Mark Sawyer v The Queen - [2021] VSCA 282

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0177

MARK SAWYER	Appellant
v
THE QUEEN	Respondent

---

JUDGES:	PRIEST and T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 October 2021
DATE OF JUDGMENT:	15 October 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 282
JUDGMENT APPEALED FROM:	DPP v Sawyer (Unreported, County Court of Victoria, Judge Meredith, 4 March 2020) (Sentence)

---

CRIMINAL LAW — Appeal — Sentence — Stalking, damaging property and burglary — Intentionally causing injury — Recklessly causing injury — Multiple charges across four indictments — Convictions a mixture of jury verdicts and guilty pleas — Sentence of five years and 11 months’ imprisonment with four years non-parole — Whether appellant doubly punished — Whether sentence infringed the principle of totality — Whether sentence manifestly excessive — Appeal dismissed.

---

APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr T R Marsh	Michael J Gleeson & Associates
For the Respondent	Mr G M Hughan	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
T FORREST JA:

Charges, sentences and grounds of appeal

Pursuant to leave granted by a judge of this Court, Mark Sawyer, now aged 50 years,[1] appeals against a total effective sentence of five years and 11 months’ imprisonment, with a non-parole period of four years, imposed by a judge of the County Court on 4 March 2020.
[1]His date of birth is 27 November 1970.

The impugned sentence involved 16 charges across four indictments, and a mixture of both guilty pleas and convictions returned at trial, as follows:

· first, on 27 February 2019 the appellant pleaded guilty to two charges of recklessly causing injury[2] contained in separate indictments, indictments H11432231B and H11432231D, (the victims respectively being Glen Dumergue and George Kyritsis);

· secondly, on 20 August 2019, following a trial on Indictment H11432231C.1, the appellant was found guilty by the jury of one charge of intentionally causing injury[3] (the victim being Lee Kenneth Lawrence); and

· thirdly, on 12 February 2020, following a trial on H11432231A.2, the appellant was found guilty by the jury of one charge of stalking,[4] ten charges of intentionally damaging property,[5] one charge of attempting to damage property,[6] and one charge of burglary[7] (the victims being Matthew Matotek and Daryl Matotek).

[2]Crimes Act 1958, s 18. The maximum penalty is five years’ imprisonment.

[3]Crimes Act 1958, s 18. The maximum penalty is 10 years’ imprisonment.

[4]Crimes Act 1958, s 21A. The maximum penalty is 10 years’ imprisonment.

[5]Crimes Act 1958, s 197(1). The maximum penalty is 10 years’ imprisonment.

[6]Crimes Act 1958, ss 197(1) and 321M. The maximum penalty is five years’ imprisonment.

[7]Crimes Act 1958, s 76. The maximum penalty is 10 years’ imprisonment.

Following a plea hearing conducted on 3 March 2020, the next day the judge imposed sentence on the appellant in accordance with the table below:

Charge Offence Sentence Cumulation

Indictment H11432231A.2 (Victims Matthew and Daryl Matotek)

1 Stalking 3 years 12 months

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 Sawyer v The Queen

Details

AGLC: Mark Sawyer v The Queen [2021] VSCA 282
Case: [2021] VSCA 282
Decision Date: 15 October 2021

CaseChat Overview and Summary

The appellant, Mark Sawyer, was convicted of stalking, damaging property, and burglary, among other charges, and sentenced to five years and 11 months' imprisonment with a non-parole period of four years. Sawyer appealed his sentence to the court, arguing that he was being doubly punished, that the sentence violated the principle of totality, and that it was manifestly excessive. The appeal was heard in the High Court of Australia.

The court considered whether the sentence imposed by the lower court was appropriate given the nature and circumstances of the offences. The appellant's argument was that the sentence for one of the offences was excessive and that it was improper to impose additional sentences for related offences. The court needed to determine whether the appellant's sentence was in accordance with the principle of totality, which requires that the cumulative sentence for multiple offences not be greater than the sentence that would be imposed for the most serious offence. Additionally, the court assessed whether the sentence was manifestly excessive in light of the totality of the appellant's offending.

The court found that the sentence was not doubly punitive, as each offence carried its own penalty and the sentences were not disproportionate to the seriousness of the individual offences. The court held that the sentence complied with the principle of totality, as the total sentence was not greater than what would have been imposed for the most serious offence alone. The court also concluded that the sentence was not manifestly excessive, taking into account the totality of the appellant's offending, the need for general deterrence, and the appellant's criminal history. Therefore, the appeal was dismissed, and the original sentence was upheld.

The court made no further orders beyond dismissing the appeal and affirming the original sentence.

Orders