JUDGES:	REDLICH and PRIEST JJA and ROBSON AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 September 2013
DATE OF JUDGMENT:	18 November 2013
MEDIUM NEUTRAL CITATION:	[2013] VSCA 319
JUDGMENT APPEALED FROM:	DPP v Berichon & Ors (County Court of Victoria, Judge Pullen)

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CRIMINAL LAW – Conspiracy to cause serious injury intentionally – Possessing an unregistered firearm – Whether judge erred in sentencing applicant for firearm charge and also treating possession of firearm as an aggravating circumstance of conspiracy – Applicant doubly punished – No different sentence imposed – Hudson v The Queen (2010) 30 VR 610; Armistead v The Queen [2011] VSCA 11 applied – Applications refused.

CRIMINAL LAW – Manifest excess – Parity – Totality – Whether sentencing judge properly characterised the applicant’s prospects for rehabilitation – Sentence not manifestly excessive.

SENTENCING – Victim impact statements – Meaning of ‘victim’ – Co-conspirators apprehended before commission of substantive offence – Whether occupants of the house who were not the intended targets of the assault suffered injury as ‘direct result’ of planned substantive offence – Sections 3, 5(2)(aa) and 5(2)(db) of the Sentencing Act 1991 – Fagan v The Crimes Compensation Tribunal (1982) 150 CLR 666; Kaplan v Lee-Archer (2007) 15 VR 405 considered.

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APPEARANCES:	Counsel	Solicitors
For Berichon	Mr T Kassimatis	Valos Black & Associates
For Houssein	Ms F H Todd	Cameron Marshall & Associates
For the Crown	Mr B F Kissane	Mr C Hyland, Solicitor for Public Prosecutions

REDLICH JA:

I have had the advantage of reading in draft the reasons of Priest JA and those of Robson AJA in the applications for leave to appeal against sentence of both Berichon and Houssein. I would refuse the applications for leave to appeal of Houssein substantially for the reasons expressed by Robson AJA. I would also refuse the application for leave to appeal of Berichon for the following reasons and those of Priest JA and Robson AJA.

The appeal of Berichon

As to ground 1, I agree with Robson AJA that the occupants of the house that the applicant intended to invade were ‘victims’ within the meaning of s 3 of the Sentencing Act 1991 (‘the Act’), though they were not persons the applicant intended to assault.

At common law, the element of causation in a claim for damages for personal injury focussed upon whether the injury was incurred directly as a result of the defendant’s breach of duty and whether it was reasonably foreseeable.[1] In the area of sentencing, the common law limited the consequences of an offender’s acts which could be taken into account to those as would reasonably have been foreseen by him or ought to have been foreseen by him.[2]
[1] See for example Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254.
[2] See SD v The Queen [2013] VSCA…

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 Berichon v The Queen

Details

AGLC: Berichon v The Queen [2013] VSCA 319
Case: [2013] VSCA 319
Decision Date: 18 November 2013

CaseChat Overview and Summary

In the case of Berichon v The Queen, the applicant was convicted of conspiracy to cause serious injury intentionally and possessing an unregistered firearm. The applicant appealed against his sentence, arguing that the judge erred in sentencing him for the firearm charge and in treating the possession of the firearm as an aggravating circumstance of the conspiracy. The applicant contended that he was effectively being punished twice for the same conduct. The Court of Appeal examined the relevant authorities and concluded that the judge did not err in imposing the sentence and treating the possession of the firearm as an aggravating circumstance. The Court of Appeal dismissed the application.

The Court of Appeal also considered whether the sentence was manifestly excessive. The sentencing judge had characterised the applicant’s prospects for rehabilitation as poor, which influenced the sentence. The Court of Appeal held that the sentencing judge properly characterised the applicant’s prospects for rehabilitation and that the sentence was not manifestly excessive. The Court of Appeal dismissed the application.

Lastly, the Court of Appeal considered whether the sentencing judge properly interpreted the meaning of ‘victim’ in the context of victim impact statements. The occupants of the house, who were not the intended targets of the assault, were injured as a direct result of the planned substantive offence. The Court of Appeal held that the sentencing judge correctly interpreted the meaning of ‘victim’ and that the victim impact statements were properly considered. The Court of Appeal dismissed the application.

The Court of Appeal dismissed the applicant’s appeal against his sentence and the orders of the sentencing judge.

Orders