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Hayes v The Queen

Hayes v The Queen

Case [2017] VSCA 285 9 October 2017

Appeal

Criminal Liability

Sentencing

Intellectual Impairment

General Deterrence

Non-parole Period

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0038

LEROY HAYES	Appellant
V
THE QUEEN	Respondent

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JUDGES:	KAYE JA and T FORREST AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 October 2017
DATE OF JUDGMENT:	9 October 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 285
JUDGMENT APPEALED FROM:	DPP v Hayes (Unreported, County Court of Victoria, Judge Stuart, 9 February 2017)

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CRIMINAL LAW – Appeal – Sentence – Commonwealth and State offences – Attempted aggravated burglary; criminal damage; using carriage service to menace, harass, or cause offence and related summary offences – Four years and six months’ imprisonment – Non-parole period of three years – Whether intellectual impairment reduced moral culpability – general deterrence not appropriate – Whether sentence manifestly excessive – Early guilty plea – Significant criminal history – Appeal allowed – Appellant resentenced to three years and four months’ imprisonment with non-parole period of two years and two months.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr P J Smallwood	Daniel Taylor Lawyers
For the Crown	Ms D Mandie	Office of Public Prosecutions

KAYE JA

T FORREST AJA:

The appellant pleaded guilty, before a judge of the County Court, to one charge of using a carriage service to menace, harass, or cause offence, one charge of attempted burglary, two charges of criminal damage, and related summary offences of unlawful assault, assault with a weapon, and contravention of a condition of bail. He was sentenced, for those offences, to a total effective term of 4 years and 6 months’ imprisonment with a non-parole period of 3 years.[1] That sentence was constituted as follows:
[1]DPP v Hayes (Unreported, County Court of Victoria, Judge Stuart, 9 February 2017) (‘Reasons’).

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1.	Use carriage service to harass/menace/offend [Commonwealth Criminal Code s 471.17(1)]	3 years [Commonwealth Criminal Code s 471.17(1)]	6 months	2 months[2]
2.	Attempted aggravated burglary [Crimes Act1958 s 321M and s 77]	20 years [Crimes Act1958 s 321P]	4 years (aggregate)	Base
3.	Criminal damage [Crimes Act1958 s 197(1)]	10 years [Crimes Act1958 s 197(1)]	See charge 2	N/A
4.	Criminal damage [Crimes Act1958 s 197(1)]	10 years [Crimes Act1958 s 197(1)]	See charge 2	N/A
Related summary offences
5.	Unlawful assault [Summary Offences Act 1966 s 23]	15 penalty units or 3 month [Summary Offences Act 1966 s 23]	1 month	1 month
6.	Assault with a weapon [Summary Offences Act 1966 s 24(2)]	2 years [Summary Offences Act 1966 s 24(2)]	6 months	2 months
8.	Contravene conduct condition of bail [Bail Act 1977 s 30A]	30 penalty units or 3 months [Bail Act 1977 s 30A]	1 month	1 month

[2]The sentence of 6 months’ imprisonment is cumulative upon the aggregate sentence imposed for counts 2, 3 & 4. Four months of the sentence is concurrent with the sentences imposed on related summary charges 5, 6 &…

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 Hayes v The Queen

Details

AGLC: Hayes v The Queen [2017] VSCA 285
Case: [2017] VSCA 285
Decision Date: 9 October 2017

CaseChat Overview and Summary

The appellant, Hayes, appealed against his sentence in relation to several criminal offences. These included attempted aggravated burglary, criminal damage, and using a carriage service to menace, harass, or cause offence, along with related summary offences. The appeal was heard in the High Court of Australia. Hayes was sentenced to four years and six months' imprisonment, with a non-parole period of three years. The central legal issue was whether his intellectual impairment reduced his moral culpability to such an extent that the sentence was manifestly excessive. The court had to consider whether the sentence could be justified by general deterrence, given the appellant's early guilty plea and significant criminal history.

The High Court considered that Hayes' intellectual impairment did reduce his moral culpability. It was held that the sentence could not be justified by general deterrence due to the appellant's early guilty plea and significant criminal history. The court found the sentence manifestly excessive, particularly in light of the reduced culpability. The Court resentenced Hayes to three years and four months' imprisonment with a non-parole period of two years and two months, taking into account his intellectual impairment and the need for specific deterrence.

The final orders of the Court were to allow the appeal, set aside the original sentence, and impose a new sentence of three years and four months' imprisonment with a non-parole period of two years and two months. The Court emphasised the importance of considering the individual circumstances of the offender, including any intellectual impairment, when determining an appropriate sentence. The Court's decision highlights the need for a balanced approach to sentencing, which considers both the nature of the offence and the personal circumstances of the offender.

Orders