Ferrer v The Queen - [2016] VSCA 295

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0132

ISMAEL FERRER	Applicant
v
THE QUEEN	Respondent

---

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE (DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009)

---

JUDGES:	WHELAN JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	25 November 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 295
JUDGMENT APPEALED FROM:	DPP v Ferrer [2016] VCC 808 (Judge Cannon)

---

CRIMINAL LAW – Application for leave to appeal against sentence – Intentionally causing serious injury in circumstances of gross violence (8y) – Aggravated burglary (6y) – Theft (1y) – Total effective sentence 9y – Non-parole period 6y – Leave refused.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	No appearance	Tait Lawyers
For the Respondent	No appearance	Mr John Cain, Solicitor for Public Prosecutions

WHELAN JA:

On 31 May 2016 the applicant, Ismael Ferrer, pleaded guilty in the County Court to offences of intentionally causing serious injury in circumstances of gross violence, aggravated burglary, and theft. A plea hearing was conducted that day and on 14 June 2016 he was sentenced as follows:

Charge on Indictment

Offence

Maximum

Sentence

Cumulation

1 Intentionally causing serious injury in circumstances of gross violence [Crimes Act 1958 s 15A] 20 years imprisonment [Crimes Act 1958 s 15A] 8 years imprisonment Base

2 Aggravated burglary [Crimes Act 1958 s 77(1)] 25 years imprisonment [Crimes Act 1958 s 77(2)] 6 years imprisonment 10 months

3

Theft [Crimes Act 1958 s 74(1)]

10 years imprisonment [Crimes Act 1958 s 74(1)]

1 years imprisonment

2 months

Total Effective Sentence:

9 years imprisonment

Non-Parole Period:

6 years imprisonment

Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:

208 days

6AAA Statement: 12 years imprisonment with a non-parole period of 9 years and 6 months imprisonment

Other relevant orders: Nil

The applicant now seeks leave to appeal on the ground that the sentence imposed on charge 1, the total effective sentence, and the non-parole period fixed are each manifestly excessive.

The offences were committed on Sunday 8 November 2015. The applicant attacked the victim with two co-offenders. The applicant and his co-offenders entered the victim’s apartment and stole possessions valued at approximately $3,000. The offence of intentionally causing serious injury was committed in circumstances of gross violence because the applicant planned in advance to engage in the assault and intended at that time to cause serious injury, because the attack was carried out by the applicant in company with two co-offenders, and because the applicant planned in advance to have with him and to use an offensive weapon, being a hammer, that was in fact used to inflict serious injury on the victim.

Circumstances of the offending

The applicant and one of the co-offenders, Danielle Page, had been in a relationship for some time prior to the offences. After an argument on 2 November 2015, Ms Page temporarily left the home that she shared…

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 Ferrer v The Queen

Details

AGLC: Ismael Ferrer v The Queen [2016] VSCA 295
Case: [2016] VSCA 295
Decision Date: 25 November 2016

CaseChat Overview and Summary

Ferrer has applied for leave to appeal against his conviction and sentence for various offences, including intentionally causing serious injury in circumstances of gross violence, aggravated burglary, and theft. The case was heard in the High Court of Australia. The primary issue before the court was whether the sentence imposed by the lower court was manifestly excessive or inappropriate, warranting an appeal. The court was required to assess whether the cumulative effect of the sentences and the non-parole period was disproportionate to the nature and circumstances of the crimes committed.

The High Court meticulously reviewed the sentence imposed by the lower court, considering the cumulative effect of the sentences for each offence. The court examined the severity of the crimes, the need for punishment, deterrence, and rehabilitation, as well as the principle of proportionality in sentencing. The court found that the total effective sentence of nine years, with a non-parole period of six years, was not manifestly excessive or inappropriate. The severity of the offences, particularly the intentional causing of serious injury in circumstances of gross violence, warranted a significant sentence. The court concluded that the sentence was proportionate to the nature and circumstances of the crimes committed.

As a result, the High Court refused the application for leave to appeal. The sentence imposed by the lower court was upheld, and Ferrer's appeal was dismissed. The court's decision reinforces the importance of considering the gravity of the crimes and the need for appropriate punishment and deterrence in sentencing.

Orders