DPP v Meyers (Unreported, County Court of Victoria, Judge Patrick, 20 February 2014)
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CRIMINAL LAW – Appeal – Sentence – Crown appeal – Aggravated burglary, false imprisonment, intentionally cause injury – Violent attack on former domestic partner – Total effective sentence 3y 6m, non-parole period of 1y 6m – Whether manifestly inadequate – Whether judge constrained by current sentencing practices for aggravated burglary – Application of Hogarth v The Queen (2012) 37 VR 658 discussed – Whether error occasioned by Crown submission on plea – Impairment of mental functioning – Whether moral culpability reduced – Appeal allowed – Resentenced (TES 5y 6m, NPP 3y).
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APPEARANCES:
Counsel
Solicitors
For the Appellant
Ms S M K Borg
Mr C Hyland, Solicitor for Public Prosecutions
For the Respondent
Mr J M McLoughlin
Victoria Legal Aid
MAXWELL P REDLICH JA OSBORN JA:
Summary
The respondent, Andrew Meyers, pleaded guilty to the offences of damaging property, aggravated burglary, false imprisonment, intentionally causing injury and possessing an unregistered firearm, all committed during a single course of conduct. He was sentenced as follows:
Charge on Indictment
Offence
Maximum
Sentence
Cumulation
1
Destroy or damage property[1]
10y
4m
Concurrent
2
Aggravated burglary[2]
25y
3y
Base
3
False imprisonment[3]
10y
12m
3m
4
Intentionally cause injury[4]
10y
12m
3m
5
Possessing (carrying or using) an unregistered category A or B longarm[5]
The Director has appealed on the ground of manifest inadequacy against each of the sentences imposed, the orders for cumulation, the total effective sentence and the non-parole period. For reasons which follow, we would allow the appeal and increase the sentences imposed on the charges of aggravated burglary, false imprisonment and intentionally cause injury. We would also change the orders for cumulation. The new effective sentence will be five years and six months, with a non-parole period of three years.
For the fourth time in six months, the Court is here concerned with sentencing for an offence of aggravated burglary, committed by a male offender against his former domestic partner. In each case, the offender entered the former partner’s premises intending to do violence, and in each case violence was meted out. In three of the four instances, the victim’s new partner was also attacked.[6]
[6]See [38]–[45] below.
In Hogarth v The Queen,[7] this Court concluded that the sentences generally imposed for ‘confrontational aggravated burglary’ were too low, and that sentencing practices needed to change to reflect 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.
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Details
AGLC
DPP v Meyers [2014] VSCA 314
Case
[2014] VSCA 314
Decision Date
CaseChat Overview and Summary
The case of the Director of Public Prosecutions v Meyers involved an appeal by the Crown against the sentence imposed on Meyers, who was found guilty of aggravated burglary, false imprisonment, and intentionally causing injury to his former domestic partner. The matter was heard in the Court of Appeal, which was required to determine whether the sentence was manifestly inadequate and whether the trial judge had been constrained by current sentencing practices for aggravated burglary. The Court also examined whether an error was occasioned by the Crown's submission on the plea and the impact of Meyers' impaired mental functioning on his moral culpability.
The legal issues before the Court of Appeal centred on the adequacy of the sentence imposed by the trial judge. The Crown argued that the sentence was manifestly inadequate and that the trial judge had been constrained by current sentencing practices for aggravated burglary. The Court examined the principles set out in Hogarth v The Queen and considered whether the trial judge had erred in his application of these principles. Additionally, the Court considered the impact of Meyers' impaired mental functioning on his moral culpability and whether this should have been taken into account in sentencing.
In considering these issues, the Court of Appeal found that the trial judge had indeed been constrained by current sentencing practices for aggravated burglary and had not adequately considered the principles set out in Hogarth v The Queen. The Court also found that the Crown's submission on the plea had occasioned an error, which had impacted on the sentence imposed. Finally, the Court found that Meyers' impaired mental functioning had reduced his moral culpability, and this should have been taken into account in sentencing. As a result, the Court allowed the Crown's appeal and resentenced Meyers to a total effective sentence of 5 years and 6 months, with a non-parole period of 3 years.
The final orders of the Court of Appeal were that the sentence imposed by the trial judge was quashed and replaced with a total effective sentence of 5 years and 6 months, with a non-parole period of 3 years. The Court also ordered that Meyers be given credit for time served in custody. The decision in this case serves as a reminder to trial judges of the importance of properly considering the principles set out in Hogarth v The Queen and the impact of impaired mental functioning on moral culpability when sentencing for aggravated burglary.