Flick v The King

The appellant, Flick, appealed against the sentence imposed by the Supreme Court of Victoria, contending that the trial judge misdirected himself in relation to the sentencing principles applicable to the aggravated break and enter offences of which he was convicted. Flick's appeal was primarily focused on the trial judge's handling of the sentencing principles in relation to the statutory aggravations of the break and enter offences, specifically the consideration of the associated larceny offences and the impact of COVID-19 on the severity of the custodial sentence.

The court was required to determine whether the trial judge's consideration of the Form 1 offences in assessing the objective seriousness of Flick's principal offences was appropriate. It also had to assess if the trial judge erred in failing to adequately consider the effect of COVID-19 on the severity of the custodial sentence. The court had to examine the trial judge's directions concerning the principles of totality and whether these directions were sufficient to ensure a just outcome.

In allowing the appeal, the court held that the trial judge misapplied the sentencing principles in several respects. The court found that the trial judge did not adequately consider the relevance of the Form 1 offences to the assessment of the objective seriousness of the principal offences. Additionally, the court concluded that the trial judge's direction concerning the principle of totality was inadequate. The court further held that while it was appropriate to consider the impact of COVID-19 on the severity of the custodial sentence, the trial judge's consideration was insufficient because there was no evidence before the court as to the effect of COVID-19 on conditions in custody. As a result, Flick's sentence was quashed and the matter was remitted for re-sentencing.