Dennerley v The King - [2024] VSCA 155

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0070

ADAM DENNERLEY	Applicant
v
THE KING	Respondent

---

JUDGES:	PRIEST and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	27 June 2024
DATE OF JUDGMENT:	2 July 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 155
JUDGMENT APPEALED FROM:	[2023] VCC 2375 (Judge Cannon)

---

CRIMINAL LAW – Sentence – Application for extension of time within which to seek leave to appeal against sentence – Applicant pleaded guilty to one charge each of recklessly cause injury, armed robbery, false imprisonment, reckless conduct endangering persons, criminal damage, and possession of a drug of dependence – Total effective sentence of 4 years’ imprisonment with non-parole period of 2 years and 8 months – Impairment of mental functioning – Applicant diagnosed paranoid schizophrenic – Whether sentence manifestly excessive – Application of extension of time refused – Madafferi v The Queen [2017] VSCA 302, considered.

---

Counsel
Applicant:		Mr David Brown
Respondent:		Ms J Warren with Ms N Deltondo
Solicitors
Applicant:	Ms Nicole Valos of Valos Black & Associates
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
KAYE JA:

The applicant pleaded guilty in the County Court to six charges, namely, one charge each of recklessly cause injury, armed robbery, false imprisonment, reckless conduct endangering persons, criminal damage and possession of a drug of dependence.
Following a plea made on his behalf on 3 November, 23 November and 1 December 2023, he was sentenced, on 14 December 2023, to a total effective sentence of 4 years’ imprisonment with a non-parole period of 2 years and 8 months. That sentence was constituted as follows:

Charge Offence Maximum Sentence Cumulation

1 Recklessly cause injury[1] 5 years 2 years 6 months

2 Armed robbery[2] 25 years 2 years 6 months Base

3 False imprisonment[3] 10 years 1 year 6 months 6 months

4 Reckless conduct endanger persons[4] 5 years 12 months –

5 Damage property[5] 10 years 1 year 8 months 6 months

6 Possess drug of dependence[6] 12 months 2 months –

Total Effective Sentence: 4 years’ imprisonment

Non-Parole Period: 2 years and 8 months’ imprisonment

Pre-sentence Detention 788 days

Section 6AAA Statement: 6 years’ imprisonment with a non-parole period of 4 years’ imprisonment

Other relevant orders: Licence cancelled and disqualified for a period of 18-months. Disposal and forfeiture orders.
[1]Contrary to s 18 of the Crimes Act 1958.
[2]Contrary to s 75A of the Crimes Act 1958.
[3]Contrary to common law.
[4]Contrary to s 23 of the Crimes Act 1958.
[5]Contrary to 197(1) of the Crimes Act 1958.
[6]Contrary to s 73(1) of the Drugs, Poisons and Controlled Substances Act 1981.

The applicant seeks leave to appeal on one ground, namely:
1.The individual sentences, total effective sentence and non-parole period are each manifestly excessive.
Particulars
The sentences were manifestly too long in light of:
(a)The Applicant’s substantially reduced moral culpability;
(b)The reduced weight of general and specific deterrence;
(c)The extent to which prison would weigh more heavily on the…

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 Dennerley v The King

Details

AGLC: Dennerley v The King [2024] VSCA 155
Case: [2024] VSCA 155
Decision Date: 2 July 2024

CaseChat Overview and Summary

Dennerley brought an application before the Supreme Court of Victoria for an extension of time to seek leave to appeal against his sentence. The applicant had pleaded guilty to various charges, including recklessly causing injury, armed robbery, false imprisonment, reckless conduct endangering persons, criminal damage, and possession of a drug of dependence. The total effective sentence imposed was 4 years’ imprisonment, with a non-parole period of 2 years and 8 months. The applicant argued that his sentence was manifestly excessive, given his impaired mental functioning, diagnosed as paranoid schizophrenia. The court was required to determine whether the applicant's mental health condition warranted an extension of time to seek leave to appeal against his sentence.

The court considered the principles established in Madafferi v The Queen, where the Court of Appeal held that an extension of time to seek leave to appeal is not warranted where the applicant has failed to establish that the delay in seeking leave was due to some disability or other circumstance outside of their control. The court noted that the applicant had not provided any evidence to suggest that his mental health condition had impeded his ability to seek leave to appeal within the prescribed period. Furthermore, the court observed that the applicant's mental health condition did not prevent him from understanding the nature of the proceedings or the consequences of his guilty pleas. The court held that the applicant had failed to satisfy the criteria for an extension of time to seek leave to appeal.

The Supreme Court of Victoria refused the application for an extension of time to seek leave to appeal against the sentence. The court held that the applicant had not demonstrated that his mental health condition impeded his ability to seek leave to appeal within the prescribed period. The court emphasised that the principles established in Madafferi v The Queen apply in this case, and the applicant had not satisfied the criteria for an extension of time. As a result, the applicant's application was dismissed.

Orders