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Brown v The Queen

Brown v The Queen

Case [2021] VSCA 204 27 July 2021

Appeal

Aggravated & Exemplary Damages

Sentencing

Breach of Community Correction Orders

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2019 0251

JOSHUA MATTHEW BROWN	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P and SIFRIS JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 May 2021
DATE OF JUDGMENT:	27 July 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 204
JUDGMENT APPEALED FROM:	[2019] VCC 1969 (Judge Carmody)

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CRIMINAL LAW – Appeal – Sentence – Aggravated burglary – Whether sentence of 5 years and 6 months’ imprisonment manifestly excessive – Violent entry, after midnight, in company of co-offender – Knowledge or expectation that victim would be present – Vigilante action – Absence of other aggravating factors immaterial - Specific deterrence – Breach of community correction orders – Sentence reflects objective gravity of offence – Sufficient weight given to mitigating factors including applicant’s youth – Leave to appeal granted – Appeal dismissed – Director of Public Prosecutions v Meyers (2014) 44 VR 486 considered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr B J Newton	Stephen Peterson Lawyers
For the Respondent	Mr L Fluxman	Ms A Hogan, Solicitor for Public Prosecutions

MAXWELL P
SIFRIS JA:

On 27 November 2019, the applicant pleaded guilty to multiple charges and was sentenced as set out in the table below.

Charge on Indictment

Offence

Maximum

Sentence

Cumulation

1 Aggravated burglary[1] 25 years’ imprisonment 5 years and 6 months Base

2 Damaging property[2] 10 years’ imprisonment 6 months 1 month

3 Theft[3] 10 years’ imprisonment 6 months 3 months

4 Blackmail[4] 15 years’ imprisonment 1 year 6 months

Related

Summary

Offence
Common assault[5] 15 penalty units or 3 months’ imprisonment 1 month Concurrent with base

Related

Summary

Offence
Use of drug of dependence[6] 1 year imprisonment 7 days Concurrent with base

Total Effective Sentence: 6 years and 4 months’ imprisonment

Non-Parole Period: 4 years and 3 months

Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991: 26 days

6AAA Statement: 7 years and 6 months with a non-parole period of 5 years 3 months.

Other relevant orders: Nil.
[1]Contrary to s 77(1)(b) of the Crimes Act 1958.
[2]Contrary to s 197(1) of the Crimes Act 1958.
[3]Contrary to s 74(1) of the Crimes Act 1958.
[4]Contrary to s 87 of the Crimes Act 1958.
[5]Contrary to s 23 of the Summary Offences Act 1966.
[6]Contrary to s 75 of the Drugs, Poisons and Controlled Substances Act 1981.

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1	Aggravated burglary[1]	25 years’ imprisonment	5 years and 6 months	Base
2	Damaging property[2]	10 years’ imprisonment	6 months	1 month
3	Theft[3]	10 years’ imprisonment	6 months	3 months
4	Blackmail[4]	15 years’ imprisonment	1 year	6 months
Related Summary Offence	Common assault[5]	15 penalty units or 3 months’ imprisonment	1 month	Concurrent with base
Related Summary Offence	Use of drug of dependence[6]	1 year imprisonment	7 days	Concurrent with base
Total Effective Sentence:	6 years and 4 months’ imprisonment
Non-Parole Period:	4 years and 3 months
Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:	26 days
6AAA Statement: 7 years and 6 months with a non-parole period of 5 years 3 months.
Other relevant orders: Nil.

The applicant seeks leave to appeal against sentence. For the reasons which follow, we will grant leave to appeal and dismiss the appeal.

Circumstances of the offending[7]

[7]This summary is taken from DPP v Brown [2019] VCC 1969 (‘Reasons for Sentence’), the Summary of Prosecution Opening dated 4 November 2019 and the Registrar’s neutral summary.

At the time of the offences, the applicant was 21 years old. The victims, PM and NV, were friends and resided together in a permanent shack at a caravan park. PM was 42 years of age and NV was 37 years of age. PM was…

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 Brown v The Queen

Details

AGLC: Brown v The Queen [2021] VSCA 204
Case: [2021] VSCA 204
Decision Date: 27 July 2021

CaseChat Overview and Summary

The respondent, Brown, appealed against his sentence for aggravated burglary. The appellant, the Crown, responded to the appeal. The case was heard in the Supreme Court of Victoria. Brown was convicted for entering a home at night with the intent to commit an offence, in company with another person, knowing or expecting that the victim would be present. The entry was violent, and Brown had previously breached community correction orders.

The primary legal issue was whether Brown's sentence of 5 years and 6 months' imprisonment was manifestly excessive. The court examined whether the sentence appropriately reflected the objective gravity of the offence and whether sufficient weight had been given to mitigating factors, including Brown's youth. The court also considered whether the absence of other aggravating factors should diminish the sentence.

The court found that the sentence did not manifest any excess, given the gravity of the offence. The violent entry, the timing, and the presence of a co-offender were significant factors. Although Brown's youth was a mitigating factor, the court held that the sentence appropriately balanced the need for specific deterrence with the mitigating circumstances. The court found that the sentence reflected the seriousness of the crime and the need to protect the community. The appeal was dismissed, and leave to appeal was granted to the Court of Appeal.

Orders