DPP v Save - [2008] VSCA 163

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 20 of 2008

DIRECTOR OF PUBLIC PROSECUTIONS

WILLIAM EDWARD SAVE

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JUDGES:	MAXWELL P, BUCHANAN and REDLICH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 July 2008
DATE OF JUDGMENT:	29 August 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 163

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Criminal law – Sentencing – Crown appeal – Aggravated burglary, intentionally causing serious injury and armed robbery – Home invasion – Sentence of five years’ imprisonment with a minimum term of three years’ imprisonment manifestly inadequate – Breach of parole – Effect of cancellation of parole – Offender re-sentenced to be imprisoned for a term of seven years with a minimum term of four years and six months.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr T Gyorffy	Mr S Ward, Acting Solicitor for Public Prosecutions
For the Respondent	Mr L C Carter	Victoria Legal Aid

MAXWELL P:

I agree with Buchanan JA and would re-sentence the respondent as his Honour proposes.

BUCHANAN JA:

On the evening of 18 April 2006 Jeffrey Armstrong and his partner Susan Lawrence were in bed in their house. Mr Armstrong was asleep. Ms Lawrence was reading. This peaceful domestic scene was ended by the sound of smashing glass. They got up. Mr Armstrong went to the hallway to find the front door of the house had been broken down by the respondent and he was confronted by three men, led by the respondent, who was wielding a piece of wood.

The respondent hit Mr Armstrong on the head and legs repeatedly with the piece of wood. His companions joined in the attack. Mr Armstrong’s injuries included lacerations to his knee and forehead, a fractured patella, multiple bruises and abrasions to his back and torso and a broken hand. Surgery was required to reduce and fix the fractured patella.

One of the offenders went into the bedroom and, as a consequence of threats of violence, Ms Lawrence took some $1,000 from the pocket of Mr Armstrong’s jeans and handed it to one of the offenders. Her mobile phone, a video camera and a wallet were also stolen. The offender who threatened Ms Lawrence also demanded that she remove her underpants. There was no finding that this offender was the respondent.

The respondent later told the police that he had been recruited to assist in the burglary a couple of weeks before. He was promised money as a reward. He said that he did not know the victims. The respondent received $400 from the proceeds of the robbery and gambled it away.

Victim impact statements reveal that the effects of the brutal treatment meted

out to the victims have been profound, both physically and mentally.

The respondent was arraigned in the County Court and pleaded guilty to a presentment containing one count of aggravated burglary (count 1), one count of intentionally causing serious injury (count 2) and one count of armed robbery (count 3). The maximum sentence for aggravated burglary and armed robbery is 25 years’ imprisonment.…

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 Save

Details

AGLC: Director of Public Prosecutions v Save [2008] VSCA 163
Case: [2008] VSCA 163
Decision Date: 29 August 2008

CaseChat Overview and Summary

The appellant, the Director of Public Prosecutions, appealed the sentence imposed by the County Court on the respondent, Save, who had pleaded guilty to aggravated burglary, intentionally causing serious injury, and armed robbery. The court was asked to consider whether the sentence imposed was manifestly inadequate and to re-sentence the offender. The appeal centred on the appropriate sentence for the serious nature of the crimes committed, which involved a home invasion and the infliction of serious injury. The court had to consider whether the original sentence was inadequate given the gravity of the offences and whether the cancellation of parole had any bearing on the re-sentencing process.

The court considered the severity of the crimes, the impact on the victim, and the need for deterrence and denunciation. It determined that the original sentence of five years with a minimum term of three years was manifestly inadequate. The court noted that the cancellation of parole did not alter the fact that the sentence was manifestly inadequate. The court also considered the offender's history and the need to balance punishment with rehabilitation. After re-sentencing, the court imposed a term of seven years with a minimum term of four years and six months, reflecting the serious nature of the crimes and the need for an appropriate sentence.

Orders