Emery v The Queen

[2011] VSCA 212

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0407

KIM EMERY

v

THE QUEEN

---

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)

---

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.

---

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:

1. Whelan AJA will give the first judgment.

WHELAN AJA:

1. 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.

1. 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. 

1. 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.

1. 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.

1. 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.

1. 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 and that the sentence offended the parity principle when regard was had to the sentence imposed on Mr Rossi.

1. On the hearing of this appeal, the Crown conceded that Ms Emery would have a justifiable sense of grievance at the disparity in the sentences.  In those circumstances, counsel for the appellant did not press the manifest excess ground. Counsel for the appellant also did not press any complaint as to the head sentence, his submissions being directed only to the non‑parole period. 

1. The relevant circumstances of the offence itself, the offenders’ prior convictions, their personal backgrounds, and the mitigating factors respectively referable to them are set out in Lasry J's sentencing reasons[1] and I will not repeat them. 

   [1][2010] VSC 478; [2010] VSC 602.

1. In comparing the sentences, factors of significance are, it seems to me, Ms Emery's guilty plea and her lesser role on the one hand; and her prior history of violent offences, her more limited prospects of rehabilitation, and the absence in her case of any considerations of the kind addressed in R v Verdins[2] on the other.

   [2][2007] VSCA 102.

1. The critical matter is, however, a factual finding which Lasry J was in a position to make at the time of Mr Rossi's sentence, after hearing all the evidence in the trial, but which he did not make at the time of Ms Emery's sentence.

1. At [27] of his sentencing reasons in relation to Mr Rossi Lasry J says: 

I am satisfied that you went to Mr D’Amore's house with the intention of burning the mattress which then lay in the driveway. 

1. In my view there is a disparity between the non‑parole periods on the two sentences which needs to be corrected.  It seems to me that the disparity arises out of the fact that Lasry J was in a position to make the finding which I have quoted at the time of sentencing Mr Rossi but that he did not make a similar finding at the time of sentencing Ms Emery.

1. I accept the Crown concession, and in my view the appeal should be allowed. 

1. As to re‑sentence, as I indicated previously, Lasry J has already set out all of the relevant circumstances and mitigating factors.  Absent the issue concerning the finding, which I have set out above, I would have considered the sentence imposed on Ms Emery to be perfectly appropriate.

1. In order to address the finding to which I have referred, and to rectify the consequent disparity which does give rise to a justifiable sense of grievance on her part, I would re‑sentence her to the term of imprisonment of five years and fix a non‑parole period of three years.

ASHLEY JA:

1. I agree.

HANSEN JA:

1. I also agree.

ASHLEY JA:

1. The orders the Court will make are these: 

1.        The appeal is allowed.

2.        The sentence imposed below is quashed and in lieu thereof the appellant is sentenced to be imprisoned for five years. 

3.        The Court fixes a non‑parole period of three years.

4.        The Court confirms the other orders made below.

1. It is declared the period of 831 days, not including this day, is to be reckoned as already served under the sentence and it is ordered that there be noted in the records of the Court the fact that that declaration was made and its details.

‑ ‑ ‑