Legal Research
Cases
Ellis v The Queen

Ellis v The Queen

Case [2015] VSCA 320 30 November 2015

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0078

AARON JOSEPH ELLIS

THE QUEEN

---

JUDGES:	WHELAN JA and CAVANOUGH AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 October 2015
DATE OF JUDGMENT:	30 November 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 320
JUDGMENT APPEALED FROM:	DPP v Ellis (Unreported, County Court of Victoria, Judge Wilmoth, 16 March 2015).

---

CRIMINAL LAW – Sentence – Offences of burglary, theft, arson, armed robbery, reckless conduct endangering serious injury and unlicensed driving – Appellant assessed as suitable for Community Correction Order (‘CCO’) – Appellant nevertheless sentenced to 4 years imprisonment with 3 year non-parole period and no CCO – Appellant already serving a period of imprisonment for prior offences at time of sentence – Whether sentence imposed manifestly excessive – Whether insufficient regard to principles of totality and proportionality – Whether insufficient regard to prospects of rehabilitation – Whether insufficient regard to deprived background – Sentence within range – Appeal dismissed

---

APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr V Peters	Brown McComish
For the Crown	Mr R Gibson	Ms V Anscombe, Acting Solicitor for Public Prosecutions

WHELAN JA
CAVANOUGH AJA:

The appellant pleaded guilty before the County Court sitting at Warrnambool to one count each of burglary, theft, arson and armed robbery and two counts of reckless conduct endangering serious injury. He also pleaded guilty to a summary charge of unlicensed driving. On 18 March 2015, a plea hearing took place before her Honour Judge Wilmoth. On 26 March 2015, her Honour sentenced the appellant to a total effective term of imprisonment of four years with a non-parole period of three years. A summary of the sentences imposed is set out below.

Charge Offence Maximum Sentence Cumulation

1 Burglary [Crimes Act 1958 s 76(1)] 10 years [Crimes Act 1958 s 76(3)] 9 months 3 months

2 Theft [Crimes Act 1958 s 74(1)] 10 years [Crimes Act 1958 s 74(1)] 9 months Nil

3 Arson [Crimes Act 1958 s 197(1) and (6)] 15 years [Crimes Act 1958 s 197(7)] 9 months 1 month

4 Reckless conduct endangering serious injury [Crimes Act 1958 s 23] 5 years [Crimes Act 1958 s 23] 2 years 4 months

5 Armed Robbery [Crimes Act 1958 s 75A(1)] 25 years [Crimes Act 1958 s 75A(2)] 3 years Base

6 Reckless conduct endangering serious injury [Crimes Act 1958 s 23] 5 years [Crimes Act 1958 s 23] 18 months 4 months

SC 13 Unlicensed driving [Road Safety Act 1986 s 18(1)(a)] 25 penalty units or 3 months’ imprisonment [Road Safety Act 1986 s 18(1)(a)] 1 month Nil

Total Effective Sentence: 4 years’ imprisonment

Non-Parole Period: 3 years’ imprisonment

Pre-sentence Detention Declared: 184 days

6AAA Statement: 5 years (non-parole period: 4 years)

Other orders: Forensic Sample Order [Crimes Act 1958 s 464ZF(2)]

A notice of application for leave to appeal against sentence was filed by the appellant on 24 April 2015…

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 [2015] VSCA 320
Case: [2015] VSCA 320
Decision Date: 30 November 2015

CaseChat Overview and Summary

The appellant, Ellis, appealed against his sentence imposed by the Supreme Court of New South Wales following his conviction for multiple serious criminal offences. These included burglary, theft, arson, armed robbery, reckless conduct endangering serious injury, and unlicensed driving. The primary judge assessed the appellant as suitable for a Community Correction Order but opted for a four-year imprisonment term with a three-year non-parole period, disregarding the imposition of a CCO. Ellis was already serving a sentence for prior offences at the time of sentencing. The appeal centred on whether the sentence was manifestly excessive and whether the primary judge had sufficiently considered the principles of totality and proportionality, the prospects of rehabilitation, and Ellis’s deprived background.

The legal issues before the court were whether the sentence imposed was manifestly excessive and whether the primary judge had given sufficient regard to the principles of totality and proportionality, the prospects of rehabilitation, and Ellis’s deprived background. The court examined whether the sentence was within the appropriate range and whether the primary judge had appropriately balanced the seriousness of the offences with the appellant's personal circumstances. The appeal hinged on whether the primary judge had erred in not imposing a Community Correction Order despite finding Ellis suitable for one.

The court found that the sentence was not manifestly excessive and that the primary judge had appropriately considered the principles of totality and proportionality, the prospects of rehabilitation, and the appellant's deprived background. The court emphasised that the primary judge was entitled to consider the seriousness of the offences, the need for denunciation, and the protection of the community when imposing the sentence. The court also noted that the appellant had a significant criminal history and that the sentence imposed was within the appropriate range. Consequently, the appeal was dismissed, and the sentence upheld.

Orders