SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0082
| DARREN RAY NEWTON | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGE: | PRIEST and NIALL JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 20 July 2021 |
| DATE OF JUDGMENT: | 29 July 2021 |
| MEDIUM NEUTRAL CITATION | [2021] VSCA 207 |
| JUDGMENT APPEALED FROM: | [2019] VCC 1926 (Judge Brookes) |
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CRIMINAL LAW – Appeal – Sentence – One charge of persistent contravention of a family violence safety notice (12 months) – One charge of aggravated burglary (5 years) – One charge of intentionally causing injury (2 years) – One charge of making threat to kill (3 years) – One charge of damage property (6 months) – One charge of making threat to inflict serious injury (9 months) – Whether total effective sentence of nine years and one month’s imprisonment manifestly excessive – Whether directions for cumulation manifestly excessive – Applicability of Verdins to be determined by sentencing judges – Appeal allowed – Appellant resentenced – R v Verdins (2007) 16 VR 269 applied.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr T Antos | Nelson Brown Legal |
| For the Respondent | Ms M Mahady | Ms A Hogan, Solicitor for Public Prosecutions |
PRIEST JA:
I agree with the orders proposed by Niall JA, and with his reasons for them.
NIALL JA:
Introduction
This appeal, brought by leave, seeks to challenge a sentence imposed by a judge of the County Court following a plea of guilty. In giving leave to appeal, Priest JA set out the details of the offending and the reasons of the sentencing judge (‘leave reasons’). The following is drawn from those reasons.
On 15 August 2019, the appellant, now aged 35 years,[1] pleaded guilty in the County Court to: persistent contravention of Family Violence Safety Notice[2] (‘FVSN’) (charge 1); aggravated burglary[3] (charge 2); intentionally causing injury[4] (charge 3); making a threat to kill[5] (charge 4, a ‘rolled-up’ charge); damaging property[6] (charge 6); making a threat to inflict serious injury[7] (charge 6); and one related summary charge of unlawful assault.[8]
[1]His date of birth is 12 July 1986.
[2]Family Violence Protection Act 2008 s 125A. The maximum penalty is five years’ imprisonment.
[3]Crimes Act 1958 s 77. The maximum penalty is 25 years’ imprisonment.
[4]Crimes Act 1958 s 18. The maximum penalty is 10 years’ imprisonment.
[5]Crimes Act 1958 s 20. The maximum penalty is 10 years’ imprisonment.
[6]Crimes Act 1958 s 197. The maximum penalty is 10 years’ imprisonment.
[7]Crimes Act1958 s 21. The maximum penalty is five years’ imprisonment.
[8]Summary Offences Act 1966 s 23. The maximum penalty is three months’ imprisonment.
Following a plea, on 21 November 2019, the judge sentenced the appellant to a total effective sentence of nine years and one month’s imprisonment with a non-parole period of six years and four months, in accordance with the following table:
Charge Offence Sentence Cumulation 1 Persistent contravention of a Family Violence Safety Notice 12 months 6 months 2 Aggravated burglary 5 years Base 3
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- AGLC
- Newton v The Queen [2021] VSCA 207
- Case
- [2021] VSCA 207
- Decision Date
CaseChat Overview and Summary
The central legal issues were whether the total effective sentence was manifestly excessive and whether the directions for cumulation were manifestly excessive. The appeal hinged on the principles set out in Verdins, which requires that the total effective sentence be no more than the sum of the separate penalties for each offence unless the judge determines that a cumulative approach is warranted.
The Court of Appeal found that the total effective sentence of nine years and one month was manifestly excessive. The court held that the sentencing judge had failed to provide adequate reasons for the total effective sentence and that the sentence did not reflect the principles set out in Verdins. The court also found that the directions for cumulation were manifestly excessive as they did not adequately consider the circumstances of the offences and the offender. The appeal was allowed, and Newton was resentenced.
The Court of Appeal remitted the matter to the sentencing judge with directions to resentence Newton, taking into account the principles set out in Verdins and providing adequate reasons for the sentence. The court emphasised the importance of considering the totality principle and the need for adequate reasons when imposing a sentence.
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
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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