JUDGES:	BEACH JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 November 2021
DATE OF JUDGMENT:	9 November 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 304
JUDGMENT APPEALED FROM:	[2021] VCC 748 (Judge Marich)

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CRIMINAL LAW – Sentence – Application for leave to appeal against sentence – Intentionally cause injury, false imprisonment (2 charges), threat to kill, cultivate narcotic plant, attempt to pervert the course of justice, commit indictable offence whilst on bail – TES of 4 years and 9 months, with NPP of 3 years – Manifest excess – Whether reasonably arguable that sentence manifestly excessive – Utilitarian value of guilty plea during COVID-19 pandemic – Relevance of declaration under s 6AAA of the Sentencing Act 1991 – Clarkson v The Queen (2011) 32 VR 361; Saab v The Queen [2012] VSCA 165; Worboyes v The Queen [2021] VSCA 169 referred to – Complaints of manifest excess not reasonably arguable – Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Barreiro	Criminal Lawyers Geelong
For the Respondent	Ms S Clancy	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA:

The applicant pleaded guilty in the County Court to one charge of intentionally causing injury, two charges of false imprisonment, one charge of making a threat to kill, one charge of cultivating a narcotic plant, one charge of attempting to pervert the course of justice and a related summary offence of committing an indictable offence whilst on bail. On 8 June 2021, following a plea hearing conducted on 10, 19 and 31 May 2021, the applicant was sentenced as follows:

Charge on Indictment
L10010695.1 Offence Maximum Sentence Cumulation

1 Intentionally Cause Injury (contrary to
s 18 of the Crimes Act 1958) 10 years 2 years and 6 months 12 months

2 False Imprisonment (contrary to Common Law) 10 years 2 years 3 months

3 False Imprisonment (contrary to Common Law) 10 years 2 years and
9 months Base

4 Make Threat to Kill (contrary s 20 of the Crimes Act 1958) 10 years 1 year and 6 months 3 months

5 Cultivation of a Narcotic Plant (contrary to s 72B of the Drugs, Poisons and Controlled Substances Act 1981) 12 months 14 days Nil

6 Attempt to Pervert the Course of Justice (contrary to Common Law) 25 years 2 years 6 month

Related Summary Offences

Commit Indictable Offence Whilst on Bail (contrary to s 30B of the Bail Act 1977) 3 months 14 days Nil

Total Effective Sentence: 4 years and 9 months

Non-Parole Period: 3 years

Pre-Sentence detention 523 days

6AAA Statement 5 years and 6 months, with a non-parole period of 3 years and 9 months

The applicant now seeks leave to appeal on the sole proposed ground that the individual sentences, orders for cumulation, total effective sentence and non-parole period are each manifestly excessive.

Circumstances of the…

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 Dunford v The Queen

Details

AGLC: Dunford v The Queen [2021] VSCA 304
Case: [2021] VSCA 304
Decision Date: 9 November 2021

CaseChat Overview and Summary

In the matter of Dunford v The Queen, the appellant sought leave to appeal against the sentence imposed by the Supreme Court of Victoria. The respondent, the Crown, opposed the application. The appellant was convicted of multiple offences, including intentionally causing injury, false imprisonment, threatening to kill, cultivating a narcotic plant, attempting to pervert the course of justice, and committing an indictable offence while on bail. The trial judge sentenced the appellant to a total effective sentence (TES) of 4 years and 9 months, with a non-parole period (NPP) of 3 years. The appellant contended that the sentence was manifestly excessive.

The court considered the appropriate legal principles to determine whether the sentence was manifestly excessive. It assessed the relevance of the appellant's guilty plea during the COVID-19 pandemic and the impact of the declaration under s 6AAA of the Sentencing Act 1991. The court referred to Clarkson v The Queen, Saab v The Queen, and Worboyes v The Queen in its analysis. After examining the principles and relevant authorities, the court concluded that the complaints of manifest excess were not reasonably arguable.

The court found that the sentence imposed was not manifestly excessive and rejected the application for leave to appeal. The court highlighted the importance of the guilty plea and the mitigating factors, but ultimately determined that the sentence was within the appropriate range for the appellant's offences. The court did not find the complaints of manifest excess to be reasonably arguable and dismissed the application for leave to appeal. The appellant's sentence of 4 years and 9 months, with a non-parole period of 3 years, was upheld.

Orders