Legal Research
Cases
Maher v The Queen

Maher v The Queen

Case [2011] VSCA 136 12 May 2011

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0887

PAUL MAHER
	v
THE QUEEN

---

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)

---

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.

---

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…

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 Maher v The Queen

Details

AGLC: Maher v The Queen [2011] VSCA 136
Case: [2011] VSCA 136
Decision Date: 12 May 2011

CaseChat Overview and Summary

In the High Court of Australia, Maher appealed against his conviction and sentence for criminal activities, which included drug trafficking and other associated offences. The respondent, The Queen, was represented by the Crown Solicitor. The primary dispute centred around whether the appellant was doubly punished for the same acts, the accuracy of the sentence imposed, and the judge's understanding of the maximum penalties for certain charges.

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