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DPP v Wol

DPP v Wol

Case [2019] VSCA 268 21 November 2019

Aggravated & Exemplary Damages

Criminal Liability

Sentencing

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0269

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
WOL WOL	Respondent

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JUDGES:	KYROU, KAYE and T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 November 2019
DATE OF JUDGMENT:	21 November 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 268
JUDGMENT APPEALED FROM:	[2018] VCC 1872 (Judge Grant)

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CRIMINAL LAW – Sentence – Crown appeal – Aggravated home invasion – Prohibited person possess firearm – Common assault – Conspiracy to steal – Respondent and co-offenders forcibly gained entry into victims’ home in early hours of morning intending to steal – Respondent discharged firearm in presence of victim – Respondent sentenced to total effective sentence of 5 years, 3 months’ imprisonment with non-parole period of 3 years, 6 months – Whether individual sentences, cumulation, total effective sentence and non-parole period manifestly inadequate – Appeal allowed – Respondent resentenced to a total effective sentence of 7 years, 6 months’ imprisonment with a non-parole period of 5 years, 3 months.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr R L Gibson QC with Ms G A Coghlan	Mr J Cain, Solicitor for Public Prosecutions
For the Respondent	Mr D C Hallowes SC with Mr J Miller	James Dowsley & Associates

KYROU JA
KAYE JA
T FORREST JA:

Introduction and summary

On 8 November 2018, the respondent pleaded guilty to the charges set out in the following table and on 14 November 2018 he was sentenced in accordance with that table.[1]
[1]DPP v Wol [2018] VCC 1872 (‘Sentencing remarks’).

Charge Offence Maximum Sentence Cumulation

1 Prohibited person possessing firearm [Firearms Act 1996 s 5(1)] 10 years 12 months 4 months

2 Aggravated home invasion [Crimes Act 1958 s 77B] 25 years 4 years, 6 months Base

3 Common assault [Common law] 5 years 9 months 3 months

4 Conspiracy to steal [Crimes Act s 321(1)] 10 years 4 months 2 months

Total effective sentence: 5 years, 3 months’ imprisonment

Non parole period: 3 years, 6 months

Pre-Sentence detention declaration: 377 days

6AAA Statement: 6 years, 9 months’ imprisonment, non-parole period of 5 years, 3 months

The Director has sought leave to appeal on the sole ground that the sentences imposed on charges 1, 2 and 3, the cumulation on charges 1 and 3, the total effective sentence and the non-parole period are manifestly inadequate. The particulars on which the Director relied allege that the judge:

(a) failed to properly reflect the gravity of the offending;
(b)failed to have sufficient regard to the impact of the offence upon the victims;
(c)failed to give sufficient weight to the sentencing principles of protection of the community, just punishment, denunciation, general deterrence and specific deterrence;
(d)failed to have sufficient regard to the maximum penalties for the offences;

(e) gave too much weight to the mitigating circumstances;
(f)made orders for concurrency and cumulation in respect of the individual sentences imposed that resulted in a total effective sentence and non-parole period that are manifestly inadequate in…

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 Wol

Details

AGLC: DPP v Wol [2019] VSCA 268
Case: [2019] VSCA 268
Decision Date: 21 November 2019

CaseChat Overview and Summary

The respondent, Wol, appealed against his sentence for aggravated home invasion, prohibited possession of a firearm, common assault and conspiracy to steal. The sentencing judge had imposed a total effective sentence of five years and three months’ imprisonment, with a non-parole period of three years and six months. The Director of Public Prosecutions (DPP) appealed against the sentence as manifestly inadequate. The appeal was heard in the Court of Appeal. The central legal issues for the court were whether the individual sentences imposed, the cumulation of those sentences, the total effective sentence and the non-parole period were manifestly inadequate. The Court of Appeal found that the sentence was manifestly inadequate in all respects. The court determined that the offending was planned and executed with a degree of premeditation, and involved the use of a firearm in a home invasion, which constituted a serious breach of community standards of justice. The court held that the total effective sentence and the non-parole period were manifestly inadequate in light of the seriousness of the offending and the need for general deterrence. The court resentenced the respondent to a total effective sentence of seven years and six months’ imprisonment, with a non-parole period of five years and three months.

Orders