R v Boyd - [2002] VSCA 102

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 226 of 2001

THE QUEEN
	v.
GLENN CHARLES BOYD

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JUDGES:	ORMISTON, CALLAWAY and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 June 2002
DATE OF JUDGMENT:	27 June 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 102

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Criminal law - sentence - aggravated burglary - offender with imitation handgun breaks into home and threatens to kill de facto partner - breach of intervention order - multiple prior convictions - sentence of 4 years with non parole of 2 years not manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms G. Cannon	K. Robertson, Solicitor for Public Prosecutions
For the Appellant	Ms J. Dixon	Victoria Legal Aid

ORMISTON, J.A.:

I will ask Eames, J.A. to deliver the first judgment.

EAMES, J.A.:

The appellant appeals against sentences imposed by a judge of the County Court on 24 August 2001. He pleaded guilty and was sentenced on the following offences. On count 1 - handling stolen goods contrary to s.78 of the Crimes Act 1958 (which carries a maximum penalty of 15 years) - he was sentenced to nine months' imprisonment. On count 2 - aggravated burglary contrary to s.77 of the Crimes Act (which carries a maximum sentence of 25 years' imprisonment) - he was sentenced to four years' imprisonment. On count 3 - being a prohibited person in possession of a firearm contrary to s.5(1) of the Firearms Act 1996 (which carries a maximum sentence of seven years) - he was sentenced to six months' imprisonment. The total effective sentence was four years' imprisonment. His Honour fixed a non-parole period of two years.

The appellant admitted 107 prior convictions from 34 court appearances in Victoria and New South Wales between 31 May 1979 and 12 April 2000. Among those convictions were three counts of theft, two of assault, four of malicious injury, six of larceny, two of break, enter and steal, three of illegal use of a motor vehicle, two of unlawful assault, one of assault occasioning actual bodily harm, one of receiving stolen goods, two of burglary, one of malicious damage and five offences relating to possession of firearms in unlawful circumstances. As I will discuss, in addition to those offences the appellant had also been convicted of a number of offences committed in 1995 and 1996 but those were not included in the presentment, because the convictions for those offences were imposed after the offences to which the present appeal relates. In other words, they were not prior convictions for the purpose of sentencing in this instance.

Leave to appeal was granted to the appellant on 8 February 2002.

The circumstances giving rise to these offences can be briefly stated. All offences were committed at Shepparton on 29 March 2001. At the time of the offences the appellant resided in Finley, New South Wales. He had resided there with his de facto wife Yvette Beare and her three children. He was the father of the two younger children. He…

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.

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Details

Case: [2002] VSCA 102
Decision Date: 27 June 2002

CaseChat Overview and Summary

The appellant, Boyd, was convicted of aggravated burglary, having broken into the home of his de facto partner and threatening her with an imitation handgun. Boyd had a history of prior convictions, including previous instances of domestic violence. This incident occurred despite an existing intervention order prohibiting him from approaching or communicating with the victim. The case was heard in the Court of Appeal where the primary concern was the adequacy of the sentence imposed by the lower court.

The central legal issue before the court was whether the sentence of four years imprisonment, with a non-parole period of two years, was manifestly excessive. The appellant argued that the sentence was disproportionate given his history and the circumstances of the offence. The court had to weigh the severity of the offence, Boyd's criminal history, and the impact of the intervention order breach against the principles of sentencing in cases of aggravated burglary.

In its reasoning, the court noted the seriousness of the offence, which involved a breach of an intervention order, a history of domestic violence, and the use of an imitation firearm. The court held that the sentence was within the range of what could be considered appropriate for such a serious offence. The court further determined that the sentence did not manifest any excessiveness when considering the cumulative effect of Boyd's criminal history and the gravity of the breach of the intervention order. Therefore, the appeal against sentence was dismissed.

The final orders of the court affirmed the sentence imposed by the lower court, with no alteration to the term or non-parole period. The court's decision underscores the importance of considering the totality of an offender's criminal history and the specific circumstances of the offence in determining an appropriate sentence.

Orders