Judge v The Queen; Dix v The Queen - [2021] VSCA 315

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0272

BENJAMIN JUDGE	Applicant
v
THE QUEEN	Respondent

S EAPCR 2021 0034

HARLEY DIX	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST and KYROU JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 November 2021
DATE OF JUDGMENT:	18 November 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 315
JUDGMENT APPEALED FROM:	DPP v Judge [2020] VCC 1952 (Judge Riddell); DPP v Dix [2021] VCC 45 (Judge Riddell)

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CRIMINAL LAW – Appeal – Sentence – Applicants sentenced to 2 years, 6 months’ imprisonment for a charge of kidnapping and 2 years’ imprisonment for a charge of intentionally causing injury, with total effective sentence of 3 years, 4 months’ imprisonment – Whether judge erred in not imposing a combination sentence of a term of imprisonment and a community correction order for kidnapping charge – Whether sentences manifestly excessive – Leave to appeal refused – Sentencing Act 1991 s 5(2H).

CRIMINAL LAW – Appeal – Sentence – Whether judge infringed parity principle in sentencing second applicant to same sentence as first applicant for intentionally causing injury charge – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant Judge	Ms C A Boston	Docherty Legal
For the Applicant Dix	Dr E Strugnell	James Dowsley & Associates
For the Respondent	Ms M Mahady	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
KYROU JA:

Introduction and summary

The applicants, Benjamin Judge and Harley Dix, each pleaded guilty to a charge of kidnapping and a charge of intentionally causing injury. On 2 December 2020 and 29 January 2021, respectively, they were sentenced by the same County Court judge to identical sentences, as set out in the table below:[1]
[1]DPP v Judge [2020] VCC 1952 (‘Judge sentencing remarks’); DPP v Dix [2021] VCC 45 (‘Dix sentencing remarks’).

Charge Offence Maximum Sentence Cumulation

1 Kidnapping (common law) (Crimes Act 1958 s 320) 25 years 2 years, 6 months Base

2 Intentionally causing injury (Crimes Act s 18) 10 years 2 years 10 months

Total effective sentence: 3 years, 4 months’ imprisonment

Non-parole period: 1 year, 10 months

Section 6AAA declaration: 6 years’ imprisonment, with non-parole period of 4 years, 3 months

On 2 December 2020, a co-offender, Jara Dix, was sentenced by the same judge to an identical sentence. Harley Dix was sentenced later than Benjamin Judge and Jara Dix because, after initially pleading guilty, he indicated that he might change his plea. Ultimately, he did not do so and he was sentenced on 29 January 2021. A fourth co-offender, Bo Valli, pleaded not guilty and, as at 29 January 2021, he was awaiting trial.

The definition of ‘category 2 offence’ in s 3(1) of the Sentencing Act 1991 includes kidnapping. Consequently, s 5(2H) precluded the sentencing court from imposing a community correction order (‘CCO’), or a combination sentence comprising a term of imprisonment of 12 months or less and a CCO, for charge 1 unless certain preconditions were satisfied. Section 5(2H), 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.

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Details

Case: [2021] VSCA 315
Decision Date: 18 November 2021

CaseChat Overview and Summary

The applicants, Judge and Dix, appealed their sentences following convictions for kidnapping and intentionally causing injury. The sentencing judge imposed a term of imprisonment for each offence, resulting in an effective total sentence of 3 years and 4 months. The applicants argued that the judge should have imposed a combination sentence for the kidnapping charge, and that the sentences for both charges were manifestly excessive. They also claimed that the parity principle was infringed by sentencing them to the same term for the charge of intentionally causing injury. The High Court of Australia was asked to determine whether the applicants' appeals should be granted.

The court was required to decide whether the judge erred in not imposing a combination sentence for the kidnapping charge, and whether the sentences were manifestly excessive. Additionally, the court had to determine if the parity principle was infringed by imposing the same sentence for the intentionally causing injury charge.

The court found that the judge did not err in not imposing a combination sentence for the kidnapping charge, as it was not a suitable case for such a sentence given the severity of the offence. The court also found that the sentences were not manifestly excessive, as they were within the appropriate range for the offences committed. Furthermore, the court held that there was no infringement of the parity principle, as the circumstances of the two applicants were sufficiently similar to warrant identical sentences. Consequently, the High Court refused the applicants' leave to appeal.

The High Court of Australia refused leave to appeal, affirming the sentences imposed by the trial judge.

Orders