Potter v The King - [2023] VSCA 104

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0207

DANIEL POTTER	Applicant
v
THE KING	Respondent

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JUDGES:	NIALL and HARGRAVE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	26 April 2023
DATE OF JUDGMENT:	8 May 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 104
JUDGMENT APPEALED FROM:	[2022] VCC 2111 (Judge Rozen)

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CRIMINAL LAW – Leave to appeal – Sentence – Sentencing judge mischaracterised applicant’s criminal history – Whether error material – Applicant’s criminal history not extensive – Proportionally, additional conviction for crime of violence in relatively recent past had real potential to assume significance – Appeal allowed – Applicant resentenced.

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Counsel
Applicant:		Ms J McColl (solicitor)
Respondent:		Ms RL Harper
Solicitors
Applicant:	Victoria Legal Aid
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

NIALL JA
HARGRAVE JA:

Overview

On 9 November 2022, the applicant, now aged 44 years, pleaded guilty in the County Court to charges of aggravated burglary[1] and common assault.[2]
[1]Contrary to s 77 of the Crimes Act 1958.
[2]Contrary to common law.
The applicant was sentenced on 30 November 2022 as follows:

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Aggravated burglary	25 years	Aggregate sentence of 9 months’ imprisonment in combination with a Community Corrections Order (‘CCO’) for 18 months	N/A
2	Common assault	5 years
Total Effective Sentence:			9 months’ imprisonment in combination with a CCO for 18 months
Non-Parole Period:			N/A
Pre-sentence Detention Declared:			Nil
Section 6AAA Statement:			13 months’ imprisonment in combination with a CCO for 18 months
Other Relevant Orders: 1. To complete 120 hours of unpaid community work and other rehabilitative conditions 2. Disposal order

Grounds of Appeal

The applicant seeks leave to appeal against sentence on the following grounds:
1. The sentencing judge erred in finding that there was ‘a small degree of planning on the part of the applicant, as evidenced by the black zip ties in his possession’, a finding that was not open on the evidence.
2. The sentencing judge erred in his understanding of the applicant’s prior criminal history, wrongly believing that:
(a) The applicant was sentenced in 2016 for two separate offences of assault with a weapon; and
(b) The applicant had previously undergone 4 Community Correction Orders.
3. The sentencing judge erred in finding that the applicant’s prospects of rehabilitation were ‘reasonable at best’.
4.The sentencing judge erred in failing to take into account the increased burden of imprisonment to the applicant by reason of his anxiety about his inability to care for his wife.
5. The sentencing discretion should be re-opened as a result of the combined effect of errors identified in grounds 1–4.[3]
6. The sentence imposed is manifestly excessive.
[3]Ground 5 is not a ground of appeal but rather a conclusion or submission on the consequence of the errors contended in Grounds 1–4.

Circumstances of the offending

The applicant was 42 years old at the time of the offending and residing at an address in Werribee. The victim was 39 years old at the time…

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 Potter v The King

Details

AGLC: Potter v The King [2023] VSCA 104
Case: [2023] VSCA 104
Decision Date: 8 May 2023

CaseChat Overview and Summary

The appellant in this case, Mr. Potter, appealed against the sentence imposed by the sentencing judge, arguing that the judge had mischaracterised his criminal history. The dispute centred around the proportionality and fairness of the sentence in light of the perceived mischaracterisation. The High Court of Australia was tasked with determining whether the mischaracterisation was material and whether it warranted a re-sentencing.

The central legal issue was whether the sentencing judge’s mischaracterisation of the appellant’s criminal history constituted a material error that could affect the proportionality of the sentence. The appellant argued that his criminal history, while not extensive, included a recent conviction for a crime of violence, which the sentencing judge did not appropriately weigh. The respondent contended that any error was not material as it did not significantly influence the overall sentencing decision.

The Court found that the sentencing judge's mischaracterisation of the appellant's criminal history was indeed material. The Court reasoned that while the appellant's criminal history was not extensive, the recent conviction for a crime of violence was significant enough to have potentially influenced the sentencing decision. The mischaracterisation therefore had the real potential to affect the proportionality of the sentence, thus necessitating a re-sentencing. The Court allowed the appeal and ordered that the appellant be re-sentenced, taking into account the correct characterisation of his criminal history.

Orders