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Price v The Queen (No 2)

Price v The Queen (No 2)

Case [2019] VSCA 44 12 March 2019

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0116

SEAN CHRISTIAN PRICE	Appellant
v
THE QUEEN [NO 2]	Respondent

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JUDGES:	WHELAN AP, McLEISH and T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 January 2019
DATE OF JUDGMENT:	12 March 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 44
JUDGMENT APPEALED FROM:	[2017] VCC 1766 (Judge Sexton)

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PROCEDURE - Application for an extension of time for leave to appeal sentence – Delay of more than six months – Delay adequately explained – Prospects warrant extension – Application allowed – Price v The Queen [2019] VSCA 8 applied.

CRIMINAL LAW – Application for leave to appeal sentence – Breach of sex offender supervision order by offence of rape – Previously sentenced to 14 years’ imprisonment on rape offence – Sentenced to imprisonment for 4 years 11 months’ on offence of breach of the order – Whether double punishment – Breach of court order involves separate and distinct criminality – Reasons disclose punishment for common elements – Appeal allowed – Appellant resentenced – Serious Sex Offenders (Detention and Supervision) Act 2009 s 160 – Sentencing Act 1991 s 5(2BD) – Pearce v The Queen (1998) 194 CLR 610, Loader v The Queen (2011) 33 VR 86, Lecornu v The Queen (2012) 36 VR 382, Heath (a pseudonym) v The Queen (2014) 45 VR 154 applied.

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APPEARANCES:	Counsel	Solicitors
Appellant	In person	-
Respondent	Ms D Piekusis SC with Ms K Argiropoulos	Mr J Cain, Solicitor for Public Prosecutions

WHELAN AP
McLEISH JA
T FORREST JA:

This is an application for an extension of time for leave to appeal against a sentence in the County Court. The application was dealt with on the basis that, if an extension were granted, the application for leave, and if leave were granted, the appeal, would be determined forthwith.

The County Court judge sentenced the applicant for an offence of failure to comply with a supervision order in breach of s 160 of the Serious Sex Offenders (Detention and Supervision) Act 2009 (‘the Act’) on 2 November 2017. The 28 day period for filing an application for leave to appeal against that sentence expired on 30 November 2017. The applications before this Court were filed on 19 June 2018, more than 6 months out of time.

The applicant contravened the supervision order by committing an offence of rape, for which he was sentenced in the Trial Division of this Court by Lasry J on 18 March 2016.[1] On that date Lasry J also sentenced the applicant for offences of murder, robbery and attempted theft. The applicant pleaded guilty to all those offences and was sentenced to be imprisoned for life with a non-parole period of 38 years. The individual sentence imposed for the rape offence was 14 years.
[1][2016] VSC 105 (‘Lasry J Reasons’).

The County Court judge sentenced the applicant to a sentence of 4 years and 11 months’ imprisonment for the offence of breaching the supervision order.…

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 Price v The Queen (No 2)

Details

AGLC: Price v The Queen (No 2) [2019] VSCA 44
Case: [2019] VSCA 44
Decision Date: 12 March 2019

CaseChat Overview and Summary

The appellant in this case was convicted for breaching a sex offender supervision order by committing a rape offence, and subsequently sentenced to imprisonment for 4 years and 11 months. The appellant applied for leave to appeal the sentence on the grounds that the sentence amounted to double punishment. The application was made after a delay of over six months, and the appellant sought an extension of time to lodge the application. The application was heard in the Supreme Court of Victoria.

The legal issues before the court were whether the delay in lodging the application for leave to appeal was adequately explained and whether the prospects of success warranted an extension of time. Additionally, the court had to determine whether the sentence imposed by the lower court amounted to double punishment.

The court found that the appellant had adequately explained the delay in lodging the application for leave to appeal. The appellant had experienced difficulties in obtaining legal representation, and the delay did not prejudice the respondent. The court also found that the prospects of success on the appeal warranted an extension of time. The court further held that the sentence imposed by the lower court did not amount to double punishment. The breach of the sex offender supervision order involved separate and distinct criminality, and the reasons disclosed a punishment for the common elements. The appeal was allowed, and the appellant was resentenced.

The court ordered that the appellant be resentenced in accordance with the provisions of the Serious Sex Offenders (Detention and Supervision) Act 2009 and the Sentencing Act 1991. The court also allowed the application for an extension of time for leave to appeal the sentence.

Orders