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
–
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…
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- AGLC
- Maslen v The Queen [2018] VSCA 90
- Case
- [2018] VSCA 90
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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