JUDGES:	MAXWELL P and REDLICH JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 June 2014
DATE OF JUDGMENT:	11 September 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 212
JUDGMENT APPEALED FROM:	DPP v Filiz (Unreported, County Court of Victoria, Judge Tinney, 16 October 2013)

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CRIMINAL LAW – Appeal against sentence – Manifest excess – Aggravated burglary, two counts of intentionally cause serious injury, one count of theft – Contravention of Family Violence Intervention Order – Assaulted a former partner – Current sentencing practice for aggravated burglary – Hogarth v The Queen [2012] VSCA 302, considered – No double punishment where the act of entering the premises is conceptually distinct from the other criminal acts committed therein – Suckling v The Queen [2013] VSCA 278, distinguished – General deterrence of particular significance where violence used against former domestic partner and where Family Violence Intervention Order in place – Felicite v The Queen (2011) 37 VR 329 and DPP v Pasinis [2014] VSCA 97, cited.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr R van de Wiel QC	Deftros Lawyers
For the Crown	Ms F L Dalziel	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P
REDLICH JA:

The applicant pleaded guilty to one charge of aggravated burglary with intention to assault, two charges of intentionally causing serious injury, one charge of theft and one summary charge of contravening a Family Violence Intervention Order. Following a plea the applicant was sentenced on 16 October 2013 as follows:

Charge on Indictment Offence Maximum Sentence Cumulation

1 Aggravated Burglary [Crimes Act 1958 s 77] 25y [Crimes Act 1958 s 77(2)] 2 years 6 months Base

2 Intentionally Cause Injury [Crimes Act 1958 s 18] 10y [Crimes Act 1958 s 18] 16 months 6m

3 Intentionally Cause Injury [Crimes Act 1958 s 18] 10y [Crimes Act 1958 s 18] 16 months 6m

4 Theft [Crimes Act 1958 s 74(1)] 10y [Crimes Act 1958 s 74(1)] 1 month None

Summary Offence Contravene a Family Violence Intervention Order [Family Violence Protection Act 2008 s 123] 2y and/or 240 penalty units [Family Violence Protection Act 2008 s 123] 4 months None

Total Effective Sentence: 3 years 6 months

Non-Parole Period: 1 year 10 months

Pre-sentence Detention Declared: 5 days

6AAA Statement: 5 years 6 months with a non-parole period of 3 years 9 months

The applicant now appeals against the severity of the sentences on Charges 2, 3 and 4, the orders for cumulation and the resultant total effective sentence on the sole ground that the sentences are manifestly excessive.

Factual background

The applicant had been in a relationship with the complainant for 10 years. They have three children together. On 9 February 2012, a 12-month Family Violence Intervention Order was made against the applicant in relation to the complainant and their children. The order did…

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 Filiz v The Queen

Details

AGLC: Filiz v The Queen [2014] VSCA 212
Case: [2014] VSCA 212
Decision Date: 11 September 2014

CaseChat Overview and Summary

The appellant, Filiz, appealed against his sentence for aggravated burglary, two counts of intentionally causing serious injury, and one count of theft, following an incident where he assaulted a former partner in contravention of a Family Violence Intervention Order. The case was heard in the Court of Appeal. The appeal centred on the severity of the sentence imposed and whether it was manifestly excessive, considering the totality of the offending and the principles of general deterrence and specific deterrence.

The court was required to determine whether the sentence imposed was manifestly excessive and whether there were any errors in the application of sentencing principles, particularly in relation to the multiple offences committed during the same course of conduct. The court also needed to consider the relevance of the Family Violence Intervention Order and the role of general deterrence in sentencing for this type of crime.

The Court of Appeal found that the sentence was not manifestly excessive. The court held that the act of entering the premises was conceptually distinct from the other criminal acts committed therein, and thus there was no double punishment. The court emphasised the significance of general deterrence in cases involving violence against a former domestic partner and the presence of a Family Violence Intervention Order. The principles set out in Felicite v The Queen and DPP v Pasinis were considered, and the court concluded that the sentence appropriately reflected the seriousness of the offending and the need for general deterrence. The appeal was dismissed.

Orders