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Laa v The Queen

Laa v The Queen

Case [2020] VSCA 136 28 May 2020

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0067

URBANO LAA	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P, KAYE and NIALL JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22 May 2020
DATE OF JUDGMENT:	28 May 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 136
JUDGMENT APPEALED FROM:	DPP v Laa (County Court of Victoria, Judge Wischusen, 28 February 2020)

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CRIMINAL LAW – Appeal – Sentence – Applicant pleaded guilty to one charge of using a carriage service to menace, harass or cause offence, one charge of aggravated burglary, one charge of common assault and one charge of making a threat to kill – Applicant sentenced to 4 years’ imprisonment, with non-parole period of two years and two months – Whether sentence manifestly excessive – Whether trial judge’s findings regarding applicant’s remorse and prospects of rehabilitation not supported by the evidence – Application for leave to appeal refused – Serious offending against former domestic partner in presence of young children at their home – General deterrence and denunciation of particular importance – High moral culpability – Applicant had opportunity to desist – Substantial mitigation factors, including late plea of guilty and significant rehabilitative efforts – Sentence not wholly outside the range of sentencing options – Trial judge’s findings supported by the evidence – Filiz v The Queen [2014] VSCA 212, DPP v Meyers (2014) 44 VR 486 referred to.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms E Strugnell	Johnstone and Reimer Lawyers Pty Ltd
For the Respondent	Mr P Bourke	Ms A Hogan, Solicitor for Public Prosecutions

MAXWELL P
KAYE JA
NIALL JA:

The applicant pleaded guilty to one charge of using a carriage service to menace, harass or cause offence (contrary to s 474.17(1) of the Criminal Code 1995 (Cth)), one charge of aggravated burglary, one charge of common assault and one charge of making a threat to kill. The judge who heard the plea imposed a total effective sentence of four years’ imprisonment, with a non-parole period that was, in effect, two years and two months.

That sentence was constituted as follows:

Charge on Indictment Offence Maximum Sentence Cumulation

1 Use a carriage service to menace, harass or cause offence 3 years’ imprisonment 6 months’ imprisonment
N/A

(Sentence to commence four months before expiration of the non-parole period on the State offences)

2
Aggravated

burglary
25 years’ imprisonment 3 years 6 months’ imprisonment BASE

3

Common assault

5 years’ imprisonment

12 months’ imprisonment

4 months

4 Make threat to kill 10 years’ imprisonment 12 months’ imprisonment 2 months

Total Effective sentence 4 years’ imprisonment

Non-Parole Period 2 years 2 months’ imprisonment

Section 6AAA Declaration
Total Effective Sentence: 5 years and 6 months

Non-parole period: 3 years and 6 months

The applicant originally sought leave to appeal on the single ground that the sentence was manifestly excessive. In the course of oral submissions, counsel sought, and was granted, leave to add a further second proposed ground of appeal, namely, that the findings by the…

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 Laa v The Queen

Details

AGLC: Urbano Laa v The Queen [2020] VSCA 136
Case: [2020] VSCA 136
Decision Date: 28 May 2020

CaseChat Overview and Summary

The applicant in this case appealed against the sentence imposed by the County Court, arguing it was manifestly excessive. The applicant had pleaded guilty to using a carriage service to menace, harass or cause offence, aggravated burglary, common assault and making a threat to kill. The offending occurred against the applicant’s former domestic partner in the presence of young children at their home. The County Court sentenced the applicant to four years’ imprisonment, with a non-parole period of two years and two months. The applicant argued that the sentence was manifestly excessive, that the trial judge’s findings regarding the applicant’s remorse and prospects of rehabilitation were not supported by the evidence, and that the trial judge had failed to give sufficient weight to the mitigation factors.

The Court of Appeal considered the relevant sentencing principles and factors, including the seriousness of the offending, the need for general deterrence and denunciation, the moral culpability of the applicant, and the opportunity the applicant had to desist. The Court noted that the applicant had a significant history of offending, including against the same victim, and that the offending was carried out in the presence of young children. The Court also noted that the applicant had a number of substantial mitigation factors, including a late plea of guilty and significant rehabilitative efforts. However, the Court found that the sentence was not wholly outside the range of sentencing options and that the trial judge’s findings were supported by the evidence. The Court noted that the trial judge had considered all relevant factors and had made findings based on the evidence before them.

The Court of Appeal dismissed the applicant’s application for leave to appeal, finding that the sentence was not manifestly excessive and that the trial judge’s findings were supported by the evidence. The Court noted that the seriousness of the offending, the need for general deterrence and denunciation, and the moral culpability of the applicant were significant factors in determining the sentence. The Court also noted that the applicant had an opportunity to desist and that the sentence reflected this. The Court found that the trial judge had considered all relevant factors and had made findings based on the evidence before them.

No orders were made.

Orders