R v Crowley - [2009] VSCA 176

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 890 of 2007

THE QUEEN
	v
TYSON JOHN CROWLEY

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JUDGES:	BUCHANAN and DODDS-STREETON JJA and LASRY AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 August 2009
DATE OF JUDGMENT:	4 August 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 176	1^st Revision 6 August 2009, para 17
JUDGMENT APPEALED FROM:	R v Tyson John Crowley (Unreported, County Court of Victoria, Judge Pilgrim, 5 November 2007)

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Criminal law – Sentencing – Arson, aggravated burglary and false imprisonment – Serious offender – Orders for concurrence failed to achieve the total effective sentence intended by the sentencing judge – Psychiatric disorder – Offender re-sentenced.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms G T Cannon	Mr C Hyland, Solicitor for Public Prosecutions
For the Appellant	Mr C B Boyce	Victoria Legal Aid

BUCHANAN JA:

The appellant was arraigned in the County Court and pleaded guilty to a presentment containing two counts of false imprisonment, two counts of arson, one count of theft, one count of aggravated burglary, one count of assault and one count of reckless conduct endangering others. The appellant also pleaded guilty to two summary offences of breaching a Crimes (Family Violence) order.

The appellant has had a disturbed history, which to some extent explains the offences. The appellant has been diagnosed as suffering from depression and has made more than one attempt to commit suicide. His family has a history of psychiatric illnesses. The appellant has abused alcohol and drugs from an early age; alcohol from the age of 12 years, with binge drinking, and later using ecstasy, amphetamine, ice, speed, LSD and ketamine.

The appellant had been in a de facto relationship with one Brooke McDonald for some two-and-a-half years. They lived together in a house at Narre Warren. On 20 October 2006, the appellant argued with Ms McDonald, grabbed her and handcuffed her left hand to the right-hand side of the bed (count 1 - false imprisonment). The appellant attempted to handcuff Ms McDonald's left wrist to the bed, but after a struggle desisted and then released her. At a meeting with Ms McDonald and her mother the following day, the appellant became angry and stormed out of the house. During the course of the day, the appellant sent a barrage of text messages to Ms McDonald. That night, Ms McDonald was telephoned by her sister to say that the house at Narre Warren was on fire. The house was gutted by the fire (count 2 - arson). The appellant had stolen property belonging to Ms McDonald from the house and placed it in his car (count 3 - theft). Four days later, police found the car belonging to the appellant on fire on the Princes Highway at Berwick. The property, which the appellant had stolen, which was in the car, was destroyed (count 4 - arson).

Early the next day, the police arrested the appellant at Dandenon`g Hospital. He was remanded to appear at the Melbourne Magistrates' Court.…

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 Crowley

Details

AGLC: R v Crowley [2009] VSCA 176
Case: [2009] VSCA 176
Decision Date: 4 August 2009

CaseChat Overview and Summary

The case of R v Crowley involved the defendant, Crowley, who was convicted of arson, aggravated burglary, and false imprisonment. The appeal centred on the sentencing process and the perceived failure to achieve the intended total effective sentence as determined by the original sentencing judge. The case was heard in the Supreme Court of Victoria.

The primary legal issue before the court was whether the orders for concurrence, which were meant to align the sentences for the various offences, had succeeded in achieving the total effective sentence intended by the original sentencing judge. The court also considered the impact of Crowley's psychiatric disorder on his culpability and whether this warranted a re-sentencing. Additionally, the court examined the proportionality and appropriateness of the original sentences imposed for the respective offences.

The court found that the orders for concurrence had not achieved the total effective sentence intended by the original sentencing judge. The court noted that the original sentencing judge had intended a certain total effective sentence, which was not realised due to the manner in which the sentences were ordered to run concurrently. Consequently, the court decided to re-sentence Crowley, taking into account his psychiatric disorder and the need for the sentences to reflect the seriousness of the offences and the offender's culpability. The court re-imposed sentences that aligned with the original intended total effective sentence, ensuring that the seriousness of the crimes and the offender's psychiatric condition were adequately considered.

Orders