Hancock v The Queen - [2013] VSCA 199

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…

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 Hancock v The Queen

Details

AGLC: Hancock v The Queen [2013] VSCA 199
Case: [2013] VSCA 199
Decision Date: 30 July 2013

CaseChat Overview and Summary

The case of Hancock v The Queen involved an appeal against a sentence imposed following the applicant's plea of guilty to two charges of armed robbery. The applicant had also been convicted of attempted burglary. The Supreme Court of Victoria was tasked with reviewing the sentence imposed, which was a total effective sentence of 2 years and 10 months' imprisonment with a non-parole period of 1 year and 8 months. The applicant sought leave to appeal on the basis of fresh evidence, specifically that she was pregnant at the time of sentencing, which was not known to either the applicant or the sentencing judge.

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