| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2021 0094 |
| BRENDAN LOWELL (a pseudonym)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym.
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| JUDGES: | PRIEST and T FORREST JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 16 June 2022 |
| DATE OF JUDGMENT: | 12 July 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 134 |
| JUDGMENT APPEALED FROM: | [2021] VCC 575 (Judge Hogan) |
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CRIMINAL LAW – Appeal – Sentence – Aggravated home invasion, intentionally causing injury, theft and possessing drug of dependence – Sentenced to 6 years and 8 months’ imprisonment with 4 years and 8 months non-parole – Whether judge took into account 220 days on remand for unrelated sentence – Whether judge gave insufficient weight to applicant’s assistance to authorities – Whether manifest excess – Pre-sentence detention miscalculated – Judge took into account all mitigating features including assistance – Moderate sentence – Leave to appeal refused – McElroy v The Queen [2018] VSCA 126, El-Waly v The Queen (2012) 46 VR 656; [2012] VSCA 184, R v Boyd [2002] VSCA 102 and Mejia (a pseudonym) v The Queen [2020] VSCA 141 applied.
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| Counsel | |||
| Applicant: | Mr D Dann QC | ||
| Respondent: | Mr J McWilliams | ||
Solicitors | |||
| Applicant: | Vassis & Co | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
PRIEST JA
T FORREST JA:
The applicant pleaded guilty in the County Court to one charge of aggravated home invasion, two charges of intentionally causing injury and two charges of theft. Before the same judge on the same day, he also pleaded guilty on a separate indictment to possessing a drug of dependence, namely cannabis in a small quantity, and further he consented to two summary charges being transferred to the County Court, also pleading guilty to those charges before her Honour. Those charges were committing an indictable offence (aggravated home invasion) whilst on bail, and resisting a police officer who was an emergency worker on duty.
The applicant was sentenced on 5 May 2021 to a total effective sentence of 6 years and 8 months’ imprisonment with a minimum non-parole period of 4 years and 8 months. The full sentencing details are set out in the table below:
| Charge on Indictment | Offence | Max Penalty | Sentence | Cumulation |
| Indictment K10862538.A.2 | ||||
| 1 | Aggravated home invasion[2] | 25 years | 54 months | Base |
| 2 | Causing injury intentionally[3] | 10 years | 18 months | 6 months |
| 3 | Causing injury intentionally[4] | 10 years | 30 months | 10 months |
| 4 | Theft[5] | 10 years | 12 months | 4 months |
| 5 | Theft[6] | 10 years | 9 months | 3 months |
| Indictment K10862538.B | ||||
| 1 | Possess a drug of dependence[7] | 5 penalty units | Convicted and discharged | N/A |
| Summary charges | ||||
| 15 | Commit indictable offence whilst on bail[8] | 3 months’ imprisonment or 30 penalty units | 1 month | 1 month |
| 16 | Resist emergency worker on duty[9] | 60 penalty units or 6 months’ imprisonment | 2 months | 2 months |
| Total Effective Sentence: | 6 years, 8 months’ imprisonment | |||
| Non-Parole Period: | 4 years, 8 months’ imprisonment | |||
| Pre-sentence Detention Declared: | 512… | |||
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- Case
- [2022] VSCA 134
- Decision Date
CaseChat Overview and Summary
The court examined whether the trial judge had overlooked the time Lowell had spent on remand and whether his assistance to the authorities was adequately considered. It was established that the judge had taken into account all mitigating factors, including Lowell's cooperation with the authorities, and had imposed a moderate sentence. The court found that the sentence was not manifestly excessive and that the pre-sentence detention was correctly calculated. The appeal was dismissed based on the application of precedents such as McElroy v The Queen, El-Waly v The Queen, R v Boyd, and Mejia (a pseudonym) v The Queen.
The court of appeal upheld the sentence imposed by the trial judge. The decision was grounded on the principle that the trial judge had correctly assessed all mitigating factors, including the defendant's assistance to the authorities, and had arrived at a moderate sentence. Therefore, the appeal was dismissed, and the original sentence stood affirmed.
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