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R v Lambourn

R v Lambourn

Case [2007] VSCA 187 7 September 2007

Aggravated burglary

Recklessness

Miscarriage of justice

Sentencing

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 199 of 2006

THE QUEEN
	v
LUKE JOHN LAMBOURN

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JUDGES:	NETTLE and ASHLEY JJA and KAYE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 September 2007
DATE OF JUDGMENT:	7 September 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 187

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CRIMINAL LAW – Conviction – Aggravated burglary – Entering premises as trespasser – Whether applicant knew of or was reckless as to lack of consent to enter – Directions to jury – Failure of judge adequately to direct jury concerning applicant’s state of mind – Barker v The Queen (1983) 153 CLR 338; R v Taylor (2004) 10 VR 199, followed.

Criminal law – Appeal – Proviso – Whether proviso able to be applied where miscarriage of justice caused by misdirection as to element of offence – Wilde v The Queen (1988) 154 CLR 365; Krakouer v The Queen (1998) 194 CLR 202; R v AJS (2005) 12 VR 563, considered.

Criminal law – Sentencing – Parity – Double punishment – Manifest excessiveness – Total effective sentence of 38 months with non-parole period of 18 months reduced to 26 months with non-parole period of 14 months.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J D McArdle QC	Ms A Cannon, Solicitor for Public Prosecutions
For the Applicant	Mr C B Boyce	Peter S Dunn

NETTLE JA:

Following a trial in the County Court at Melbourne, on 20 June 2006 the applicant was found guilty of two counts of criminal damage (Counts 1 and 5), one count of aggravated burglary (Count 2) and one count of intentionally causing injury (Count 3). After hearing a plea in mitigation of penalty, on 23 June 2006 the judge sentenced the applicant on Count 1 to 14 days in prison, on Count 2 to 30 months’ imprisonment, on Count 3 to 12 months’ imprisonment and on Count 5 to two months’ imprisonment. The judge further ordered in effect that six months’ of the sentence imposed on Count 3 and the whole of the sentence imposed on count 5 be served cumulatively on the sentence imposed on Count 2,[1] thereby making for a total effective sentence of 38 months’ imprisonment, and imposed a non-parole period of 18 months. The applicant now applies for leave to appeal against both conviction and sentence.
[1]The judge expressed the order in slightly different terms but it is plain from the context that this is what his Honour intended.

The facts

The applicant was born on 10 March 1983 and so is now aged 24. At the time of the offending, on 23 and 24 September 2004, he was 21. He was arrested on 28 September 2004 and gave a “no comment” Record of Interview. He was then charged with aggravated burglary, intentionally causing serious injury, unlawful assault, criminal damage and theft and released on bail. Two co-offenders, Peter William Luke, born 13 September 1982, and Brendan Vidler, born 30 July 1977, were arrested on 24 September…

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 Lambourn

Details

AGLC: R v Lambourn [2007] VSCA 187
Case: [2007] VSCA 187
Decision Date: 7 September 2007

CaseChat Overview and Summary

In the case of R v Lambourn, the appellant was convicted of aggravated burglary, having entered premises as a trespasser, and was subsequently sentenced to a total effective term of 38 months imprisonment, with a non-parole period of 18 months. The applicant contested the conviction and sentence, arguing that the trial judge failed to adequately direct the jury on the requisite state of mind for the offence and that the sentence was manifestly excessive. The appeal was heard by the Victorian Court of Appeal, which found in favour of the applicant on both grounds.

The central legal issues before the court were whether the trial judge's directions to the jury were adequate in relation to the applicant's state of mind and whether the proviso in section 122A of the Sentencing Act 1991 (Vic) could be applied given the miscarriage of justice caused by the misdirection. The court also considered whether the sentence was manifestly excessive and should be reduced.

The court held that the trial judge's directions to the jury did not adequately address the applicant's state of mind, specifically whether they knew or were reckless as to the lack of consent to enter the premises. This failure amounted to a misdirection, leading to a miscarriage of justice. The court followed the principles established in Barker v The Queen and R v Taylor, concluding that the proviso could be applied in such circumstances. Additionally, the court found the original sentence to be manifestly excessive and reduced the total effective sentence to 26 months with a non-parole period of 14 months.

As a result of the appeal, the conviction for aggravated burglary was quashed, and the sentence was reduced to 26 months imprisonment with a non-parole period of 14 months.

Orders