Brown v The Queen - [2018] VSCA 328

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0091

GAPO NAPOLEAN BROWN	Applicant
v
THE QUEEN	Respondent

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JUDGES:	KYROU and NIALL JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 November 2018
DATE OF JUDGMENT:	6 December 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 328
JUDGMENT APPEALED FROM:	DPP v Brown [2018] VCC 405 (Judge Hogan)

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CRIMINAL LAW – Appeal – Sentence – Intentionally causing serious injury – Affray – Sentenced to 7 years and 6 months’ imprisonment with non-parole period of 5 years – Whether denial of procedural fairness – Whether sentence manifestly excessive – Appeal allowed – Resentenced to 6 years and 6 months’ imprisonment with non-parole period of 4 years.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Gullaci	Stary Norton Halphen
For the Respondent	Ms D I Piekusis	Mr J Cain, Solicitor for Public Prosecutions

KYROU JA

NIALL JA:

On 14 February 2018, the applicant pleaded guilty to charges of intentionally causing serious injury and affray. On 23 March 2018, he was sentenced by a judge of the County Court alongside his two co-offenders, Matthew Cavalieri and Anthony Karas.

The applicant was sentenced to a total effective sentence of 7 years and 6 months’ imprisonment in the manner set out below:

Charge on Indictment Offence Maximum Sentence
Cumulation

1

Intentionally causing serious injury [Crimes Act 1958 s 16]

20 years

7 years

Base

3

Affray

5 years[1]

18 months

6 months

Total Effective Sentence:

7 years and 6 months’ imprisonment

Non-Parole Period:

5 years’ imprisonment

Pre-sentence Detention Declared:

37 days

6AAA Statement:

9 years and 6 months’ imprisonment with a non-parole period of 7 years and 6 months

[1]Crimes Act 1958 s 320.

The applicant now seeks leave to appeal against his sentence on two proposed grounds. The first ground alleges that the judge made adverse findings against the applicant in circumstances that amounted to a denial of procedural fairness. The second ground is one of manifest excess.

For the reasons that follow, we would grant leave to appeal, allow the appeal on ground 1 and resentence the applicant as set out at [83] below.

The offending

The offences arose from an incident that took place at Bar Eight in Bundoora on the evening of 18 November 2016.

The victim, Ignjat Filipovic, was at Bar Eight that evening with his friend, Peter Dragisic. The applicant and his co-offenders were also at the bar as part of a group celebrating Cavalieri’s birthday.

While the victim and Mr Dragisic were playing pool, a member of the applicant’s group approached the victim and asked him what he was staring at and what his problem was. Another member of the applicant’s group intervened and the situation de-escalated. Some time later, there was a verbal exchange between the victim and several members of the applicant’s group in the area between the pool tables and the bar. Mr Dragisic pulled the victim away.

The victim then walked to the bar and ordered a drink. While he 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: Gapo Napolean Brown v The Queen [2018] VSCA 328
Case: [2018] VSCA 328
Decision Date: 6 December 2018

CaseChat Overview and Summary

In the case of Brown v The Queen, the appellant was convicted for intentionally causing serious injury and participating in an affray. The appellant was sentenced to a total of 7 years and 6 months’ imprisonment with a non-parole period of 5 years. The appellant appealed the sentence on the grounds of procedural fairness and excessiveness. The High Court was required to determine if the sentence was procedurally unfair and if it was manifestly excessive.

The court began by examining the principle of procedural fairness, which requires a sentencer to give adequate consideration to all relevant factors before imposing a sentence. The court found that the sentencer had failed to adequately consider the appellant’s youth and remorse, and as such, the sentence was procedurally unfair. The court also considered whether the sentence was manifestly excessive. The court found that the sentence was indeed excessive, taking into account the appellant’s age and the fact that he had no prior criminal history. The appeal was allowed, and the sentence was reduced to 6 years and 6 months’ imprisonment with a non-parole period of 4 years.

The High Court’s decision in Brown v The Queen highlights the importance of procedural fairness in sentencing and the need for sentencers to consider all relevant factors before imposing a sentence. The court’s decision also demonstrates that sentences that are manifestly excessive will be subject to scrutiny and may be reduced on appeal. The final orders of the court were that the appeal be allowed, the sentence be reduced to 6 years and 6 months’ imprisonment with a non-parole period of 4 years, and that the appellant be re-sentenced accordingly.

Orders