SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0232
| LAYEN KERAPA | Applicant |
| v | |
| THE QUEEN | Respondent |
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| 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…
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- AGLC
- Kerapa v The Queen [2017] VSCA 56
- Case
- [2017] VSCA 56
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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