLC: Anthony v The Queen [2016] VSCA 22
Case: [2016] VSCA 22
Decision Date: 1 March 2016

CaseChat Overview and Summary

In Anthony v The Queen, the applicant appealed against his sentence for aggravated burglary and recklessly causing serious injury, seeking leave to appeal against the sentence imposed by the sentencing court. The applicant’s co-offender pleaded guilty to aggravated burglary and common assault. The applicant was sentenced to five years’ imprisonment, with a non-parole period of two years and eight months, while the co-offender received a sentence of three months’ imprisonment, followed by a community correction order of three years.

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