O'Loughlin v The Queen - [2017] VSCA 325

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0174

JACK O’LOUGHLIN

THE QUEEN

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JUDGES:	WEINBERG JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	6 November 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 325
JUDGMENT APPEALED FROM:	DPP v O’Loughlin (Unreported, County Court of Victoria, Judge Ryan, 29 June 2017)

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 – Applicant sentenced to a total effective sentence of 7 years’ imprisonment with a non-parole period of 5 years – Charges over two indictments including use of false identification information and related offences, trafficking and possession of drugs of dependence (various substances), handling stolen goods, knowingly dealing with proceeds of crime, possession of prohibited weapon and possession of explosives without licence – Offences committed whilst on bail and whilst undergoing Community Correction Order – Whether reasonably arguable that orders for cumulation manifestly excessive – Principle of totality – Cumulation within range – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
On the papers

WEINBERG JA:

This is an application for leave to appeal against sentence, heard by a single judge, pursuant to s 315 of the Criminal Procedure Act 2009.

On 16 June 2017, at the County Court at Melbourne, the applicant pleaded guilty to a series of offences contained in two separate indictments, as well as a number of summary offences related to each indictment. On 29 June 2017 the applicant was sentenced to a total effective term of 7 years’ imprisonment with a non-parole period of 5 years, and a fine totalling $3,500. He contends that this sentence is manifestly excessive.

The procedural history and background facts are somewhat complicated. However, the offences in respect of which the applicant was sentenced, the individual sentences imposed, the total effective sentence and the non-parole period may be summarised as follows:

Charge on

Indictment

F13479314
Offence Maximum Sentence Cumulation

1
Use false identification information to commit an indictable offence

[s 192B(1) Crimes Act 1958]

5 years’ imprisonment
6 months’ imprisonment 1 month

2
Use false identification information to commit an indictable offence

[s 192B(1) Crimes Act 1958]

5 years’ imprisonment
6 months’ imprisonment 1 month

3
Use false identification information to commit an indictable offence

[s 192B(1) Crimes Act 1958]

5 years’ imprisonment
6 months’ imprisonment 1 month

4
Use false identification information to commit an indictable offence

[s 192B(1) Crimes Act 1958]

5 years’ imprisonment
6 months’ imprisonment 1 month

Charge on

Indictment

F13479314
Offence Maximum Sentence Cumulation

5
Use false identification information to commit an indictable offence

[s 192B(1) Crimes Act 1958]

5 years’ imprisonment
6 months’ imprisonment 1 month

6
Use false identification information to commit an indictable offence

[s 192B(1) Crimes Act 1958]
5 years’ imprisonment
3 months’ imprisonment
1 month

7
Prohibited person possess firearm

[s 5(1) Firearms 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 O'Loughlin v The Queen

Details

AGLC: O'Loughlin v The Queen [2017] VSCA 325
Case: [2017] VSCA 325
Decision Date: 6 November 2017

CaseChat Overview and Summary

The case of O'Loughlin v The Queen involved the applicant appealing against his sentence, which was a total effective sentence of 7 years' imprisonment with a non-parole period of 5 years. The applicant had been convicted on various charges, including the use of false identification information, drug trafficking and possession, handling stolen goods, dealing with proceeds of crime, and possession of prohibited weapons and explosives without a licence. The offences were committed while the applicant was on bail and undergoing a Community Correction Order. The applicant argued that the orders for cumulation were manifestly excessive, considering the principle of totality and the range within which the cumulation fell.

The primary legal issue before the court was whether it was reasonably arguable that the orders for cumulation were manifestly excessive. The court had to consider the principle of totality and the appropriateness of the cumulative sentence in light of the various charges and the circumstances of the case. The court also needed to assess whether the sentence fell within the range that could be considered appropriate for the offences committed.

In delivering the judgment, the court found that the orders for cumulation were not manifestly excessive. The court considered the principle of totality and the range of appropriate sentences for the various charges. The court determined that the cumulative sentence was within the range of what could be considered appropriate for the offences committed by the applicant. The court concluded that there was no reasonable arguability that the orders for cumulation were manifestly excessive. Consequently, the court refused the applicant's application for leave to appeal against his sentence.

As a result of the court's decision, the applicant's application for leave to appeal against his sentence was refused. The court upheld the original sentence of 7 years' imprisonment with a non-parole period of 5 years. The court found that the sentence was appropriate and did not constitute a manifestly excessive order for cumulation.

Orders