R v Lewis - [2007] VSCA 24

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 296 of 2005

THE QUEEN
	v
JAMES ALAN LEWIS

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JUDGES:	VINCENT and NEAVE JJA and KELLAM AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 February 2007
DATE OF JUDGMENT:	26 February 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 24

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Criminal law – Sentencing – Unwarranted demand with menaces – Burglary – Whether sentencing judge failed to give sufficient weight to the appellant’s mental illness – Manifest excess – Totality – Parity between co-offenders – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D A Trapnell	Ms A Cannon, Solicitor for Public Prosecutions
For the Appellant	Mr M J Croucher	Garde-Wilson Lawyers

VINCENT JA:

The appellant was convicted in the County Court, on 17 August 2005, on one count of demanding money with menaces (count 2), an offence punishable by the imposition of a maximum term of imprisonment of 15 years, and one count of burglary (count 1). The commission of that offence can attract a maximum sentence of ten years' imprisonment. A co-offender, Gregory Maxwell Bell, with whom he was jointly presented, was convicted on the burglary count and on one count of making a demand with a threat to injure.

The appellant admitted 13 prior convictions from eight appearances before the Magistrates' Court between 1980 and 2002. Three of them were for assault and two were for stalking. One related to the use of a telecommunications service to harass and one to the breach of an intervention order.

Bell had 18 convictions and two findings of guilty arising from six appearances before the Magistrates' Court between 1981 and 1992. For the most part, they related to driving offences and the possession and use of drugs.

After hearing a plea in mitigation of penalty, the learned sentencing judge, on 30 September 2005, imposed upon the appellant the following sentences:
On count 1 - three years' imprisonment;
On count 2 - five years' imprisonment.
His Honour directed that two years of the sentence imposed on count 1 be served cumulatively upon that imposed on count 2. This created a total effective sentence of seven years' imprisonment, in respect of which a non-parole period of five years was fixed.[1]
[1]The appellant was also convicted of the offence of possession of cannabis L, and sentenced to a fine of $50.

Bell was sentenced at the same time to imprisonment for three years for the making of a threat to injure (count 3). That offence, I should add, also carries a maximum penalty of 15 years but was regarded in the circumstances as being less serious than that encompassed by count 2. He was sentenced to three years' imprisonment for burglary, the service of one year of which was to be served cumulatively. This offender was accordingly sentenced to a total effective term of four years' imprisonment, and in his case the judge fixed a non-parole period of two years.

Having been granted leave to do so, the appellant seeks to have the…

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 Lewis

Details

AGLC: R v Lewis [2007] VSCA 24
Case: [2007] VSCA 24
Decision Date: 26 February 2007

CaseChat Overview and Summary

The case of R v Lewis came before the court where the appellant, Lewis, sought to appeal his sentence for a conviction of burglary involving an unwarranted demand with menaces. The lower court had sentenced Lewis to a period of imprisonment, a decision which Lewis now contested on the grounds that the sentencing judge did not adequately consider his mental health issues and the disparity in sentencing between him and his co-offenders.

The central legal issues before the court were whether the sentencing judge erred by not sufficiently weighing the appellant’s mental illness and whether the sentence imposed constituted a manifest excess. Additionally, the court examined the principles of totality and parity in sentencing to determine if the sentence was disproportionate or inconsistent when compared to the sentences of Lewis’ co-offenders.

In addressing the appeal, the court found that the sentencing judge had appropriately considered the appellant’s mental health, noting the extensive evidence presented on the matter. The court held that the sentence, while severe, was not a manifest excess and was justifiable given the nature of the offence. The principles of totality and parity in sentencing were also considered, with the court concluding that the sentence was appropriate in the circumstances and did not represent an unwarranted disparity when compared to the sentences of Lewis’ co-offenders. As a result, the appeal was dismissed, and the original sentence was upheld.

The court did not make any further orders beyond the dismissal of the appeal and the affirmation of the original sentence.

Orders