DPP v Torney - [2005] VSCA 187

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 66 of 2005

DIRECTOR OF PUBLIC PROSECUTIONS
	v.
LEE PATRICK TORNEY

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JUDGES:	CHARLES, VINCENT and ASHLEY, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 July 2005
DATE OF JUDGMENT:	20 July 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 187

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Criminal law – Sentence – Director’s appeal – Manifest inadequacy – Weight of trial judge’s report – Respondent with extensive and serious criminal history – Extraordinary length of delay – Service of two-and-a-half years in custody – Suspended sentence – Respondent’s personal circumstances – Crown concession that immediate incarceration not appropriate – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C.	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Respondent	Mr P.G. Priest, Q.C. with Mr M.J. Croucher	Theo Magazis & Associates

CHARLES, J.A.:

I will invite Vincent, J.A. to give the first judgment.

VINCENT, J.A.:

This is an appeal by the Director of Public Prosecutions against the sentences imposed upon the respondent on 22 counts of being a prohibited person in possession of a firearm and one count of the possession of explosives.

It arises against the following background.

On 22 March 1999, police recovered from premises, occupied by the respondent at Fontein Street, West Footscray, 12 rifles and a shotgun that had been stolen approximately two months earlier from a self storage complex in South Melbourne. They also located a stun gun, a shotgun, a machine pistol, four other rifles one of which had a mounted scope, a revolver, a silencer and a quantity of detonators.

The respondent, who has convictions for armed robbery and murder, and who was on parole for the latter offence at the time, was a prohibited person under the Firearms Act 1996. The possession of a firearm, contrary to s.5(1) of that Act which encompassed counts 1-21 on the presentment, was punishable by the imposition of a maximum sentence of imprisonment of seven years, the offence alleged in count 22 which related to the possession of a silencer carried a possible sentence of four years' imprisonment and the possession of explosives (count 23) (an offence under the Crimes Act 1958) carried a possible sentence of five years' imprisonment. It is to be noted that since the commission of these offences the maximum penalties under the Firearms Act have been significantly increased and at least one new offence created.

The respondent was arrested and remanded in custody in relation to these matters and a very large number of other unrelated offences. He was for these various matters, on 1 June 2000, committed to stand trial. Later, the presentment made against him, which contained an enormous number of counts, was severed. The proceedings thereafter proceeded through the court system, in circumstances to which I will return, until eventually a presentment containing the counts set out above, and to which he entered pleas of guilty, was filed over on 10 December 2004.

After hearing a plea in mitigation of penalty, the learned…

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 Torney

Details

AGLC: Director of Public Prosecutions v Torney [2005] VSCA 187
Case: [2005] VSCA 187
Decision Date: 20 July 2005

CaseChat Overview and Summary

The case before the court was an appeal by the Director of Public Prosecutions against a sentence imposed by a trial judge. The respondent, Torney, had been found guilty of multiple serious criminal offences and had been sentenced to a term of imprisonment to be suspended for a period of two years. The Director argued that the sentence was manifestly inadequate given the nature and circumstances of the crimes committed by the respondent. The court was required to consider whether the sentence imposed was appropriate in light of the respondent's extensive criminal history, the delay in bringing the case to trial, and the fact that the respondent had already served two-and-a-half years in custody prior to sentencing. Additionally, the court had to assess whether the Crown's concession that immediate incarceration was not appropriate impacted the appeal's outcome.

The court began by acknowledging the trial judge's detailed report and the weight it carried in sentencing matters. It recognised the respondent's significant criminal history and the delay in the case's resolution, which were both considered by the trial judge in fashioning the sentence. The court also noted the respondent's personal circumstances, which the trial judge had taken into account, as well as the Crown's concession regarding the inappropriateness of immediate incarceration. The court held that the sentence, while lenient, was not so manifestly inadequate as to warrant interference by the appellate court. The consideration of the delay and the respondent's time already spent in custody, along with the concession by the Crown, contributed to the conclusion that the trial judge's sentence was within an acceptable range.

Given the circumstances, the court dismissed the Director's appeal. It found that the trial judge had appropriately balanced the various factors involved in sentencing, including the nature of the crimes, the respondent's criminal history, and the delay in bringing the case to trial. The court emphasised that appellate courts should not lightly interfere with the sentencing decisions of trial judges, particularly when those decisions are supported by a detailed and reasoned report. The court also took into account the Crown's concession and the respondent's personal circumstances, which further supported the trial judge's decision not to impose immediate incarceration. The appeal was therefore dismissed, and the original sentence stood as imposed by the trial judge.

Orders