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DPP v Graoroski

DPP v Graoroski

Case [2018] VSCA 332 7 December 2018

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0242

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
OLIVER GRAOROSKI	Respondent

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JUDGES:	MAXWELL P, T FORREST and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 November 2018
DATE OF JUDGMENT:	7 December 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 332
JUDGMENT APPEALED FROM:	DPP v Graoroski (Unreported, County Court of Victoria, Judge Wraight, 11 October 2018)

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CRIMINAL LAW – Appeal – Sentence – Crown appeal – Reckless conduct endangering life – Prohibited person possess firearm – Whether sentences manifestly inadequate – Whether sentences reflected offence gravity – General deterrence – Mitigating circumstances – Relevance of maximum penalties – Appeal allowed – Respondent resentenced – Boulton v The Queen (2014) 46 VR 308 considered – Sentencing Act 1991 s 5(2)(a).

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr B F Kissane QC with Ms G A Coghlan	Mr J Cain, Solicitor for Public Prosecutions
For the Respondent	Mr L W G Hartnett with Mr P J Doyle	Papa Hughes Lawyers

MAXWELL P
T FORREST JA
WEINBERG JA:

Summary

The Director of Public Prosecutions (the ‘Director’) has appealed on the ground of manifest inadequacy against sentences imposed for the offences of reckless conduct endangering life and possessing a firearm as a prohibited person. The judge imposed a combination sentence, comprising a total effective sentence of seven months’ imprisonment with a two year community corrections order (‘CCO’) (including 250 hours community service).

The reckless conduct offence was committed in most unusual circumstances. The respondent was the victim of a violent home invasion by three men, acting in concert with his then girlfriend. As the offenders retreated, the respondent fired a shotgun from close quarters. One of the offenders sustained life-threatening injuries.

On the reckless conduct offence, the judge recognised that the gravity of the offence, and the respondent’s moral culpability, were mitigated by the very difficult circumstances in which he found himself. Quite properly, the judge gave consideration to whether a combination sentence, which would serve both punitive and rehabilitative purposes, was sufficient punishment in the circumstances. His Honour ultimately concluded that it was.

For reasons which follow, we respectfully disagree. Notwithstanding the mitigating circumstances on which the respondent could rely, the reckless conduct offence was very serious. By the time he fired the gun, the danger had passed and his conduct in firing the gun at close quarters was highly reckless. Moreover, as a prohibited person, the respondent should not have been in possession of a loaded shotgun in the first place. The mitigating circumstances had no application to that offence, which was also very serious.

We would allow the Director’s appeal and resentence the respondent to a total effective sentence of two years’ imprisonment, with a non-parole period of 12 months.

Background

The following table sets out the details of the sentences imposed on 11 October 2018:

Charge on Indictment Offence Maximum Sentence Cumulation

1 Reckless conduct endangering life[1] 10 years’ imprisonment 6 months’ imprisonment and 2 years’ CCO (including…

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 Graoroski

Details

AGLC: DPP v Graoroski [2018] VSCA 332
Case: [2018] VSCA 332
Decision Date: 7 December 2018

CaseChat Overview and Summary

The case of the Director of Public Prosecutions v Graoroski involved the respondent who was found guilty of two counts of reckless conduct endangering life and one count of being a prohibited person in possession of a firearm. The Court of Appeal was tasked with reviewing the sentence imposed on the respondent by the lower court. The Crown appealed the sentence, arguing that it was manifestly inadequate and did not adequately reflect the gravity of the offences committed.

The central legal issues for the Court of Appeal to determine were whether the sentences imposed by the lower court were manifestly inadequate and whether they appropriately reflected the gravity of the respondent’s offences. The Crown argued that the sentences were too lenient and failed to serve the purposes of general deterrence and denunciation. The respondent, on the other hand, submitted that the sentences were appropriate given the mitigating circumstances and the maximum penalties prescribed by law.

In addressing these issues, the Court of Appeal considered the principles of sentencing outlined in the Sentencing Act 1991. The Court noted that the sentencing judge had taken into account the mitigating factors but had not sufficiently emphasised the gravity of the offences or the need for general deterrence. The Court concluded that the sentences were manifestly inadequate and did not reflect the seriousness of the respondent’s conduct. The decision in Boulton v The Queen was cited as a relevant precedent, underscoring the importance of ensuring that sentences align with the gravity of the offence and the need for general deterrence. Consequently, the Court allowed the Crown’s appeal, quashed the original sentences, and remitted the matter to the lower court for resentencing.

The Court of Appeal ordered that the matter be remitted to the lower court for resentencing, ensuring that the new sentences would reflect the gravity of the offences and the need for general deterrence. The respondent was to be given an opportunity to make any submissions relevant to the resentencing. The Court’s decision highlighted the importance of balancing mitigating circumstances with the overarching need to uphold the principles of sentencing, particularly in cases involving serious offences.

Orders