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Humphries v The Queen

Humphries v The Queen

Case [2010] VSCA 161 25 June 2010

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0775
GEORGE HUMPHRIES	Appellant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P, REDLICH and MANDIE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 May 2010
DATE OF JUDGMENT:	25 June 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 161
JUDGMENT APPEALED FROM:	R v George Humphries (Unreported, County Court of Victoria, Judge J Howard, 12 August 2008)

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CRIMINAL LAW – Sentencing – Attempt to commit aggravated burglary – Offender attempted to enter home of his alleged drug supplier – Whether relevant that victims created an environment where risk of violence – Offender armed with imitation weapon – Whether open to sentencing judge to regard drug use prior to offending as an aggravating circumstance – Obligation upon Crown to provide sentencing judge with appropriate sentencing ‘range’ – R v MacNeil-Brown (2008) 20 VR 677 considered – Whether different sentences ought to have been passed – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr P F Tehan QC	Ronald V Tait
For the Crown	Mr D A Trapnell SC	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P

REDLICH JA:

The appellant pleaded guilty in the County Court to one count of an attempt to commit aggravated burglary. The sentencing judge imposed a sentence of three years’ imprisonment with a non-parole period of two years. The appellant now appeals against that sentence on two grounds. First, that the learned trial judge wrongly treated the fact that appellant was drug affected at the time of committing the offence as an aggravating factor. Second, that the sentence imposed is manifestly excessive in the circumstances.

Circumstances of the offending

The circumstances of the offending were agreed between the parties before the sentencing judge and are not contested on the appeal. In essence, the appellant, whilst armed with an imitation weapon, attempted to break into the occupied home of his drug supplier with the purpose of stealing drugs. The detail is as set out in the reasons of the learned trial judge:

In the early hours of the morning of 26 September 2008 you were drug-affected, probably due to an overdose of anti-depressant medication which you were taking in large quantities. You went to a friend’s house in Fairbairn Drive, Corio, at about 1.20 am, but your friend would not allow you to enter the house. She noticed that you were carrying a silver toy gun which she thought belonged to one of her children, but you explained that you had found it nearby.
About 10 minutes later you went across the road to 50 Fairbairn Drive, which was the home of Raymond Dannatt and Sharon Reiss. You had been to that place 40-50 times before to obtain drugs from Dannatt, who was your amphetamines supplier. You later told police that you had gone to those premises so you could break in and steal drugs. Initially you were looking for a screwdriver to help you do that, but then you found the toy gun which…

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 Humphries v The Queen

Details

AGLC: Humphries v The Queen [2010] VSCA 161
Case: [2010] VSCA 161
Decision Date: 25 June 2010

CaseChat Overview and Summary

The appellant, Humphries, sought to appeal against his sentence for his attempt to commit aggravated burglary. The attempted crime involved the appellant trying to enter the home of his alleged drug supplier, armed with an imitation firearm. The case was heard in the Court of Appeal of the Supreme Court of Victoria. The appeal questioned the appropriateness of the sentence given by the lower court, considering factors such as the environment created by the victims, the appellant's drug use prior to the offence, and the obligation on the Crown to provide an appropriate sentencing range.

The court was required to decide several legal issues. Firstly, whether the fact that the victims created an environment where the risk of violence was present was relevant to the sentencing. Secondly, whether the appellant's drug use prior to the offence could be regarded as an aggravating circumstance. Thirdly, whether the Crown had fulfilled its obligation to provide the sentencing judge with an appropriate sentencing range, in line with the principles set out in R v MacNeil-Brown (2008) 20 VR 677. Lastly, whether different sentences should have been passed for the various charges.

The court held that the sentencing judge had appropriately considered the relevant factors when determining the sentence. The judge had taken into account the appellant's drug use and the risk of violence created by the victims, and had also considered the appropriate sentencing range. The court found that the Crown had fulfilled its obligation to provide the sentencing range. The court further held that the sentences passed were appropriate, and that no different sentences should have been imposed. The appeal was therefore dismissed.

The final orders of the court were that the appeal against sentence was dismissed, and the original sentence imposed by the lower court was upheld. The appellant's conviction and sentence remained in place, with no variation or alteration made by the Court of Appeal.

Orders