Doherty v The Queen - [2017] VSCA 215

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0254

SEAN DOHERTY	Appellant
v
THE QUEEN	Respondent

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JUDGES:	BEACH, McLEISH and COGHLAN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22 August 2017
DATE OF JUDGMENT:	25 August 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 215
JUDGMENT APPEALED FROM:	[2016] VCC 1749 (Judge Smallwood)

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CRIMINAL LAW – Appeal – Sentence – Burglary, making threat to kill, common assault and criminal damage – Forgiveness – Relevance of forgiveness by complainant – Whether sentencing judge erred in treatment of issue of forgiveness – No relevant error in judge’s treatment of issue of forgiveness - Offending objectively serious – Whether sentence of 3 years’ imprisonment for burglary manifestly excessive – Whether total effective sentence of 4 years and 3 months’ imprisonment manifestly excessive – Sentences not manifestly excessive – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J E McLoughlin	Victoria Legal Aid
For the Crown	Mr B L Sonnet	Mr J Cain, Solicitor for Public Prosecutions

BEACH JA

McLEISH JA
COGHLAN JA:

On 17 November 2016, the appellant pleaded guilty in the County Court to one charge of burglary, one charge of making a threat to kill, one charge of common assault and one charge of criminal damage. Following a plea hearing, on 18 November 2016, the appellant was sentenced as follows:[1]
[1]DPP v Doherty [2016] VCC 1749 (‘Reasons’).

Charge	Offence	Maximum	Sentence	Cumulation
1	Burglary	10 years	3 years	Base
2	Making a threat to kill	10 years	2 years	12 months
3	Common assault	5 years	1 year	3 months
4	Criminal damage	10 years	1 month	-
Total Effective Sentence:		4 years and 3 months’ imprisonment
Non-Parole Period:		2 years and 9 months’ imprisonment
Pre-sentence Detention Declared:		Nil
6AAA Statement		TES of 6 years and 6 months’ imprisonment with a NPP of 4 years and 6 months.
Other orders		Disposal and forensic sample orders

On 2 March 2017, the appellant was granted leave to appeal[2] on the following grounds:
[2]Doherty v The Queen (Unreported, Victorian Court of Appeal, Priest JA, 2 March 2017) (‘Leave Reasons’).

1.The learned sentencing judge erred in his finding concerning the relevance of forgiveness of the appellant by the complainant.
2.The sentence imposed on charge 1 and the total effective sentence are manifestly excessive having regard to the following:
(a) the early plea of guilty;
(b) the appellant’s remorse;
(c)the background of the appellant’s physical injuries and mental health issues;
(d)the fact that the appellant at the age of 46[3] had never previously been imprisoned and the finding that imprisonment would be more onerous for him;
(e)the complainant’s forgiveness of, and support for, the appellant;
(f)the appellant’s minimal criminal history, his good prior character and his prospects for rehabilitation;
(g)the maximum penalty and current sentencing practice for the offence of burglary.
[3]The appellant was in fact 45 at the time of sentencing, having been born on 12 January 1971.

Circumstances of the offending

The appellant and the complainant were married…

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 Doherty v The Queen

Details

AGLC: Doherty v The Queen [2017] VSCA 215
Case: [2017] VSCA 215
Decision Date: 25 August 2017

CaseChat Overview and Summary

Doherty appealed against his sentence for burglary, making threats to kill, common assault, and criminal damage. The sentencing judge imposed a total effective sentence of 4 years and 3 months' imprisonment, with a non-parole period of 2 years and 5 months. The central issue before the court was whether the sentencing judge erred in considering the forgiveness shown by the victim, and whether the total effective sentence was manifestly excessive.

The court examined the sentencing judge's treatment of the issue of forgiveness. It found that while the judge had acknowledged the victim's forgiveness, he did not attribute undue weight to it. The court concluded that the judge had appropriately balanced the mitigating factor of forgiveness against the seriousness of the offending. The court also considered the objective seriousness of the offences. It found that the offending was serious, involving a breach of home, threats to kill, and physical assault. The court held that the sentence imposed was not manifestly excessive, taking into account the totality of the offending and the need for general deterrence.

In light of the above, the court dismissed the appeal. The court found that the sentencing judge had not erred in his consideration of the issue of forgiveness, and that the total effective sentence was not manifestly excessive. The seriousness of the offending and the need for general deterrence justified the sentence imposed.

Orders