Mark Brown v The Queen - [2017] VSCA 268

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0255

MARK BROWN	Applicant
v
THE QUEEN	Respondent

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JUDGES:	OSBORN and COGHLAN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 September 2017
DATE OF JUDGMENT:	22 September 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 268
JUDGMENT APPEALED FROM:	[2016] VCC 1402 (Judge McInerney)

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CRIMINAL LAW – Application for leave to appeal against sentence – False imprisonment – Extortion with a threat to inflict injury – Sentenced to total effective sentence of 5 years and 6 months’ imprisonment with a non-parole period of 3 years and 8 months – Whether individual sentences and total effective sentence manifestly excessive – Whether sentencing judge gave too much weight to the applicant’s criminal record in assessing the applicant’s prospects of rehabilitation – Crimes Act 1958 ss 27, 320 – Leave refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr C Pearson	Vassis & Co
For the Crown	Ms F L Dalziel	Mr J Cain, Solicitor for Public Prosecutions

OSBORN JA:
COGHLAN JA:

This is an application for leave to appeal against sentence on the ground of manifest excess.

In relation to Indictment F1362077, the applicant was arraigned and pleaded guilty on 19 August 2016.

The indictment offences were committed in breach of a community correction order (‘CCO’) imposed on 29 May 2014 by the County Court following appeal against sentence in the Magistrates’ Court.

The applicant was sentenced in relation to both the Indictment and contravention of the CCO on 21 September 2016.

The penalty imposed for contravening the CCO (3 months’ imprisonment) is not the subject of an application for leave to appeal.

The sentences the subject of appeal are as follows:

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1.	False imprisonment (Common Law)	10 years (s 320 Crimes Act 1958)	2 years	14 months
2.	False imprisonment (Common Law)	10 years (s 320 Crimes Act 1958)	3 years	Base
3.	Extortion with a threat to inflict injury (s 27 Crimes Act 1958)	15 years (s 27 Crimes Act 1958)	2 years	16 months
Total Effective Sentence:		5 years 6 months
Non-Parole Period:		3 years 8 months
*Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:*		332 days
6AAA Statement: Total Effective Sentence: 7 years 4 months; Non-Parole Period: 5 years 9 months
Other relevant orders: The sentence imposed in regard to this Indictment of 5 years and 6 months be served cumulatively on the sentence of 3 months imposed for contravening the community correction order.

The applicant was born on 8 February 1987 and was 28 years old at the time of the offending. At the time of sentence, he was 29 years old; he is now 30 years old.

The victim, Luke O’Loughlin, was 26 years old at the time of the offending. He was a crystal methylamphetamine (‘ice’) user with drug debts.

Mr O’Loughlin had known the applicant for approximately two weeks. On or about 12 October 2015, a mutual acquaintance…

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 Mark Brown v The Queen

Details

AGLC: Mark Brown v The Queen [2017] VSCA 268
Case: [2017] VSCA 268
Decision Date: 22 September 2017

CaseChat Overview and Summary

In the case of Mark Brown v The Queen, the applicant sought leave to appeal against the sentence imposed by the County Court of Victoria. The applicant was convicted of false imprisonment, extortion with a threat to inflict injury, and other related offences, and was sentenced to a total effective sentence of 5 years and 6 months’ imprisonment, with a non-parole period of 3 years and 8 months. The primary issue before the court was whether the individual sentences, as well as the total effective sentence, were manifestly excessive and whether the sentencing judge had given undue weight to the applicant’s criminal record in assessing his prospects of rehabilitation.

The court noted that the applicant had a lengthy criminal history, with numerous convictions for offences involving violence, threats, and the use of firearms. The sentencing judge had taken into account the seriousness of the current offences, the applicant’s criminal history, and his prospects of rehabilitation in determining the appropriate sentence. The court found that the sentencing judge had carefully considered the principles of sentencing and had not erred in the assessment of the applicant’s prospects of rehabilitation. The court further held that the sentences imposed were not manifestly excessive, as they were within the range of sentences that could be considered appropriate for the offences committed.

Based on the court’s reasoning, it was determined that the applicant’s appeal against sentence should be dismissed, and the application for leave to appeal was refused. The court found that the sentencing judge had appropriately balanced the various factors relevant to the sentencing process and that the sentences imposed were not manifestly excessive. The court’s decision highlights the importance of considering an offender’s criminal history and prospects of rehabilitation when determining an appropriate sentence, while also ensuring that the sentence imposed is not manifestly excessive.

Orders