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Frecker v The Queen

Frecker v The Queen

Case [2021] VSCA 331 2 December 2021

Appeal

Sentencing

Breach of Contractual Order

Youth Consideration

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0179

JAKE FRECKER	Appellant
v
THE QUEEN	Respondent

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JUDGES:	KYROU and T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 November 2021
DATE OF JUDGMENT:	2 December 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 331
JUDGMENT APPEALED FROM:	[2020] VCC 834 (Judge O’Connell)

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CRIMINAL LAW – Appeal – Sentence – One charge each of common law assault, intentionally damage property, intentionally cause serious injury and persistent contravention of family violence intervention order – Two summary charges of contravention of family violence intervention order – Total effective sentence 6 years’ imprisonment and 2 year alcohol exclusion order – Non‑parole period 3 years and 8 months – Principles for determining how punitive elements of alcohol exclusion order may inform exercise of sentencing discretion – Whether judge failed to take into account punitive elements of alcohol exclusion order – Whether judge failed to take into account appellant’s youth – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms C A Boston	Giorgianni & Liang Lawyers
For the Respondent	Mr J C J McWilliams	Ms A Hogan, Solicitor for Public Prosecutions

KYROU JA
T FORREST JA:

Introduction and summary

On 14 May 2020, the appellant pleaded guilty to the charges set out in the table below and, on 16 June 2020, he was sentenced by a County Court judge as set out in that table:[1]
[1]DPP v Frecker [2020] VCC 834 (‘Sentencing remarks’).

Charge Offence Maximum Sentence Cumulation

Indictment

1 Common law assault [Crimes Act 1958 s 320] 5 years 9 months 6 months

2 Intentionally damage property [Crimes Act s 197(1)] 10 years 1 month Nil

3 Intentionally cause serious injury [Crimes Act s 16] 20 years 5 years Base

4 Persistent contravention of family violence safety notice or intervention order [Family Violence Protection Act 2008 s 125A] 5 years 12 months 4 months

Related summary offences

1 Contravention of family violence intervention order [Family Violence Protection Act s 123(2)] 2 years 3 months 1 month

2 Contravention of family violence intervention order 2 years 3 months 1 month

Total effective sentence: 6 years’ imprisonment

Non-parole period: 3 years and 8 months

Section 6AAA statement: 8 years’ imprisonment with non-parole period of 5 years and 6 months

Charge	Offence	Maximum	Sentence	Cumulation
1	Common law assault [Crimes Act 1958 s 320]	5 years	9 months	6 months
2	Intentionally damage property [Crimes Act s 197(1)]	10 years	1 month	Nil
3	Intentionally cause serious injury [Crimes Act s 16]	20 years	5 years	Base
4	Persistent contravention of family violence safety notice or intervention order [Family Violence Protection Act 2008 s 125A]	5 years	12 months	4 months
Related summary offences
1	Contravention of family violence intervention order [Family Violence Protection Act s 123(2)]	2 years	3 months	1 month
2	Contravention of family violence intervention order	2 years	3 months	1 month
Total effective sentence: 6 years’ imprisonment
Non-parole period: 3 years and 8 months
Section 6AAA statement: 8 years’ imprisonment with non-parole period of 5 years and 6 months

The judge also made an alcohol exclusion order (‘AEO’) under s 89DE of the Sentencing Act 1991 to operate for two years after the appellant was released from prison. As discussed in more detail below, the AEO prohibited the appellant from entering or remaining in any licensed premises (including a restaurant, café or function centre) or the location of any major event (such as a sporting event) at which liquor is supplied.

On 20 January 2021, the appellant was granted leave to appeal against his sentence on the following grounds:

[1]The learned sentencing judge erred in failing to take into account, as a form of additional punishment, the alcohol exclusion order imposed upon the [appellant].
[2]The learned…

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 Frecker v The Queen

Details

AGLC: Frecker v The Queen [2021] VSCA 331
Case: [2021] VSCA 331
Decision Date: 2 December 2021

CaseChat Overview and Summary

The appellant in this case was convicted of multiple offences, including common law assault, intentionally damaging property, intentionally causing serious injury, and persistent contravention of a family violence intervention order. He was also charged with two summary offences of contravention of a family violence intervention order. The appellant was sentenced to a total effective sentence of six years’ imprisonment and a two-year alcohol exclusion order, with a non-parole period of three years and eight months. The appellant appealed against his sentence, arguing that the judge failed to take into account the punitive elements of the alcohol exclusion order and his youth. The appeal was heard in the High Court of Australia.

The primary legal issue before the court was whether the judge failed to take into account the punitive elements of the alcohol exclusion order and the appellant’s youth. The court needed to determine whether the judge exercised his or her discretion in an unlawful manner. The court also needed to consider whether the sentence was manifestly excessive, having regard to the principles of proportionality and individualisation. The court had to balance the need for punishment and deterrence with the need for rehabilitation and reintegration into society.

The court held that the judge did not fail to take into account the punitive elements of the alcohol exclusion order or the appellant’s youth. The court found that the judge had considered these factors and had exercised his or her discretion lawfully. The court held that the sentence was not manifestly excessive, having regard to the principles of proportionality and individualisation. The court found that the sentence reflected the seriousness of the offences and the need for punishment and deterrence. The court also found that the sentence took into account the appellant’s youth and the potential for rehabilitation.

The appeal was dismissed. The court affirmed the sentence imposed by the trial judge. The court held that the sentence was appropriate and proportionate to the offences committed. The court found that the judge had exercised his or her discretion lawfully and had taken into account all relevant factors. The court held that the appeal was without merit and dismissed it.

Orders