Brent Geoffrey Whelan v The Queen - [2018] VSCA 59

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0263

BRENT GEOFFREY WHELAN	Applicant
V
THE QUEEN	Respondent

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JUDGE:	SANTAMARIA JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	16 March 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 59
JUDGMENT APPEALED FROM:	[2017] VCC 1746 (Judge McInerney)

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE (DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009)

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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 – Specific errors alleged – Whether sentence manifestly excessive – Whether disparity in sentences of applicant and co-offender justified – Whether trial judge failed to take into account early plea of guilty – Leave to appeal granted in part.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	No appearance	Leanne Warren & Associates
For the Respondent	No appearance	Mr J Cain, Solicitor for Public Prosecutions

SANTAMARIA JA:

The applicant, now aged 23, pleaded guilty in the County Court to one charge of aggravated burglary, one charge of intentionally causing serious injury and one charge of theft. On 22 November 2017, he was sentenced as follows:

Charge Offence Maximum penalty Sentence Cumulation

1 Aggravated burglary [Crimes Act 1958 s 77] 25 years’ imprisonment 7 years’ imprisonment Base

2 Intentionally causing serious injury [Crimes Act 1958 s 16] 20 years’ imprisonment 5 years’ imprisonment 2 years

3 Theft [Crimes Act 1958 s 74(1)] 10 years’ imprisonment 6 months’ imprisonment Nil

Total effective sentence: 9 years’ imprisonment

Non-parole period: 7 years’ imprisonment

Pre-sentence detention declaration 406 days

Section 6AAA Statement 11 years’ imprisonment with non-parole period of 9 years

Other relevant orders Forensic sample order; forfeiture and disposal orders

The applicant now seeks leave to appeal against sentence.

Circumstances of the offending

The applicant was sentenced together with a co-offender, Timothy O’Neill, who pleaded guilty to one charge of aggravated burglary and one charge of possessing a drug of dependence. In the case of both offenders, the victims were Andrew George and Simon George. The offending took place on 29 September 2016.

On 28 September 2016, Andrew George, Simon George, O’Neill and a female associate attended the funeral of a close friend. Later that evening, they attended O’Neill’s address. After some time, they left.

On the morning of 29 September 2016, O’Neill could not find two grams of the drug ice. He believed that he had left the drug on a table in his bedroom. He sent a message to Daniel Kessler via Facebook Messenger and accused him of stealing the ice, which Kessler denied. O’Neill then said that he had armed himself with an axe, that he was angry and that someone was going to die. He referred to Andrew George and Simon George.[1]
[1]Screenshots of the messages, which were later found on Kessler’s and O’Neill phones, were tendered on the plea.

O’Neill and…

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 59
Decision Date: 16 March 2018

CaseChat Overview and Summary

The appellant, Brent Geoffrey Whelan, was convicted of aggravated burglary, intentionally causing serious injury, and theft. He appealed against the sentence of nine years' imprisonment with a non-parole period of seven years, contending that the sentence was manifestly excessive and that there was an unjustified disparity between his sentence and that of his co-offender, who received a lesser sentence. Whelan also argued that the trial judge failed to adequately account for his early guilty plea.

The court was required to determine whether the sentence imposed was manifestly excessive, whether the disparity in sentences between Whelan and his co-offender was justified, and whether the trial judge had failed to properly consider the appellant's early guilty plea. These issues turned on the specific circumstances of the offence and the principles of sentencing applicable to such cases.

The court found that the sentence was not manifestly excessive and that the disparity in sentences was justified due to differences in the roles and culpability of the co-offenders. However, the court concluded that the trial judge had not sufficiently recognised the significance of the appellant's early guilty plea. Consequently, the court granted leave to appeal in part, focusing on the issue of the trial judge's failure to adequately consider the early plea. The appeal was thus limited to this specific ground, and the court did not address the other arguments raised by Whelan.

The court's final orders were to allow the appeal in part, with specific directions for the re-sentencing of the appellant to ensure that his early guilty plea was properly factored into the sentence. The appeal in relation to the manifestly excessive nature of the sentence and the disparity with the co-offender's sentence was dismissed.

Orders