Evison v The Queen - [2014] VSCA 132

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0122
GARY EVISON	Appellant
v
THE QUEEN	Respondent

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JUDGES:	NETTLE, TATE and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 June 2014
DATE OF JUDGMENT:	24 June 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 132
JUDGMENT APPEALED FROM:	R v Evison (Unreported, Judge Mullaly, 12 April 2013)

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CRIMINAL LAW – Appeal – Sentence - Aggravated burglary – Threat to inflict serious injury – Make threat to kill – Criminal damage – Common assault – Use carriage service to menace – Breach of intervention order – Total effective sentence of 7 years 3 months with non-parole period of 5 years 3 months outside permissible range – Appellant resentenced to total effective sentence of 5 years 9 months with non-parole period of 3 years 9 months.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr T Kassimatis with Mr B M Johnston	James Dowsley & Associates
For the Respondent	Mr R A Elston QC	Mr C Hyland, Solicitor for Public Prosecutions

NETTLE JA
TATE JA

BEACH JA:

Introduction

On 18 March 2013, the appellant pleaded guilty to two charges of assault and charges of making a threat to kill, using a carriage service to harass or menace, aggravated burglary, making a threat to inflict serious injury, criminal damage and contravening an intervention order. On the same day, a plea was heard and the appellant was sentenced as follows:

Charge on Indictment Offence Maximum Sentence Cumulation

1 Common assault [Common Law] 5 years
[Crimes Act 1958 (Vic) s 320] 1 month -

2 Common assault 5 years 2 months 1 month

3 Make threat to kill [Crimes Act 1958 (Vic) s 20] 10 years
[Crimes Act 1958 (Vic) s 20] 12 months[1] 8 months

4 Use carriage service to menace [Criminal Code (Cth) s 474.17(1)] 3 years
[Criminal Code (Cth) s 474.17(1)] 9 months -

5 Aggravated burglary
[Crimes Act 1958 (Vic) s 77(1)] 25 years
[Crimes Act 1958 (Vic) s 77(2)] 5 years Base

6 Threat to inflict serious injury
[Crimes Act 1958 (Vic) s 21] 5 years
[Crimes Act 1958 (Vic) s 21] 18 months 12 months

7 Criminal damage
[Crimes Act 1958 (Vic) s 197(1)] 10 years
[Crimes Act 1958 (Vic) s 197(1)] 12 months 6 months

Summary Offence Breach Intervention Order [Family Violence Protection Act 2008 (Vic) s 123] 2 years and/or 240 penalty units
[Family Violence Protection Act 2008 (Vic) s 123(2)] 9 months -

Total Effective Sentence: 7 years 3 months

Non-Parole Period: 5 years 3 months

Pre-sentence Detention Declared: 334 days

6AAA Statement: 9 years’ imprisonment, non-parole period of 7 years

Other orders:
Disposal order pursuant to the Confiscation Act 1997 (Vic)
[1]The appellant was sentenced as a serious violent offender in relation to charge 3, pursuant to s 6B(2) of the Sentencing Act 1991 (Vic).

On 7 November 2013, Ashley JA granted the appellant leave to appeal on the following…

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 Evison v The Queen

Details

AGLC: Evison v The Queen [2014] VSCA 132
Case: [2014] VSCA 132
Decision Date: 24 June 2014

CaseChat Overview and Summary

Evison v The Queen is an appeal against a sentence imposed on the appellant for multiple criminal offences. The appellant was convicted of aggravated burglary, threatening to inflict serious injury, making threats to kill, criminal damage, common assault, using a carriage service to menace, and breaching an intervention order. The case was heard in the High Court of Australia. The primary issue for the court was to determine whether the original sentence of 7 years and 3 months with a non-parole period of 5 years and 3 months was outside the permissible range and, if so, to resentence the appellant.

The court noted that the original sentence was excessive in terms of the total effective sentence and the non-parole period. The High Court emphasised that when a sentence is outside the permissible range, it should be resentenced to a term that falls within the permissible range. The court considered the totality of the offending, the appellant's culpability, and the principles of sentencing. The court determined that the original sentence did not appropriately reflect the seriousness of the offences or the need for general deterrence.

The court resentenced the appellant to a total effective sentence of 5 years and 9 months with a non-parole period of 3 years and 9 months. This sentence was deemed to be within the permissible range and appropriately reflected the gravity of the offences committed. The High Court's decision highlights the importance of ensuring that sentences are proportionate and aligned with the principles of sentencing in Australia.

Orders