Collier v The Queen - [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:

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

HARGRAVE JA:

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).
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.

The appellant sought leave to appeal against sentence…

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 Collier v The Queen

Details

AGLC: Collier v R [2018] VSCA 47
Case: [2018] VSCA 47
Decision Date: 5 March 2018

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