CRIMINAL LAW – Sentence – Crown Appeal – Family violence – Intentionally causing injury threats to kill and other offences – Respondent sentenced to a total effective sentence of 9 months and 42 days’ imprisonment with community correction orders of 970 days’ duration – Whether sentence manifestly inadequate – Appeal allowed – Respondent resentenced to 3 years and 3 months’ imprisonment with non-parole period of 18 months.
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Counsel
Appellant:
Mr B Kissane KC with Mr E Dober
Respondent:
Mr P Morrissey SC with Ms G Connelly
Solicitors
Appellant:
Ms A Hogan, Solicitor for Public Prosecutions
Respondent:
Ann Valos Criminal Law
PRIEST JA:
Conscious that the Court ought not countenance a sentence that is ‘weakly merciful’,[1] after much reflection I have concluded that this appeal against sentence should be dismissed. I thus differ from T Forrest JA and Kidd AJA, whose joint reasons for judgment I have had the advantage of reading in draft. Given their thorough treatment of the circumstances of the offending; the submissions of the parties; and the relevant issues; I am able to express my conclusions with relative brevity.
[1]See R v Radich [1954] NZLR 86, 87; R v Williscroft [1975] VR 292, 298 (Adam and Crockett JJ) (‘Williscroft’). See also R v Miceli [1998] 4 VR 588; Richard G Fox, When Justice Sheds a Tear: The Place of Mercy in Sentencing, (1999) 25 Monash University Law Review 1, 3.
Several things in this appeal have given me pause, principal among them being the lengthy delay in the matter being finalised; the very significant reformation undergone by the respondent in the meantime; and the attitude of the respondent’s victims, who will be subjected to significant additional trauma flowing directly from the respondent’s imprisonment. Ultimately, I have concluded that, notwithstanding the very serious nature of the respondent’s offending, the imposition of an effective term of imprisonment of almost 10 months in length, coupled with concurrent community correction orders of a duration of two years and eight months, was within the range of sentences open to the sentencing judge in the sound exercise of the sentencing discretion.
In Williscroft, a prosecution appeal, Starke J (in dissent as to result) observed:[2]
It cannot be, I think, that in all cases and as to all crimes the element of deterrence is the main consideration and the element of reformation or rehabilitation subsidiary to it. Depending on the circumstances and the nature of the crime, sometimes more weight will be given to the reformatory element than to deterrence, and sometimes the opposite will be the case. Deterrence,…
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 Reynolds [2022] VSCA 263
Case
[2022] VSCA 263
Decision Date
CaseChat Overview and Summary
The Director of Public Prosecutions sought an appeal against the sentence imposed on the respondent, who was found guilty of multiple offences including intentionally causing injury, threats to kill, and other related crimes. The respondent was initially sentenced to a total effective term of imprisonment of 9 months and 42 days, along with community correction orders that would last for a total of 970 days. The appeal was based on the argument that the sentence was manifestly inadequate.
The central legal issue the court had to address was whether the original sentence imposed on the respondent was manifestly inadequate. The court considered various factors, including the nature and circumstances of the offences, the respondent's criminal history, and the principles of sentencing for family violence offences. The court also had to evaluate whether the sentence failed to reflect the seriousness of the offending and adequately promote respect for the law.
In assessing the appeal, the court found that the original sentence did not appropriately reflect the gravity of the respondent's crimes, particularly given the context of family violence. The court emphasised the importance of deterrence and denunciation in sentencing for such offences. After re-evaluating the circumstances and the principles of sentencing, the court determined that the sentence was manifestly inadequate. Consequently, the appeal was allowed, and the respondent was resentenced to a term of 3 years and 3 months' imprisonment, with a non-parole period of 18 months.