R v Ash

Case [2005] VSCA 43 11 March 2005

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 182 of 2004

THE QUEEN
	v.
KIM LOUISE ASH

---

JUDGES:	CALLAWAY, BUCHANAN and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 March 2005
DATE OF JUDGMENT:	11 March 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 43

---

CRIMINAL LAW – Sentencing – Handling stolen goods, burglary, obtaining property by deception, possessing property reasonably suspected of being proceeds of crime – Appellant 40 years old, with 82 prior convictions – Cumulation orders challenged – Total effective sentence of 4 years 8 months’ imprisonment with 3 years non-parole period not manifestly excessive – Crimes Act 1958, ss.76, 81(1), 88(1); Confiscation Act 1997, s.123(1).

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Ms G. Cannon	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Appellant	Mr M.J. Croucher	Leanne Warren & Associates

CALLAWAY, J.A.:

I agree with Eames, J.A.

BUCHANAN, J.A.:

I agree with Eames, J.A.

EAMES, J.A.:

The appellant pleaded guilty before a judge of the County Court to sixteen counts of handling stolen goods, contrary to s.88(1) of the Crimes Act 1958, to one count of burglary, contrary to s.76(1), and one count of obtaining property by deception, contrary to s.81(1). In addition she pleaded guilty to a count of possession of a drug of dependence, being cannabis, contrary to s. 73 of the Drugs, Poisons and Controlled Substances Act 1981, and to a summary offence of possessing property reasonably suspected of being the proceeds of crime, contrary to s.123(1) of the Confiscation Act 1997.

The maximum penalty for handling stolen goods is 15 years’ imprisonment, for burglary 10 years’ imprisonment and for obtaining property by deception it is also 10 years’ imprisonment. The drug offence carried a maximum of five years’ imprisonment and possessing property reasonably suspected of being the proceeds of crime carries a maximum sentence of two years’ imprisonment.

The charges arose out of a police investigation into a series of burglaries which had taken place in the Port Melbourne and Beacon Cove areas. The appellant lived in that area. The burglaries had common features in that the premises were generally burgled by entry through unlocked doors and were usually two-storey townhouses with bedrooms that were upstairs. The homes were usually entered at night, while the occupants were asleep. The property which was the subject of charges against the appellant was stolen from houses over the period 12 January 2002 to 15 May 2002.

On 2 April 2002 occupants of a house in Ramsden Street, Clifton Hill disturbed a burglar in the early hours of the morning and gave chase to the fleeing person. They later confronted the appellant and a male and during a scuffle, as a result of which the offenders escaped, a black bag held by the male disgorged property of the householders and also property which identified the appellant. The bag was later identified as having been stolen from another property on 12 January 2002. Count 8 related to the burglary at Ramsden Street.

Burglaries…

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 Ash

Details

AGLC: R v Ash [2005] VSCA 43
Case: [2005] VSCA 43
Decision Date: 11 March 2005

CaseChat Overview and Summary

The appellant in this case, with an extensive criminal history, was convicted of handling stolen goods, burglary, obtaining property by deception, and possessing property reasonably suspected of being proceeds of crime. The matter was heard in the Court of Appeal, where the appellant challenged the cumulation orders that resulted in a total effective sentence of four years and eight months' imprisonment, with a non-parole period of three years.

The primary legal issues for the court to determine were whether the cumulative sentence was manifestly excessive and whether the trial judge erred in ordering the cumulation of sentences. The appellant argued that the total sentence imposed was excessively punitive given his age and criminal history. The court had to balance the appellant's criminal record with the need to deter future criminal activity and uphold the seriousness of the crimes committed.

The court found that the trial judge had appropriately considered the appellant's criminal history and the need to ensure the sentence reflected the gravity of the offences. It was determined that the cumulative sentence, while severe, was not manifestly excessive. The court also held that there was no error in the cumulation orders, as the trial judge had correctly applied the principles set out in the relevant statutes. The appeal was, therefore, dismissed, and the original sentence was upheld.

The court confirmed that the sentence imposed was appropriate in all the circumstances, reflecting both the appellant's criminal history and the need to deter and punish the serious nature of the crimes committed. No further orders were made by the court.

Orders