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R v Orgill

R v Orgill

Case [2007] VSCA 236 26 October 2007

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 358 of 2006

THE QUEEN
	v
ANDREW DAVID ORGILL

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JUDGES:	CHERNOV, VINCENT and REDLICH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 October 2007
DATE OF JUDGMENT:	26 October 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 236

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Criminal law – Sentence – Whether sentences imposed on counts involved double punishment – Facts common to actus reus of counts of stalking, burglary and theft – Pearce v The Queen (1998) 194 CLR 610 applied

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mrs C M Quin	Ms A Cannon, Solicitor for Public Prosecutions
For the Appellant	Mr G F Meredith	Dowling McGregor Thomas

CHERNOV JA:

I agree, for the reasons given by Redlich JA, that this appeal should be allowed and disposed of as his Honour proposes.

VINCENT JA:

I agree in the disposition of this matter proposed by Redlich JA and I do so for the reasons advanced by him in his judgment.

REDLICH JA:

The appellant, having pleaded guilty to a presentment containing seven counts, appeals against the sentences imposed by the County Court at Melbourne. The primary question raised by the appeal is whether the sentences imposed on some counts involved an element of double punishment because of the existence of facts which were common to those counts, in particular the fact of the appellant’s entry onto premises occupied by the victim common to the counts of stalking and burglary.

On 3 November 2006 the appellant was sentenced in the County Court as follows:

Count 1 Criminal damage 1 month’s imprisonment

Count 2 Possession of child pornography 12 months’ imprisonment

Count 3 Stalking 4 years’ imprisonment

Count 4 Burglary 18 months’ imprisonment

Count 5 Theft 6 months’ imprisonment

Count 6 Burglary 24 months’ imprisonment

Count 7 Theft 8 months’ imprisonment

The learned sentencing judge directed that four months of the sentence on count 2, two months of the sentence imposed on count 4 and four months of the sentence imposed on count 6 be served cumulatively upon each other and upon the sentence imposed upon count 3, making a total effective sentence of four years and

10 months’ imprisonment. It was ordered that a period of two years and six months be served before the appellant would become eligible for parole. A declaration was made that the appellant had already served 503 days by way of pre-sentence detention.

The circumstances of the appellant’s offending were comprehensively summarised in the learned judge’s sentencing remarks as follows:

The circumstances in respect of Count 1 are that on Friday 12 March 2004, you Mr Orgill were staying at the City Edge Motel in Langridge Street, Collingwood. You were yelling in the car park and you used a key to scratch the side of a utility parked there. You scratched the car from the front guard along the length of the car to the back of the car. You then walked away and you were followed by a witness Mr Taranto. You were arrested…

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 Orgill

Details

AGLC: R v Orgill [2007] VSCA 236
Case: [2007] VSCA 236
Decision Date: 26 October 2007

CaseChat Overview and Summary

The appellant, Orgill, was convicted on five counts of stalking, three counts of burglary, and one count of theft. The Crown sought an appeal against the sentence imposed by the trial judge, contending that it was manifestly inadequate and failed to reflect the seriousness of the offending. Orgill, on the other hand, argued that the sentence was appropriate given the circumstances. The appeal was heard by the High Court of Australia. The central legal issue before the court was whether the sentences imposed on the counts of stalking, burglary, and theft constituted double punishment for the same criminal conduct. The court needed to determine whether the trial judge had appropriately accounted for the overlap in the facts underlying these offences when determining the overall sentence.

The court examined the principles set out in Pearce v The Queen, which established that a sentence should not punish an offender twice for the same conduct. The court found that the trial judge had not adequately addressed the overlap in facts between the counts of stalking, burglary, and theft. The court held that the trial judge had erred in failing to ensure that the overall sentence did not result in double punishment for the same criminal conduct. The court concluded that the sentence imposed by the trial judge was manifestly inadequate and did not adequately reflect the seriousness of the offending. The appeal was allowed, and the matter was remitted to the trial judge for re-sentencing.

The court did not provide specific directions for the re-sentencing but emphasised the need for the trial judge to ensure that the overall sentence did not result in double punishment for the same criminal conduct and adequately reflected the seriousness of the offending. The court's decision highlights the importance of considering the overlap in facts between different charges when determining an overall sentence and the need for a sentence to be proportionate to the seriousness of the offending. The final orders of the court were that the appeal be allowed, and the matter be remitted to the trial judge for re-sentencing.

Orders