Atkinson v The Queen - [2021] VSCA 127

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0017

NATHAN ATKINSON	Applicant
v
THE QUEEN	Respondent

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JUDGE:	PRIEST and T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 May 2021
DATE OF JUDGMENT:	13 May 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 127
JUDGMENT APPEALED FROM:	[2019] VCC 2135 (Judge Hogan)

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CRIMINAL LAW — Appeal — Conviction — Application for extension of time — Stalking, discharging firearm at premises and related charges — Whether convictions subjected applicant to double punishment — Person may be prosecuted under two or more laws if act constitutes an offence under multiple laws — Application refused — Interpretation of Legislation Act 1984 s 51 — Pearce v The Queen (1998) 194 CLR 610 applied.

CRIMINAL LAW — Appeal — Sentence — Total effective sentence of 8 years and 1 month’s imprisonment with 5 years non-parole — Whether applicant doubly punished — Whether sentence infringed the principle of totality — Whether sentence manifestly excessive — Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant:	Ms G Connelly	Victoria Legal Aid
For the Respondent:	Mr J Dickie	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
T FORREST JA:

Charges, sentence and grounds of appeal

On 24 October 2019, the applicant pleaded guilty before a judge in the County Court to: stalking[1] (two charges); damaging property;[2] attempted arson;[3] being a prohibited person in possession of a firearm;[4] discharging firearm at premises[5] (three charges); and possessing a drug of dependence.[6]
[1]Crimes Act 1958, s 21A. The maximum penalty is 10 years’ imprisonment.
[2]Crimes Act 1958, s 197(1). The maximum penalty is 10 years’ imprisonment.
[3]Crimes Act 1958, s 197(1) and (6). The maximum penalty is 10 years’ imprisonment.
[4]Firearms Act 1996, s 5(1). The maximum penalty is 10 years’ imprisonment.
[5]Firearms Act 1996, s 131A(2). The maximum penalty is 20 years’ imprisonment.
[6]Drugs, Poisons and Controlled Substances Act 1981, s 73(1)(b). The maximum penalty is one year’s imprisonment where the court is satisfied on the balance of probabilities that the offence was not committed for any purpose relating to trafficking.

Following a plea in mitigation conducted over two days, on 18 December 2019 the judge sentenced the applicant to a total effective sentence of eight years and one month’s imprisonment, with a non-parole period of five years, in accordance with the following table:

Charge Offence Sentence Cumulation

1 Stalking 4 years and 6 months Base

2 Stalking 4 years and 6 months 18 months

3 Damaging property 2 years 3 months

4 Attempted arson 3 years 3 months

5 Prohibited person in possession of firearm 10 months 1 month

6 Discharging firearm at premises 4 years and 6 months 7 months

7 Discharging firearm at premises and vehicle 4 years 7 months

8 Discharging firearm at premises 3 years and 6 months 4 months

9 Possessing a drug of dependence Convicted and discharged —

Total effective sentence: 8 years and…

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 Atkinson v The Queen

Details

AGLC: Atkinson v The Queen [2021] VSCA 127
Case: [2021] VSCA 127
Decision Date: 13 May 2021

CaseChat Overview and Summary

Atkinson appealed against his conviction and sentence, seeking an extension of time to do so and arguing the sentence was excessive. Atkinson was convicted of stalking, discharging a firearm at premises, and related charges. The appeal against the conviction was based on the argument that the convictions subjected Atkinson to double punishment. Atkinson also argued the sentence was manifestly excessive and infringed the principle of totality.

The court examined whether Atkinson could be prosecuted under two or more laws if his act constituted an offence under multiple laws. The court found that Atkinson could be prosecuted under the relevant laws and dismissed the application for an extension of time. The court applied Pearce v The Queen to determine that Atkinson was not subjected to double punishment. The court also found that Atkinson's sentence did not infringe the principle of totality and was not manifestly excessive.

The appeal against the conviction was dismissed, and leave to appeal against the sentence was refused.

Orders