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

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 Newton v The Queen

Details

AGLC: Newton v The Queen [2021] VSCA 207
Case: [2021] VSCA 207
Decision Date: 29 July 2021

CaseChat Overview and Summary

The appeal concerns the conviction and sentence of Newton, who was found guilty of multiple serious criminal offences including persistent contravention of a family violence safety notice, aggravated burglary, intentionally causing injury, making threats to kill, damaging property, and making threats to inflict serious injury. Newton was sentenced to a total effective term of imprisonment of nine years and one month. Newton appealed against the sentence as manifestly excessive and against the directions for cumulation. The appeal was heard in the Court of Appeal.

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