Denman v The Queen - [2012] VSCA 261

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0132

JOSHUA DENMAN	Applicant
	v
THE QUEEN	Respondent

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JUDGES	MAXWELL P and WEINBERG JA
WHERE HELD	MELBOURNE
DATE OF HEARING	15 October 2012
DATE OF JUDGMENT	15 October 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 261
JUDGMENT APPEALED FROM	R v Denman (Unreported, County Court of Victoria, Judge Rizkalla, 20 April 2012)

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CRIMINAL LAW — Appeal — Sentence — Aggravated burglary, assault with offensive weapon — Applicant believed victim was selling drugs to children — Applicant intended to threaten victim to dissuade him from criminal conduct — Total effective sentence of 6 years’ imprisonment with non-parole period of 3 years and 8 months — Whether sentence manifestly excessive — Criminality of aggravated burglary – Relevance of intent at time of entry — Vigilante action — Not for personal benefit — No intent to cause personal injury — No evidence of ongoing deleterious effect upon victim — Consideration of current sentencing practices — Sentence in the upper range not warranted — Appeal allowed — Applicant resentenced to total effective sentence of 4 years’ imprisonment with non-parole period of 2 years and 6 months — No point of principle.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr M McGrath	James Dowsley & Associates
For the Crown	Mr C J Ryan SC	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P:

I will ask Weinberg JA to deliver the first judgment.

WEINBERG JA:

On 30 March 2012, the applicant, Joshua Denman, pleaded guilty in the County Court at Melbourne to one charge of aggravated burglary. He also pleaded guilty to an uplifted summary charge of unlawful assault with an offensive weapon. On 20 April 2012, he was sentenced to a term of six years’ imprisonment in respect of the aggravated burglary, and six months’ imprisonment, wholly concurrent, on the summary charge. A non-parole period of three years and eight months was fixed.

The circumstances surrounding the commission of these offences may be briefly stated. On 2 April 2011, at about 11pm, the applicant broke in to the home of a man whom he believed had been selling drugs to young girls. The applicant entered the man’s bedroom. He was heard to say: ‘You’re fucked. Don’t sell drugs to little girls’. The victim saw something in the applicant’s hand which he believed to be a gun. Moreover, he heard clicking noises which he thought to be the trigger of that weapon being pulled. He jumped out of bed, and punched the applicant to the face. As a result, the applicant fell to the floor. A scuffle ensued. This led to the assault which was the subject of the summary charge.

The applicant escaped. However, before departing, he said: ‘I’m going to fucking kill you, don’t sell drugs to little girls’. He added: ‘Don’t worry, we’ll be back; there’s more of us’. The victim followed the applicant out into the driveway. He told the applicant that police were on their way. The applicant turned…

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 Denman v The Queen

Details

AGLC: Denman v The Queen [2012] VSCA 261
Case: [2012] VSCA 261
Decision Date: 15 October 2012

CaseChat Overview and Summary

The appeal by Denman against the decision of the Supreme Court of Victoria involved the severity of a sentence imposed for aggravated burglary and assault with an offensive weapon. The applicant, Denman, had broken into the victim's premises believing that the victim was involved in selling drugs to children. Armed with a firearm, Denman intended to threaten the victim in order to dissuade him from what Denman perceived as criminal conduct. The Supreme Court of Victoria sentenced Denman to a total effective sentence of six years' imprisonment, with a non-parole period of three years and eight months. Denman appealed the severity of the sentence, arguing it was manifestly excessive.

The central legal issues in this appeal were whether the sentence imposed by the Supreme Court was manifestly excessive and whether the court had adequately considered the circumstances of the case. Specifically, the appeal questioned whether the sentence reflected the applicant's intent, which was not for personal benefit and did not involve an intent to cause personal injury. The appeal also considered whether the sentence appropriately reflected the current sentencing practices for such offences and whether the criminality of aggravated burglary should be assessed based on the intent at the time of entry.

In determining the appeal, the court considered the nature of Denman's actions, his intent, and the absence of evidence indicating an ongoing deleterious effect on the victim. The court found that while Denman's actions constituted aggravated burglary and assault with an offensive weapon, his intent was not for personal benefit and there was no intent to cause personal injury. The court also noted that the applicant's actions could be characterized as a form of vigilante conduct. Given these factors and the current sentencing practices, the court concluded that the sentence in the upper range was not warranted. Consequently, the appeal was allowed, and Denman was resentenced to a total effective sentence of four years’ imprisonment, with a non-parole period of two years and six months.

No point of principle was raised in this appeal.

Orders