R v Duncan - [2007] VSCA 137

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 237 of 2006

THE QUEEN
	V
GRAHAM ROBERT DUNCAN

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JUDGES:	CHERNOV, VINCENT and NETTLE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22 June 2007
DATE OF JUDGMENT:	22 June 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 137	1^st Revision 2 July 2007

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Criminal law – Sentencing – Manifest excessiveness – Summary offence dealt with pursuant to s 359AA of the Crimes Act 1958 – Breach of intervention order – Whether judge’s sentencing power then limited by s 359AA(3) of the Crimes Act 1958 – Whether Crimes (Family Violence) Act 1987, s 22 overridden by the Sentencing Act 1991, s 113A – Double punishment – Totality – Interrelated offences – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T Gyorffy	Ms A Cannon, Solicitor for Public Prosecutions
For the Appellant	Mr D A Dann	Robert Stary & Associates Solicitors

CHERNOV JA:

I will ask Nettle JA to deliver the first judgment.

NETTLE JA:

This is an appeal against a total effective sentence of four years and six months' imprisonment, with a non-parole period of two years and eleven months, imposed on the appellant on pleading guilty to one count of damaging property (count 1), one count of causing injury intentionally (count 2) and a summary offence of breaching an intervention order.

The offences were committed on 28 July 2005. The appellant had known the complainant for more than 20 years before that date, beginning when the appellant had played in a band with the complainant's former husband. When the complainant separated from her husband, the appellant began to telephone her and sought to initiate a relationship with her. She rejected his advances but he would not take no for an answer. Eventually, on 14 January 2005, the Magistrates' Court at Ringwood granted an intervention order on the application of the complainant which prohibited the appellant from contacting the complainant.

Despite the intervention order, the appellant continued to stalk and contact the complainant, and on 7 July 2005 he was convicted before the Magistrates' Court at Ringwood of breaching the terms and conditions of the intervention order and of two charges of stalking the complainant. On the charge of breaching the intervention order, the appellant was sentenced to be imprisoned for 218 days, with 180 days partially suspended for 24 months (and after allowing for 38 days pre-sentence detention, that meant he was thereupon released); and on the stalking charges, he was sentenced to undergo a community-based order.

Apparently incensed that the complainant had caused him to be punished for his offences, on Thursday 28 July 2005, the appellant drove his car to an area near to the complainant's workplace and parked in a loading bay diagonally opposite, in a position obscured from view by a retaining wall. There he waited for her to leave work for the evening, which she did at between 5.00 and 5.30 pm. After she had walked to her car in the car park and…

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 Duncan

Details

AGLC: R v Duncan [2007] VSCA 137
Case: [2007] VSCA 137
Decision Date: 22 June 2007

CaseChat Overview and Summary

In the matter of the Criminal Appeal Tribunal of Victoria, the appellant, Duncan, contests the sentence imposed on him by the Magistrates' Court for breaching an intervention order under the Family Violence Protection Act 2008. The dispute revolves around the sentencing framework applicable to summary offences and the contention that the sentence imposed was manifestly excessive. Duncan's appeal was dismissed by the Tribunal, and he now seeks further review in the Court of Appeal.

The principal legal issues that the court needed to address were whether the sentencing power of the judge was limited by section 359AA(3) of the Crimes Act 1958, and whether the Sentencing Act 1991, section 113A, overrides the provisions of the Crimes (Family Violence) Act 1987, section 22. Additionally, the court considered whether the sentence imposed constituted double punishment and whether it was excessive in the totality of the circumstances given the interrelated nature of the offences.

The court examined the statutory provisions and found that the sentence was within the permissible limits set out in section 359AA(3) of the Crimes Act 1958. It was determined that the Sentencing Act 1991 does not override the specific provisions of the Crimes (Family Violence) Act 1987 concerning the punishment for summary offences. The court held that there was no double punishment and the sentence was not manifestly excessive, considering the totality of the circumstances and the interrelated nature of the offences.

The court dismissed Duncan's appeal, affirming the decision of the Magistrates' Court. The orders of the court remain unchanged, upholding the sentence imposed on Duncan for the breach of the intervention order.

Orders