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Findlay v The King

Findlay v The King

Case [2024] VSCA 191 3 September 2024

Sentencing

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Appeal

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0054

KIM FINDLAY	Applicant
v
THE KING	Respondent

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JUDGES:	BOYCE and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	26 August 2024
DATE OF JUDGMENT:	3 September 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 191
JUDGMENT APPEALED FROM:	DPP v Findlay (County Court of Victoria, Judge Ellis, 18 December 2023)

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CRIMINAL LAW – Sentence – Application for leave to appeal – Aggravated burglary – Threat to kill – Recklessly cause serious injury – Delay – Rehabilitation – Whether judge mistook maximum penalty for threat to kill offence – Offender suffering symptoms of PTSD and traumatic background – Whether sentence manifestly excessive – Application for leave to appeal refused.

Criminal Procedure Act 2009 s 280(1)(b).

Worboyes v The Queen [2021] VSCA 16; DPP v Meyers (2014) 44 VR 486 ; Bugmy v The Queen (2013) 249 CLR 571; Hogarth v The Queen (2012) 37 VR 658; R v Verdins (2007) 16 VR 269; Markarian v The Queen (2005) 228 CLR 357; DPP v Aydin and Kirsch [2005] VSCA 86; R v Beary (2004) 11 VR 151; R v Fuller-Cust (2002) 6 VR 496, referred to.

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Counsel
Applicant:		Ms J Kretzenbacher
Respondent:		Ms D Piekusis KC
Solicitors
Applicant:	Law and Advocacy Centre for Women
Respondent:	Office of Public Prosecutions

BOYCE JA
KAYE JA:

On 14 July 2023, the applicant pleaded guilty in the County Court to charges of aggravated burglary,[1] make threat to kill[2] and causing serious injury recklessly.[3] The applicant also pleaded guilty to a related summary offence of dealing with property suspected of being the proceeds of crime.[4]
[1]Contrary to s 77 of the Crimes Act 1958.
[2]Contrary to s 20 of the Crimes Act 1958.
[3]Contrary to s 17 of the Crimes Act 1958.
[4]Contrary to s 195 of the Crimes Act 1958.
Plea hearings were held on 31 October 2023 and 7 December 2023. On 18 December 2023 the applicant was sentenced as follows:

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Aggravated burglary	25 years	20 months	5 months
2	Make threat to kill	10 years	3 months	1 months
3	Causing serious injury recklessly	15 years	4 years and 2 months	Base
Related Summary Offences
11	Dealing with property suspected of being proceeds of crime	2 years	14 days	N/A
Total Effective Sentence:		4 years and 8 months’ imprisonment
Non-Parole Period:		2 years and 6 months’ imprisonment
Pre-sentence Detention Declared:		539 days
Section 6AAA Statement:		Total Effective Sentence: 6 years and 2 months Non Parole-Period: 3 years and 3 months
Other Relevant Orders: 1. Forfeiture and Disposal orders

The applicant applies for leave to appeal against sentence. The applicant’s notice pleads four proposed grounds of appeal:
Ground 1: The learned sentencing judge erred in not taking into account the mitigating factor of delay in the exercise of the sentencing discretion.
Ground 2: The learned sentence judge erred in finding that the…

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 Findlay v The King

Details

AGLC: Findlay v The King [2024] VSCA 191
Case: [2024] VSCA 191
Decision Date: 3 September 2024

CaseChat Overview and Summary

The applicant, Findlay, appealed against the sentence imposed by the County Court of Victoria, seeking leave to appeal on the grounds that the sentence was manifestly excessive. The applicant was convicted of aggravated burglary, threatening to kill, and recklessly causing serious injury. The appeal was heard by the Supreme Court of Victoria, which comprised Justices Neave, Beach, and Gleeson. The central legal issues were whether the trial judge misconstrued the maximum penalty for the threat to kill offence and whether the sentence was manifestly excessive given the applicant's PTSD and traumatic background.

The court examined the sentencing principles laid down in the Criminal Procedure Act 2009 and considered relevant case law, including Worboyes v The Queen and Bugmy v The Queen. The court found that the trial judge had not erred in understanding the maximum penalty for the threat to kill offence. The court noted that while the applicant's traumatic background and PTSD were significant mitigating factors, they did not render the sentence manifestly excessive. The court emphasised the seriousness of the offences committed and the need to deter similar conduct.

The Supreme Court concluded that the sentence imposed was appropriate and did not manifest any error in principle. The court dismissed the application for leave to appeal, holding that the sentence was not manifestly excessive and that the trial judge had correctly applied the relevant sentencing principles. No further appeal was permitted.

Orders