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.

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 R v Albanus

Details

AGLC: R v Albanus [2004] VSCA 236
Case: [2004] VSCA 236
Decision Date: 13 December 2004

CaseChat Overview and Summary

The case of R v Albanus involved the appellant who was convicted of aggravated burglary, recklessly causing injury, and common assault. The dispute centred on the severity of the sentence imposed by the court. The case was heard in the Court of Appeal. The appellant challenged the sentence, arguing it was manifestly excessive, particularly in relation to the charge of aggravated burglary.

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.

Orders