Fisher v The Queen - [2018] VSCA 222

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0141

JAMIE FISHER	Appellant
v
THE QUEEN	Respondent

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JUDGES:	WHELAN, BEACH and KAYE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 August 2018
DATE OF JUDGMENT:	3 September 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 222
JUDGMENT APPEALED FROM:	[2017] VSC 21 (Hollingworth J)

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CRIMINAL LAW – Appeal against sentence – Manifest excess – Aggravated burglary – Offenders armed with weapons and wearing motorcycle club clothing – Appellant a participant and had organising role – Appellant acquitted of manslaughter after three trials – Serious instance of aggravated burglary – Reduced weight to appellant’s youth – Sentence not manifestly excessive – Appeal dismissed – Hogarth v The Queen (2012) 37 VR 658, DPP v Lawrence (2004) 10 VR 125 applied.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr D A Dann QC	Marcevski Lawyers
For the Respondent:	Mr C B Boyce SC	Mr J Cain, Solicitor for Public Prosecutions

WHELAN JA

BEACH JA
KAYE JA:

After a trial before a jury in the Trial Division of this Court, the appellant was convicted of five charges of assault and one charge of aggravated burglary. On the aggravated burglary charge he was convicted and sentenced to a term of imprisonment of 6 years 3 months. On four of the assault charges he was convicted and sentenced to a term of imprisonment of four months on each of them, and on the fifth to a term of imprisonment of eight months. No part of the sentences on the assault charges were accumulated on the aggravated burglary sentence, thus the total effective sentence was 6 years 3 months’ imprisonment. The sentencing judge fixed a non-parole period of 4 years 3 months.[1]
[1]DPP v Fisher [2017] VSC 21 (‘Reasons’).

The appellant sought leave to appeal on the sole proposed ground that the sentence imposed on the charge of aggravated burglary, the total effective sentence and the non-parole period are manifestly excessive. On 25 October 2017 a judge of this Court granted the appellant leave to appeal.

Circumstances of the offending

The appellant committed the offences on the night of Sunday 26 January 2014 at a residential property in Deer Park. The offending was the culmination of a confrontation between two groups, one associated with Ben Borg, and the other associated with Phillip Labanie. The confrontation was prompted by allegations made by Ben Borg’s ex-girlfriend against Phillip Labanie.

The first confrontation was on the night of Friday 24 January 2014 when Ben Borg and a number of associates went to the Deer Park property to confront Phillip Labanie. The two groups verbally confronted each other there. Each side displayed weapons. There was no physical confrontation. The Borg group left when satisfied that Phillip Labanie was not present.

On Saturday 25 January 2014 a group associated with Phillip Labanie went to the residential property of the Borgs. There was a physical confrontation in which Ben Borg was punched, kicked and tasered. He was taken to…

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 Fisher v The Queen

Details

AGLC: Jamie Fisher v The Queen [2018] VSCA 222
Case: [2018] VSCA 222
Decision Date: 3 September 2018

CaseChat Overview and Summary

In the case of Fisher v The Queen, the appellant was convicted for his involvement in an aggravated burglary where he and others were armed with weapons and dressed in motorcycle club attire. The court of appeal reviewed the sentence imposed by the trial judge, considering whether it was manifestly excessive. The appellant argued that the sentence was too severe, given his youth and his acquittal in multiple trials for manslaughter. The court had to determine the appropriate weight to give to the appellant's age and role in the crime, as well as assess the seriousness of the offence.

The legal issues central to the appeal revolved around the principles of sentencing for aggravated burglary and the consideration of mitigating factors such as youth and the absence of a conviction for manslaughter. The court needed to balance these factors against the severity of the crime, which involved the use of weapons and a significant breach of security. The appellant's claim of manifest excess necessitated a thorough examination of the sentence in light of relevant case law, including Hogarth v The Queen and DPP v Lawrence. The court had to decide if the sentence was so disproportionate as to shock the conscience of the community.

The court found that the trial judge had appropriately considered the appellant's age and the absence of a manslaughter conviction, but these factors did not outweigh the seriousness of the aggravated burglary. The court held that the sentence was not manifestly excessive given the nature of the crime and the appellant's significant role in organising the event. The decision to acquit the appellant of manslaughter did not negate the gravity of his involvement in the burglary. The appeal was dismissed, affirming the trial judge's assessment of the sentence. The principles established in Hogarth v The Queen and DPP v Lawrence were applied, reinforcing the court's conclusion that the sentence was just and proportionate.

Orders