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Hill v The Queen

Hill v The Queen

Case [2020] VSCA 220 3 September 2020

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0181

WENDY HILL	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P and NIALL JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 August 2020
DATE OF JUDGMENT:	3 September 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 220
JUDGMENT APPEALED FROM:	[2019] VCC 223 (Judge Smallwood)

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CRIMINAL LAW – Appeal – Sentence – Aggravated burglary – Home invasion – Causing injury intentionally (2) – Marriage breakdown – Applicant broke into house of ex-husband – Violent attack on ex-husband and new partner – Aggravated burglary sentence 4 years – Total effective sentence 6 years and 3 months, non-parole period 3 years and 6 months – Whether manifestly excessive – Whether offending ‘grievance-driven and purposeful’ – Family violence – Whether causative of offending – Expert evidence – Offending linked to applicant’s anger at ‘abandonment’ – Animosity to new partner – No evidence of causal link to family violence – Very serious offending – Weapons used – Sentence moderate – Leave to appeal refused – Hogarth v The Queen (2012) 37 VR 658; [2012] VSCA 302, DPP v Meyers (2014) 44 VR 486; [2014] VSCA 314 considered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant:	Ms G F Connelly	Fitzroy Legal Service
For the Respondent:	Mr P L Bourke	Ms A Hogan, Solicitor for Public Prosecutions

MAXWELL P
NIALL JA:

Summary

As this Court said in Hogarth v The Queen, home invasion is ‘a particularly nasty form of criminal conduct’.[1] The present case illustrates, yet again, just how devastating a home invasion can be. The applicant armed herself with weapons — a length of pipe and a knife — and smashed a window to gain entry to a house occupied by her ex-husband (Paul Hill) and his new partner (‘S’). The applicant’s daughter (‘AD’) was also present. Once inside, the applicant attacked S first and then Mr Hill, stabbing them both.
[1](2012) 37 VR 658, 659 [1]; [2012] VSCA 302 (Maxwell P, Neave JA and Coghlan AJA) (‘Hogarth’).

In the view of the sentencing judge, this was ‘a very serious example of [aggravated burglary]’.[2] His Honour described the offending as ‘an act of anger and punishment’ directed at Mr Hill and S.[3] He considered that the forced entry and the ‘relentless’ knife attacks would have been ‘an absolutely terrifying experience for those involved’.[4]
[2]DPP v Bloom (a pseudonym) [2019] VCC 223, [22] (‘Reasons’).
[3]Ibid [28].
[4]Ibid [37], [28].

The applicant, having pleaded guilty to four charges, was sentenced as follows:

Charge Offence Maximum Sentence Cumulation

1. Threat to kill 10 years 6 months 3 months

2. Aggravated burglary 25 years 4 years Base

3. Causing injury intentionally 10 years 3 years 1 year

4. Causing injury intentionally 10 years 3 years 1 year

Total effective sentence: 6 years and 3 months’ imprisonment

Non-parole period: 3 years and 6 months’ imprisonment

Pre-sentence detention declared: 502 days

6AAA statement: 9 years and 6 months, with a non-parole…

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 Hill v The Queen

Details

AGLC: Wendy Hill v The Queen [2020] VSCA 220
Case: [2020] VSCA 220
Decision Date: 3 September 2020

CaseChat Overview and Summary

The appellant, Hill, appealed against her sentence for aggravated burglary and causing injury intentionally. The case was heard in the Victorian Court of Appeal. Hill had broken into the home of her ex-husband and carried out a violent attack on him and his new partner. The trial judge had sentenced Hill to four years for the aggravated burglary and two years for the causing injury offence, with a total effective sentence of six years and three months, and a non-parole period of three years and six months. Hill argued that the sentence was manifestly excessive, that her offending was grievance-driven and purposeful, and that the family violence she had experienced was causative of the offending.

The court considered the nature of Hill's offending and the circumstances in which it occurred. The court found that while Hill's offending was serious and involved the use of weapons, it was not manifestly excessive. The court also found that the offending was not grievance-driven and purposeful, as there was no evidence to support a causal link between the family violence and the offending. The court noted that Hill had a history of anger and violence, and that the offending was linked to her anger at her ex-husband's "abandonment" and her animosity towards his new partner. However, the court found that this did not make the offending grievance-driven and purposeful.

The court also considered the principles set out in Hogarth v The Queen and DPP v Meyers, and found that Hill's sentence was moderate in the circumstances. The court noted that Hill had pleaded guilty and expressed remorse, and that she had a history of mental health issues and a difficult childhood. However, the court found that these factors did not outweigh the seriousness of the offending. The court concluded that the sentence was appropriate and not manifestly excessive.

The court refused Hill leave to appeal against her sentence. The final orders of the court were that the appeal be dismissed, and that the sentence imposed by the trial judge be upheld.

Orders