R v Lowe

Case [2009] VSCA 268 25 November 2009

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 936 of 2008

THE QUEEN
	v
PETER BRENDAN LOWE

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JUDGES:	NEAVE and REDLICH JJA and HOLLINGWORTH AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 November 2009
DATE OF JUDGMENT:	25 November 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 268
JUDGMENT APPEALED FROM:	R v Peter Brendan Lowe (Unreported, County Court of Victoria, Judge Murphy, 29 August 2008)

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CRIMINAL LAW – Sentencing – Aggravated burglary – Criminal damage – Procedural fairness – Finding of aggravating factors not contained within ‘undisputed facts’ agreed between parties – Obligation of sentencing judge to give notice – Premeditation as an aggravating factor in aggravated burglary – Whether offender to be sentenced as a vigilante – Appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T Gyorffy	Mr C Hyland, Solicitor for Public Prosecutions
For the Applicant	Mr M Stanton	Victoria Legal Aid

NEAVE JA
REDLICH JA
HOLLINGWORTH AJA

On 27 August 2008, Peter Lowe pleaded guilty in the County Court to 1 count of aggravated burglary (count 1) and 1 count of damaging property (count 2).[1] These offences were committed on 29 December 2007 when he entered a property in Morwell armed with a claw hammer.
[1]The relevant maximum penalties are 25 years’ imprisonment for aggravated burglary and 10 years’ imprisonment for criminal damage.

On 29 August 2008 the appellant was sentenced to 3 years’ imprisonment on count 1 and 9 months’ imprisonment on count 2. It was directed that 4 months of the sentence imposed on count 2 be served cumulatively on count 1, with the consequence that the appellant was required to serve a total effective sentence of 3 years and 4 months’ imprisonment with a non-parole period of 21 months (the non-parole period being approximately 55% of the head sentence). Leave having been granted pursuant to s 582 of the Crimes Act 1958 (Vic) he now appeals against the sentences imposed.

Under cover of Grounds 2 and 3, which are interrelated, the appellant submits that the sentencing judge fell into error by taking into account certain facts, as aggravating circumstances of the offending conduct which were not included in the statement of ‘undisputed facts’ tendered during the Crown opening (‘the undisputed facts’). Under cover of Ground 1 the appellant further submits that the sentences imposed are each manifestly excessive. [2]
[2]Ground 4 was abandoned.

Circumstances of the offending

The offences occurred when the appellant attended a residential property with the intention of confronting one of the complainants, Mr White. Mr White was known to the appellant. Mr White’s sister, Andre, had been the appellant’s partner for some three years prior to the offences. They had all been good friends until a falling out had occurred over premises which they had previously agreed to rent.

As there is some controversy on the appeal as to the facts and circumstances of the offending it is necessary to set out the statement of undisputed facts:

On Saturday the 29^th of December 2007 at about…

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 Lowe

Details

AGLC: R v Lowe [2009] VSCA 268
Case: [2009] VSCA 268
Decision Date: 25 November 2009

CaseChat Overview and Summary

In the case of R v Lowe, the appellant was convicted of aggravated burglary and criminal damage. The respondent appealed the sentence imposed by the sentencing judge, arguing that the sentence was excessive and that the judge failed to observe procedural fairness by failing to give adequate notice of the aggravating factors considered. The appeal was heard in the Court of Appeal.

The primary legal issue before the court was whether the sentencing judge was required to give notice of the aggravating factors they intended to consider in sentencing, particularly where those factors were not included in the ‘undisputed facts’ agreed upon by the parties. The court also needed to determine whether the appellant should be sentenced as a vigilante, and whether premeditation could be considered an aggravating factor in an aggravated burglary offence.

The court found that the sentencing judge had not given the appellant adequate notice of the aggravating factors they intended to consider. The court held that where aggravating factors are not contained within the ‘undisputed facts’ agreed between the parties, the sentencing judge has an obligation to give notice of these factors to the parties. The court also found that the appellant should not be sentenced as a vigilante, and that premeditation could be considered an aggravating factor in an aggravated burglary offence. The appeal was allowed, and the case was remitted to the sentencing judge for re-sentencing.

The court ordered that the case be remitted to the sentencing judge for re-sentencing, with directions that the judge give notice of any aggravating factors they intend to consider, and that they not sentence the appellant as a vigilante. The court also directed that the judge consider premeditation as an aggravating factor in the appellant's sentencing.

Orders