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Norman v The King

Norman v The King

Case [2023] VSCA 213 8 September 2023

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0007

ROYDIN NORMAN	Applicant
v
THE KING	Respondent

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JUDGES:	NIALL and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	5 September 2023
DATE OF JUDGMENT:	8 September 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 213	[Second revision: 11 October 2023]
JUDGMENT APPEALED FROM:	[2022] VCC 2237 (Judge Hogan)

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CRIMINAL LAW – Application for leave to appeal against sentence – Applicant sentenced to 30 months’ imprisonment on charge of arson and 9 months’ imprisonment on charge of persistent contravention of Family Violence Intervention Order – Sentences wholly cumulative – Whether cumulation not comply with principle of totality – Whether double punishment – Whether compensation order in respect of fire damage excessive – Leave to appeal refused.

Sentencing Act 1991 ss16 (1), 86.

Postiglione v The Queen (1997) 189 CLR 295; Azzopardi v The Queen (2011) 35 VR 43; Veen v The Queen (No 2) (1988) 164 CLR 465; Josefski v Donnelly [2007] VSCA 6; Chalmers v Liang [2011] VSCA 439 referred to.

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Counsel
Applicant:	Mr J Connolly
Respondent:	Mr J Lewis
Solicitors
Applicant:	David Barrese & Associates
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

NIALL JA
KAYE JA:

The applicant pleaded guilty, in the County Court, to one charge of arson and one rolled-up charge of persistent contravention of a family violence order. After a plea presented on his behalf, he was sentenced as follows:

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
Indictment M12120345
1	Arson[1]	15 years	30 months’ imprisonment	Base
2	Persistent Contravention of Family Violence Order[2]	5 years’ imprisonment and 600 Penalty Units	9 months’ imprisonment	9 months
Total Effective Sentence:		3 years 3 months’ imprisonment
Non-Parole Period:		2 years 2 months
Pre-sentence Detention Declared:		432 days
Section 6AAA Statement:		Total Effective Sentence 4 years 9 months
Other Relevant Orders: 1. Compensation Order to pay compensation in the sum of $426,899.38 to AAI LIMITED trading as AAMI.

[1]Contrary to s197(1) and s197(6) Crimes Act 1958.

[2]Contrary to s125A Family Violence Protection Act 2008.

The applicant seeks leave to appeal on the following three grounds:
Ground 1: The order for cumulation was manifestly excessive
Ground 2: The order for cumulation had the effect of doubly punishing the applicant
Ground 3: The quantum of the compensation order was manifestly excessive

Circumstances of offending

The offending, that was the subject of charge 1, occurred on 8 October 2021, and the offending, that was the subject of charge 2, took place between 28 February 2022 and 31 March 2022. At the time of the offending, the applicant was 38 years of age. The principal victim of the charges was his estranged partner, AB.[3]
[3]A pseudonym has been used in place of the victim's name to prevent publication of any particulars likely to lead to the identification of any person involved in the proceeding or the subject of a Family Violence Intervention Order, prohibited by s 166(2)(b) of the Family Violence Protection Act

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 Norman v The King

Details

AGLC: Norman v The King [2023] VSCA 213
Case: [2023] VSCA 213
Decision Date: 8 September 2023

CaseChat Overview and Summary

The case of Norman v The King involved the applicant, Norman, appealing against his sentence on charges of arson and persistent contravention of a Family Violence Intervention Order. Norman was sentenced to 30 months' imprisonment for the arson charge and 9 months' imprisonment for the contravention charge, with the sentences running wholly cumulatively. Norman contended that the cumulation of his sentences was not compliant with the principle of totality, amounted to double punishment, and that the compensation order in respect of the fire damage was excessive. The matter was brought before the court for a determination on whether Norman should be granted leave to appeal against his sentence.

The court examined the principles of sentencing articulated in the Sentencing Act 1991 and relevant case law. Norman argued that the cumulative sentences did not align with the principle of totality, which seeks to avoid excessive punishment by considering the overall sentence rather than the individual sentences for each offence. Additionally, Norman asserted that the cumulative nature of the sentences amounted to double punishment. Furthermore, Norman submitted that the compensation order in respect of the fire damage was excessive, given the circumstances of the case. The court had to determine whether these arguments were valid and warranted a grant of leave to appeal.

The court found that the principle of totality had been appropriately applied in sentencing Norman. The court held that the cumulative sentences were not excessive or disproportionate to the offences committed. The court also concluded that the compensation order was fair and reasonable in the circumstances. Given the court's findings, Norman's application for leave to appeal against his sentence was refused.

No further orders were made by the court beyond the refusal of leave to appeal.

Orders