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Grey v The King

Grey v The King

Case [2024] VSCA 75 26 April 2024

Appeal

Sentencing

Aggravated & Exemplary Damages

Parity Principle

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0049
S EAPCR 2023 0245

DREW GREY	Applicant
v
THE KING	Respondent

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JUDGES:	WALKER and BOYCE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	15 April 2024
DATE OF ORDERS:	18 April 2024
DATE OF REASONS:	26 April 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 75
JUDGMENT APPEALED FROM:	DPP v Grey (County Court of Victoria, Judge Dempsey, 3 March 2023)

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CRIMINAL LAW – Appeal – Sentence – Whether parity principle breached – Aggravated burglary – Recklessly cause injury – Theft – False imprisonment – Appeal allowed – Applicant re-sentenced – Sentence turns on unique circumstances and provides no future guidance.

PRACTICE AND PROCEDURE – Appeal – Sentence – Applicant filed notice of abandonment – Applicant later sought to withdraw notice of abandonment after sentencing of co-offender – Inherent jurisdiction to grant leave to withdraw notice of abandonment – Leave granted.

Sentencing Act 1991, ss 5(1)(a), 5(2)(c) & 5(2)(d).

Wong v The Queen(2001) 207 CLR 584; Hafner v The Queen[2012] VSCA 190; Tognolini v The Queen (No 2) [2012] VSCA 311, applied – Green v R (2011) 244 CLR 462; Taleb v The Queen(2014) 42 VR 666; Hogarth v The Queen (2012) 37 VR 658; R v Meyers (2014) 44 VR 486; R v Bowden [2016] VSCA 283; O’Loughlan v The Queen [2010] VSCA 175; Anthony v The Queen [2016] VSCA 22, discussed.

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Counsel
Applicant:		Ms G F Connelly
Respondent:		Ms D I Piekusis KC
Solicitors
Applicant:	Giorgianni & Liang Lawyers
Respondent:	Solicitor for Public Prosecutions

WALKER JA
BOYCE JA:

Introduction

The applicant[1] was arraigned and pleaded guilty in the County Court to offences of aggravated burglary, recklessly causing injury, theft and false imprisonment. He was sentenced on 3 March 2023 as follows:
[1]The applicant’s surname is correctly spelt ‘Gray’. Nevertheless, the spelling ‘Grey’ was used to identify the applicant in the indictment, in the sentencing judge’s reasons and in the orders made by the sentencing judge. In these circumstances, and upon the matter having been raised with the parties, the spelling ‘Grey’ is used in this judgment and in the orders that disposed of this appeal.

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Aggravated burglary[2]	25 years	16 months	Base
2	Causing injury recklessly[3]	5 years	14 months	6 months
3	Theft[4]	10 years	4 months	1 month
4	False imprisonment[5]	10 years	10 months	3 months
Total Effective Sentence:		2 years and 2 months’ imprisonment
Non-Parole Period:		1 year and 4 months
Pre-sentence Detention Declared:		33 days
Section 6AAA Statement:		Total Effective Sentence: 4 years imprisonment Non Parole-Period: 3 years
Other Relevant Orders: N/A

[2]Contrary to s 77 of the Crimes Act 1958.

[3]Contrary to s 18 of the Crimes Act 1958.

[4]Contrary to s 74(1) of the Crimes Act 1958.

[5]Contrary to common law.

In March 2023 the applicant filed an application for leave to appeal against…

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 Grey v The King

Details

AGLC: Grey v The King [2024] VSCA 75
Case: [2024] VSCA 75
Decision Date: 26 April 2024

CaseChat Overview and Summary

Grey v The King is an appeal against sentence where the applicant was convicted of multiple offences including aggravated burglary, recklessly causing injury, theft, and false imprisonment. The applicant's appeal focused on whether the sentence imposed breached the parity principle, arguing it was excessively severe. The case was heard in the Victorian Court of Appeal. The central legal issues were whether the sentence imposed breached the parity principle, which ensures that similar offenders are sentenced similarly, and whether the court had the inherent jurisdiction to permit the withdrawal of a notice of abandonment of appeal after the sentencing of a co-offender.

The court examined the principle of parity, comparing the applicant's sentence with those of co-offenders and other similar cases. It acknowledged the unique circumstances of this case but found that the sentence did not breach the parity principle as it was proportionate to the gravity of the offences committed. The court also considered the applicant's request to withdraw the notice of abandonment of appeal, which was filed after the sentencing of the co-offender. The court held that it possessed the inherent jurisdiction to grant leave to withdraw the notice of abandonment under specific circumstances, and granted the application in this instance.

The Court of Appeal found that the sentence did not breach the parity principle as it was tailored to the unique circumstances of the case. The court emphasised that the sentence was proportionate to the seriousness of the offences and the need to deter such conduct. In granting the applicant leave to withdraw the notice of abandonment, the court exercised its inherent jurisdiction, recognising the applicant's right to challenge the sentence. The appeal was allowed, and the applicant was re-sentenced.

The final orders of the court included the allowance of the appeal against sentence, the granting of leave to withdraw the notice of abandonment, and the re-sentencing of the applicant. The court's decision provided no future guidance on sentencing due to the unique circumstances of this case.

Orders