Foster (a pseudonym) v The King - [2023] VSCA 94

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0169

DEBRA FOSTER (A PSEUDONYM)	Applicant
v
THE KING	Respondent

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JUDGES:	EMERTON P and T FORREST JA
WHERE HELD:	Melbourne
DATE OF HEARING:	21 April 2023
DATE OF JUDGMENT:	28 April 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 94
JUDGMENT APPEALED FROM:	[2022] VCC 1969 (Judge Carlin)

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CRIMINAL LAW – Leave to appeal – Sentence – Intentionally causing injury – Contravening family violence intervention order – Related summary offences – Total effective sentence of 214 days’ imprisonment and 18-month community correction order – Where applicant reoffended including by contravening community correction order – Where applicant resentenced to 22 months’ imprisonment and community correction order cancelled – Whether second sentence manifestly excessive – Leave to appeal refused.

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Counsel
Applicant:		Mr A Halphen
Respondent:		Ms R L Harper
Solicitors
Applicant:	Law and Advocacy Centre for Women
Respondent:	A Hogan, Solicitor for Public Prosecutions

EMERTON P
T FORREST JA:

On 30 September 2021, the applicant pleaded guilty before Judge Carlin to one charge of intentionally causing injury, contravention of a family violence intervention order intending to cause harm/fear and two related summary charges. On 14 December 2021, she was sentenced as follows:

Charge

Offence

Max Penalty

Sentence

Cumulation

1 Intentionally causing injury (contrary to s 18 of the Crimes Act 1958) 10 years’ imprisonment 214 days’ imprisonment followed by an 18 month community correction order Part of an aggregate sentence

2 Contravene family violence intervention order intending to cause harm/fear (contrary to s 123A(2) of the Family Violence Protection Act 2008) 5 years’ imprisonment
214 days’ imprisonment followed by an 18 month community correction order
Part of an aggregate sentence

Related Summary Offences

5 Commit an indictable offence whilst on bail (contrary to s 30B of the Bail Act 2008) 3 months’ imprisonment 1 month’s imprisonment –

6 Contravene family violence intervention order (contrary to s 123(2) of the Family Violence Protection Act 2008) 2 years’ imprisonment/240 Penalty Units 14 days’ imprisonment –

Total Effective Sentence:
214 days’ imprisonment and an 18-month community correction order

Non-Parole Period: N/A

Section 6AAA Statement:
Total Effective Sentence 24 months

Non-Parole Period 18 months

We shall refer to this as the first sentence.
On 21 October 2022, the applicant pleaded guilty to a charge of contravention of the community correction order which formed part of the first sentence (the ‘CCO’). She was resentenced as follows:

Charge

Offence

Max Penalty

Sentence

Cumulation

1 Intentionally causing injury (contrary to s 18 of the Crimes Act 1958) 10 years’ imprisonment
22 months’ imprisonment
Part of an aggregate sentence

2 Contravene family violence intervention order intending to cause harm/fear (contrary to s 123A(2) of the Family Violence Protection Act 2008) 5 years’ imprisonment
22 months’ imprisonment
Part of an aggregate sentence

Related Summary Offences

6 Contravene family violence intervention order (contrary to s 123(2) of the Family Violence Protection Act 2008) 2 years’ imprisonment/240 Penalty Units 1 month’s imprisonment –

Total 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.

Continue reading Foster (a pseudonym) v The King

Details

AGLC: Foster (a pseudonym) v The King [2023] VSCA 94
Case: [2023] VSCA 94
Decision Date: 28 April 2023

CaseChat Overview and Summary

The appellant in this case, Foster, appealed against his sentence for intentionally causing injury, contravening a family violence intervention order, and related summary offences. The case was heard in the High Court of Australia. Foster had originally been sentenced to a total effective sentence of 214 days’ imprisonment and an 18-month community correction order. However, he reoffended, including by contravening the community correction order. He was subsequently resentenced to 22 months’ imprisonment, and the community correction order was cancelled. Foster sought leave to appeal against the second sentence, arguing that it was manifestly excessive.

The court was required to consider whether the second sentence imposed on Foster was manifestly excessive. This required the court to assess the appropriate punishment for the crimes committed, taking into account the principles of proportionality and the totality of the circumstances. The court also needed to consider whether the second sentence had taken into account the fact that Foster had reoffended and breached the community correction order.

The court found that the second sentence was not manifestly excessive. The court acknowledged that the reoffending and breach of the community correction order were serious matters, but it found that the sentence imposed was proportionate to the seriousness of the offences. The court considered the totality of the circumstances, including the nature and circumstances of the offences, Foster's criminal history, and the need for deterrence and denunciation. The court concluded that the sentence was not manifestly excessive and dismissed the application for leave to appeal.

No orders were made in this case, as the application for leave to appeal was dismissed. The second sentence imposed on Foster remained in place.

Orders