JUDGES:	KAYE and T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 November 2020
DATE OF JUDGMENT:	17 November 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 286
JUDGMENT APPEALED FROM:	DPP v Haberman [2019] VCC 2147 (Judge Hampel)

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ELECTION TO RENEW APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY THE COURT OF APPEAL PURSUANT TO S 315 OF THE
CRIMINAL PROCEDURE ACT 2009

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CRIMINAL LAW – Appeal – Sentence – Applicant pleaded guilty to 58 charges – Theft – Attempted theft – Criminal damage – Burglary – Attempted burglary – Possession of a drug of dependence – Obtaining financial advantage by deception – Arson – Reckless conduct endangering life – Total effective sentence 5 years 8 months with 3 years 2 months non-parole – Whether judge erred in failing to apply Verdins principles – Whether judge failed to consider hardship caused by applicant’s mother’s illness as mitigating factor – Whether sentence manifestly excessive – Whether judge erred in applying general deterrence in precedence of sentencing considerations in s 362(1) Children, Youth and Families Act 2005 – Leave to appeal refused – R v Verdins (2007) 16 VR 269.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr V Peters (pro bono)
For the Respondent	Mr J Lewis	Ms A Hogan, Solicitor for Public Prosecutions

KAYE JA
T FORREST JA:

The applicant pleaded guilty, before a judge in the County Court, to 58 charges, consisting of one charge of reckless conduct endangering life, one charge of arson, nine charges of burglary, one charge of attempted burglary, 36 charges of theft, one charge of attempted theft, six charges of criminal damage, one charge of obtaining a financial advantage by deception, one charge of handling stolen goods, and one charge of possessing a drug of dependence. He also pleaded guilty to summary charges of failing to stop at police direction, driving while disqualified and a rolled-up charge of committing 15 indictable offences while on bail.

Following a plea, made on his behalf, the judge sentenced the applicant to five years and eight months’ imprisonment with a non-parole period of three years and two months.[1] That sentence was constituted in accordance with the following table:
[1]DPP v Haberman [2019] VCC 2147 (‘Reasons’).

Date (2018)	Offence	Legislation		Maximum penalty	Sentence	Cumulation
Indictment J12696985
1		13 Sep	Theft (of vehicle)	s 74(1), Crimes Act 1958	10 years		6 months	6 months
2		"	"	"	"		6 months	-
3		14 Sep	Theft (of petrol)	"	"		1 month	-
4		15 Sep	Burglary	s 76, Crimes Act 1958	10 years		6 months	6 months
5		"	"	"	"		6 months	-
6		"	Theft (from burgled premises)	s 74(1), Crimes Act 1958	10 years		3 months	3 months
7		"	Burglary	s 76, Crimes Act 1958	10 years		6 months	-
8		"	Theft (from burgled premises)	s 74(1),

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 Haberman v DPP

Details

AGLC: Jackson Haberman v Director of Public Prosecutions [2020] VSCA 286
Case: [2020] VSCA 286
Decision Date: 17 November 2020

CaseChat Overview and Summary

Haberman sought leave to appeal against his sentence, imposed following a guilty plea to multiple criminal charges. The court was required to determine whether the trial judge erred in failing to apply Verdins principles, whether the judge failed to consider the applicant's mother's illness as a mitigating factor, whether the sentence was manifestly excessive, and whether the judge erred in prioritising general deterrence over other sentencing considerations. The applicant argued that the trial judge had failed to properly consider the impact of his mother's illness on his ability to comply with the sentence and had given undue weight to general deterrence. The Court found that the trial judge had considered the Verdins principles and the mitigating factor of the applicant's mother's illness, and had not given undue weight to general deterrence. The Court held that the sentence was not manifestly excessive and dismissed the application for leave to appeal. The trial judge's sentence of a total effective period of five years and eight months, with a non-parole period of three years and two months, was affirmed as appropriate and just, taking into account all relevant factors and considerations.

Orders