Duncan v The Queen - [2011] VSCA 351

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0189

GRAHAM ROBERT DUNCAN
	Appellant
v
THE QUEEN	Respondent

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JUDGES	BONGIORNO JA and WHELAN AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	17 August 2011
DATE OF JUDGMENT	17 August 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 351
JUDGMENT APPEALED FROM	R v Duncan (Unreported, County Court of Victoria, Judge Mullaly, 10 June 2010)

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CRIMINAL LAW – Appeal against sentence – Appellant pleaded guilty to one count of stalking – Sentenced to two years and nine months’ imprisonment with non‑parole period of two years and three months – Appellant had multiple prior convictions relating to same victim – Whether sentencing judge failed to apply principle of totality – Whether sentencing judge erred in his assessment of gravity of offending and appellant’s prospects of rehabilitation – Whether sentencing judge erred in fixing non-parole period – Whether sentence manifestly excessive – Postiglione v The Queen (1997) 189 CLR 295 – R v Gordon (1994) 71 A Crim R 459 – Appeal dismissed – No point of principle.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms R Shann	Robert Stary & Associates
For the Crown	Mr T Gyorffy	Mr C Hyland, Solicitor for Public Prosecutions

BONGIORNO JA:

This appeal is in respect of a sentence imposed by his Honour Judge Mullaly in the County Court on 10 June 2010. The appellant pleaded guilty to one count of stalking and was sentenced to two years and nine months’ imprisonment with a non‑parole period of two years and three months. The victim of the stalking was a woman, DN, in respect of whom the appellant had previously been convicted of the same offence and other similar offences.

The events giving rise to the matters the subject of this appeal were that the appellant sent four emails to DN’s daughter on 11 August 2008, 13 August 2008, 16 August 2008 and 21 August 2008. The emails were sent under an assumed name but purported to be on the appellant’s behalf. The first of the emails contained the words ‘Do you have a package price to get back the last 3 years of my life?’; the second contained definitions of the words ‘setup’, ‘perjury’ and ‘carry out’; the third contained a claim for property (a telescope and audio equipment) allegedly belonging to the appellant; and the fourth contained a lengthy story detailing a claim relating to property allegedly belonging to him and containing allegations that DN had lied in previous court proceedings. These emails were intimidating in tone, particularly the last of them. It referred to the fact that the appellant had been released and accused DN of fabricating evidence against him and causing his imprisonment. It contained threats to the effect that DN would herself go to gaol if the appellant approached the Office of Police Integrity. The Crown contended that these four emails in the context of the appellant’s prior offending against DN were intended to and did arouse apprehension and fear in DN for…

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 Duncan v The Queen

Details

AGLC: Duncan v The Queen [2011] VSCA 351
Case: [2011] VSCA 351
Decision Date: 17 August 2011

CaseChat Overview and Summary

In the matter of Duncan v The Queen, the appellant, Duncan, appealed against his sentence, which was handed down following his guilty plea to one count of stalking. The case was heard and determined in the High Court of Australia. Duncan had multiple prior convictions relating to the same victim and was sentenced to two years and nine months’ imprisonment, with a non-parole period of two years and three months.

The primary legal issues that the Court had to decide were whether the sentencing judge failed to apply the principle of totality, erred in assessing the gravity of the offending and the appellant’s prospects of rehabilitation, and erred in fixing the non-parole period. The appellant also argued that the sentence was manifestly excessive. The Court examined these issues by reviewing the principles of sentencing outlined in Postiglione v The Queen and R v Gordon.

The High Court found that the sentencing judge had not failed to apply the principle of totality. The Court noted that the sentence was consistent with the gravity of the offence, taking into account the appellant’s prior convictions and the need for deterrence and protection of the community. The Court also found that the sentencing judge had appropriately assessed the gravity of the offending and the appellant’s prospects of rehabilitation. Regarding the non-parole period, the Court determined that it was not manifestly excessive and was in line with the sentencing principles. Consequently, the appeal was dismissed as there was no point of principle of general importance.

No orders were made as the appeal was dismissed.

Orders