Hach v The Queen - [2018] VSCA 196

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0076

GAVIN HACH	Applicant
v
THE QUEEN	Respondent

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JUDGES:	TATE and HARGRAVE JJA
WHERE HELD:	BENDIGO
DATE OF HEARING:	7 August 2018
DATE OF JUDGMENT:	7 August 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 196
JUDGMENT APPEALED FROM:	DPP v Gavin Hach [2018] VCC 357 (Judge Harbison)

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CRIMINAL LAW – Appeal – Sentence – Arson – Sentence of 12 months’ imprisonment combined with a Community Correction Order (‘CCO’) of 5 years’ duration – Whether manifestly excessive – Whether sentencing judge was required to invite counsel to make submissions on length of CCO – Possible tension between Boulton v The Queen (2014) 46 VR 308 and Barbaro v The Queen (2014) 253 CLR 58 – Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms S Wallace	Sally Wilson Lawyers
For the Respondent	Mr B Sonnet	Mr J Cain, Solicitor for Public Prosecutions

TATE JA
HARGRAVE JA:

The applicant pleaded guilty to one charge of arson. That offence carries a maximum period of 15 years imprisonment.[1] He was sentenced to 12 months imprisonment and a community correction order (CCO) of five years duration with attached conditions. The sentencing judge declared that, but for his plea of guilty, she would have sentenced him to a period of five years imprisonment with a non-parole period of three years.[2]
[1]Crimes Act 1958 s 197(6).
[2]Sentencing Act 1991 s 6AAA.

The applicant raises two proposed grounds of appeal.

By ground 1, the applicant contends that the combined sentence imposed on him was manifestly excessive. He bases this ground of appeal upon the following matters:

(1) He has no prior convictions.

(2) He pleaded guilty at the earliest opportune moment.

(3) He was at all times cooperative with police and made full admissions.

(4) The CCO ‘operates punitively for each and every day for which it is in operation’.

By ground 2, the applicant contends that the sentencing judge made a specific error in imposing a CCO of five years duration on him, which is the maximum duration permitted by s 38(1)(b) of the Sentencing Act 1991. In substance, the applicant contends that it was not open to the sentencing judge to impose this maximum period in circumstances where the sentencing judge:

(1) did not first invite counsel to address on the duration of the CCO;

(2) had no evidentiary basis upon which to form a view that five years duration would facilitate the applicant’s rehabilitation; and

(3) had already ordered 12 months imprisonment as a punitive sentence and, accordingly, the CCO did not require a punitive element.

Before turning to the circumstances of the applicant’s offending and other facts relevant to the imposition of the combined sentence on him, we note that it is the duration of the CCO which lies at the heart of both proposed appeal grounds.

Circumstances of the offending

Prior to offending, the applicant was employed by a waste management company…

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 Hach v The Queen

Details

AGLC: Gavin Hach v The Queen [2018] VSCA 196
Case: [2018] VSCA 196
Decision Date: 7 August 2018

CaseChat Overview and Summary

Hach was found guilty of arson and was sentenced to a term of imprisonment combined with a Community Correction Order. Hach appealed against the sentence, arguing it was manifestly excessive. The central issue for the court was whether the sentence was appropriate given the circumstances of the offence and whether the sentencing judge was required to invite counsel to make submissions on the length of the Community Correction Order. There was a potential conflict between the case law as established by the High Court in Barbaro and the Court of Appeal in Boulton.

The court found that the sentence was not manifestly excessive. It examined the sentencing principles applicable to the case, including the need for punishment, deterrence, and rehabilitation. The court also considered the personal circumstances of Hach and the impact of the offence on the victim. Regarding the requirement for counsel to make submissions on the length of the Community Correction Order, the court found no obligation on the sentencing judge to invite such submissions. The court noted that while there was a potential tension between Barbaro and Boulton, the sentencing judge was not required to invite submissions on the length of the Community Correction Order. The court held that the sentence imposed was within the range of reasonable sentences that could be imposed for the offence. Therefore, the appeal against sentence was dismissed.

Orders