R v Stallworthy - [2002] VSCA 135

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No.162 of 2001

THE QUEEN

MARK ANTHONY STALLWORTHY

---

JUDGES:	PHILLIPS, C.J., ORMISTON and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	28 August 2002
DATE OF JUDGMENT:	28 August 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 135

---

Criminal Law - Sentencing - Arson to house - 3½ years for that count - Degree of deliberation - Suspended sentence inappropriate - Totality - Not manifestly excessive.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle QC	K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr P.F. Tehan QC	Leanne Warren & Associates

PHILLIPS, C.J.:

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

ORMISTON, J.A.:

The applicant seeks leave to appeal against sentences handed down in the County Court after he had pleaded guilty to one count of intentionally causing damage to property, for which the maximum term of imprisonment is ten years, and one count of arson, for which the maximum term is 15 years. After admitting three convictions (or, more precisely, findings of guilt) arising out of one court appearance in 1997 also in respect of intentionally causing damage to property and after hearing a plea made on his behalf, the applicant was sentenced to 12 months' imprisonment on count 1 and three and a half years' imprisonment on the arson count, that is count 2. Three months of the sentence on count 1 was directed to be served cumulatively on the sentence imposed on count 2, making a total effective sentence of three years nine months. The learned sentencing judge directed that the applicant serve a minimum of two years six months before becoming eligible for parole. There was the customary declaration in respect of detention of the applicant before sentencing in respect of only some six days and the applicant was ordered to pay $16,459 to Peter Donaldson whose house was damaged by the acts constituting both of the counts.

The applicant has raised effectively five grounds of appeal. By his notice of application he has claimed, in the first place, that the judge erred in failing to give sufficient weight to matters of mitigation, including his personal circumstances, the impact of incarceration on his family, his prior criminal history, his background, the expression of a "substantial degree" of remorse and his plea of guilty. Secondly, the applicant claims that both the head sentence and minimum term were manifestly excessive. Thirdly, he claims that the sentence is crushing. By amendment last week the applicant has added a fourth ground asserting that the judge failed to place any or any sufficient weight upon a submission of the Crown relating to the serving of the term in custody and a fifth ground claiming that the judge erred by ordering any cumulation between the two counts (or as to the extent of cumulation) and by imposing head and minimum terms which infringed the principle of totality.

The regrettable and unfortunate events which gave rise…

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 Stallworthy

Details

AGLC: R v Stallworthy [2002] VSCA 135
Case: [2002] VSCA 135
Decision Date: 28 August 2002

CaseChat Overview and Summary

The case of R v Stallworthy involved the defendant, Stallworthy, who was convicted of arson to a house. The matter was heard and determined by the court of appeal, which was tasked with assessing the sentence imposed on Stallworthy. The prosecution had charged Stallworthy with intentionally setting fire to a house, a serious criminal offence. The court of appeal was required to review the sentence handed down by the lower court and determine whether it was appropriate in light of the circumstances of the offence.

The legal issues before the court of appeal centred on the degree of deliberation involved in the arson offence and the appropriateness of the sentence imposed. The court had to consider whether the sentence of three and a half years was suitable for the crime committed and whether a suspended sentence would have been more appropriate. Furthermore, the court had to assess whether the sentence was manifestly excessive, taking into account the totality of the circumstances.

The court of appeal found that the arson offence involved a significant degree of deliberation, which warranted a custodial sentence. The court determined that the sentence of three and a half years was not manifestly excessive, given the seriousness of the crime and the need to maintain public confidence in the criminal justice system. The court also found that a suspended sentence would not have been appropriate in this case, as it would not have adequately reflected the gravity of the offence. The court of appeal concluded that the sentence imposed was just and proportionate to the crime committed.

The court of appeal confirmed the sentence of three and a half years for the arson offence, finding it to be neither manifestly excessive nor inappropriate in the circumstances. No further orders were made by the court.

Orders