DPP v Lehmann - [2005] VSCA 9

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 312 of 2004

DIRECTOR OF PUBLIC PROSECUTIONS
	v.
ANDREW LEHMANN

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JUDGES:	VINCENT and NETTLE, JJ.A. and CUMMINS, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 February 2005
DATE OF JUDGMENT:	9 February 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 9

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Criminal law – Sentencing – Director’s appeal – Burglary of former employer’s home – Significant criminal history – Intensive corrections order made – Rehabilitation prospects good – Sentence not manifestly inadequate – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. P.A. Coghlan Q.C., D.P.P. Mr M.A. Gamble	K. Robertson, Solicitor for Public Prosecutions
For the Respondent	Mr P.G. Priest Q.C. Mr G.F. Meredith	Rainer Martini & Associates

NETTLE, J.A.:

This is an appeal by the Director of Public Prosecutions pursuant to s. 567A of the Crimes Act 1958 against the sentence imposed on the respondent by a judge of the County Court on 15 October 2004 in respect of one count of burglary to which he had pleaded not guilty but which he was found to have committed.

The respondent was born on 26 January 1976 and at the time of the offence he was 26 years of age. He had a significant criminal history. As the judge recorded in her Honour’s sentencing remarks, it included numerous convictions for offences of dishonesty and several involving violence. He spent time in a youth training centre in his late teens and his record reflects that the experience was not sufficient to deter him from further offending. He breached sentences imposed in respect of subsequent offences, including community based dispositions, and in March 1999 he was sentenced to serve 114 days imprisonment for breach of an intensive corrections order. In June 2000 he was sentenced to a wholly suspended sentence of imprisonment for assault on a householder – the victim had come out from his home to stop damage being done by the respondent in the course of a drunken rampage - and thereafter the respondent breached the terms of the suspension by contravening an intervention order involving his former domestic partner and child. On 28 February 2002 he was sentenced to 21 days imprisonment for contravention of the intervention order, that sentence also being wholly suspended for a period of 12 months, and three months later on 29 May 2002, during the period of suspension, he committed the offence of burglary which is the subject of this appeal.

The circumstances of the offence

The principal victim of the offence was the respondent’s former employer, Mr. Peter Przywara. Mr Przywara was the owner of Bellara Motors in Car City, Ringwood and he had given the respondent a job as a used car salesman in 2002. The respondent had worked for Mr Pzywara as a used car salesman for a period of about 10 months during 2002, and had then moved on to a position as a used car salesman with Etheridge Ford in Ringwood. After some six months in that position he…

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 Lehmann

Details

AGLC: Director of Public Prosecutions v Lehmann [2005] VSCA 9
Case: [2005] VSCA 9
Decision Date: 9 February 2005

CaseChat Overview and Summary

The case before the court was an appeal by the Director of Public Prosecutions against the sentence imposed on the defendant, Lehmann, who had been found guilty of burgling the home of his former employer. The appeal contested the sentence of an intensive corrections order, arguing it was manifestly inadequate given Lehmann's significant criminal history and the nature of the offence. The court was tasked with determining whether the sentence imposed was appropriate and whether it should be varied.

The central issue before the court was whether the sentence imposed on Lehmann for the burglary of his former employer's home was manifestly inadequate. The court had to consider the defendant's criminal history, the nature and circumstances of the offence, and Lehmann's prospects for rehabilitation. The court also needed to assess whether the intensive corrections order was an appropriate sentence under the circumstances.

The court found that the sentence of an intensive corrections order was not manifestly inadequate. It took into account Lehmann's criminal history, which included previous convictions for similar offences, but also noted that he had no current convictions and had shown a capacity for rehabilitation. The court considered the nature of the offence, acknowledging the breach of trust involved in burgling a former employer's home, but also recognised the mitigating factors present in this case. The court concluded that the sentence was appropriate and that Lehmann's prospects for rehabilitation were good, thereby dismissing the appeal.

The court dismissed the Director of Public Prosecutions' appeal, affirming the sentence of an intensive corrections order imposed on Lehmann. The court found that the sentence was not manifestly inadequate and that it appropriately balanced the need for punishment with the potential for rehabilitation.

Orders