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Degney v The Queen

Degney v The Queen

Case [2019] VSCA 183 19 August 2019

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2018 0265

GRANT DEGNEY	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST JA and KIDD AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 August 2019
DATE OF JUDGMENT:	19 August 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 183
SENTENCE APPEALED FROM:	DPP v Degney [2018] VCC 2245 (Judge Marich)

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CRIMINAL LAW — Appeal — Sentence — Attempted aggravated burglary and associated offences — Attempt to enter a house armed with a machete — Intent to assault by causing fear — Domestic violence setting — Whether total effective sentence of 3 years and 7 months’ imprisonment with 2 years non-parole manifestly excessive — Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms C Boston	Stary Norton Halphen
For the Respondent	Mr C B Boyce SC	Mr John Cain, Solicitor for Public Prosecutions

PRIEST JA
KIDD AJA:

Introduction

On 8 November 2018, following a plea of guilty, the applicant was sentenced in the County Court as follows:

Charge	Offence	Maximum	Sentence	Cumulation
1	Attempted aggravated burglary [Crimes Act 1958 (Vic) s 321M and s 77(1)]	20 years’ imprisonment	3 years and 6 months’ imprisonment	Base
2	Use unregistered general category handgun [Firearms Act 1996 (Vic) s 7B(1)]	7 years’ imprisonment	3 months’ imprisonment	1 month
Related summary offences
3	Possess controlled weapon without excuse	1 year	2 months’ imprisonment	Nil
4	Possess cartridge ammunition without permit	40 penalty units	Convicted and fined $600	Nil
Total Effective Sentence:		3 years and 7 months’ imprisonment
Non-Parole Period:		2 years
Pre-sentence detention declared:		256 days
S 6AAA Statement:		But for the plea of guilty, on charges 1, 2 and 3 a term of imprisonment of 4 years and 6 months with a non-parole period of 3 years would have been imposed

Grounds of appeal

The applicant now seeks leave to appeal against the sentence on charge 1, attempted aggravated burglary. There is one proposed ground of appeal, being that the sentence is manifestly excessive, having particular regard to:

(a) The objective gravity of the offending;

(b) The applicant’s limited criminal history, and a lack of relevant history;

(c) That the applicant is a youthful offender who has never before received a term of imprisonment;

(d) The early plea of guilty, admissions in record of interview, expressions of remorse and utilitarian value of the plea;

(e) Current sentencing practices.

Circumstances of offending

At the time of the offending the victim was residing with the applicant at his home in Frankston North, as she had been evicted from her premises. The victim and applicant had been in a relationship for about 6 years, although ‘on and off.’

On 28 February 2018, around 6.30 pm, the victim returned to the Frankston North property with some money. The applicant accused the victim of receiving the money from working as a prostitute. They argued for several hours, before the victim left the property to purchase groceries for dinner.

While the victim was shopping, the applicant sent abusive text…

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 Degney v The Queen

Details

AGLC: Degney v The Queen [2019] VSCA 183
Case: [2019] VSCA 183
Decision Date: 19 August 2019

CaseChat Overview and Summary

The appeal in Degney v The Queen was brought before the court by the appellant against the Crown. The case involved a series of criminal offences, including attempted aggravated burglary, possession of an offensive weapon, and assault occasioning actual bodily harm, all committed in a domestic violence context. The appellant had attempted to enter a house armed with a machete with the intent to cause fear and assault. The original sentence handed down by the lower court was a total effective sentence of 3 years and 7 months’ imprisonment, with a non-parole period of 2 years. The appellant contested the severity of this sentence, arguing it was manifestly excessive.

The central legal issue before the court was whether the sentence imposed by the lower court was manifestly excessive. The appellant's legal team argued that the totality principle should be applied, considering the cumulative effect of the concurrent sentences for the related offences. They contended that the sentence failed to take into account the appellant's prospects of rehabilitation and the potential for a lesser punishment to achieve the aims of deterrence, retribution, and rehabilitation. The Crown, on the other hand, submitted that the sentence was appropriate given the seriousness of the offences and the need to protect the community.

The court considered the principles of sentencing and the need to balance the various objectives of sentencing, including general deterrence, specific deterrence, denunciation, and rehabilitation. The court noted the severity of the crimes, the appellant's history of violence, and the potential risk to the community. After carefully reviewing the evidence and arguments presented, the court found that the sentence was not manifestly excessive. The totality principle was acknowledged, but the court concluded that the sentence appropriately reflected the gravity of the offences and the need to protect the community. The appeal was dismissed, and the original sentence was upheld.

The final orders of the court were that the appeal be dismissed, and the original sentence of 3 years and 7 months’ imprisonment, with a non-parole period of 2 years, was affirmed. The court's decision underscored the importance of considering the totality of the sentence while also ensuring that the punishment adequately addresses the seriousness of the crimes and the need for community protection.

Orders