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Best v The Queen

Best v The Queen

Case [2015] VSCA 151 19 June 2015

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2014 0078

DANIEL LINDSAY BEST	Applicant
v
THE QUEEN	Respondent

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JUDGES:	ASHLEY, REDLICH and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22 May 2015
DATE OF JUDGMENT:	19 June 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 151
RULING APPEALED FROM:	DPP v Best (Unreported, Judge Chettle, County Court of Victoria, 26 April 2012)

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CRIMINAL LAW – Sentence – Application for extension of time within which to make application for leave to appeal – Application for leave to appeal against sentence – Firearms offence – False imprisonment – Total effective sentence of ten (10) years’ imprisonment with non-parole period of seven (7) years and six (6) months’ imprisonment – Whether judge erred by failing to take into account, in sentencing applicant for firearms offence, pending reduction in maximum penalty – Whether sentence manifestly excessive – Error established – Sentence manifestly excessive – Whether sentence for false imprisonment manifestly excessive – Long period of imprisonment – Uncharged acts – Incidental violence inflicted upon victims and threats of violence made – Extortion attempts – Gross violence causing serious injury inflicted by co-offenders when applicant not present and for which not charged – Whether permissible for judge to treat incidental violence, threats of violence, extortion attempts and gross violence causing serious injury as circumstances aggravating seriousness of false imprisonment – Permissible for judge to have regard to general milieu of violence attending false imprisonment and prospect of extortion as aggravating circumstances – Impermissible for judge to have regard to gross violence causing serious injury inflicted by co-offenders – Serious injury not ‘direct result’ of false imprisonment – Sentencing Act 1991, ss 3, 5(2)(db) – Sentence manifestly excessive – Applications for extension of time and for leave to appeal granted – Appeal allowed – Appellant sentenced to total effective sentence of eight (8) years and six (6) months’ imprisonment, with non-parole period of six (6) years and six (6) months.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J McLoughlin	Victoria Legal Aid
For the Crown	Mr B F Kissane QC	Ms V Anscombe, Acting Solicitor for Public Prosecutions

THE COURT:

Charges, sentences and grounds of appeal

On 12 April 2012, the applicant pleaded guilty in the County Court to three charges of false imprisonment[1] (charges 4, 6 and 9) and one charge of being a prohibited person in possession of an unregistered firearm[2] (charge 10).
[1]False imprisonment is a crime at common law. By virtue of s 320 of the Crimes Act 1958, the maximum penalty is 10 years’ imprisonment.
[2]Firearms Act 1996, s 5(1A). The maximum penalty was 15 years’ imprisonment.

Following a plea hearing, on 26 April 2012 the applicant was sentenced to be imprisoned four (4) years and six (6) months on charge 4; for three (3) years and six (6) months on both charge 6 and charge 10; and for two (2) years and six (6) months on charge 9. Two years of the sentences…

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 Best v The Queen

Details

AGLC: Daniel Lindsay Best v The Queen [2015] VSCA 151
Case: [2015] VSCA 151
Decision Date: 19 June 2015

CaseChat Overview and Summary

The case of Best v The Queen involved the appellant, Best, who appealed against his sentence, which was imposed following his conviction for firearms offences, false imprisonment, and other related charges. The sentence was a total of ten years' imprisonment with a non-parole period of seven years and six months. The legal issues before the court were whether the trial judge erred in not considering a pending reduction in the maximum penalty for the firearms offence and whether the sentence was manifestly excessive. Additionally, the court needed to determine if the sentence for the false imprisonment charge was excessively long, especially considering uncharged acts, threats, extortion attempts, and serious injuries inflicted by co-offenders.

The court found that the judge had erred by not taking into account the pending reduction in the maximum penalty for the firearms offence. It was determined that the sentence was manifestly excessive. The court considered the general milieu of violence and the prospect of extortion as aggravating circumstances of the false imprisonment offence. However, it was held that it was not permissible for the judge to consider the gross violence causing serious injury inflicted by co-offenders as an aggravating circumstance because the serious injury was not a direct result of the false imprisonment. The court concluded that the sentence was manifestly excessive and granted the application for leave to appeal.

The appeal was allowed, and the appellant was re-sentenced to a total effective sentence of eight years and six months' imprisonment, with a non-parole period of six years and six months. The court also granted the application for an extension of time to make the application for leave to appeal. The decision highlighted the importance of considering all relevant factors and the proper application of the law in sentencing.

Orders