Gregory Ballantyne v The Queen - [2020] VSCA 115

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2019 0235

GREGORY BALLANTYNE	Applicant
v
THE QUEEN	Respondent

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JUDGE:	PRIEST and BEACH JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 May 2020
DATE OF JUDGMENT:	11 May 2020
MEDIUM NEUTRAL CITATION	[2020] VSCA 115
JUDGMENT APPEALED FROM:	DPP v Kellen (a pseudonym) [2019] VCC 1899 (Judge Smallwood)

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CRIMINAL LAW – Appeal – Sentence – Making a threat to kill and carrying a loaded firearm with reckless disagreed for safety of persons – Applicant threatened to kill his wife – Plea of guilty – Total effective sentence four years and three months’ imprisonment with non-parole period of three years and six months – Whether sentence manifestly excessive – Whether non-parole period manifestly excessive – Whether sentencing judge erred in finding complete absence of remorse – Leave to appeal granted – Appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P Tehan QC with Mr S Burt	Slades and Parsons
For the Respondent	Mr P Smallwood	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
BEACH JA:

Introduction

On 13 November 2019, the applicant pleaded guilty in the County Court to carrying a loaded firearm with reckless disregard for the safety of persons[1] (charge 1), making a threat to kill[2] (charge 2) and possessing of a drug of dependence[3] (charge 3). The applicant also pleaded guilty to five related summary offences, being contravention of family violence intervention order[4] (two charges – charges 1 and 2), failing to store a category A/B long arm correctly[5] (charge 5), failing to store category A/B long arm ammunition correctly[6] (charge 8) and possessing a prohibited weapon[7] (charge 9).
[1]Firearms Act 1996, s 130(1A)(b). The maximum penalty is 10 years’ imprisonment.
[2]Crimes Act 1958, s 20. The maximum penalty is 10 years’ imprisonment.
[3]Drugs, Poisons and Controlled Substances Act 1981, s 73(1). The maximum penalty is one year’s imprisonment.
[4]Family Violence Protection Act 2008, s 123(2). The maximum penalty is two years’ imprisonment.
[5]Firearms Act 1996, s 121(1). The maximum penalty is 12 month’ imprisonment (or 60 penalty units).
[6]Firearms Act 1996, s 121(1A). The maximum penalty is 12 month’ imprisonment (or 60 penalty units).
[7]Control of Weapons Act 1996, s 5AA. The maximum penalty is two years’ imprisonment (or 240 penalty units).

Following a plea, on 15 November 2019 the judge sentenced the applicant to be imprisoned for four years and three months, and fixed a non-parole period of three years and six months, in accordance with the following table:

Charge Offence Sentence Cumulation

1 Carrying a loaded firearm with reckless disregard for the safety of persons 18 months 3 months

2 Making a threat to kill 4 years Base

3 Possessing a drug of dependence 1 month —

Relevant summary offences

1 Contravention of family violence intervention order 3 months (aggregate sentence) —

2 Contravention of family violence intervention order

5 Fail to store a category…

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 Gregory Ballantyne v The Queen

Details

AGLC: Gregory Ballantyne v The Queen [2020] VSCA 115
Case: [2020] VSCA 115
Decision Date: 11 May 2020

CaseChat Overview and Summary

The case of Gregory Ballantyne versus The Queen involved an appeal against a sentence handed down by a lower court. Ballantyne had pleaded guilty to charges of making a threat to kill and carrying a loaded firearm with reckless disregard for the safety of others. The dispute centered on the severity of the sentence imposed, which was four years and three months’ imprisonment, with a non-parole period of three years and six months. Ballantyne argued that both the total effective sentence and the non-parole period were manifestly excessive. Additionally, he contended that the sentencing judge had erred in finding a complete absence of remorse on his part.

The primary legal issues before the court were whether the sentence and non-parole period were manifestly excessive and whether the sentencing judge had correctly assessed Ballantyne’s remorse. The court needed to evaluate the proportionality of the sentence in light of the seriousness of the offences and the principles of sentencing, including the need for deterrence and rehabilitation. It also needed to determine if the sentencing judge had correctly considered all relevant factors, including the accused’s remorse or lack thereof, in arriving at the sentence.

The court found that the total effective sentence was not manifestly excessive, taking into account the seriousness of the offences and the need for general deterrence. However, it determined that the non-parole period was manifestly excessive. The court found that the sentencing judge had erred in concluding that there was a complete absence of remorse. Based on the evidence, the court found that Ballantyne had shown some remorse. Consequently, the appeal was allowed, and the sentence was reduced to a total effective period of four years and three months, with a non-parole period of two years and nine months.

The final orders of the court were to reduce the non-parole period of Ballantyne’s sentence to two years and nine months. The total effective sentence remained unchanged at four years and three months. The court’s decision underscores the importance of proportionality and the correct assessment of factors such as remorse in the sentencing process.

Orders