JUDGES:	NIALL and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 June 2020
DATE OF JUDGMENT:	15 June 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 156
JUDGMENT APPEALED FROM:	DPP v Carter (Unreported, County Court of Victoria, Judge Lacava, 8 April 2020)

---

CRIMINAL LAW – Appeal – Sentence – Recklessly causing injury – Intentionally damaging property – Possessing firearm while prohibited person – Attempting to pervert course of justice – Persistently breaching family violence intervention order – Total effective sentence of 3 years’ imprisonment with non-parole period of 2 years – Base sentence of 2 years for attempt to pervert course of justice – Guilty plea – Offending occurred in context of family violence within domestic relationship – Indigenous offender – ‘Guarded’ prospects of rehabilitation – Whether total effective sentence, or base sentence, manifestly excessive – Whether applicant ‘doubly punished’ – Whether totality principle offended – Whether sentencing judge erred in assessing prospects of rehabilitation – No error by sentencing judge – Sentence within range – Leave to appeal refused.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant:	Ms J L Turfrey	Rebecca Boreham Barrister and Solicitors
For the Respondent:	Mr J C J McWilliams	Ms A Hogan, Solicitor for Public Prosecutions

NIALL JA

WEINBERG JA:

On 3 April 2020, the applicant, Daniel Mark Carter, pleaded guilty in the County Court at Mildura to recklessly causing injury, intentionally damaging property, possessing a firearm while a prohibited person, attempting to pervert the course of justice, and persistently contravening a family violence intervention order. He also pleaded guilty to a series of related summary charges. These included failing to store a firearm in a secure manner, possessing cartridge ammunition while unlicensed, and committing an indictable offence whilst on bail.

On 8 April 2020, the applicant was sentenced as follows:

Charge No.

Offence

Maximum

Sentence

Cumulation

1. Recklessly causing injury [s 18 — Crimes Act 1958] 5 years 6 months 6 months

2. Intentionally damage property [s 197(1) — Crimes Act 1958] 10 years 1 month —

3. Prohibited person possess a firearm [s 5(1) — Firearms Act 1996] 10 years 6 months 3 months

4. Attempt to pervert the course of justice [common law, s 320 — Crimes Act 1958] 25 years 2 years Base

5. Persistent contravention of family violence intervention order [ss 37, 123, and 125A — Family Violence Protection Act 2008] 5 years 6 months 3 months

Related summary offences

Summary Charge 8 Unlicensed person store firearm in insecure manner [s 129A — Firearms Act 1996] 4 years Convicted
and
discharged —

Summary Charge 9 Possess ammunition without licence [s 124(1) —Firearms Act 1996] 40 penalty units Convicted
and
discharged —

Summary Charge 13 Commit indictable offence whilst on bail [s 30B — Bail Act 1997] 3 months 1 month —

Total effective sentence: 3 years’ imprisonment

Non-parole period: 2…

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 Carter v The Queen

Details

AGLC: Daniel Mark Carter v The Queen [2020] VSCA 156
Case: [2020] VSCA 156
Decision Date: 15 June 2020

CaseChat Overview and Summary

In the High Court of Australia, the applicant, Carter, appealed against his sentence following his conviction for multiple offences. These included recklessly causing injury, intentionally damaging property, possessing a firearm while being a prohibited person, attempting to pervert the course of justice, and persistently breaching a family violence intervention order. The case arose from incidents occurring within a domestic relationship, marked by family violence. The applicant's appeal was primarily concerned with the severity of the total effective sentence of three years' imprisonment, with a non-parole period of two years, as well as the base sentence of two years for the attempt to pervert the course of justice.

The central legal issues the Court needed to address were whether the total effective sentence or the base sentence was manifestly excessive, whether the applicant had been 'doubly punished', and if the 'totality principle' had been breached. Additionally, the Court considered if the sentencing judge had erred in assessing the applicant's prospects of rehabilitation. The Court needed to determine if the sentence was within the appropriate range and whether there had been any error in the sentencing process.

The Court held that there was no error in the sentencing judge's approach. The total effective sentence and the base sentence were found to be within the appropriate range, considering the severity and nature of the offences committed. The Court was satisfied that the sentencing judge had appropriately assessed the applicant's prospects of rehabilitation, which were deemed 'guarded'. The Court found no breach of the totality principle and concluded that the applicant had not been 'doubly punished'. Therefore, the appeal was dismissed, and leave to appeal was refused.

Orders