Brent Geoffrey Whelan v The Queen - [2018] VSCA 279

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0263

BRENT GEOFFREY WHELAN	Appellant
V
THE QUEEN	Respondent

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JUDGES:	PRIEST and ASHLEY JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	31 October 2018
DATE OF JUDGMENT:	31 October 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 279
JUDGMENT APPEALED FROM:	[2017] VCC 1746 (Judge McInerney)

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CRIMINAL LAW – Appeal – Sentence – Aggravated burglary, intentionally causing serious injury and theft – Sentence of 9 years’ imprisonment with non-parole period of 7 years’ imprisonment – Whether judge failed to give weight to early plea of guilty – Whether sentence manifestly excessive – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P J Smallwood	Leanne Warren & Associates
For the Respondent	Mr B L Sonnett	Mr J Cain, Solicitor for Public Prosecutions

PRIEST JA:

At about 10.21 am in the morning of 29 September 2016, the appellant, in the company of other men, kicked in the back door of a house in Malvern East and threatened an occupant with a tomahawk. A little over an hour later, at the same premises, the appellant struck Andrew George, an occupant of the house, several times to the head and body with the tomahawk, and stabbed him with a knife.

On 4 August 2017, the appellant pleaded guilty in the County Court to aggravated burglary[1] (charge 1), intentionally causing serious injury[2] (charge 2) and theft[3] (charge 3), the charge of aggravated burglary being a ‘rolled-up’ charge, representing the two unlawful entries to the premises occupied by the victims.
[1]Crimes Act 1958, s 77. The maximum sentence is 25 years’ imprisonment.
[2]Crimes Act 1958, s 16. The maximum sentence is 20 years’ imprisonment.
[3]Crimes Act 1958, s 74(1). The maximum sentence is 10 years’ imprisonment.

Following a plea, on 22 November 2017 the judge sentenced the appellant to a total effective sentence of nine years’ imprisonment, with a non-parole period of seven years, according to the following table:

Charge Offence Sentence Cumulation

1 Aggravated burglary 7 years Base

2 Intentionally causing serious injury 5 years 2 years

3 Theft 6 months Nil

Total effective sentence: 9 years’ imprisonment

Non-parole period: 7 years’ imprisonment

Pre-sentence detention: 406 days

Section 6AAAdeclaration: 11 years’ imprisonment with 9 years non-parole

Other relevant orders: Forensic sample order; forfeiture and disposal orders

Initially, the appellant sought leave to appeal against his sentence on three grounds, the substance of which it is unnecessary to set out.[4]
[4]See Whelan v The Queen [2018] VSCA 59, [40] (‘Leave reasons’), where the grounds are set out.

On 16 March 2018, however, Santamaria JA, considering the matter ‘on the papers’, granted the appellant leave to appeal against his sentence on a limited basis, ‘confined to the ground that the sentencing judge erred in so far as he failed to take into account or give any weight to the timing of the plea of guilty’.[5]
[5]Leave reasons, [47], [59].

In the result, the appellant now relies on a single…

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: [2018] VSCA 279
Decision Date: 31 October 2018

CaseChat Overview and Summary

In the case of Brent Geoffrey Whelan v The Queen, the appellant, Brent Geoffrey Whelan, challenged the sentence imposed upon him by the Supreme Court of Victoria for the offences of aggravated burglary, intentionally causing serious injury and theft. Whelan was sentenced to 9 years’ imprisonment with a non-parole period of 7 years. The appeal centred on the contention that the trial judge did not adequately consider the early plea of guilty and whether the sentence was manifestly excessive.

The primary legal issues before the court were whether the trial judge erred by not giving sufficient weight to Whelan's early plea of guilty and if the sentence imposed was manifestly excessive. The defence argued that the sentence did not appropriately reflect the mitigating factors, including the early plea and the potential for rehabilitation, while the prosecution maintained that the sentence was commensurate with the gravity of the offences committed.

The court considered the principles of sentencing, particularly the significance of an early guilty plea and the cumulative impact of the offences. The court held that the trial judge did take into account the early plea of guilty, despite the defence's assertion to the contrary. Furthermore, the court found that the sentence was not manifestly excessive, as it was within the range of sentences that could be considered appropriate for the combination of offences. The appeal was therefore dismissed.

There were no further orders made by the court in relation to the appeal. The sentence of 9 years’ imprisonment with a non-parole period of 7 years was upheld.

Orders