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Bava v The Queen

Bava v The Queen

Case [2021] VSCA 34 1 March 2021

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2019 0211

JOHN BAVA	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST and KYROU JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25 February 2021
DATE OF JUDGMENT:	1 March 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 34
JUDGMENT APPEALED FROM:	[2019] VCC 798 (Judge Carmody)

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CRIMINAL LAW – Appeal – Sentence – One charge of aggravated burglary, two charges of theft – Total effective sentence 6 years’ imprisonment – Non-parole period 4 years – Whether judge took into account post-entry criminal conduct in sentencing applicant for aggravated burglary – Whether cumulation order for first theft charge offended principles of totality or double punishment – Whether judge failed to take into account principles in Bugmy v The Queen (2013) 249 CLR 571 and R v Verdins (2007) 16 VR 269 – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Connolly	Paul Vale Criminal Law
For the Respondent	Mr JCJ McWilliams	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
KYROU JA:

Introduction and summary

On 27 March 2019, the applicant pleaded guilty to one charge of aggravated burglary and two charges of theft. On 31 May 2019, he was sentenced by a County Court judge as set out in the table below:[1]
[1]DPP v Bava [2019] VCC 798 (‘Sentencing remarks’).

Charge Offence Maximum Sentence Cumulation

1 Aggravated burglary [Crimes Act 1958 s 77(1)(a)] 25 years 5 years Base

2 Theft [Crimes Act s 74(1)] 10 years 18 months 9 months

3 Theft 10 years 9 months 3 months

Total effective sentence: 6 years’ imprisonment

Non-parole period: 4 years

Pre-sentence detention declaration: 3 days

Section 6AAA statement: 7 years and 6 months’ imprisonment with a non-parole period of 5 years

Charge	Offence	Maximum	Sentence	Cumulation
1	Aggravated burglary [Crimes Act 1958 s 77(1)(a)]	25 years	5 years	Base
2	Theft [Crimes Act s 74(1)]	10 years	18 months	9 months
3	Theft	10 years	9 months	3 months
Total effective sentence: 6 years’ imprisonment
Non-parole period: 4 years
Pre-sentence detention declaration: 3 days
Section 6AAA statement: 7 years and 6 months’ imprisonment with a non-parole period of 5 years

The applicant has sought leave to appeal from his sentence on the following grounds:

1 The learned sentencing judge erred by:
(a)impermissibly assessing the objective gravity of charge 1 by reference to events that occurred after entry and thereby considered irrelevant matters and/or sentenced the applicant for acts for which he was not charged; and
(b)failing to raise this issue with the applicant during the plea.

2        The order for cumulation in relation to charge 2 infringed:
(a)       the principle of totality; and/or
(b)       the principle of double punishment.
3The learned sentencing judge failed to take into account relevant matters put in mitigation on the applicant’s behalf, namely the principles in Bugmy v The Queen and The Queen v Verdins.

For the reasons that follow, the application for leave to appeal will be refused.

Circumstances of the offending

On the evening of 3 June 2015, Stanley Barlow was at his home in Kingloch Parade, Wantirna. He was 71 years old and had a glass eye in his left eye socket. His friend, Julian Brown, had been staying with him for a few days.

At about 5 am on 4 June 2015, Mr Brown was lying on the couch in the lounge room when he…

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 Bava v The Queen

Details

AGLC: John Bava v The Queen [2021] VSCA 34
Case: [2021] VSCA 34
Decision Date: 1 March 2021

CaseChat Overview and Summary

The applicant in this case appealed against his conviction and sentence, which was imposed by the County Court of Victoria. He was found guilty of one charge of aggravated burglary, two charges of theft, and sentenced to a total effective term of six years imprisonment, with a non-parole period of four years. The applicant argued that the trial judge failed to consider his post-entry criminal conduct when sentencing him for the aggravated burglary, and that the cumulation order for the first theft charge contravened the principles of totality and double punishment. Furthermore, the applicant contended that the trial judge did not adequately consider the principles set out in Bugmy v The Queen and R v Verdins.

The legal issues before the court were whether the trial judge appropriately took into account the post-entry criminal conduct when sentencing the applicant for the aggravated burglary, whether the cumulation order for the first theft charge violated the principles of totality or double punishment, and whether the trial judge failed to consider the principles set out in Bugmy and Verdins. The court was required to determine if the appeal was valid, and if so, whether the sentence should be quashed and the matter remitted for re-sentencing.

The court found that the trial judge had indeed considered the post-entry criminal conduct when sentencing the applicant for the aggravated burglary, and that the cumulation order for the first theft charge did not contravene the principles of totality or double punishment. The court also held that the trial judge had considered the principles in Bugmy and Verdins. The appeal was dismissed, and the applicant's conviction and sentence were upheld.

Orders