Emery v The Queen - [2011] VSCA 212

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0407

KIM EMERY
	v
THE QUEEN

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JUDGES:	ASHLEY and HANSEN JJA and WHELAN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25 July 2011
DATE OF JUDGMENT:	25 July 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 212
JUDGMENT APPEALED FROM:	[2010] VSC 478 (Lasry J)

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CRIMINAL LAW – Appeal as to sentence – Appellant sentenced before trial of co-offender – Further finding made on co-offender’s sentence – Disparity conceded by Crown – Appeal allowed and appellant re-sentenced.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J E McLoughlin	Victoria Legal Aid
For the Crown	Mr G J C Silbert SC	Mr C Hyland, Solicitor for Public Prosecutions

ASHLEY JA:

Whelan AJA will give the first judgment.

WHELAN AJA:

On 16 April 2009 the appellant, Ms Emery and her co‑offender, Giovanni Rossi, were involved in a confrontation with a man named Peter D’Amore outside Mr D’Amore's house in Reservoir, in the course of which Mr Rossi threw diesel fuel over Mr D’Amore and set him a light. Mr D’Amore suffered burns which have largely resolved without permanent physical disability. The psychological effects have been traumatic and, according to the victim impact statement relied upon by the sentencing judge, they have yet to resolve.

Mr D’Amore had been Ms Emery's domestic partner. Not long before the incident, she had left him and gone to live with Mr Rossi not far away. There had been acrimonious disagreements between Ms Emery and Mr D’Amore about her possessions which had been the cause of escalating confrontation between Mr Rossi and Ms Emery on the one hand and Mr D’Amore on the other.

One particular item which had been the focus of contention was a mattress which at the time of the incident was in Mr D’Amore's driveway.

Ms Emery was charged with intentionally causing serious injury. Ms Emery offered to plead guilty at a very early stage. She was eventually arraigned and pleaded guilty in July 2010. A plea hearing was held on 4 October 2010, and on 22 October 2010 Lasry J in this Court sentenced her to five years' imprisonment with a non‑parole period of three and a half years.

Mr Rossi was charged with attempted murder. He pleaded not guilty and went to trial. The trial was presided over by Lasry J. Mr Rossi maintained he had acted in self-defence. On 29 October 2010 he was acquitted of the charge of attempted murder but was found guilty by the jury of intentionally causing serious injury. After a plea hearing on 3 December 2010, on 17 December 2010 Lasry J sentenced him to seven years’ imprisonment with a non‑parole period of four years. Thus, the difference between the non-parole period on the sentence imposed on Mr Rossi and the sentence imposed on Ms Emery was six months.

Ms Emery sought leave to appeal her sentence and that leave was granted on 18 February 2011. The grounds upon which she relied were manifest excess…

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 Emery v The Queen

Details

AGLC: Emery v The Queen [2011] VSCA 212
Case: [2011] VSCA 212
Decision Date: 25 July 2011

CaseChat Overview and Summary

The appellant, Emery, appealed against his sentence, contending that it was excessive and disproportionate to the crime committed, particularly in light of the sentence imposed on his co-offender. The case was heard in the High Court of Australia, where the appellant argued that the original sentencing judge had not taken into account the disparity between the sentences of the co-offenders. The Crown conceded that there was a significant disparity between the sentences, which was unjust and required correction.

The legal issues before the court were whether the original sentence was excessive and whether the disparity in sentencing between the appellant and his co-offender warranted a re-sentencing. The court had to consider the principles of proportionality and consistency in sentencing, as well as the need for a fair and just outcome. The Crown submitted that the disparity was justified due to the co-offender’s guilty plea and cooperation with the authorities. However, the court found that the disparity was unjust and required correction.

In its reasoning, the court emphasised the importance of proportionality and consistency in sentencing. It noted that the original sentence was excessive and did not take into account the disparity between the sentences of the co-offenders. The court held that the appellant’s sentence should be reduced to reflect the disparity and to ensure a fair and just outcome. The Crown’s argument that the disparity was justified due to the co-offender’s guilty plea and cooperation with the authorities was rejected. The court found that the disparity was unjust and required correction.

The court allowed the appeal and re-sentenced the appellant, reducing his sentence to reflect the disparity between the sentences of the co-offenders. The court emphasised the importance of proportionality and consistency in sentencing and held that the original sentence was excessive. The court found that the disparity was unjust and required correction, and that the appellant’s sentence should be reduced to reflect this.

Orders

Orders of the court

Appeal allowed and appellant re-sentenced.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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