R v Foster - [2007] VSCA 85

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 9 of 2007

THE QUEEN
	v
TROY MARTIN FOSTER

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JUDGES:	VINCENT, EAMES and NETTLE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 May 2007
DATE OF JUDGMENT:	7 May 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 85

Criminal Law – Sentence – Aggravated burglary – Damage to property – Causing injury intentionally – Defect in orders as to cumulation – Mere slip, intention of sentencing judge clear – Cumulation – Multiple relevant prior convictions – Total effective sentence of 2 years and 6 months’ imprisonment with a non-parole period of 12 months not manifestly excessive – Crimes Act 1958, ss 18, 77(1), 197(1).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mrs C M Quin	Ms A Cannon, Solicitor for Public Prosecutions
For the Appellant	Mr P J Morrissey	Victoria Legal Aid

VINCENT JA:

I will invite Eames JA to deliver the first judgment.

EAMES JA:

This is an appeal against sentence brought by leave. The appellant, who is now aged 24 years, pleaded guilty in the County Court and was sentenced as follows:
On count 1, aggravated burglary, contrary to s 77(1) of the Crimes Act 1958, which carried a maximum of 25 years' imprisonment, he was sentenced to two years' imprisonment;
On count 2, damage to property, contrary to s 197(1), which carried a ten-year maximum term of imprisonment, he was sentenced to one year's imprisonment;
On count 3, causing injury intentionally, which carried a maximum penalty of 10 years' imprisonment, he was sentenced to one year's imprisonment.
In making orders for cumulation, his Honour made a slip. In his sentencing remarks, his Honour twice stated that the total effective sentence he imposed was two years and six months' imprisonment, and that was also stated in the Return of Prisoner. However, when he made orders for cumulation, his Honour ordered that nine months of each of the sentences on counts 2 and 3 were in effect to be served concurrently with the sentence on count 1, but his Honour failed to state that the periods of cumulation of the sentences on counts 2 and 3 were also to be cumulated upon each other as well as upon count 1. The order, although specifying that it produced a total effective sentence of two years six months' imprisonment, arguably only produced a two years three months total effective sentence, which was plainly not intended by his Honour. I will return to this question later. His Honour ordered that the appellant serve one year before he was eligible for parole, and he declared 241 days pre-sentence detention.

These offences occurred at Portland on 23 April 2006. The appellant had previously been in a relationship with Kylie Haymes and that relationship had ceased some two years prior to commission of these offences on 23 April 2006.

The victim, as to counts 1 and 2 on the presentment, is Jessica Annett, who is Kylie Haymes' sister. On 13 April 2006, the appellant was sentenced in…

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 Foster

Details

AGLC: R v Foster [2007] VSCA 85
Case: [2007] VSCA 85
Decision Date: 7 May 2007

CaseChat Overview and Summary

The case of R v Foster involved the defendant, Foster, who was charged with aggravated burglary, causing intentional injury to another person, and causing damage to property. The dispute was heard in the Supreme Court of Victoria. The primary legal issues the court needed to address were the appropriateness of the sentence given the severity of the offences, the defects in the orders regarding the cumulation of sentences, and whether the total effective sentence was manifestly excessive.

The court examined the nature and seriousness of the offences, which included aggravated burglary and causing intentional injury. It also considered the cumulative effect of multiple relevant prior convictions on the sentencing process. The court noted that there was a defect in the orders concerning the cumulation of sentences, but this was merely a slip and the sentencing judge's intention was clear. The court assessed whether the total effective sentence of 2 years and 6 months' imprisonment, with a non-parole period of 12 months, was appropriate given the nature of the offences and the defendant's criminal history.

Upon reviewing the sentencing principles and the specific statutory provisions under the Crimes Act 1958, the court concluded that the total effective sentence was not manifestly excessive. The court recognised the gravity of the offences and the need for deterrence and protection of the community, but also took into account the defendant's potential for rehabilitation. The court found that the sentence imposed was within the bounds of what was proportionate and just under the circumstances.

The court confirmed the sentence, noting that the total effective term of 2 years and 6 months’ imprisonment with a non-parole period of 12 months was appropriate. The court emphasised that the defect in the orders regarding cumulation did not alter the clear intention of the sentencing judge, and the sentence was not manifestly excessive.

Orders