Finn v Wallace and Stewart - [2016] VSC 10

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2015 04529

BRADLEY WILLIAM FINN	Appellant
v
NICHOLAS ST JAMES WALLACE	Respondent

and

S CI 2015 04530

BRADLEY WILLIAM FINN	Appellant
v
FERGUS CHRISTOPHER STEWART	Respondent

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JUDGE:	RUSH J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 December 2015
DATE OF JUDGMENT:	28 January 2016
CASE MAY BE CITED AS:	Finn v Wallace & Stewart
MEDIUM NEUTRAL CITATION:	[2016] VSC 10

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SENTENCING – Jurisdictional limit of two years’ imprisonment applicable to indictable offences heard and determined summarily by the Magistrates’ Court – Whether sentences imposed in respect of the relevant charges complied with limit – Consideration of aggregate sentencing – Matters remitted to the Magistrates’ Court for re-hearing – Sentencing Act 1991 ss 9, 113, 113A and 113B – Criminal Procedure Act 2009 ss 28 – Oleyar v R [2015] VSCA 134.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr G Nash QC with Ms J Swiney	Access Law
For the Respondents	Mr D Gurvich SC	Ms V Anscombe, Acting Solicitor for Public Prosecutions

HIS HONOUR:

On 24 June 2015 at the Magistrates’ Court of Victoria at Dandenong, following a plea of guilty, the Magistrate made an order sentencing the appellant, Mr Bradley William Finn, as follows:

Charge No. Offence & Offence Date Prosecution Under Max. Penalty Court Order

Informant STEWART

2
Contravene a conduct condition of bail

09.05.2015
s 30A(1) Bail Act 1977 30 penalty units or 3 months’ imprisonment Convicted and sentenced to an imprisonment term of 8 months.
This is part of an aggregate sentence.
Concurrent with other State sentences imposed in this case.
This is part of an aggregate sentence.
Effective total State term imposed is 2 years 6 months.
Non-parole fixed at 20 months.

7
Contravention of family violence final intervention order

09.05.2015
s 123(2) Family Violence Protection Act 2008 Level 7 imprisonment (2 years max) or a level 7 fine (240 penalty units max) or both Convicted and sentenced to an imprisonment term of 8 months.
This is part of an aggregate sentence.
Concurrent with other State sentences imposed in this case.
This is part of an aggregate sentence.
Effective total State term imposed is 2 years 6 months.
Non-parole fixed at 20 months.

Informant WALLACE

3
Recklessly cause serious injury

29.04.2015
s 17 Crimes Act 1958 Level 4 imprisonment (15 years max) Convicted and sentenced to an imprisonment term of 30 months.
This is part of an aggregate sentence.
Concurrent with other State sentences imposed in this case.
This is part of an aggregate sentence.
Effective total State term imposed is 2 years 6 months.
Non-parole fixed at 20 months.

6
Criminal damage (intent damage/destroy)

29.04.2015
s 197(1) Crimes Act 1958 Level 5 imprisonment (10 years max) Convicted and sentenced to an imprisonment term of 30 months.
This is part of an aggregate sentence.
Concurrent with other State sentences imposed in this case.
This is part of an aggregate sentence.
Effective…

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.

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Details

Case: [2016] VSC 10
Decision Date: 28 January 2016

CaseChat Overview and Summary

Finn brought a case against Wallace and Stewart in the Victorian Court of Appeal, challenging the sentences they received in the Magistrates’ Court. Finn argued that the Magistrates’ Court exceeded its jurisdiction in sentencing Wallace and Stewart for indictable offences heard and determined summarily. The maximum sentence allowable under this jurisdiction is two years’ imprisonment, and Finn contended that the sentences imposed by the Magistrates’ Court were beyond this limit. The appeal centred on whether the sentences complied with the jurisdictional limit and if the Magistrates’ Court appropriately considered aggregate sentencing principles.

The Court of Appeal examined the statutory framework, including sections 9, 113, 113A, and 113B of the Sentencing Act 1991, and section 28 of the Criminal Procedure Act 2009. It also referenced the case of Oleyar v R [2015] VSCA 134 to interpret the jurisdictional limits of the Magistrates’ Court. The court had to decide whether the Magistrates’ Court correctly applied the law when sentencing Wallace and Stewart and if it adhered to aggregate sentencing principles. The Court of Appeal assessed whether the Magistrates’ Court imposed sentences that were within the prescribed jurisdictional limit and whether the aggregate sentences for all offences considered together complied with statutory provisions.

The Court of Appeal concluded that the Magistrates’ Court had indeed exceeded its jurisdictional limit and did not properly consider aggregate sentencing principles. It found that the sentences imposed were not within the allowable two-year maximum for indictable offences heard summarily. Consequently, the Court of Appeal remitted the matter back to the Magistrates’ Court for a re-hearing of the sentences. The court emphasised the importance of adhering to statutory limits and ensuring that aggregate sentencing is appropriately considered. This decision underscored the need for the Magistrates’ Court to strictly follow jurisdictional constraints when sentencing indictable offences determined summarily.

Orders