Curtis v The Queen - [2022] VSCA 5

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0173

KARINA CURTIS	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST and NIALL JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 January 2022
DATE OF JUDGMENT:	21 January 2022
DATE OF REASONS:	28 January 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 5
JUDGMENT APPEALED FROM:	DPP v Curtis (Unreported, County Court of Victoria, Judge Chettle, 1 December 2021)

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CRIMINAL LAW – Appeal – Sentence – Aggravated burglary and intentionally causing injury – Applicant sentenced to nine months’ imprisonment with 18 month community correction order (CCO) – Exceptional family hardship – Appeal allowed – Appellant sentenced to time served with 18 month CCO.

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APPEARANCES:	Counsel	Solicitors
For the Applicant:	Ms G Connelly and Ms B Kelly	Camerons Lawyers
For the Respondent:	Mr G Buchhorn	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
NIALL JA:

The applicant sought leave of this Court to appeal against sentences imposed upon her in the County Court on 1 December 2021 for aggravated burglary[1] (charge 1), intentionally causing injury[2] (charge 2) and possessing a drug of dependence[3] (charge 3). At the conclusion of oral argument on 21 January 2022, we granted the applicant leave to appeal against the sentence, allowed the appeal and resentenced her in the manner set out below.[4] These are our reasons for those orders.
[1]Crimes Act 1958, s 77. The maximum penalty is 25 years’ imprisonment.
[2]Crimes Act 1958, s 18. The maximum penalty is 10 years’ imprisonment.
[3]Drugs Poisons and Controlled Substances Act 1981, s 73(1). The maximum penalty is five penalty units if the court is satisfied on the balance of probabilities that the offence was committed in relation to a quantity no more than a small quantity as defined — 50 grams — or the offence was not committed for any purpose related to trafficking in cannabis.
[4]See [24].

Now aged 30 years, the applicant’s offending took place in the early hours of 30 November 2019, when she was aged 27 years.[5]
[5]Her date of birth is 16 December 1991.

The applicant — who had no prior convictions — was acquainted with a male, ‘AC’, they both having previously resided in the same caravan park. In the afternoon of 29 November 2019, AC helped the applicant by bringing her a jerry can of petrol to refuel her car when it had run out of petrol. Later that day, the applicant and her two children — her daughter, ‘CS’, then aged eight years, and her son, ‘SJ’, then aged six — went to AC’s home to return the jerry can. The adults talked and drank together.

After they had returned home, CS apparently told her mother that AC had sexually interfered with her.

As a result, at 1.55 am on 30 November 2019 the applicant returned to AC’s address. AC and his partner were asleep inside. The applicant, armed with a flick knife, forced open the front door (charge 1 — aggravated…

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 Curtis v The Queen

Details

AGLC: Curtis v The Queen [2022] VSCA 5
Case: [2022] VSCA 5
Decision Date: 21 January 2022

CaseChat Overview and Summary

Curtis was convicted of aggravated burglary and intentionally causing injury to a person, resulting in a sentence of nine months’ imprisonment and an 18-month community correction order (CCO). Curtis appealed the sentence on the basis of exceptional family hardship. The appeal was heard in the High Court of Australia. The primary legal issue before the court was whether the sentence imposed was manifestly inadequate in light of the exceptional family hardship presented by the appellant.

The court considered the principles of sentencing and the mitigating factor of family hardship. The court noted that the sentencing judge had not given appropriate weight to the exceptional family hardship, which included the appellant's role as the primary caregiver for a young child with special needs. The court concluded that the original sentence was manifestly inadequate because it failed to adequately consider the exceptional circumstances of the family. Consequently, the appeal was allowed, and the sentence was set aside. The court re-sentenced the appellant to time served with an 18-month CCO, reflecting the significant mitigating factor of family hardship.

The final orders of the court were that the original sentence was quashed and replaced with a sentence of time served with an 18-month CCO. This decision underscores the importance of considering exceptional family circumstances in sentencing, ensuring that the sentence imposed is both just and proportionate to the offence committed.

Orders