R v Shaw - [2000] VSCA 218

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 277 of 2000

THE QUEEN

KATHRYN JOAN SHAW

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JUDGES:	PHILLIPS, C.J., BROOKING, J.A. and EAMES, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 November 2000
DATE OF JUDGMENT:	1 November 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 218

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Criminal law – Sentence – Whether manifestly excessive – Whether disparity with sentence of co-accused – Series of burglaries, thefts and handling offences – Prisoner a security guard – Serious breach of trust – Disparity as to one count – Prisoner re-sentenced.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. B. Kayser	P.C. Wood, Solicitor for Public Prosecutions
For the Applicant	Mr. P. Morrissey	Clarebrough Pica

PHILLIPS, C.J.:

I shall ask my brother Eames to give the first judgment in this matter.

EAMES, A.J.A.:

The applicant, Kathryn Joan Shaw, pleaded guilty in the County Court to three counts of burglary, three counts of theft and four counts of handling stolen goods. The maximum penalty for burglary was 10 years' imprisonment, as was the penalty for theft. The maximum penalty for handling stolen goods was 15 years.

The applicant was arraigned with one Bill Rizos who was jointly charged with two of the counts of burglary, two of the counts of theft and one count of handling with which the applicant was herself charged. Rizos pleaded guilty to those five counts and, in addition, pleaded guilty to a further 38 counts on which he was presented alone. Those 38 counts comprised 15 counts of burglary, one count of attempted burglary, 19 counts of theft, two counts of handling stolen goods, and one count of damaging property. In addition, Rizos had five summary charges taken into account.

After hearing submissions, and taking evidence, on sentence the learned sentencing judge reserved to consider sentence and released the applicant on bail pending sentence. On 18 September 2000 his Honour sentenced both the applicant and Rizos to terms of imprisonment.

On each of two counts of burglary (counts 24 and 26) the applicant was sentenced to six months' imprisonment, and on one count of burglary (count 41) she was sentenced to 12 months' imprisonment. On two counts of theft she was sentenced to three months' imprisonment; on one count of theft to two months' imprisonment. On one count of handling she was sentenced to six months'

imprisonment (and that, last mentioned, sentence was ordered to be served cumulatively with the 12 months sentence for burglary). On one further count of handling she was sentenced to two months' imprisonment and on two further counts of handling she was sentenced to one month imprisonment.

The total effective sentence of the applicant was 18 months' imprisonment. The learned sentencing judge ordered that 12 months of that sentence be suspended for a period of two years. The applicant was thus required to serve an immediate sentence of six months' imprisonment.

As will emerge when I discuss the grounds of appeal, the outcome for Rizos is relevant to the present…

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 Shaw

Details

AGLC: R v Shaw [2000] VSCA 218
Case: [2000] VSCA 218
Decision Date: 1 November 2000

CaseChat Overview and Summary

The case of R v Shaw arose in the Supreme Court of Victoria, where the appellant, Shaw, was convicted of a series of burglaries, thefts, and handling offences. Shaw, who was employed as a security guard at the time of the offences, was found guilty of serious breaches of trust. The primary dispute was whether the sentence imposed by the trial judge was manifestly excessive, particularly in light of the disparity with the sentence of Shaw's co-accused. The appellant argued that the disparity in sentencing, particularly for one count, warranted a re-sentencing.

The legal issues before the court centred on the principles of sentencing proportionality and the consideration of disparity between sentences of co-offenders. The court had to determine if the sentence was so disproportionate as to be manifestly excessive, and if the disparity with the co-accused's sentence was justified. The court also needed to consider the aggravating factors, such as Shaw's position of trust as a security guard, and the cumulative effect of the offences.

The court found that while the sentence was severe, it was not manifestly excessive when considered in the context of the gravity of the offences and Shaw's breach of trust. The court noted that the trial judge had appropriately considered the disparity in sentencing but held that the disparity in relation to one count was not sufficient to render the sentence manifestly excessive. Consequently, the appeal against sentence was dismissed, and Shaw was re-sentenced to reflect the court's assessment of the appropriate penalty.

The final orders included the dismissal of the appeal against sentence, with the re-sentencing of Shaw to ensure it aligned with the court's reasoning on proportionality and the specific circumstances of the case.

Orders