SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2009 0887
| PAUL MAHER |
| v |
| THE QUEEN |
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| JUDGES | ASHLEY and BONGIORNO JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 10 May 2011 |
| DATE OF JUDGMENT | 12 May 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 136 |
| JUDGMENT APPEALED FROM | (Unreported, County Court of Victoria, Judge Hampel, 20 October 2009) |
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CRIMINAL LAW – Conviction – Plea of guilty – Whether appellant doubly punished – Facts supporting sentence on one count, as prosecution put its case, in substance punished by conviction and sentence on another count – Leave granted to appeal against conviction on first count – Appeal allowed – Conviction quashed – Judgment and acquittal entered.
CRIMINAL LAW – Sentence – Judge misinformed as to maximum penalty on some charges – Materiality conceded – Whether insufficient account of totality – Whether excessive cumulation of sentences – Appeal allowed and appellant re-sentenced.
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| Appearances: | Counsel | Solicitors |
For the Appellant | Mr D D Gurvich | Melinda Walker |
| For the Crown | Mr S M Cooper | Mr C Hyland, Solicitor for Public Prosecutions |
ASHLEY, J.A.:
Paul Maher, a man born 3 December 1984, and so now aged 26, appeals by leave against sentence imposed upon him in the County Court on 20 October 2009. He pleaded guilty to the offences which I now summarise, and was sentenced as follows:
Presentment
Count 1
Stalking, between 5 August and 27 August 2008
9 months’ imprisonment (4 months cumulated)
Count 2
Intentionally damaging premises by fire, with intent to endanger life, 27 August 2008
5 years’ imprisonment (1 year cumulated)
Count 3
Possession of an item with purpose of using it to damage premises in a way which he believed was more likely than not to endanger life, 27 August 2008
1 year’s imprisonment
Count 4
Entry as trespasser with intent to damage property, 18 October 2008
2 years and 6 months’ imprisonment (1 year and 6 months cumulated)
Count 5
Stalking, between 18 October and 21 October 2008
1 year and 6 months’ imprisonment (9 months cumulated)
Count 6
Entry as trespasser with intent to assault a person therein, armed with offensive weapons, between 19 and 21 October 2008
5 years imprisonment (Base sentence)
Summary charges uplifted from the Magistrates’ Court
(7) Breach of Intervention Order, 27 August 2008
4 months’ imprisonment (1 month cumulated)
(8) Breach of intervention order, 18 October 2008 (by making telephone calls to the complainant)
9 months’ imprisonment (2 months cumulated)
(9) Breach of Intervention Order, 18 October 2008 (by attending and entering complainant’s residential premises)
9 months’ imprisonment (2 months cumulated)
(10) Breach of Intervention Order 21 October 2008 (by attending and entering complainant’s residential premises)
1 year’s imprisonment (3 months cumulated)
(11) Aggravated cruelty to animal 21 October 2008
1 year and 6 months’ imprisonment (6 months cumulated)
(12) Resist police 21 October 2008
14 days imprisonment
The total effective sentence was 9 years and 9 months imprisonment.
The judge fixed a non-parole period of 6 years and 9 months imprisonment.
The judge…
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- AGLC
- Maher v The Queen [2011] VSCA 136
- Case
- [2011] VSCA 136
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the appellant was effectively punished twice for the same acts, given that the facts supporting the sentence on one count were essentially the same as those for another count. Additionally, the court had to consider whether the judge's misinformation about the maximum penalties led to an insufficient account of the totality principle and whether the cumulative sentences were excessive. The appellant argued that the sentences were disproportionate and should be reviewed.
The court found that the appellant was indeed doubly punished for the same acts, as the facts supporting the sentence on one count were essentially the same as those for another count. Furthermore, the court accepted that the judge was misinformed about the maximum penalties, which was a material error. The court concluded that the cumulative sentences were excessive and did not sufficiently account for the totality principle. As a result, the appeal was allowed, the conviction on the first count was quashed, and a judgment of acquittal was entered. The appellant was re-sentenced by the court to reflect the correct legal principles and ensure a fair and proportionate sentence.
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
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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