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Fitzpatrick v The Queen

Fitzpatrick v The Queen

Case [2016] VSCA 63 6 April 2016

Admissibility of Evidence

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0155

LYNDON FITZPATRICK	Appellant
v
THE QUEEN	Respondent

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JUDGES:	WEINBERG AP, PRIEST and BEACH JJA
WHERE HELD:	BALLARAT
DATE OF HEARING:	4 April 2016
DATE OF JUDGMENT:	6 April 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 63
JUDGMENT APPEALED FROM:	DPP v Fitzpatrick (Unreported, County Court of Victoria, Judge Montgomery, 21 July 2015 (Sentence))

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CRIMINAL LAW – Sentence – Persistent contravention of intervention order, common assault, threat to kill, theft (two charges), criminal damage, unlicensed driving – Aggregate sentence of 4 years and 9 months’ imprisonment with 2 years and 9 months non-parole period – Leave to appeal previously granted on ground of manifest excess – Serious example of persistent contravention of intervention order – Common assault against former domestic partner involving partial strangulation – Objective gravity of offending warranted severe punishment – Aggregate sentence for multiple offences can exceed maximum sentence for one of the offences – Sentence not manifestly excessive - Appeal dismissed

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr M Stanton	Stary Norton Halphen
For the Crown	Ms S Flynn	Mr J Cain, Solicitor for Public Prosecutions

WEINBERG AP
PRIEST JA
BEACH JA:

The appellant pleaded guilty, in the County Court, to the following offences, and was sentenced in the manner set out below:

Charge

Offence

Maximum

Sentence

Cumulation

1. Persistent contravention of a family violence intervention order [s 125A of the Family Violence Protection Act 2008] 5 years and/or 600 penalty units [s 125A(1) of the FamilyViolence Protection Act 2008]
57 months

aggregate on all charges
None

2. Common assault [Common Law] 5 years [s 320 of the Crimes Act
1958]

3. Making threat to kill [s 20 of the Crimes Act 1958] 10 years [s 20 of the Crimes Act
1958]

4. Theft [s 74 of the Crimes Act 1958] 10 years [s 74 of the Crimes Act
1958]

5. Theft [s 74 of the Crimes Act 1958] 10 years [s 74 of the
Crimes Act
1958]

6. Criminal damage [s 197(1) of the Crimes Act 1958] 10 years [s 197(1) of the Crimes Act 1958]

Uplifted summary charge Unlicensed driving [s 18(1)(a) of the Road Safety Act 1986] 25 penalty units or 3 months [s 18(1) of the Road Safety Act 1986]

TotalEffectiveSentence: 4 years 9 months

Non-ParolePeriod: 2 years 9 months

Pre-Sentencedetentiondeclaration:
290 days

6AAA Statement: 7 years with non-parole period of 5 years

Other relevant orders: forensic sample order pursuant to s 464ZF of the Crimes Act 1958; property disposal order pursuant s 77(1) of the Confiscations Act 1997.

Whelan JA granted the appellant leave to appeal against that aggregate sentence, primarily upon the ground that it was manifestly excessive. The background facts were set out in his Honour’s reasons for granting leave[1] and the sentencing judge’s reasons for sentence.[2] They can be summarised as follows.
[1]Fitzpatrick v The Queen (Unreported, Victorian Court of Appeal,…

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 Fitzpatrick v The Queen

Details

AGLC: Fitzpatrick v The Queen [2016] VSCA 63
Case: [2016] VSCA 63
Decision Date: 6 April 2016

CaseChat Overview and Summary

The case of Fitzpatrick v The Queen involved the appellant who was sentenced for multiple offences including persistent contravention of an intervention order, common assault, threat to kill, theft, and criminal damage. The matter was heard in the High Court of Australia, which had previously granted leave to appeal on the ground of manifest excess. The appellant argued that the sentence was excessively harsh, particularly in light of the maximum penalties for the individual offences.

The primary legal issue before the court was whether the aggregate sentence, which was 4 years and 9 months’ imprisonment with a non-parole period of 2 years and 9 months, was manifestly excessive. The court had to consider the nature and circumstances of the offences, including the appellant's persistent contravention of an intervention order, the assault on his former domestic partner which involved partial strangulation, and the objective gravity of the offending. The court also needed to determine if the aggregate sentence could exceed the maximum sentence for one of the individual offences and whether such a sentence was justified given the circumstances.

In its reasoning, the court noted that the appellant's conduct represented a serious example of persistent contravention of an intervention order, and the assault on his former partner was particularly egregious. The court found that the objective gravity of the offending warranted a severe punishment and that the aggregate sentence was not manifestly excessive. The court highlighted that while the aggregate sentence exceeded the maximum penalty for some of the individual offences, the overall punishment was appropriate given the nature and circumstances of the offending. Consequently, the appeal was dismissed, affirming the original sentence.

Orders