Birrell v The Queen - [2010] VSCA 262

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0693
S APCR 2009 0757

JESSE RAYMOND BIRRELL

THE QUEEN

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JUDGES:	BUCHANAN and NEAVE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 October 2010
DATE OF JUDGMENT:	6 October 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 262	1^st Revision 13 October 2010, para 43, point 1
JUDGMENTS APPEALED FROM:	R v Birrell (Unreported, County Court of Victoria, Judge Pilgrim, 25 June 2009); R v Birrell (Unreported, County Court of Victoria, Judge Leckie, 3 August 2009).

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CRIMINAL LAW – Sentence – Appellant sentenced on two counts of causing injury intentionally and one count of false imprisonment – Previously sentenced on multiple counts of causing injury recklessly – Sentences on second set of offences not manifestly excessive – Adequate weight given to guilty pleas – Concurrency ordered between sets of offences offended principle of totality – Appeal allowed – Appellant re-sentenced.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr L C Carter	Victoria Legal Aid
For the Crown	Ms C Barbagello	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

I will ask Neave JA to deliver the first judgment.

NEAVE JA:

These appeals concern sentences imposed on the appellant, Jesse Raymond Birrell, by his Honour Judge Pilgrim on 25 June 2009 and by his Honour Judge Leckie on 3 August 2009, in relation to violent offences against two young women. The appellant had been in an intimate relationship with each of them. Although the grounds of appeal were directed solely at the sentences imposed by Judge Leckie, the sentences imposed by Judge Pilgrim are relevant because one of the grounds of appeal against Judge Leckie’s sentence raises the issue of totality.

Judge Pilgrim sentenced the appellant on two counts of causing injury recklessly. These offences occurred over a two day period between 31 December 2007 and 1 January 2008, that is, after the date of the offences for which Judge Leckie later sentenced the appellant and while the appellant was on bail for the offences for which he was sentenced by Judge Leckie. The appellant pleaded guilty to those counts and was sentenced to 3 years’ imprisonment on count 2 and 9 months’ imprisonment on count 1, three months of which were to be served cumulatively with the sentence imposed on count 2. This amounted to a total effective sentence of 3 years and 3 months’ imprisonment. His Honour ordered a non-parole period of 2 years.

Judge Leckie sentenced the appellant after he pleaded guilty to two counts of causing serious injury intentionally (counts 1 and 3) and was found guilty by a jury of one count of false imprisonment (count 7).[1] The offences occurred between May and September 2007. After hearing a plea in mitigation of sentence, Judge Leckie sentenced the appellant to 3 years’ imprisonment on each count of causing serious injury intentionally and 12 months’ imprisonment on the count of false imprisonment. Twelve months of the sentence imposed on count 3 and 6 months of…

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 Birrell v The Queen

Details

AGLC: Birrell v The Queen [2010] VSCA 262
Case: [2010] VSCA 262
Decision Date: 6 October 2010

CaseChat Overview and Summary

The appellant, Birrell, appealed against his sentence imposed by the County Court of Victoria, arguing that the total sentence was manifestly excessive. The appeal was heard by the Court of Appeal, which was required to consider the principles of sentencing and the appropriate weight to be given to various factors, including the appellant’s guilty pleas and the principle of totality. The Crown accepted that the sentencing judge erred in not ordering concurrency between the counts of causing injury intentionally and the count of false imprisonment.

The central legal issue was whether the appellant’s sentence was manifestly excessive and whether the trial judge erred in failing to order concurrency between the counts of causing injury intentionally and the count of false imprisonment. The Court considered the totality principle, which requires that the aggregate penalty for all offences should not be more than the sum of the penalties for each offence if they were committed separately. The Court also evaluated the weight that should be given to the appellant’s guilty pleas, which could potentially mitigate the severity of the sentence.

The Court of Appeal determined that the sentences for the second set of offences were not manifestly excessive, and the trial judge appropriately considered the appellant’s guilty pleas. However, the Court found that the trial judge erred by not ordering concurrency between the counts of causing injury intentionally and the count of false imprisonment. The Court allowed the appeal, re-sentenced the appellant, and ordered concurrency between the counts of causing injury intentionally and the count of false imprisonment. The Court considered this outcome to be consistent with the principle of totality and the appropriate weight given to the appellant’s guilty pleas.

Orders