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Frost v The Queen

Frost v The Queen

Case [2020] VSCA 53 20 March 2020

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0221

ALIX FROST	Appellant
v
THE QUEEN	Respondent

S APCR 2019 0014

SHAFRIN DEEN	Applicant
v
THE QUEEN	Respondent

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JUDGES:	KYROU and NIALL JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 March 2020
DATE OF JUDGMENT:	20 March 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 53
JUDGMENT APPEALED FROM:	[2018] VCC 1558 (Judge McInerney)

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CRIMINAL LAW – Appeal – Sentence – Appellant and applicant co-offenders – Aggravated burglary – At applicant’s request, appellant entered complainant’s room without force with intent to assault complainant – Appellant armed with taser – Pleas of not guilty – Other charges – Appellant and applicant sentenced to 8 years’ imprisonment for aggravated burglary charge – Total concurrency for sentences for other charges – Non-parole period of 6 years – Gravity of offending.

CRIMINAL LAW – Appeal – Sentence – Whether appellant’s sentence of 8 years’ imprisonment for aggravated burglary manifestly excessive – Appellant’s appeal allowed – Appellant resentenced to 5 years and 6 months’ imprisonment with non-parole period of 3 years and 6 months.

CRIMINAL LAW – Appeal – Sentence – Whether applicant’s sentence of 8 years’ imprisonment for aggravated burglary manifestly excessive – Whether judge failed to take into account applicant’s period of 8 months and 19 days in immigration detention following arrest – Whether principle of parity infringed – Appellant relevant prior convictions, applicant no criminal record – Appellant and applicant disadvantaged backgrounds – Appellant committed greater number of additional offences associated with aggravated burglary – Applicant’s appeal allowed – Applicant resentenced to 5 years’ imprisonment with non-parole period of 3 years.

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APPEARANCES:	Counsel	Solicitors
For the Appellant Frost:	Mr D Sala	Valos, Black & Associates
For the Applicant Deen:	Ms M O’Brien	Stary Norton Halphen
For the Respondent:	Mr J Gullaci	Ms A Hogan, Solicitor for Public Prosecutions

KYROU JA
NIALL JA:

Introduction and summary

On 28 May 2018, after a trial before a Country Court jury, the appellant Alix Frost was found guilty of charges 1 and 4 set out in the following table. She pleaded guilty to charges 2, 5 and 6 and summary charges 4 and 8. On 21 September 2018, she was sentenced in accordance with that table.[1]
[1]DPP v Deen and Frost [2018] VCC 1558 (‘Sentencing remarks’).

Charge Offence Maximum Sentence Cumulation

1 Aggravated burglary [Crimes Act 1958 s 77] 25 years 8 years Base

2 Theft (motor vehicle) [Crimes Act s 74(1)] 10 years 1 year Nil

4 Recklessly cause injury [Crimes Act s 18] 5 years 18 months Nil

5 Theft (two mobile phones, car keys and wallet) 10 years 6 months Nil

6 Theft (registration plates) 10 years 6 months Nil

Related summary charges

4 Commit indictable offence on bail [Bail Act 1977 s 30B] 3 months 1 month Nil

8 Possess prohibited weapon [Control of Weapons Act 1990 s 5AA] 2 years 1 month Nil

Total effective sentence: 8 years’ imprisonment

Non parole period: 6…

Charge	Offence	Maximum	Sentence	Cumulation
1	Aggravated burglary [Crimes Act 1958 s 77]	25 years	8 years	Base
2	Theft (motor vehicle) [Crimes Act s 74(1)]	10 years	1 year	Nil
4	Recklessly cause injury [Crimes Act s 18]	5 years	18 months	Nil
5	Theft (two mobile phones, car keys and wallet)	10 years	6 months	Nil
6	Theft (registration plates)	10 years	6 months	Nil
Related summary charges
4	Commit indictable offence on bail [Bail Act 1977 s 30B]	3 months	1 month	Nil
8	Possess prohibited weapon [Control of Weapons Act 1990 s 5AA]	2 years	1 month	Nil
Total effective sentence: 8 years’ imprisonment
Non parole period: 6…

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 Frost v The Queen

Details

AGLC: Frost v The Queen [2020] VSCA 53
Case: [2020] VSCA 53
Decision Date: 20 March 2020

CaseChat Overview and Summary

In the matter of Frost v The Queen, the appellant and the applicant, co-offenders in an aggravated burglary, appealed against their respective sentences. Both were found guilty of aggravated burglary, among other charges, and were sentenced to eight years' imprisonment for the aggravated burglary, with a non-parole period of six years. The appellant was also convicted of additional offences, while the applicant had no prior criminal record. The primary issue before the court was whether the sentences were manifestly excessive and whether the sentencing judge had failed to account for relevant factors, including the applicant’s time spent in immigration detention.

The court considered whether the appellant's sentence was manifestly excessive. It examined the totality of the circumstances, including the appellant's disadvantaged background, prior convictions, and the number of additional offences committed. The court found that the sentence of eight years was excessive and reduced it to five years and six months, with a non-parole period of three years and six months. In relation to the applicant, the court assessed whether the sentence was manifestly excessive and whether the principle of parity had been infringed by not considering the applicant's time in immigration detention. The court concluded that the sentence was excessive and reduced it to five years, with a non-parole period of three years.

The court emphasised the need to balance the gravity of the offence with the individual circumstances of each offender. In reducing the sentences, the court highlighted the importance of proportionality and the need to ensure sentences are commensurate with the offending. The court also considered the principle of parity, ensuring that both offenders, despite their different backgrounds and prior records, received sentences reflective of their individual roles and culpability. This comprehensive review led to the resentencing of both the appellant and the applicant, ensuring their sentences aligned more closely with the principles of justice and proportionality.

Orders