Brendan Lowell (a pseudonym)[1] v The Queen - [2022] VSCA 134

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…

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.

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Details

Case: [2022] VSCA 134
Decision Date: 12 July 2022

CaseChat Overview and Summary

The defendant, Brendan Lowell, appealed against his sentence of 6 years and 8 months imprisonment, with a non-parole period of 4 years and 8 months, following his conviction for aggravated home invasion, intentionally causing injury, theft, and possession of a drug of dependence. The matter was heard in the Victorian Court of Appeal. Lowell argued that the trial judge failed to take into account the 220 days he had spent on remand for an unrelated sentence and did not sufficiently weigh his assistance to the authorities. Additionally, he contended that the sentence imposed was manifestly excessive.

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.

Orders