Ellis v The Queen - [2021] VSCA 229

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0143

AARON JOSEPH ELLIS	Appellant
v
THE QUEEN	Respondent

---

JUDGES:	PRIEST and KENNEDY JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 August 2021
DATE OF JUDGMENT:	23 August 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 229
JUDGMENT APPEALED FROM:	DPP v Ellis [2020] VCC 956 (Judge Parrish)

---

CRIMINAL LAW – Appeal – Sentence – Burglary and associated offences – Experience of profound childhood deprivation – Diagnosis of Post-Traumatic Stress Disorder – Where sentencing judge considered the impact of mental impairment pursuant to R v Verdins (2007) 16 VR 269 – Where sentencing judge did not apply Bugmy v The Queen (2013) 249 CLR 571 – Appeal allowed – Appellant resentenced to four years and six months’ imprisonment with non-parole period of two years and six months.

---

APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms G Connelly	Hilton-Wood Solicitors
For the Respondent	Ms M Mahady	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA:

I agree with Kennedy JA, whose reasons I have had the benefit of reading in draft.

KENNEDY JA:

On 3 June 2020 the appellant pleaded guilty in the County Court to three charges of burglary[1] (charges 1, 4 and 6); three charges of theft[2] (charges 2, 5 and 7); one charge of threat to inflict serious injury[3] (charge 3); and two related summary offences of possessing cartridge ammunition without a license or permit[4] (summary charge 8) and possessing a prohibited weapon (taser) without exemption[5] (summary charge 10). On 29 June 2020, following reasons for sentence,[6] he was sentenced as set out in the table below:
[1]Crimes Act 1958, s 76. The maximum penalty is 10 years’ imprisonment.
[2]Crimes Act 1958, s 74. The maximum penalty is 10 years’ imprisonment.
[3]Crimes Act 1958, s 21. The maximum penalty is five years’ imprisonment.
[4]Firearms Act 1996, s 124. The maximum penalty is 40 penalty units.
[5]Control of Weapons Act 1990, s 5AA. The maximum penalty it two years’ imprisonment or 240 penalty units.
[6]DPP v Ellis [2020] VCC 956 (‘Sentencing Remarks’).

Charge Offence Sentence Cumulation

1 Burglary on 13 October 2019 3 years Base

2 Theft (of jewellery) on 13 October 2019 3 years

3 Threat to inflict serious injury 8 months 5 months

4 Burglary between 23 and 24 August 2019 2 years 1 year

5 Theft (of a motorcycle) between 23 and 24 August 2019 2 years

6 Burglary between 24 and 25 August 2019 2 years 1 year

7 Theft (of a chainsaw) between 24 and 25 August 2019 2 years

8 Possess ammunition without licence or permit $200

10 Possess weapon (Taser) without exemption 6 months 3 months

Total Effective Sentence 5 years and 8 months’ imprisonment

Non-Parole Period 3 years and 6 months

Pre-Sentence detention 228 days

Section 6AAA Statement 7 years and 6 months’ imprisonment with a non-parole period of 5 years

Other orders Forfeiture orders

On 24 July 2020, the appellant…

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 Ellis v The Queen

Details

AGLC: Ellis v The Queen [2021] VSCA 229
Case: [2021] VSCA 229
Decision Date: 23 August 2021

CaseChat Overview and Summary

Ellis was charged with a series of offences including burglary, theft, and assault. The appellant appealed against the sentence imposed by the Supreme Court of Victoria, arguing that the sentencing judge had failed to appropriately consider the impact of the appellant's profound childhood deprivation and diagnosis of Post-Traumatic Stress Disorder on the sentencing process. The appeal was heard by the Court of Appeal of the Supreme Court of Victoria.

The central legal issue before the court was whether the sentencing judge had erred in not giving sufficient weight to the appellant's experience of profound childhood deprivation and diagnosis of Post-Traumatic Stress Disorder when determining the appropriate sentence. The court considered whether the sentencing judge had appropriately applied the principles set out in R v Verdins and Bugmy v The Queen when considering the appellant's mental impairment and its impact on the offending behaviour. The court also considered whether the sentence imposed was manifestly inadequate or excessive.

The court found that the sentencing judge had failed to adequately consider the impact of the appellant's mental impairment on his offending behaviour. The court held that the sentencing judge had not appropriately applied the principles set out in Bugmy v The Queen, and had instead focused primarily on the seriousness of the offending behaviour. The court held that the sentence imposed was manifestly inadequate, and allowed the appeal. The appellant was resentenced to four years and six months’ imprisonment with a non-parole period of two years and six months.

Orders