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Maslen v The Queen

Maslen v The Queen

Case [2018] VSCA 90 13 April 2018

Appeal

Aggravated & Exemplary Damages

Criminal Liability

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0146

BENN MASLEN	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST and McLEISH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 April 2018
DATE OF JUDGMENT:	13 April 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 90
JUDGMENT APPEALED FROM:	[2017] VCC 604 (Judge McInerney)

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CRIMINAL LAW – Appeal – Sentence – Aggravated burglary – Night-time home invasion with victims known to be present – Where offending did not involve weapons – Whether offending properly or usefully characterised as ‘confrontational aggravated burglary’ – Whether sentence manifestly excessive – Appeal dismissed – Hogarth v The Queen (2012) 37 VR 658; DPP v Meyers (2014) 44 VR 486 considered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr C K Wareham	James Dowsley & Associates
For the Respondent	Mr B L Sonnet	Mr J Cain, Solicitor for Public Prosecutions

PRIEST JA

McLEISH JA:

On 7 April 2017 the applicant pleaded guilty in the County Court to six charges: aggravated burglary, theft, being a prohibited person possessing an imitation firearm, possession of cannabis, possession of methylamphetamine and handling stolen goods. He was sentenced on 16 May 2017 as follows:

Charge on Indictment G11359168 Offence Maximum Sentence Cumulation

1

Aggravated burglary (s 77(1) Crimes Act 1958)

25 years’ imprisonment

6 years

Base

2

Theft

(s 74 Crimes Act 1958)

10 years’ imprisonment

2 years

–

3

Prohibited person possessing an imitation firearm

(s 5AB(2) Control of Weapons Act 1990)

1200 penalty units or 10 years’ imprisonment

9 months

4 months

4

Possession of a drug of dependence (cannabis)

(s 73 Drugs Poisons and Controlled Substances Act 1981)

5 penalty units

Convicted and fined $303.34

–

5

Possession of a drug of dependence (methylamphetamine)

(s 73 Drugs Poisons and Controlled Substances Act 1981)

1 year’s imprisonment or 30 penalty units

2 months

–

6

Handling stolen goods

(s 88(1) Crimes Act 1958)

15 years’ imprisonment

12 months

6 months

Uplifted summary charge 23

Possession of cartridge ammunition without license

(s 124(1) Firearms Act 1996)

40 penalty units

Convicted and fined $758.35

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Total Effective Sentence:

6 years and 10 months’ imprisonment and a total fine of $1,061.69 (stay on fines for 6 years).

Non-Parole Period:

4 years and 9 months

Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:

359 days

6AAA Statement:

9 years and 2 months’ imprisonment, with a non-parole period of 6 years and 8 months.

Other relevant orders:

Disposal orders with respect to charges 1, 4 and 5.

Forfeiture orders with respect to charges 3 and summary charge 23.

Circumstances of the offending

The offending took place on 22 May 2016. The two victims of the offending were in a relationship and residing at an address in West Heidelberg. They knew the applicant through a former flatmate and he had attended their home on previous occasions.

The complainants were at home on 22 May 2016 when there was a knock on…

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 Maslen v The Queen

Details

AGLC: Maslen v The Queen [2018] VSCA 90
Case: [2018] VSCA 90
Decision Date: 13 April 2018

CaseChat Overview and Summary

Maslen was convicted of aggravated burglary and appealed against his sentence. The dispute involves the sentencing of a night-time home invasion where the victims were known to be present, and the offence did not involve weapons. The High Court of Australia heard the appeal.

The central legal issues before the court were whether the offence should be characterised as a ‘confrontational aggravated burglary’ and whether the sentence imposed was manifestly excessive. This involved an examination of the aggravating factors present in the case, including the home invasion and the presence of the victims, and a comparison with previous cases where similar offences were sentenced.

The court found that the offence was properly characterised as a confrontational aggravated burglary, noting the significant intrusion into the victims’ privacy and the potential for serious harm. It rejected the argument that the absence of weapons should diminish the severity of the sentence. The court also determined that the sentence was not manifestly excessive, taking into account the totality of the circumstances and relevant precedents, including Hogarth v The Queen and DPP v Meyers.

The appeal was dismissed, and the original sentence was upheld.

Orders