CRIMINAL LAW — Application for leave to appeal — Sentence — Aggravated burglary, intentionally causing injury (two charges), threat to kill (two charges), persistent breach of intervention order and summary assault — At 5:00 a.m., applicant, while drunk/drug-affected, forced his way into home of former partner KC, where he threatened to kill KC’s father and rendered him unconscious with a sleeper hold — As KC fled outside, applicant grabbed her in headlock and threatened to kill her, and also threatened elderly neighbour who sought to intervene — Headlock on KC ceased only when police forcibly intervened — Applicant also in breach of intervention order in favour of KC — Applicant had prior convictions for violence against KC, her father and others — Early pleas of guilty — Remorse — Medical problems created particular hardship in custody — Reasonable prospects of rehabilitation — Whether sentence on summary assault exceeded maximum penalty — Whether judge erred in sentencing on basis that prior convictions were “relevant to … assessment of the gravity of [applicant’s] crimes” — Whether sentence of six-and-a-half years’ imprisonment on aggravated burglary manifestly excessive — Whether other individual sentences and directions for cumulation manifestly excessive — Whether total effective sentence of nine years and seven months’ imprisonment with non-parole period of seven years manifestly excessive or in breach of totality — Application granted and appeal allowed — New evidence admitted on resentencing — Applicant resentenced to total effective sentence of seven years’ imprisonment with non-parole period of five years.
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APPEARANCES:
Counsel
Solicitors
For the Applicant
Mr J McLoughlin
Victoria Legal Aid
For the Respondent
Mr J McWilliams
Mr J Cain, Solicitor for the Director of Public Prosecutions
T FORREST JA:
I have had the benefit of reading a draft of Croucher AJA’s judgment. I agree with his conclusions and the orders he proposes.
CROUCHER AJA:
At 5:00 a.m. on 1 July 2017, Anthony Leo Lim, while drunk and drug-affected, forcibly broke into his former partner Kylie Carter’s home in a suburb of Ballarat. Intent upon mayhem, he then went on a rampage of violent and threatening behaviour. Immediately upon entry, Mr Lim assaulted Ms Carter’s father Neil Carter, threatened to kill him and choked him with a sleeper hold to the point of unconsciousness. Next, he followed Ms Carter as she fled outside, uttered a threat to kill her and grabbed her around the neck in a similar choker hold while her terrified six-year-old daughter clung to her leg. Just before he grabbed Ms Carter, Mr Lim also shook his fist at Therese Harvey, a 77-year-old neighbour who had simply tried to comfort those in fear. Police arrived 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.
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AGLC
Lim v The Queen [2019] VSCA 182
Case
[2019] VSCA 182
Decision Date
CaseChat Overview and Summary
In the case of Lim v The Queen, the applicant, who was found guilty of multiple criminal offences, sought leave to appeal against the severity of his sentence. The applicant was convicted of aggravated burglary, intentionally causing injury, threatening to kill, persistent breach of an intervention order, and summary assault. The events leading to these charges occurred when the applicant, under the influence of drugs and alcohol, forced his way into the home of his former partner, where he threatened to kill her father, rendered him unconscious, and subsequently assaulted the former partner and a neighbour. The applicant had a history of violence against the former partner and others, and was in breach of an intervention order at the time of the offence. The court was required to decide whether the sentence imposed on the summary assault charge exceeded the maximum penalty, whether the judge had correctly considered the prior convictions in assessing the gravity of the crimes, whether the sentence for the aggravated burglary was manifestly excessive, and whether the cumulative sentences and non-parole period were excessive or in breach of the principle of totality.
The court found that the sentence for the summary assault did exceed the maximum penalty and that the judge had erred in considering the prior convictions as relevant to the gravity of the crimes. The court also found that the sentence for the aggravated burglary was not manifestly excessive but acknowledged the cumulative sentences and non-parole period were manifestly excessive. The applicant's medical problems, which created particular hardship in custody, and the reasonable prospects of rehabilitation were factors considered by the court in reassessing the sentence. The court granted the application for leave to appeal, allowing the appeal, and admitted new evidence on resentencing. The applicant was resentenced to a total effective sentence of seven years' imprisonment with a non-parole period of five years.
The final orders of the court reflected the resentencing of the applicant, taking into account the factors of the maximum penalty error, the inappropriate consideration of prior convictions, and the excessive cumulative sentences. The court's decision resulted in a reduction of both the total effective sentence and the non-parole period, demonstrating the court's consideration of the applicant's circumstances and the principle of proportionality in sentencing.