SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2013 0056
| LEANNE HANCOCK |
| Applicant |
| v |
| THE QUEEN |
| Respondent |
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| JUDGES | NETTLE and COGHLAN JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 30 July 2013 |
| DATE OF JUDGMENT | 30 July 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 199 |
| JUDGMENT APPEALED FROM | DPP v Gouge & Hancock (Unreported, County Court of Victoria, Judge Campton, 18 December 2012) |
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CRIMINAL LAW — Leave to appeal against sentence — Attempted burglary — Two charges of armed robbery — Plea of guilty — Total effective sentence of 2 years 10 months’ imprisonment — Non-parole period of 1 year 8 months — Fresh evidence of a mitigating factor — Applicant did not know of pregnancy at time of sentence — Principles 5 and 6 of R v Verdins (2007) 16 VR 269 considered — Appeal allowed — Re-sentenced to a total effective sentence of 249 days imprisonment (time served) and upon release subject to a Community Corrections Order with treatment/rehabilitation conditions for a period of two years.
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| Appearances: | Counsel | Solicitors |
| For the applicant | Mr M. Stanton | Doogue O’Brien George |
| For the respondent | Mr P Kidd SC | Craig Hyland, Solicitor for the Office of Public Prosecutions |
NETTLE JA:
I invite Coghlan JA to deliver the first judgment.
COGHLAN JA:
On 13 December 2013 the applicant pleaded guilty to the offences set out in the table below and sentenced for this offending on 18 December.
charge on indictment
offence maximum sentence Cumulation
1 Attempted Burglary
[ss 321M and 76(1) of the Crimes Act 1958]
5 years
imprisonment[ss 321P and 76(3) Crimes Act 1958]
6 months 1 month
2 Armed Robbery [s 75A(1) Crimes
Act 1958]
25 years
imprisonment[s 75A(2) Crimes Act 1958]
30 months Base
3 Armed Robbery [s 75A(1) Crimes
Act 1958]
25 years
imprisonment[s 75A(2) Crimes Act 1958]
30 months 3 months
Total Effective Sentence: 2 years 10 months imprisonment Non-Parole Period: 1 year 8 months Pre-sentence Detention Declared: 25 days 6AAA Statement: 4 years and 2 months’ imprisonment with a non‑parole period of 2 years 10 months. Other orders:
Forensic sample order pursuant to s 464ZF(2) of the Crimes Act 1958
Disposal Order pursuant to s 77(1) of the Confiscation Act 1997
By notice dated 18 April 2013 the applicant seeks leave to appeal. The circumstances of the offending were set out in the learned sentencing judge’s remarks:[1]
[1]DPP v Gouge & Hancock (Unreported, County Court of Victoria, Judge Campton, 18 December 2012), [3]-[21].
Charge 1
The circumstances of your offending with respect to Charge 1 of attempted
burglary are that at approximately 7 am on 28 July 2012, Lu Wei, the manager of Rose Avenue Supermarket in Norlane arrived to open his shop. As he walked through the shop he heard banging noises from the back of the shop. As he got near the back door he observed it shaking and saw something metal being pushed through the gap in the door.
Mr Wei…
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- AGLC
- Hancock v The Queen [2013] VSCA 199
- Case
- [2013] VSCA 199
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the fresh evidence of pregnancy constituted a significant mitigating factor warranting an appeal against sentence, and if so, whether the principles set out in R v Verdins applied to justify a reduction in the sentence. The court had to consider whether the fresh evidence could have reasonably influenced the sentence had it been known at the time, and if the new sentence would be manifestly unjust without it.
The court held that the fresh evidence of the applicant's pregnancy was a significant mitigating factor that could have reasonably influenced the sentence. It was noted that the applicant's pregnancy was not only a mitigating factor, but it also related to her capacity for rehabilitation. The principles from R v Verdins were applied, particularly principles 5 and 6, which address the impact of fresh evidence on the fairness and justness of the original sentence. The court found that the original sentence was manifestly unjust in light of the new evidence, leading to the conclusion that the appeal should be allowed. The applicant was re-sentenced to a total effective sentence of 249 days imprisonment, with time already served, and upon release, she is to be subject to a Community Corrections Order with treatment/rehabilitation conditions for a period of two years.
Orders
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Background
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Evidence
Evidence Before The Court
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