JUDGES:	WHELAN, PRIEST and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 May 2016
DATE OF JUDGMENT:	30 May 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 124
JUDGMENT APPEALED FROM:	DPP v Cox (Unreported, County Court of Victoria, Judge Pullen, 13 and 18 November 2015)

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CRIMINAL LAW – Sentence – Appeal – Aggravated burglary (2 charges) – Attempted indecent assault – Theft – Total effective sentence of 6 years and 7 months with non-parole period of 4 years – Whether sentence manifestly excessive – Whether sentences on individual charges manifestly excessive – No explanation for offending – Spontaneous offending – Mitigating factors – Sentence on theft charge conceded by Crown to be manifestly excessive – Other sentences not manifestly excessive – Applicant entitled to be resentenced on theft charge – Sentencing discretion not re-opened on other charges – Appeal allowed – Appellant resentenced on theft charge – Other sentences and orders for cumulation confirmed – Appellant resentenced to total effective sentence of 6 years and 4 months with non-parole period of 4 years.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J Gullaci	C Marshall & Associates
For the Respondent	Mr C B Boyce	Mr J Cain, Solicitor for Public Prosecutions

WHELAN JA

PRIEST JA
BEACH JA:

Introduction

On 11 November 2015, the appellant pleaded guilty in the County Court to two charges of aggravated burglary, one charge of indecent assault, one charge of theft and a summary charge of entering a private place without authority or excuse. Following a plea hearing, the appellant was sentenced on 13 November 2015 as follows:

Charge on Indictment Offence Maximum Sentence Cumulation

1 Aggravated burglary [Crimes Act 1958 s 77(1)] 25 years [Crimes Act 1958 s 77(2)] 5 years Base

2 Attempted indecent assault [Crimes Act 1958 ss 39(1) & 321M] 5 years [Crimes Act 1958 ss 39(1) & 321P] 7 months 3 months

3 Aggravated burglary 25 years 4 years 12 months

4 Theft [Crimes Act 1958 s 74(1)] 10 years [Crimes Act 1958 s 74(1)] 6 months 4 months

Summary Charge Enter a private place without authority or excuse [Summary Offences Act 1966 s 9(1)(e)] 6 months or 25 penalty units [Summary Offences Act 1966 s 9(1)] 1 month Nil

Total Effective Sentence: 6 years and 7 months

Non-Parole Period: 4 years

Pre-sentence Detention Declared: 168 days

6AAA Statement: 8 years and 6 months with a non-parole period of 6 years.

Other orders:

- Sentenced as a serious sexual offender for charge 3 pursuant to s 6F of the Sentencing Act 1991

- Forfeiture of property in respect of charge 3

- Forensic sample order made pursuant to s 464ZF of the Crimes Act 1958

- Sex offender registration for 15 years (as amended on 18 November 2015)

On 8 March 2016, this Court granted the appellant leave to appeal against…

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 Cox v The Queen

Details

AGLC: Cox v The Queen [2016] VSCA 124
Case: [2016] VSCA 124
Decision Date: 30 May 2016

CaseChat Overview and Summary

The appellant, Cox, was convicted and sentenced for multiple offences, including aggravated burglary, attempted indecent assault, and theft. The respondent, the Crown, appealed the sentence on the basis that it was manifestly excessive. Cox cross-appealed, arguing that the sentence for each individual charge was manifestly excessive and that he was entitled to be resentenceed on each charge. The High Court of Australia heard the appeal and cross-appeal.

The central legal issue before the court was whether the sentence imposed was manifestly excessive. The court had to determine if the total effective sentence of 6 years and 7 months with a non-parole period of 4 years was appropriate, as well as whether the sentences on each individual charge were excessive. The court also considered whether Cox was entitled to be resentenced on each charge or if the Crown's discretion should be upheld.

The court found that while the sentence on the theft charge was manifestly excessive, the other sentences were not. It was noted that Cox had no explanation for his offending, which was described as spontaneous. However, mitigating factors were taken into account. The Crown conceded that the sentence on the theft charge was indeed excessive, but argued that the sentencing discretion should not be re-opened on the other charges. The court agreed with the Crown's position on the other charges but allowed the appeal on the theft charge. Consequently, Cox was resentenced to a total effective sentence of 6 years and 4 months with a non-parole period of 4 years, confirming the other sentences and orders for cumulation.

The court allowed the appeal on the theft charge and resentenced Cox to a total effective sentence of 6 years and 4 months with a non-parole period of 4 years. The sentences on the other charges were confirmed, and the orders for cumulation were upheld.

Orders