Collier v The Queen

Case [2018] VSCA 47


SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0084

REBECCA CATHERINE COLLIER Appellant
v
THE QUEEN Respondent

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JUDGES: PRIEST and HARGRAVE JJA
WHERE HELD: MELBOURNE
DATE OF HEARING: 5 March 2018
DATE OF JUDGMENT: 5 March 2018
MEDIUM NEUTRAL CITATION: [2018] VSCA 47
JUDGMENT APPEALED FROM: [2017] VCC 311 (Judge Harbison)

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CRIMINAL LAW – Appeal – Sentence – Aggravated burglary, criminal damage, threatening to inflict serious injury, contravention of family violence orders – Total effective sentence of five years and nine months’ imprisonment with non-parole period of three years and six months – Whether sentence manifestly excessive – Whether judge erred in categorising aggravated burglary as of the kind discussed in Hogarth v The Queen (2012) 37 VR 658 – Whether judge gave sufficient weight to reduced moral culpability due to impaired mental functioning – Appeal allowed – Appellant resentenced to three years and eight months’ imprisonment with non-parole period of two years and two months.

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APPEARANCES: Counsel Solicitors
For the Appellant Mr J Cass with
Ms A Renieris
Victoria Legal Aid
For the Crown Mr M D Phillips Mr John Cain, Solicitor for Public Prosecutions

PRIEST JA:

  1. I agree with Hargrave JA, whose reasons I have had the advantage of reading in draft.

HARGRAVE JA:

  1. On 2 March 2017, the appellant pleaded guilty in the County Court to threatening to inflict serious injury (charge 1), criminal damage (charges 2 and 3), aggravated burglary (charge 4) and contravening family violence intervention orders (charges 5, 6 and 7).

  2. The judge sentenced the appellant on 24 March 2017 to be imprisoned for five years and nine months, with a non-parole period of three years and six months, in accordance with the following table:

Charge Offence Sentence Cumulation
1 Threatening to inflict serious injury[1] 12 months 6 months
2 Criminal damage[2] 6 months 3 months
3 Criminal damage 6 months Nil
4 Aggravated burglary[3] 5 years Base
5 Contravention of a family violence order intending to cause harm or fear for safety[4] [mother] 18 months Nil
6 Contravention of a family violence order intending to cause harm or fear for safety [father] 18 months Nil
7 Contravention of a family violence order intending to cause harm or fear for safety [son] 18 months Nil
Total effective sentence 5 years and 9 months’ imprisonment
Non-parole period 3 years and 6 months
Section 6AAA declaration 7 years’ imprisonment with 4 years and 6 months non-parole
Other orders

·     Compensation order for $330 in favour of Amber Johnstone

·     Compensation order for $370 in favour of Carolan Collier

·     Forfeiture and disposal order (knife)

· Forensic sample order pursuant to s 464ZF Crimes Act 1958

[1]Crimes Act 1958 s 21. The maximum penalty is five years’ imprisonment.

[2]Ibid s 197(1). The maximum penalty is 10 years’ imprisonment.

[3]Ibid s 77. The maximum penalty is 25 years’ imprisonment.

[4]Family Violence Protection Act 2008 s 123A. The maximum penalty is five years’ imprisonment.

  1. The appellant sought leave to appeal against sentence…

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AGLC
Collier v R [2018] VSCA 47
Case
[2018] VSCA 47
Decision Date

CaseChat Overview and Summary

The appellant, Collier, appealed against the sentence imposed by the County Court of Victoria, arguing that it was manifestly excessive. The sentence was for a total of five years and nine months' imprisonment, with a non-parole period of three years and six months, for various offences including aggravated burglary, criminal damage, threatening to inflict serious injury, and contravention of family violence orders. The central issues before the court were whether the sentence was manifestly excessive and whether the trial judge had erred in categorising the aggravated burglary as one of the kind discussed in Hogarth v The Queen. Additionally, the court had to consider whether the judge gave sufficient weight to the appellant's reduced moral culpability due to impaired mental functioning.

The court found that the original sentence was indeed manifestly excessive. The trial judge had erred in applying the principles outlined in Hogarth, which provide for a higher base sentence for aggravated burglaries involving family violence. The court noted that the appellant's mental health issues, which were recognised by expert evidence, should have led to a more lenient sentence. The judge did not adequately account for the reduced moral culpability resulting from these issues. As a result, the appeal was allowed, and the appellant was resentenced to three years and eight months' imprisonment with a non-parole period of two years and two months.

The court's decision highlighted the importance of considering all mitigating factors, particularly mental health, in sentencing. The new sentence reflected a more balanced approach, taking into account both the seriousness of the crimes and the appellant's impaired mental functioning. This case underscores the need for judges to carefully weigh all relevant factors to ensure that sentences are both just and appropriate to the circumstances of the offender.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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