Ibbott v The Queen - [2021] VSCA 338

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0107

BEAU IBBOTT	Applicant
v
THE QUEEN	Respondent

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JUDGE:	BEACH JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	6 December 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 338
JUDGMENT APPEALED FROM:	[2021] VCC 968 (Judge McInerney)

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CRIMINAL LAW – Sentence – Application for leave to appeal – Aggravated burglary, intentionally damage property (3 charges), arson, possess prohibited weapon – TES of 5 years and 7 months, with NPP of 4 years – Sentencing judge misstating contents of expert psychiatric report – Whether sentencing judge thereby erred in assessment of applicant’s insight and/or prospects of rehabilitation – Manifest excess – Whether sentence manifestly excessive – No reasonable prospect that less severe sentence would be imposed – No reasonable prospect that total effective sentence would be reduced – Criminal Procedure Act 2009, s 280(1) – Application for leave to appeal refused.

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REPRESENTATION:	Counsel	Solicitors
For the Applicant	Mr C K Wareham with Mr C Tom	Victoria Legal Aid
For the Respondent	Mr G Buchhorn	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA:

The applicant pleaded guilty in the County Court to one charge of aggravated burglary,[1] three charges of intentionally damaging property,[2] one charge of arson[3] and one charge of possessing a prohibited weapon.[4] On 15 July 2021, following a plea hearing conducted on 23 and 24 June 2021, the applicant was sentenced as follows:
[1]Contrary to s 77(1) of the Crimes Act 1958.
[2]Contrary to s 197(1) of the Crimes Act 1958.
[3]Contrary to ss 197(1) and (6) of the Crimes Act 1958.
[4]Contrary to s 5AA of the Control of Weapons Act 1990.

Charge Offence Maximum Sentence Cumulation

1

Aggravated Burglary

25 years

4 years and 6 months

Base

2

Intentionally Damage Property

10 years

2 years

4 months

3

Arson

15 years

3 years

6 months

4

Intentionally Damage Property

10 years

4 months

Nil

5

Intentionally Damage Property

10 years

12 months

3 months

6

Possess Prohibited Weapon

2 years

1 month

Nil

Total Effective Sentence:

5 years 7 months

Non-parole Period:

4 years

Pre-sentence detention:

367 days

6AAA Statement: 7 years with a non-parole period of 5 years

The applicant now seeks leave to appeal on the following proposed grounds:

1.The judge erred in his assessment of the applicant’s insight and prospects of rehabilitation by reason of his erroneous understanding of the psychiatrist’s expert report.
2.In all the circumstances, the total effective sentence and non-parole period are manifestly excessive. Specifically, the judge failed to give sufficient weight to:
(a)the applicant’s plea of guilty and its considerable utility;
(b)the applicant’s genuine remorse; and
(c)the extra-curial punishment the applicant suffered.

Circumstances of the offending

The prosecution opening, tendered on the plea, was an agreed summary of facts. In short, the applicant had been staying in a caravan on the property of his sister, Destinee, and her partner, Lewis Bywater. The applicant’s mother was also staying at…

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 Ibbott v The Queen

Details

AGLC: Ibbott v The Queen [2021] VSCA 338
Case: [2021] VSCA 338
Decision Date: 6 December 2021

CaseChat Overview and Summary

The applicant, Ibbott, appealed against the sentence imposed by the sentencing judge following his conviction for aggravated burglary, intentionally damaging property, arson, and possession of a prohibited weapon. The case was heard by the Court of Appeal in Australia. The central issue was whether the sentencing judge erred in the assessment of the applicant's insight and prospects for rehabilitation due to a misstatement of an expert psychiatric report. Additionally, the court had to determine if the sentence was manifestly excessive, and if there was a reasonable prospect of a less severe sentence being imposed or a reduction in the total effective sentence.

The court examined the sentencing judge's handling of the expert psychiatric report and concluded that, despite the misstatement, there was no error in the assessment of the applicant's insight and rehabilitation prospects. The court found that the sentencing judge had correctly considered the report's contents and that the sentence was not manifestly excessive. The court also held that there was no reasonable prospect of a less severe sentence being imposed or a reduction in the total effective sentence. The appeal was dismissed under the Criminal Procedure Act 2009, section 280(1), due to the lack of reasonable prospects of success.

The court's decision was grounded in the sentencing judge's accurate consideration of the psychiatric report and the overall assessment of the applicant's culpability and risk of reoffending. The appeal was refused, and the original sentence of five years and seven months, with a non-parole period of four years, was upheld.

Orders