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R v Lacey

R v Lacey

Case [2006] VSCA 4 19 January 2006

Aggravated & Exemplary Damages

Sentencing

Appeal

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 150 of 2005

THE QUEEN
	v.
ROBERT WAYNE LACEY

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JUDGES:	CALLAWAY, CHERNOV and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 January 2006
DATE OF JUDGMENT:	19 January 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 4

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Criminal Law – Sentence – Aggravated burglary – Intentionally causing injury – Affray – Whether overlapping nature of offences gave rise to double punishment – Whether sentencing judge gave insufficient weight to appellant’s modest criminal history and prospects of rehabilitation – Parity – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R.A. Elston, S.C.	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Appellant	Mr M.J.Croucher	David Tonkin & Associates

CALLAWAY, J.A.:

I invite Vincent, J.A. to deliver the first judgment.

VINCENT, J.A.:

The appellant was, on 8 April 2005, found guilty by the jury on his trial in the County Court on one count of aggravated burglary (count 1), one count of intentionally causing injury to a person (count 2) and a count of affray (count 10). He admitted seven prior convictions arising from one court appearance in 1998.

After hearing a plea in mitigation of penalty, the learned sentencing judge, on 13 May 2005, imposed the following terms of imprisonment for these offences -
On count 1                -  four years and six months;
On count 2                -  three years and six months;
On count 10              -  one year and six months.
Her Honour directed that six months of the sentence imposed on count 2 was to be served cumulatively upon that imposed on count 1. This created a total effective sentence of five years' imprisonment in respect of which a non‑parole period of three years and six months was fixed.

There were three co‑offenders in the incident which gave rise to these convictions and sentences, namely, Steven Lacey and Robert Lacey Junior, who are sons of the appellant, and a man named Gregory Eldridge.

In the case of Steven Lacey, the sentencing judge imposed a sentence of imprisonment for two years on the count of aggravated burglary (count 1) and, on the count of intentionally inflicting serious injury (count 2), imprisonment for 18 months. It was directed that three months of the sentence imposed on count 2 be served cumulatively upon that imposed on count 1. This created a total effective sentence of two years and three months, the service of the whole of which her Honour directed was to be suspended for a period of two years and three months.

Eldridge was sentenced by her Honour to imprisonment for two years and six months for the aggravated burglary (count 1) and to a term of two years' imprisonment for intentionally inflicting serious injury (count 2), six months of which was to be served cumulatively upon the other sentence imposed. The service of the whole of the then effective sentence of three years was suspended for a period of three years.

The fourth offender, Robert Lacey Junior, was, at…

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

AGLC: R v Lacey [2006] VSCA 4
Case: [2006] VSCA 4
Decision Date: 19 January 2006

CaseChat Overview and Summary

The appellant, Lacey, was convicted for an aggravated burglary, during which he intentionally caused injury to a person, and for affray. Lacey appealed against his sentence, arguing that the sentencing judge had imposed double punishment for overlapping offences and had failed to give sufficient weight to his modest criminal history and prospects of rehabilitation. The High Court of Australia heard the appeal.

The legal issues before the court were whether the overlapping nature of the offences warranted a single sentence and if the sentencing judge had erred in not adequately considering Lacey's criminal history and prospects for rehabilitation. The court needed to determine if the sentence was disproportionate and if there was a parity issue with other similar cases.

The court found that the sentencing judge had appropriately considered the nature and circumstances of the offences and the need for general and specific deterrence. The court held that the offences were distinct and did not overlap to the extent that a single sentence was warranted. The sentencing judge had also considered Lacey's criminal history and prospects of rehabilitation, and the sentence imposed was not excessive. The appeal was dismissed, and the original sentence upheld.

The court did not order any changes to the sentence and dismissed the appeal.

Orders