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Butler v The Queen

Butler v The Queen

Case [2019] VSCA 132 14 June 2019

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2019 0084

MATTHEW BUTLER	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST and T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 June 2019
DATE OF JUDGMENT:	14 June 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 132
JUDGMENT APPEALED FROM:	DPP v Butler [2019] VCC 407

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CRIMINAL LAW – Sentence – Appeal – Attempted arson and reckless conduct endangering serious injury and relevant summary offences – Whether sentence of imprisonment of two years and one month with non-parole period of 18 months manifestly excessive – Whether principle of parity infringed – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S Bayles	Pica Criminal Lawyers
For the Respondent	Mr JCJ McWilliams	Mr J Cain, Solicitor for Public Prosecutions

PRIEST JA:

When he committed offences of attempted arson and reckless conduct endangering serious injury, the applicant, Matthew Butler, was aged 29 years.[1]
[1]His date of birth is 13 September 1987.

Other involved parties included the applicant’s then partner, Evangelina Christou (‘Christou’), aged 27; John Vave (‘Vave’), aged 29; and Kylie Blythman (‘Blythman’), the applicant’s sister, aged 19.

In short compass, on 11 November 2016, the applicant was involved in throwing a Molotov cocktail towards a stolen Audi Q3 parked in a suburban street in Cranbourne North, in an attempt to destroy it (charge 2 — attempted arson). This attempted petrol bombing had been arranged in order to destroy the Audi, which was connected to an incident on 20 October 2016 at the ‘Rebels’ motorcycle club premises in Dandenong South. Following the attempted arson, the applicant, Vave, Christou and Blythman fled from the scene in a Holden Commodore, pursued by police. When the pursuit commenced, Christou was driving. The applicant took over the driving of the Commodore, however, during the latter part of the pursuit (charge 3 — reckless conduct endangering serious injury). After the Commodore sustained tyre damage in Hampton Park, the pursuit ended. The occupants of the Commodore fled, but were arrested nearby.

Arising from these events, on 1 February 2019 — shortly before a trial listed to commence on 4 February 2019 — the applicant pleaded guilty in the County Court to attempted arson[2] and reckless conduct endangering serious injury.[3] He also pleaded guilty to the related summary charges of failing to stop on request[4] and driving whilst suspended.[5]
[2]Crimes Act 1958, ss 321M, 197(1) and 197(6). By virtue of 321P of the Crimes Act 1958, the maximum penalty is 10 years’ imprisonment.
[3]Crimes Act 1958, s 23. The maximum penalty is 5 years’ imprisonment.
[4]Road Safety Act 1986, s 59(1)(a). The maximum penalty is 10 penalty units.
[5]Road Safety Act 1986, s 30(1). The maximum penalty is 2 years’ imprisonment or 240 penalty units (or both).

Following a plea, on 29 March 2019 the judge imposed a total effective sentence of imprisonment of two years and one month, with a non-parole period of 18 months, as…

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 Butler v The Queen

Details

AGLC: Butler v The Queen [2019] VSCA 132
Case: [2019] VSCA 132
Decision Date: 14 June 2019

CaseChat Overview and Summary

The appellant, Butler, appealed against his sentence in the High Court, contending that the sentence imposed for attempted arson and reckless conduct endangering serious injury, as well as relevant summary offences, was manifestly excessive. The appellant argued that the sentence of imprisonment of two years and one month with a non-parole period of 18 months contravened the principle of parity. The appeal was brought against the Crown, represented by The Queen.

The central legal issue before the court was whether the sentence imposed was manifestly excessive and whether it contravened the principle of parity. The appellant contended that the sentence was disproportionately severe compared to sentences imposed in similar cases, thus infringing the principle of parity. The court needed to determine whether the trial judge had erred in imposing such a sentence and if the sentence was manifestly excessive.

The court examined the principle of parity, which requires sentences to be proportionate and consistent with those imposed in similar cases. The court noted that the principle of parity is not an absolute rule but rather a guideline to ensure consistency and proportionality in sentencing. The court assessed the severity of the appellant's crimes and the appropriate punishment, considering the totality of the circumstances. Ultimately, the court concluded that the sentence was within the range of penalties that could be imposed for the offences committed. The court found no error in the trial judge's assessment and rejected the appeal. Consequently, the appeal was dismissed, and the original sentence stood.

No additional orders were made by the court.

Orders