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 &…
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- AGLC
- Hayes v The Queen [2017] VSCA 285
- Case
- [2017] VSCA 285
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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