Needham v The King - [2024] VSCA 270

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0115

ADAM NEEDHAM	Applicant
v
THE KING	Respondent

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JUDGE:	BEACH JA
WHERE HELD:	Melbourne
DATE OF HEARING:	14 November 2024
DATE OF JUDGMENT:	15 November 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 270
JUDGMENT APPEALED FROM:	DPP v Needham (Unreported, County Court of Victoria, 15 April 2024, Judge Quin)

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CRIMINAL LAW – Sentence – Application for leave to appeal – Home invasion, causing injury intentionally, kidnapping and trafficking in a commercial quantity of a drug of dependence (1,4-Butanediol) – TES of 7 seven years, with NPP of 5 years and 6 months – Whether sentence manifestly excessive – Whether sentence infringed totality principle – Whether sentence infringed parity principles – Whether sentence failed to achieve appropriate relativity with sentence imposed on co-offender – Proposed grounds of appeal not reasonably arguable – Application for leave to appeal refused.

Farrugia v The Queen (2011) 32 VR 140; DPP (Cth) v Maxwell (2013) 228 A Crim R 218; Ellis v The Queen [2018] VSCA 221, referred to.

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Counsel
Applicant:		Mr DA Dann KC
Respondent:		Ms S Clancy with Ms E Allan
Solicitors
Applicant:	Fayman Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA:

On 21 March 2024, the applicant pleaded guilty in the County Court to one charge of home invasion[1] (charge 1); one charge of intentionally causing injury[2] (charge 2); one charge of kidnapping[3] (charge 3); and one charge of trafficking in a commercial quantity of a drug of dependence[4] (charge 4). On 15 April, 2024 the applicant was sentenced by her Honour Judge Quin as follows:[5]
[1]Contrary to s 77A of the Crimes Act 1958.
[2]Contrary to s 18 of the Crimes Act 1958.
[3]Contrary to common law.
[4]Contrary to s 71AA of the Drugs, Poisons and Controlled Substances Act 1981.
[5]DPP v Needham (Unreported, County Court of Victoria, 15 April 2024, Judge Quin) (‘Reasons’).

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Home invasion	25 years	3 years, 6 months	Base
2	Causing injury intentionally	10 years	2 years	1 year
3	Kidnapping	25 years	2 years, 6 months	6 months
4	Trafficking in a commercial quantity of a drug of dependence	25 years	3 years	2 years
Total Effective Sentence:		7 years
Non-Parole Period:		5 years and 6 months
Pre-sentence Detention Declared:		486 days
Section 6AAA Statement:		TES: 9 years and 6 months NPP: 7 years

Six months earlier, on 2 October 2023, also following a plea of guilty, Emma Ezergailis, one of the applicant’s co-offenders in relation to charges 1, 2 and 3, was sentenced, by another judge in the County Court, for her role in that offending, as follows:[6]
[6]DPP v Ezergailis [2023] VCC 1769 (Judge Syme) (‘Ezergailis Reasons’).

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Home invasion	25 years	3 years, 6 months	Base
2	Causing injury intentionally	10 years	2 months	Nil
3	Kidnapping	25 years	2 years, 6 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 Needham v The King

Details

AGLC: Needham v The King [2024] VSCA 270
Case: [2024] VSCA 270
Decision Date: 15 November 2024

CaseChat Overview and Summary

The applicant, Needham, applied for leave to appeal against his sentence following a conviction for home invasion causing injury intentionally, kidnapping, and trafficking in a commercial quantity of 1,4-Butanediol. The Supreme Court of Victoria was tasked with determining whether the sentence was manifestly excessive, whether it infringed the totality principle, whether it infringed parity principles, and whether it failed to achieve appropriate relativity with the sentence imposed on a co-offender. The court had to consider these issues in light of the applicable legal principles and the relevant case law.

The primary legal issues revolved around the appropriateness and proportionality of the sentence imposed. The court examined whether the total effective sentence (TES) of seven years, with a non-parole period (NPP) of five years and six months, was manifestly excessive. It also assessed whether the sentence adhered to the totality principle, which requires that the aggregate of sentences for multiple offences not be excessive in all the circumstances. Furthermore, the court considered whether the sentence complied with the parity principle, ensuring that similar offenders receive similar sentences, and whether it achieved appropriate relativity with the sentence given to a co-offender involved in the same criminal enterprise.

The court found that the proposed grounds of appeal were not reasonably arguable. It concluded that the sentence was not manifestly excessive, adhered to the totality principle, did not infringe the parity principle, and achieved appropriate relativity with the co-offender's sentence. The reasoning was grounded in the specific facts of the case, the severity of the offences, and the relevant case law, including Farrugia v The Queen, DPP (Cth) v Maxwell, and Ellis v The Queen. Consequently, the application for leave to appeal was refused.

The court's final orders were that the application for leave to appeal was dismissed, and the original sentence was upheld. No further appeal would be permitted unless the High Court granted special leave.

Orders