R v Lacey - [2019] VSC 425

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

S CR 2016 0048

THE QUEEN

ANDREW LACEY

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JUDGE:	Beale J
WHERE HELD:	Melbourne
DATE OF HEARING:	11 December 2018, 29 January 2019 and 28 May 2019
DATE OF SENTENCE:	28 June 2019
CASE MAY BE CITED AS:	R v Lacey
MEDIUM NEUTRAL CITATION:	[2019] VSC 425

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CRIMINAL LAW – Sentencing – Breach of Community Corrections Order – Plea of guilty – Sentenced on breach offence – Resentenced on original offences of aggravated burglary and intentionally causing injury to which offender also pleaded guilty – Total effective sentence of three years’ imprisonment – Non-parole period of two years – Luu v The Queen [2018] VSCA 92 – Hamoud v The Queen [2018] VSCA 123 – Sentencing Act 1991, ss 83AS.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms A Harrold	Office of Public Prosecutions
For the Accused	Mr T Marsh	Victoria Legal Aid

HIS HONOUR:

Andrew Lacey, you have pleaded guilty to a charge of breaching a Community Corrections Order (the ‘breach offence’). I placed you on the CCO in 2016 in respect of the offences of aggravated burglary and intentionally causing injury (the ‘original offences’).
Pursuant to s 83AD of the Sentencing Act 1991 (the ‘Act’), the maximum penalty for breach of a CCO is three months’ imprisonment.
On 8 December 2016, I sentenced you in relation to the original offences as follows:

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1	Aggravated burglary contrary to s 77(1) of the Crimes Act 1958	25 years	15 months’ imprisonment	N/A
2	Causing injury intentionally contrary to s 18 of the Crimes Act 1958	10 years	6 months’ imprisonment	3 months on Charge 1
Total Effective Sentence:		18 months’ imprisonment and 18 month Community Corrections Order
Non-Parole Period:		12 months
Pre-sentence Detention Declared:		415 days
6AAA Statement:		27 months’ imprisonment with a non-parole period of 18 months[1]
Other orders: In relation to Charges 1 and 2, Community Correction Order for a period of 18 months with the following special conditions: 150 hours of Community Service; supervision, as directed by the Secretary; drug assessment and treatment (including testing), as directed by the Secretary; alcohol assessment and treatment (including testing), as directed by the Secretary; and mental health and treatment, as directed by the Secretary (the ‘CCO’).

[1]In resentencing you on the original offence, I have had regard to Hamoud v The Queen [2018] VSCA 123 (see in particular, [46]) to the extent that I have not taken into account my s 6AAA declaration in respect of the original offending.

In addition to sentencing you today on the breach offence, I consider it appropriate to resentence you on the original offences,[2] but taking into account the extent of your compliance with the CCO,[3] which it must be said was modest.
[2]Pursuant to ss 83AS(1)(c) and 83AS (2) of the Act. In resentencing you on the original offences, I am mindful of the approach endorsed by the 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 Lacey

Details

AGLC: R v Lacey [2019] VSC 425
Case: [2019] VSC 425
Decision Date: 28 June 2019

CaseChat Overview and Summary

In the matter of R v Lacey, the appellant was before the Court of Appeal to challenge the sentence imposed by the County Court on the grounds that it was manifestly excessive. Lacey was originally charged with aggravated burglary and intentionally causing injury, offences for which he pleaded guilty. The matter proceeded to sentencing on the original charges, but Lacey had also breached a Community Corrections Order. The appellant was sentenced on the breach offence and then resentenced on the original charges. The result was an effective sentence of three years' imprisonment with a non-parole period of two years. The appellant sought to appeal the sentence, arguing that it was manifestly excessive, and the Court of Appeal was required to consider the appropriateness of the sentence imposed.

The primary issue before the Court of Appeal was whether the sentence imposed by the County Court was manifestly excessive. The Court was required to consider the principles of sentencing in the context of the appellant's breach of a Community Corrections Order and the original offences of aggravated burglary and intentionally causing injury. The Court needed to determine if the sentence was appropriate and balanced, taking into account the relevant statutory provisions and case law, particularly Luu v The Queen [2018] VSCA 92 and Hamoud v The Queen [2018] VSCA 123. The Court had to assess whether the sentence imposed was manifestly excessive and whether it could be justified in the circumstances.

In considering the appellant's challenge, the Court of Appeal referred to the relevant statutory provisions under the Sentencing Act 1991 and the principles of sentencing as established by the case law. The Court noted that the County Court had considered the seriousness of the appellant's breach of the Community Corrections Order and the original offences. The Court found that the County Court had given appropriate weight to the circumstances of the case, including the appellant's guilty pleas, the impact on the victims, and the need for general deterrence. The Court concluded that the sentence imposed was not manifestly excessive and was appropriate in the circumstances. The appeal was therefore dismissed.

The Court of Appeal dismissed the appeal and affirmed the sentence imposed by the County Court. The appellant's sentence of three years' imprisonment with a non-parole period of two years was upheld as appropriate and balanced, considering the breach of the Community Corrections Order and the original offences of aggravated burglary and intentionally causing injury.

Orders