JUDGES:	REDLICH and SANTAMARIA JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 February 2017
DATE OF JUDGMENT:	20 March 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 56
JUDGMENT APPEALED FROM:	DPP v Kerapa (Unreported, County Court Of Victoria, Judge Taft, 3 August 2016)

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CRIMINAL LAW – Appeal – Sentence – Aggregate sentence for two offences founded on the same facts – Aggravated burglary and recklessly causing injury – Whether appropriate to impose an aggregate sentence – Whether offences varied significantly in seriousness so as to require transparency as to the sentence on each charge – R v Grossi (2008) 23 VR 500, 510 [39] applied – Seriousness not determined by maximum penalty – DPP v Frewstal Pty Ltd (2015) 47 VR 600; R v Fitzpatrick [2016] VSCA 63; R v Saxon [2014] VSCA 296 considered.

CRIMINAL LAW – Sentence – Attack on manager of hotel after entry into office with intent to assault – Confrontational burglary in private part of workplace – Whether less serious than confrontational aggravated burglary of private residence – Aggregate sentence of 2 years and 6 months’ imprisonment with a non-parole period of 1 year and 3 months for aggravated burglary and recklessly causing injury – Intent to assault – Serious form of aggravated burglary – Serious example of recklessly causing injury – TS v The Queen [2014] VSCA 24; Joseph v The Queen [2014] VSCA 343; DPP v Anderson [2013] VSCA 45; Saltalamacchia v The Queen [2010] VSCA 83; Alexopoulos v The Queen [2010] VSCA 52; Cubullos v The Queen [2011] VSCA 380 considered – Leave granted but appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D A Glynn	Haines & Polites
For the Respondent	Mr D A Trapnell QC	Mr J Cain, Solicitor for Public Prosecutions

REDLICH JA
SANTAMARIA JA:

Introduction

The applicant having pleaded guilty to one charge of aggravated burglary and one charge of recklessly causing injury was sentenced in the County Court to an aggregate term of imprisonment of 2 years and 6 months with a non-parole period of 1 year and 3 months.

The applicant seeks leave to appeal this sentence on two grounds:

1.        That the learned sentencing judge erred by imposing an aggregate sentence.
2.        That the sentence imposed was manifestly excessive, given
(a)       the nature of the aggravated burglary;
(b)       current sentencing practices; and
(c)       the matters going in mitigation.

For the reasons that follow we would grant leave to appeal and dismiss the appeal.

The facts of the offending are conveniently set out in the sentencing judge’s remarks:

On the evening of 1 December 2015, Patrick Cartwright was working as the night manager at The Gatwick Private Hotel (‘the Hotel’). The Hotel prohibits residents from having visitors after 9.00pm. At approximately 1.40am on 1 December 2015, you arrived at the Hotel on a bicycle. [The applicant] and…

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 Kerapa v The Queen

Details

AGLC: Kerapa v The Queen [2017] VSCA 56
Case: [2017] VSCA 56
Decision Date: 20 March 2017

CaseChat Overview and Summary

The defendant, Mr Kerapa, appealed against his sentence for two offences of aggravated burglary and recklessly causing injury, which were based on the same set of facts. The appeal was heard in the Victorian Court of Appeal. The central issue was whether the imposition of an aggregate sentence was appropriate and whether the offences varied significantly in seriousness, necessitating transparency in the sentencing for each charge. This matter was guided by principles established in R v Grossi.

The court examined the nature and seriousness of the offences. The first offence involved an aggravated burglary in a private residence, while the second offence involved an assault on the manager of a hotel in the office, which was also a private part of the workplace. The court considered whether the attack on the hotel manager was less serious than the confrontational aggravated burglary of a private residence. It was noted that the intent to assault constituted a serious form of aggravated burglary and a serious example of recklessly causing injury. This analysis drew on cases such as TS v The Queen, Joseph v The Queen, and others.

The court concluded that the offences did not vary significantly in seriousness, thus an aggregate sentence was appropriate. The appeal was dismissed, and the original sentence of two years and six months imprisonment, with a non-parole period of one year and three months, was upheld. The reasoning relied on the application of precedents and the specific circumstances of the case, which highlighted the seriousness of the defendant's actions.

Orders