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,…
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- AGLC
- Fitzpatrick v The Queen [2016] VSCA 63
- Case
- [2016] VSCA 63
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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