(Unreported, County Court of Victoria, Judge Howie, 14 December 2010)
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CRIMINAL LAW – Sentence – Whether sentences for aggravated burglary, common law assault and breach of intervention order manifestly inadequate – Considerations relevant to punishing breach of intervention orders – Interaction of section 16(3B) of the Sentencing Act 1991 (Vic) and application of totality principle – R v Piacentino (2007) 169 A Crim R 348 considered.
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Appearances:
Counsel
Solicitors
For the Appellant
Mr D A Trapnell SC
Mr C Hyland, Solicitor for Public Prosecutions
For the Respondent
Mr P Morrissey SC with Ms G Morgan
Robert Stary Lawyers
NEAVE JA:
Having had the advantage of reading the draft reasons of Redlich JA, I agree with his Honour that the appeal should be allowed and the respondent re-sentenced in the manner his Honour proposes. I wish only to make some brief remarks on the sentence of six months’ imprisonment imposed for the summary charge of contravening a family intervention order, which the trial judge ordered to be served concurrently with the sentences imposed on counts 1 and 2.
The family intervention order prohibited the respondent from:
1. Committing family violence against the protected person(s) …
2.Intentionally damag[ing] the protected person’s property or threatening to do so.
3.Following the protected person(s) or keeping him/her/them under surveillance.
4.Contacting or communicating with the protected person(s) …
5.Knowingly being within 5 metres of the protected person(s).
…
6.Going to or remaining within 200 metres of the home [of the protected person(s)] or any other place where the protected person lives, works or attends school.
…
7.Causing another person to engage in conduct prohibited by this order.
In my opinion the term of six months was manifestly inadequate and his Honour should not have made it wholly concurrent with the sentences imposed for aggravated burglary and assault. The sentencing judge wrongly took the view that the circumstances in which the respondent breached the intervention order were ‘almost identical’ to the aggravated burglary and the common law assault. As he recognised earlier in his reasons, the breach of the intervention order was not limited to the conduct covered by these other charges. On 10 November, four days before the respondent invaded the victim’s home, he breached the intervention order by telephoning and threatening her and her family. On the night that he committed the assault and aggravated burglary, he breached the order at the point that he came within 200 metres of her house.
All Australian states have enacted legislation which is intended to protect potential victims of family violence from physical injury and from being placed in fear by harassment or threats. Family violence is a serious problem in Australia. In 2004,…
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.
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Details
AGLC
DPP v Johnson [2011] VSCA 288
Case
[2011] VSCA 288
Decision Date
CaseChat Overview and Summary
In the matter of the Director of Public Prosecutions versus Johnson, the Supreme Court of Victoria addressed the sentencing of the appellant for aggravated burglary, common law assault, and breach of an intervention order. The appellant, Johnson, was found guilty of these offences, which arose from an incident where he broke into a residence, assaulted an occupant, and violated an existing intervention order. The Crown sought a sentence that the defence argued was manifestly inadequate, particularly in relation to the breach of the intervention order.
The court was tasked with determining whether the sentences imposed by the trial judge were manifestly inadequate. The appellant's counsel contended that the sentence for the breach of the intervention order was particularly inadequate, given its importance in protecting victims of domestic violence. The Crown argued that the totality of the sentences was appropriate and that the court should consider the interaction between section 16(3B) of the Sentencing Act 1991 (Vic) and the principle of totality in sentencing. The court had to consider the relevance of the breach of the intervention order in the sentencing process and the need to balance the seriousness of the breach with the overall context of the offences committed.
The court found that the sentences were not manifestly inadequate when considered in the context of the totality of the offending. The judge emphasised the importance of intervention orders in protecting victims of domestic violence and recognised the need to punish breaches of such orders to uphold their effectiveness. However, the court held that the principle of totality required that the sentences for all offences be considered together, and that the overall punishment should reflect the aggregate seriousness of the offending. The court also noted the relevance of section 16(3B) of the Sentencing Act, which requires courts to consider the impact of an offence on the victim when sentencing. The totality principle and the need to deter future breaches of intervention orders were key considerations in reaching the conclusion that the sentences were not manifestly inadequate.
No further orders were made by the court beyond its findings on the adequacy of the sentences. The appellant's appeal against sentence was dismissed, affirming the sentences imposed by the trial judge.