Muller v R - [2022] VSCA 193

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0057

MICHAEL MULLER	Applicant
v
THE KING	Respondent

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JUDGES:	NIALL JA
WHERE HELD:	Melbourne
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	9 September 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 193
JUDGMENT APPEALED FROM:	[2022] VCC 513 (Judge D Sexton)

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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 against sentence – One charge of recklessly cause serious injury and one charge of common law assault – Total effective sentence of 3 years and 9 months with a non-parole period of 2 years and 4 months – Whether individual sentences, non-parole period and/or cumulation manifestly excessive – Application for leave to appeal refused.

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Counsel
Applicant:		No appearances
Respondent:
Solicitors
Applicant:
Respondent:

NIALL JA:

On 14 December 2021, the applicant was found guilty by a jury empanelled on his trial of recklessly causing serious injury. The applicant had pleaded guilty on his arraignment before the jury to one charge of common law assault.
On 12 April 2022, the judge sentenced the applicant as follows:

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
2	Recklessly cause serious injury[1]	15 years	3 years and 6 months	Base
3	Common law assault	5 years	9 months	3 months
Total Effective Sentence:		3 years and 9 months
Non-Parole Period:		2 years and 4 months
Pre-sentence Detention Declared:		129 days
Section 6AAA Statement:		Total Effective Sentence (on common law assault): 12 months

[1]I note the applicant was found not guilty of charge 1 – intentionally causing serious injury.

The applicant seeks leave to appeal the sentence on the following ground:
The individual sentences imposed on charges 2 and 3, the order for cumulation, the total effective sentence, and the non-parole period are manifestly excessive.

Circumstances of offending

On 30 June 2019, the applicant attended the Cricketers Arms Hotel in Mooroopna (‘the hotel’) with two other people. The applicant played pool and consumed alcohol from approximately 9.00 pm. Earlier that evening, the three men had been drinking together at the applicant’s home.
At approximately 10.15 pm, the victim, Mr Gavin Saunders, arrived at the hotel. The victim spoke to several patrons of the hotel, including the applicant. Both the victim and the applicant were consuming alcohol.
The victim and the applicant had interactions with each other. They were variously described as ‘bagging each other out’, ‘having shots at each other’ and ‘hanging shit on each other’. Often, they were visibly affectionate towards each other.
Both the applicant and the victim were seated near the corner section of the bar, both consuming alcohol and talking to each other. The victim appeared to become agitated. He stood up from the bar, removed his jacket, gesticulated towards the applicant with his hands, and then pushed the applicant in the chest with an open right hand. The applicant then grabbed the victim around the…

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 Muller v R

Details

AGLC: Muller v The King [2022] VSCA 193
Case: [2022] VSCA 193
Decision Date: 9 September 2022

CaseChat Overview and Summary

The matter before the court was an application for leave to appeal against a sentence determined by a single judge. The applicant, Muller, had been found guilty of one charge of recklessly causing serious injury and one charge of common law assault. The total effective sentence imposed was 3 years and 9 months, with a non-parole period of 2 years and 4 months. Muller sought leave to appeal on the grounds that the individual sentences, the non-parole period, and/or the cumulation of the sentences were manifestly excessive. The application was made pursuant to section 315 of the Criminal Procedure Act 2009.

The court considered the appropriate principles and factors relevant to the determination of whether the sentences were manifestly excessive. This involved examining the seriousness of the offences, the culpability of the offender, the need for deterrence, and the circumstances of the case. The court assessed whether the sentences imposed by the trial judge were outside the range of reasonable sentences that could be imposed for the offences committed. After a thorough analysis, the court concluded that the sentences were not manifestly excessive. The court found that the trial judge had properly considered the relevant principles and factors in determining the appropriate sentence.

As a result of the court's decision, the application for leave to appeal against the sentence was refused. The sentences imposed by the trial judge were affirmed, and Muller was not granted leave to appeal. This outcome reflects the court's view that the sentences were within the range of reasonable outcomes for the offences committed. The court's decision underscores the importance of the trial judge's discretion in sentencing and the limited circumstances in which an appellate court will intervene.

Orders