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Pilgrim v The Queen

Pilgrim v The Queen

Case [2014] VSCA 191 28 August 2014

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0244

MICHAEL ALLEN PILGRIM	Appellant
	v
THE QUEEN	Respondent

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JUDGES	NETTLE, REDLICH JJA and ALMOND AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	27 May 2014
DATE OF JUDGMENT	28 August 2014
MEDIUM NEUTRAL CITATION	[2014] VSCA 191
JUDGMENT APPEALED FROM	DPP v Pilgrim (Unreported, County Court of Victoria, 27 August 2013, Judge Tinney)

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CRIMINAL LAW – Sentence – Totality – Applicant sentenced to 23 years and six months with a non-parole period of 19 years for multiple charges including rape, abduction, stalking, false imprisonment, aggravated burglary, causing injury intentionally, theft of motor vehicles, possession of child pornography and possession of explosive substances – Whether individual sentences manifestly excessive – Whether individual sentences and orders for cumulation and concurrency infringe principle of totality – Total effective sentence manifestly excessive – Infringes principle of totality – Postiglione v The Queen (1997) 189 CLR 295; Azzopardi v The Queen (2011) 35 VR 43 considered – Appeal allowed – Re-sentenced to 18 years’ imprisonment with a non-parole period of 14 years.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr P J Matthews	Robert Stary Lawyers
For the Respondent	Mr B F Kissane	Mr C Hyland, Solicitor for Public Prosecutions

NETTLE JA
REDLICH JA
ALMOND AJA:

Almond AJA delivered the judgment of the Court

The applicant, Michael Allen Pilgrim, pleaded guilty in the County Court to 12 charges comprising theft of motor vehicles, stalking, false imprisonment, possession of explosive substances, aggravated burglary, intentionally causing injury, abduction, rape and possession of child pornography. These offences were committed over a 13-month period between 11 June 2011 and 10 July 2012.

On 27 August 2013, the applicant was sentenced to a term of imprisonment of 23 years, six months, with a non-parole period of 19 years, formulated as follows:

Charges on Indictment Offence Maximum Sentence Cumulation

1 Theft of a motor vehicle [Crimes Act 1958 s 74(1)] 10 years [Crimes Act 1958 s 74(1)] 2 years 6 months

2 Stalking [Crimes Act 1958 s 21A(1)] 10 years [Crimes Act 1958 s 21A(1)] 2 years 6 months 6 months

3 False imprisonment [common law] 10 years [Crimes Act 1958 s 320] 3 years 9 months

4 Possession of explosive substances [Crimes Act 1958 s 317(4)] 5 years [Crimes Act 1958 s 317(4)] 9 months 3 months

5 Aggravated burglary [Crimes Act 1958 s 77(1)] 25 years [Crimes Act 1958 s 77(2)] 6 years 6 months 18 months

6 Causing injury intentionally [Crimes Act 1958 s 18] 10 years [Crimes Act 1958 s 18] 2 years 6 months 12 months

7 Abduction [Crimes Act 1958 s 55(a)] 10 years [Crimes Act 1958 s 55] 5 years 18 months

8 Rape [Crimes Act 1958 s 38(1)] 25 years [Crimes Act 1958 s 38(1)] 10 years Base

9 Rape 25 years 10 years 2 years 6 months

10 Rape 25 years 10 years 2…

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 Pilgrim v The Queen

Details

AGLC: Pilgrim v The Queen [2014] VSCA 191
Case: [2014] VSCA 191
Decision Date: 28 August 2014

CaseChat Overview and Summary

In the matter of Pilgrim v The Queen, the appellant was sentenced to a total of 23 years and six months in prison, with a non-parole period of 19 years, following a series of serious criminal offences. These included rape, abduction, stalking, false imprisonment, aggravated burglary, causing injury intentionally, theft of motor vehicles, possession of child pornography, and possession of explosive substances. The appellant challenged the severity of the sentence and the manner in which the individual sentences were to be served, arguing that the cumulative effect of the sentences infringed the principle of totality and was manifestly excessive. The case was brought before the court of appeal, which was tasked with reviewing the sentence to ensure it complied with legal principles and was not disproportionate to the crimes committed.

The court was required to determine whether the individual sentences imposed for each offence were excessively harsh and whether the orders for cumulation and concurrency of these sentences infringed upon the principle of totality. The principle of totality in sentencing requires that the cumulative effect of multiple sentences does not unjustly exceed the punishment deserved for the overall criminal conduct. The court considered the relevant legal precedents, notably Postiglione v The Queen and Azzopardi v The Queen, which provide guidance on the application of the principle of totality in complex sentencing scenarios. The court was also required to examine whether the total effective sentence was manifestly excessive and whether it failed to appropriately balance the need for punishment, deterrence, and rehabilitation.

The court of appeal found that the individual sentences for each offence were not excessively harsh, but the cumulative effect, when considered together with the orders for cumulation and concurrency, did infringe the principle of totality. The total effective sentence of 23 years and six months with a non-parole period of 19 years was deemed manifestly excessive in light of the principle of totality and the overall circumstances of the case. The court allowed the appeal and re-sentenced the appellant to 18 years’ imprisonment with a non-parole period of 14 years, which it found to be a more proportionate and legally sound sentence. This decision reaffirmed the importance of adhering to the principle of totality in complex sentencing cases and the need to ensure that the total punishment reflects the overall criminality of the offender’s conduct.

Orders