DPP v Brown - [2004] VSCA 133

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No.152 of 2004

DIRECTOR OF PUBLIC PROSECUTIONS
	v.
GREGORY ALLEN BROWN

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JUDGES:	BATT, VINCENT and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 July 2004
DATE OF JUDGMENT:	6 August 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 133

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Criminal Law – Sentence – Crown Appeal – Rape – Armed Robbery – Aggravated burglary – Respondent with prior criminal history – Respondent engaged to do carpentry work at victim’s home – Forcible entry into victim’s home at night – Crimes committed in near presence of victim’s young son – Gravity of offences – Whether sentencing judge gave too much weight to mitigation factors – Premeditated nature of offending – Total effective sentence of nine years with a non-parole period of seven years increased to eleven years with a non-parole period of nine years.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. J.D. McArdle Q.C.	K. Robertson, Solicitor for Public Prosecutions
For the Respondent	Mr. O.P. Holdenson Q.C. with Ms T.K. Hartnett	Galbally and O’Bryan

BATT, J.A.:

The maximum penalty for the offences the subject of four of the six counts was imprisonment for 25 years and for the other offences on the presentment imprisonment for seven years. On the plea, counsel for the respondent conceded, correctly in my opinion, that the offending was “serious and appalling”, “chilling” and “extremely serious”. There was no ameliorating feature of the offences themselves. I refer later, in relation to the armed robbery count, to factors making it serious. Most apply to the other non-fire-arms offences. This Court has made it clear that the breaking into a person’s home at night when armed with a weapon is a very serious offence indeed.[1] It is calculated to strike terror into the heart of the occupant. Here both limbs of the statutory definition of aggravated burglary were pleaded and established. The offending must have terrified the victim and her son, that occurring in the bedroom being committed in a pitch-black room. Furthermore, the rapes were humiliating.
[1]R. v. Cran (unreported, Court of Appeal, 28 March 1996), p.6; R. v. Uwland (unreported, Court of Appeal, 29 August 1996), p.6; Director of Public Prosecutions v. Buhagiar and Heathcote [1998] 4 V.R. 540 at 546; R. v. Singleton [1999] VSCA 139 at para.[9]; and Director of Public Prosecutions v. Akkari [2003] VSCA 98 at para.[18].

So far as the offender himself was concerned, it was very significant that he had several prior convictions for relevant offences, namely, burglary, attempted burglary and attempted armed robbery, though, admittedly, none for sexual offences. Whilst the mitigating factors relied on by counsel for the respondent were proper to be taken into account by her Honour, as she did, and whilst her Honour accepted the submission that it could not be said that the respondent did not have some prospects of rehabilitation, I consider that the mitigating factors received more weight in her Honour’s instinctive synthesis than they were entitled to.

Given the seriousness of 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 DPP v Brown

Details

AGLC: DPP v Brown [2004] VSCA 133
Case: [2004] VSCA 133
Decision Date: 6 August 2004

CaseChat Overview and Summary

In this appeal, the Director of Public Prosecutions sought an increase in the sentence of Brown, who was convicted of multiple serious offences including rape, armed robbery, and aggravated burglary. Brown had forced his way into the victim's home, committing the crimes in the presence of the victim's young son. The sentence initially imposed by the trial judge was nine years, with a non-parole period of seven years. The appeal centred on whether the trial judge had given too much weight to mitigating factors and whether the gravity of the offences warranted a more severe sentence.

The key legal issues the court had to address were whether the trial judge erred in the assessment of the mitigating factors, and whether the totality of the offending warranted a more severe sentence. The court needed to consider the nature and circumstances of the offences, including their premeditated nature and the impact on the victim and his family, against the mitigating factors presented.

The court found that the trial judge had not erred in his consideration of the mitigating factors but determined that the total effective sentence was insufficient given the gravity of the offences. The court emphasised the premeditated nature of the crimes, their impact on the victim and his young son, and the respondent's prior criminal history. Consequently, the court increased the sentence to eleven years with a non-parole period of nine years, reflecting the seriousness of the offending.

The final orders of the court were that the sentence imposed by the trial judge be set aside and replaced with a sentence of eleven years imprisonment with a non-parole period of nine years.

Orders