Lisle v The Queen - [2017] VSCA 4

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0127

DAMIAN PAUL LISLE	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST and SANTAMARIA JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25 January 2017
DATE OF JUDGMENT:	25 January 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 4
JUDGMENT APPEALED FROM:	DPP v Lisle (Unreported, County Court of Victoria, Judge Morrish, 3 June 2016)

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CRIMINAL LAW — Sentence — Appeal — Arson and burglary — Appellant set fire to toilet rolls and a clipboard at Crown Casino — Sentenced as a serious arson offender to be imprisoned for 5 years a with a non-parole period of 3 years and to a community correction order of 7 years’ duration — Sentence manifestly excessive — Leave to appeal granted — Appeal allowed — Re-sentenced to be imprisoned for 3 years and 6 months with a non-parole period of 2 years.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P Smallwood	Papa Hughes Lawyers
For the Crown	Mr C Boyce SC	Mr J Cain, Solicitor for Public Prosecutions

PRIEST JA

Introduction

On 18 February 2016, the applicant pleaded guilty in the County Court to three charges of arson (charges 1, 2 and 4) and one charge of burglary (charge 3).

Later, on 3 June 2016, the judge imposed a total effective sentence of five years’ imprisonment upon the applicant, and fixed a non-parole period of three years. The judge also imposed a community correction order (‘CCO’) of seven years’ duration on charges 1, 2 and 4 (arson).

The applicant seeks leave to appeal against the sentence on two grounds as follows:

1. The learned sentencing judge erred by concluding that the applicant’s consumption of alcohol was an aggravating factor.
2. The individual sentences (including the terms of imprisonment and the Community Correction Order imposed), orders for cumulation, total effective sentence and non-parole period fixed are each manifestly excessive.
Particulars
(a)The sentences imposed were disproportionate to the gravity of the offending.
(b)The learned sentencing judge gave manifestly insufficient weight to the applicant’s early pleas of guilty and remorse.

With conspicuous fairness, in response to the applicant’s written case the respondent promptly conceded that ‘the total effective sentence and non-parole period are manifestly excessive when combined with a [CCO] of the length and onerous conditions imposed in this case’. That concession was properly made.

For reasons that I will shortly elaborate, leave to appeal against the sentence should be granted and the appeal allowed. I would sentence the applicant to be imprisoned for three years and six months, with a non-parole period of two years, in the manner I will later set out.

Circumstances of the offending

All of the offences charged in the indictment occurred within the Crown Casino complex at Southbank on Wednesday, 5 August 2015, between the hours 7.00pm and 9.00pm. At that time the applicant was aged 41 years.[1] He lived with his wife, Leanne, in their family home at Coldstream, and was employed as a business development manager for an architectural…

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 Lisle v The Queen

Details

AGLC: Lisle v The Queen [2017] VSCA 4
Case: [2017] VSCA 4
Decision Date: 25 January 2017

CaseChat Overview and Summary

Lisle appealed against his conviction for arson and burglary, arguing that the sentence imposed was manifestly excessive. The incident involved the appellant setting fire to toilet rolls and a clipboard at the Crown Casino. The Court of Appeal was tasked with determining whether the original sentence was appropriate, considering the seriousness of the crime and the circumstances surrounding it. The court considered the appellant's background, including his previous criminal history, the nature of the offence, and the impact of the crime on the community. The court found that the original sentence was manifestly excessive and allowed the appeal. The appellant was re-sentenced to imprisonment for 3 years and 6 months with a non-parole period of 2 years. The court also imposed a community correction order of 2 years’ duration. This decision highlights the importance of proportionality in sentencing and the role of appellate courts in ensuring that sentences are just and appropriate.

Orders