SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 204 of 2004
THE QUEEN
v.
GRANT FREDERICK ALBANUS
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| JUDGES: | CALLAWAY and NETTLE, JJ.A. and GILLARD, A.J.A. |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 13 December 2004 |
| DATE OF JUDGMENT: | 13 December 2004 |
| MEDIUM NEUTRAL CITATION: | [2004] VSCA 236 |
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Criminal law – Sentencing – Criminal damage – Aggravated burglary – Recklessly causing injury – Common Assault – Whether two years' imprisonment for aggravated burglary manifestly excessive – Whether relevant that appellant had been “banned” from complainant’s premises – Provocation – Whether measure of cumulation directed by judge open to him – Reasons why structural arguments are to be discouraged – Sentence of two years and eight months' imprisonment with non-parole period of 15 months not manifestly excessive – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr C.J. Ryan | Ms K. Robertson, Solicitor for Public Prosecutions |
| For the Appellant | Mr M.J. Croucher | Leanne Warren & Associates |
| CALLAWAY, J.A.: |
The appellant, who is now aged 36, pleaded guilty in the County Court to one count of criminal damage (count 1), one count of aggravated burglary (count 2), one count of recklessly causing injury (count 3) and two counts of common assault (counts 4 and 5). He admitted 34 previous convictions and one finding of guilt from nine appearances in the Magistrates' Court and one appearance in the County Court between February 1988 and August 2002. They included offences of violence, including violence against police, and damage to property. The present offences were committed within six weeks of the appellant's last court appearance, when he was convicted on one charge of assaulting a police officer in the lawful execution of duty, one charge of resisting a police officer in the lawful execution of duty, one charge of damaging property with intent and one charge of being drunk in a public place. Drunkenness contributed to the offences with which we are concerned and, as we shall see, one of the victims was a police constable.
After hearing a plea for leniency on his behalf, the learned judge sentenced the appellant on 6th August 2004 to three months' imprisonment on count 1, two years' imprisonment on count 2, nine months' imprisonment on count 3 and six months' imprisonment on each of counts 4 and 5. His Honour directed that four months of the sentence imposed on count 3, two months of the sentence imposed on count 4 and two months of the sentence imposed on count 5 be served cumulatively upon each other and upon the sentence imposed on count 2, but that otherwise all the sentences be served concurrently. That made a total effective sentence of two years and eight months' imprisonment, in respect of which a non-parole period of 15 months was fixed and a declaration made regarding 281 days' pre-sentence detention.
Leave to appeal was granted on 1st October 2004. The grounds of appeal
read:
"Ground 1: The individual sentences, the total effective sentence and the non-parole period are manifestly excessive.
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- AGLC
- R v Albanus [2004] VSCA 236
- Case
- [2004] VSCA 236
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the two-year imprisonment term for aggravated burglary was manifestly excessive. The court also needed to consider whether the appellant's prior banishment from the complainant's premises was relevant to the sentencing decision. Another issue was whether the measure of cumulation directed by the judge was open to him, and if the cumulative effect of the appellant's actions warranted a more severe sentence. The court further considered whether the appellant's actions were provoked and if provocation should be taken into account.
The court found that the two-year imprisonment term for aggravated burglary was not manifestly excessive. The court considered the appellant's prior banishment from the complainant's premises, but determined that it did not significantly impact the severity of the sentence. The court also found that the measure of cumulation was open to the judge, and that the cumulative effect of the appellant's actions warranted a more severe sentence. The court found that the appellant's actions were not provoked, and therefore, provocation was not taken into account in the sentencing decision. The court ultimately determined that the sentence of two years and eight months' imprisonment with a non-parole period of 15 months was not manifestly excessive. The appeal was dismissed.
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