Mark Ganon v The Queen - [2018] VSCA 110

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0015

MARK GANON	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 May 2018
DATE OF JUDGMENT:	4 May 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 110
JUDGMENT APPEALED FROM:	DPP v Ganon (Unreported, County Court of Victoria, Judge Lacava, 14 September 2017)

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CRIMINAL LAW – Appeal – Sentence – Intentionally causing a bushfire (6 charges) – Rolled up charges – Total effective sentence of 5 years with non-parole period of 3 years and 4 months – Whether sentence manifestly excessive – Not reasonably arguable that sentence manifestly excessive – Lenient sentence – Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr C Mandy	Emma Turnbull & Associates
For the Respondent	Mr M D Phillips	Mr J Cain, Solicitor for Public Prosecutions

PRIEST JA
BEACH JA:

Over a ten day period between 4 January and 14 January 2017, the applicant lit somewhere between twenty and thirty fires, burning some 431,274 square metres of grassland, including Native Conservation areas. The fires posed a risk to nearby residential and commercial buildings, residents, members of the public and emergency service workers.

On 31 August 2017, the applicant pleaded guilty in the County Court to six charges of intentionally causing a bushfire, one charge of possessing a drug of dependence, one charge of handling stolen goods, one charge of committing an indictable offence while on bail, one charge of resisting an emergency worker, one charge of unlicensed driving and one charge of using an unregistered motor vehicle.

Following a plea hearing, on 14 September 2017, the applicant was sentenced as follows:

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1	Intentionally causing a bushfire [s 201A of the Crimes Act 1958]	15 years	2 years	6 months
2	Intentionally causing a bushfire [s 201A of the Crimes Act 1958]	15 years	2 years	6 months
3	Intentionally causing a bushfire [s 201A of the Crimes Act 1958]	15 years	1 year	–
4	Intentionally causing a bushfire [s 201A of the Crimes Act 1958]	15 years	3 years	Base
5	Intentionally causing a bushfire [s 201A of the Crimes Act 1958]	15 years	1 year	–
6	Intentionally causing a bushfire [s 201A of the Crimes Act 1958]	15 years	30 months	12 months
7	Possess drug of dependence [s 73(1) of the Drugs Poisons Controlled Substances Act 1981]	30 penalty units or 1 year or both	Convicted and discharged	–
8	Handling stolen goods [s 88 of the Crimes Act 1958]	15 years	1 month	–
Summary charge 12	Commit indictable offence whilst on bail [s 30B of the Bail Act 1977]	30 penalty units or 3 months	1 month	–
Summary charge 13	Resist emergency worker [s 51(2) of the Summary Offences Act 1966]	60 penalty units or 6 months	1 month	–
Summary charge 34	Unlicensed driving [s…

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 Ganon v The Queen

Details

AGLC: Mark Ganon v The Queen [2018] VSCA 110
Case: [2018] VSCA 110
Decision Date: 4 May 2018

CaseChat Overview and Summary

The appellant, Mark Ganon, appealed against his conviction and sentence for six counts of intentionally causing a bushfire. The trial judge found him guilty of each charge and sentenced him to a total effective sentence of 5 years, with a non-parole period of 3 years and 4 months. The appeal was heard by the Court of Appeal, which needed to determine if the sentence was manifestly excessive and if there was a reasonable arguability that the sentence was not reasonably arguable.

The central legal issue was whether the sentence imposed was manifestly excessive. The Court of Appeal considered the principles of sentencing and the circumstances of the case, including the gravity of the offences and the appellant’s culpability. It examined the totality principle and the appropriateness of the sentence in light of the potential harm caused by the bushfires. The Court also assessed whether the sentence reflected a lenient approach, considering the appellant's early guilty plea and remorse.

The Court of Appeal found that the sentence was not manifestly excessive and there was no reasonable arguability that it was too lenient. The Court emphasised the serious nature of the offences and the significant public interest in deterring such conduct. It concluded that the sentence was appropriate and reflected a balanced approach to the sentencing principles. Consequently, the Court dismissed the appeal and refused the application for leave to appeal.

Orders