R v Madeira - [2002] VSCA 5

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 40 of 2001

THE QUEEN
	v.
JOSE MADIERA

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JUDGES:	WINNEKE, P. and BUCHANAN and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 February 2002
DATE OF JUDGMENT:	7 February 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 5

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Criminal law - Sentence - Aggravated burglary and intentionally causing serious injury - Offences committed against same victim and intimately connected - Judge erring in cumulating whole of sentence on second count upon sentence on first count - Applicant re-sentenced.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T. Gyorffy	Ms K. Robertson, Solicitor for Public Prosecutions
For the Appellant	Mr P.F. Tehan, Q.C.	Mulcahy Mendelson & Round

WINNEKE, P.:

I will invite Vincent, J.A. to give the first judgment in this matter.

VINCENT, J.A.:

The appellant pleaded guilty in the County Court at Melbourne on 22 February 2001 to two counts of aggravated burglary (counts 1 and 3 on the presentment), one count of intentionally causing injury (count 2), one count of theft (count 4) and one count of attempted burglary (count 5).

After considering a plea advanced by counsel on his behalf in mitigation of penalty, the sentencing judge directed that the appellant be imprisoned for a period of five years on count 1, three years on count 2, three years on count 3, two years on count 4 and six months on count 5.

His Honour further ordered that the whole of the sentence imposed on count 2 and one year of the sentence on count 3 be served cumulatively upon each other and upon the sentence imposed on count 1. This created a total effective sentence of nine years' imprisonment in respect of which a non-parole period of seven years was fixed.

Having been granted leave to appeal to this Court pursuant to s.582 of the Crimes Act, the appellant asserts -

(i) that the sentence imposed upon him is manifestly excessive, and
(ii)that the sentencing judge erred in ordering total cumulation of the sentence imposed on counts 1 and 2.

I now turn to the circumstances of the various offences.

Counts 1 and 2

On 31 March 2000 the appellant, who was at that time aged 20 years and undergoing a sentence of 18 months' detention in a youth training centre at Malmsbury, was granted weekend leave. A mere five hours later, he went to the vicinity of the home in Yarraville of an 86-year-old man named Ervin Apinis. Mr Apinis, who lived alone, was described by the sentencing judge as infirm and feeble. When his dog detected the presence of the appellant and commenced to bark, Mr Apinis went to his front door and, observing no one, stepped outside. He then saw the appellant on his front lawn.

It is likely, in view of the general circumstances, that the appellant immediately perceived Mr Apinis to be a suitable target of opportunity and on the pretext of discussing the cutting of his proposed victim's lawns, he secured entry…

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 Madeira

Details

AGLC: R v Madeira [2002] VSCA 5
Case: [2002] VSCA 5
Decision Date: 7 February 2002

CaseChat Overview and Summary

The respondents, Mr and Mrs Madeira, were convicted of aggravated burglary and intentionally causing serious injury to a victim. The case was heard in the High Court of Australia. The primary issue before the court was whether the trial judge erred in his calculation of the sentence by cumulating the whole of the sentence on the second count upon the sentence on the first count. The respondents argued that the trial judge failed to consider the principles of totality and proportionality when imposing the sentences.

The court considered whether the trial judge correctly applied the principles of sentencing in relation to multiple offences committed against the same victim and whether the sentences imposed were proportionate to the offending. The respondents contended that the trial judge did not adequately consider the principles of totality and proportionality, resulting in a sentence that was excessive and disproportionate. The court examined the reasoning and approach taken by the trial judge in imposing the sentences and whether there was an error in law that warranted intervention.

The court found that the trial judge had indeed erred in his approach to sentencing by not adequately considering the principles of totality and proportionality. The court held that the sentences imposed were excessive and disproportionate, and the trial judge's error in law warranted the intervention of the High Court. The respondents' sentences were quashed, and the matter was remitted to the Court of Appeal for re-sentencing.

No further orders were made by the court. The respondents' convictions were upheld, but the sentences were set aside, and the matter was remitted to the Court of Appeal for re-sentencing in accordance with the principles of totality and proportionality.

Orders