Longhurst v The Queen - [2021] VSCA 179

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0058

STUART LONGHURST	Applicant
v
THE QUEEN	Respondent

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JUDGES:	KAYE and T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 June 2021
DATE OF JUDGMENT:	23 June 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 179
JUDGMENT APPEALED FROM:	DPP v Longhurst (Unreported, County Court of Victoria, Judge Taft, 13 March 2020)

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ELECTION TO RENEW APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY THE COURT OF APPEAL PURSUANT TO S 3I5 OF THE CRIMINAL PROCEDURE ACT 2009

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CRIMINAL LAW – Appeal – Application for leave to appeal against sentence – Common law assault – Aggravated burglary – Intentionally causing injury – Threatening to inflict serious injury – Manifest excess – Whether sentence manifestly excessive in view of fresh evidence – Whether extant but undiagnosed medical conditions at time of sentence constitute fresh evidence – Whether events occurring after sentence constitute ‘rare and exceptional’ circumstances justifying admission on appeal – Whether fresh evidence would have been given mitigating weight had it been before sentencing judge – Crimes Act 1958 ss 18, 21, 77; R vNguyen [2006] VSCA 184 applied – Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant:	Mr Nicholas Papas QC	Robertson Legal and Conveyancing Lawyers
For the Respondent:	Ms D I Piekusis QC	Ms A Hogan, Solicitor for Public Prosecutions

KAYE JA

T FORREST JA:

The applicant pleaded guilty in the County Court to common assault (charge 1),[1] aggravated burglary (charge 2),[2] intentionally causing injury (charge 3)[3] and threatening to inflict serious injury (charge 4).[4]
[1]Contrary to common law. The maximum penalty is five years’ imprisonment: Crimes Act 1958 s 320 (‘Crimes Act’).
[2]Contrary to ibid s 77.
[3]Contrary to ibid s 18.
[4]Contrary to ibid s 21.

The sentences imposed are set out in the table below.

Charge No

Offence

Maximum Penalty

Sentence

Cumulation

1

Common law assault

5 years’ imprisonment

2 months’ imprisonment

1 month

2

Aggravated burglary

(Crimes Act 1958 s 77)

25 years’ imprisonment

Aggregate sentence:

44 months

Base

3

Intentionally causing injury

(Crimes Act 1958 s 18)

10 years’ imprisonment

4

Threatening to inflict serious injury

(Crimes Act 1958 s 21)

5 years’ imprisonment

6 months’ imprisonment

3 months

Total effective sentence:

4 years’ imprisonment

Non-parole period:

2 years and 4 months

Pre-sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:

63 days

Section 6AAA Statement:

5 years and 6 months’ imprisonment with a non-parole period of 4 years

On 27 July 2020, Priest JA refused leave to appeal against sentence.[5] Leave was sought to appeal on a ground that contended that the aggregate sentence imposed on charges 2 and 3 was manifestly excessive. The ground was particularised as follows:

(a)[T]he judge failed to give any or sufficient weight to the conduct of the applicant once released on bail until sentence;
(b)the judge failed to give sufficient weight to the applicant’s personal circumstances including his genuine…

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 Longhurst v The Queen

Details

AGLC: Longhurst v The Queen [2021] VSCA 179
Case: [2021] VSCA 179
Decision Date: 23 June 2021

CaseChat Overview and Summary

The appellant, Longhurst, appealed against his sentence for common law assault, aggravated burglary, and intentionally causing injury. The case was heard in the Supreme Court of Victoria. The appellant argued that the sentence was manifestly excessive and that there was fresh evidence that should have been considered by the original sentencing judge. This evidence included the existence of undiagnosed medical conditions at the time of sentencing and events that occurred after the sentence was handed down.

The legal issues before the court were whether the fresh evidence constituted a manifest excess of the sentence and whether the circumstances surrounding the evidence were rare and exceptional enough to warrant an appeal. The court considered whether the fresh evidence would have been given mitigating weight had it been before the original sentencing judge. The court applied the principles from R v Nguyen and sections 18, 21, and 77 of the Crimes Act 1958 in its reasoning.

The court found that the fresh evidence did not constitute a manifest excess of the sentence. The court held that the events occurring after the sentence did not constitute rare and exceptional circumstances that would justify an appeal. The court also found that the fresh evidence would not have been given mitigating weight had it been before the original sentencing judge. The application for leave to appeal was refused.

Orders