Hope v The Queen - [2021] VSCA 177

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0260

LAIN SANDFORD HOPE	Applicant
v
THE QUEEN	Respondent

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JUDGES:	KAYE and OSBORN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 June 2021
DATE OF JUDGMENT:	22 June 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 177
JUDGMENT APPEALED FROM:	[2020] VCC 1738 (Judge C Ryan)

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CRIMINAL LAW – Appeal – Sentence – Applicant pleaded guilty to four charges and three summary charges including aggravated burglary, attempted aggravated burglary, recklessly cause injury, intentionally damage property and unlawful assault – Applicant committed offences against his neighbours in violent episode whilst intoxicated – No history of violent offending or violence when intoxicated – Sentencing judge accepted voluntary ingestion of alcohol as a mitigating circumstance – Whether individual sentences and total effective sentence manifestly excessive – Appeal dismissed – Hasan v The Queen (2010) 31 VR 28, Morrison v The Queen [2012] VSCA 222, Hogarth v The Queen (2012) 37 VR 658, DPP v Meyers (2014) 44 VR 486 considered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr O P Holdenson QC	Stary Norton Halphen
For the Respondent	Ms E Ruddle SC	Ms A Hogan, Solicitor for Public Prosecutions

KAYE JA
OSBORN JA:

The applicant pleaded guilty, before a judge of the County Court, to one charge of recklessly causing injury, one charge of aggravated burglary, one charge of intentionally damaging property and one charge of attempted aggravated burglary. He also pleaded guilty to two related summary charges of unlawful assault and one related charge of causing the wheels of a vehicle driven by him to lose traction. After a plea presented on his behalf, the applicant was sentenced to a total effective sentence of three years and 11 months’ imprisonment with a non-parole period of two years.

That sentence is constituted as follows:

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1	Recklessly causing injury[1]	5 years’ imprisonment	6 months’ imprisonment	2 months
2	Aggravated burglary[2]	25 years’ imprisonment	3 years’ imprisonment	Base
3	Intentionally damaging property[3]	10 years’ imprisonment	3 months’ imprisonment	1 month
4	Attempted aggravated burglary[4]	20 years’ imprisonment	2 years’ imprisonment	8 months
Related Summary Offences
6	Unlawful assault[5]	3 months’ imprisonment	1 month’s imprisonment	1 month
8	Unlawful assault	3 months’ imprisonment	1 month’s imprisonment	1 month
10	Drive vehicle causing loss of traction[6]	5 penalty units	$500 fine	–
Total Effective Sentence:		3 years and 11 months’ imprisonment, $500 fine
Non-parole period:		2 years
Pre-Sentence Detention Declaration:		16 days
Section 6AAA Statement:		7 years’ imprisonment, with a non-parole period of 4 years and 6 months
Other Relevant Orders:		Nil

[1]Contrary to Crimes Act 1958, s 18.

[2]Contrary to Crimes Act 1958, s 77.

[3]Contrary to Crimes Act 1958, s 197(1).

[4]Contrary to Crimes Act 1958, ss 77 and 321M.

[5]Contrary to Summary Offences Act 1966, s 23.

[6]Contrary to Road Safety Act 1986, s 65A.

The applicant seeks leave to appeal on three grounds, namely:

Ground 1:The individual…

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 Hope v The Queen

Details

AGLC: Hope v The Queen [2021] VSCA 177
Case: [2021] VSCA 177
Decision Date: 22 June 2021

CaseChat Overview and Summary

The appeal heard by the court involved the applicant, Hope, who had previously pleaded guilty to a series of serious charges, including aggravated burglary, attempted aggravated burglary, recklessly causing injury, intentionally damaging property, and unlawful assault. The crimes were committed against the applicant’s neighbours during a violent episode while he was intoxicated. Notably, the applicant had no prior history of violent offending or violent behaviour when under the influence of alcohol. The sentencing judge acknowledged the voluntary consumption of alcohol as a mitigating factor in the sentencing process. The appeal focused on whether the individual sentences, as well as the total effective sentence, were excessively severe.

The legal issues central to this appeal were the assessment of the severity of the sentences imposed and whether they were manifestly excessive given the mitigating factors. The court was required to consider if the sentencing judge appropriately balanced the gravity of the offences with the mitigating circumstances presented by the defence. The appeal also examined whether the overall sentence was disproportionate, taking into account the principles of proportionality and deterrence in criminal sentencing.

In examining these issues, the court considered relevant case law, including Hasan v The Queen, Morrison v The Queen, Hogarth v The Queen, and DPP v Meyers. The court found that the sentencing judge had adequately considered the mitigating factors, including the voluntary ingestion of alcohol, and appropriately weighed them against the seriousness of the crimes committed. The court concluded that neither the individual sentences nor the total effective sentence was manifestly excessive. Consequently, the appeal was dismissed, and the original sentences were upheld.

The final orders of the court were to dismiss the appeal, affirming the sentences imposed by the original sentencing judge. The court's decision underscored the importance of considering all relevant mitigating factors in sentencing, while also ensuring that the sentences imposed are proportionate to the gravity of the crimes committed.

Orders

Orders of the court

Appeal dismissed

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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