Micah Packard (a pseudonym)[1] v The Queen - [2021] VSCA 56

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0227

MICAH PACKARD (a pseudonym)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES:	KAYE JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 March 2021
DATE OF JUDGMENT:	15 March 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 56
JUDGMENT APPEALED FROM:	[2020] VCC 1086 (Judge Hassan)

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009
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CRIMINAL LAW – Application for leave to appeal – Sentence – Applicant stabbed wife five times in domestic violence incident – Applicant pleaded guilty to intentionally causing serious injury – Serious example of offence – Total effective sentence of 7 years’ imprisonment with non-parole period of 4 years and 6 months – Whether judge erred by failing to take into account victim’s full recovery – Whether judge took into account irrelevant considerations concerning victim’s forgiveness of the applicant – Whether judge failed to take into account relevant considerations concerning victim’s forgiveness – Whether applicant denied procedural fairness – Whether sentence manifestly excessive – Leave to appeal refused – R v Hester [2007] VSCA 298 considered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms C A Boston	Papa Hughes Lawyers
For the Respondent	Mr J C J McWilliams	Ms A Hogan, Solicitor for Public Prosecutions

KAYE JA:

The applicant pleaded guilty, before a judge in the County Court, to one charge of intentionally causing serious injury. After a plea that was presented on his behalf, he was sentenced to a total effective sentence of 7 years’ imprisonment, with a non-parole period of 4 years and 6 months.

That sentence was constituted as follows:

Offence	Legislation	Maximum	Sentence
1	Intentionally causing serious injury	Section 16 Crimes Act 1958	20 years	7 years
Total Effective Sentence			7 years’ imprisonment
Non-parole period			4 years and 6 months
Pre-sentence detention			188 days
Section 6AAA declaration			10 years’ imprisonment with a non-parole period of 8 years

The applicant seeks leave to appeal on three grounds, namely:

Ground 1:The learned sentencing judge erred in failing to take into account the fact that the victim had made a full recovery.
Ground 2:The learned sentencing judge erred in treating the victim’s forgiveness with extreme caution, and having regard to it only insofar as it boded well for the applicant’s rehabilitation, rather than also taking it into account in assessing the impact upon the victim and in considering the application of the principle of mercy. In particular:
(a)Her Honour took into account irrelevant considerations, namely:
a.that forgiveness on the part of a victim of family violence is often attributable to a pattern of behaviour on the part of perpetrators of family violence, who express penitence and persuade their victim to forgive and often to reconcile, in circumstances where:
(i)the applicant had no history…

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.

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Details

Case: [2021] VSCA 56
Decision Date: 15 March 2021

CaseChat Overview and Summary

Micah Packard, who we will refer to as the applicant, sought leave to appeal against the sentence he received for stabbing his wife five times during a domestic violence incident. The applicant had pleaded guilty to intentionally causing serious injury, and the Court of Appeal was required to determine whether the sentence was appropriate given the circumstances. The case was heard in the Court of Appeal, which needed to consider several legal issues surrounding the sentence.

The primary legal issue was whether the judge had erred in sentencing by not taking into account the victim's full recovery, and whether the judge had taken into account irrelevant considerations concerning the victim's forgiveness. The Court also had to consider whether the judge had failed to take into account relevant considerations concerning the victim's forgiveness and whether the applicant had been denied procedural fairness. Furthermore, the Court had to determine whether the sentence was manifestly excessive.

The Court of Appeal held that the sentence was not manifestly excessive and that the judge had not erred in his consideration of the victim's recovery and forgiveness. The Court found that the sentence was appropriate given the seriousness of the offence, and that the judge had considered all relevant factors in determining the sentence. The Court held that the applicant had not been denied procedural fairness, and that the sentence was not manifestly excessive. Accordingly, the Court refused the applicant's application for leave to appeal.

The Court of Appeal did not grant leave to appeal, and the original sentence of 7 years’ imprisonment with a non-parole period of 4 years and 6 months was upheld. The Court held that the sentence was appropriate given the circumstances of the case, and that the judge had considered all relevant factors in determining the sentence. The Court found that the applicant had not been denied procedural fairness and that the sentence was not manifestly excessive.

Orders