R v Vizzard - [2015] QCA 47

SUPREME COURT OF QUEENSLAND

CITATION:

R v Vizzard [2015] QCA 47

PARTIES:

R
v
VIZZARD, Simon Blair
(applicant)

FILE NO/S:

CA No 176 of 2014
DC No 67 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

10 April 2015

DELIVERED AT:

Brisbane

HEARING DATE:

5 December 2014

JUDGES:

Margaret McMurdo P and Holmes JA and Dalton J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Grant the application for leave to appeal against sentence and allow the appeal.

2. Substitute sentences of four years each on the counts of permit sodomy and attempted sodomy (counts 5, 12 and 13) and sentences of three years on each other count.

3. All periods of imprisonment to run concurrently from 4 February 2012.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count permit sodomy and two counts attempted sodomy and was sentenced to seven years imprisonment – where the applicant pleaded guilty to 11 counts of indecent treatment of a child and was sentenced to six years imprisonment – where the applicant pleaded guilty to seven counts of wilful exposure and was sentenced to three years of imprisonment – where the applicant pleaded guilty to four counts of procuring and was sentenced to three years imprisonment – where the sentences imposed were all concurrent – where the offending occurred between 1997 and 2001 – where the applicant fled the jurisdiction after being charged – where the applicant served eight years imprisonment in another jurisdiction before extradition to Australia – where the applicant had been in custody since 6 November 2003 – where the applicant submitted the sentence imposed failed to take into consideration the totality principle – whether the sentence imposed was manifestly excessive

Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, cited
R v Auer; ex parte Attorney-General (Qld) [2011] QCA 222, cited
R v Ruhland [1999] QCA 430, cited
R v ZA; ex parte Attorney-General (Qld)[2009] QCA 249, cited

COUNSEL:

J J Allen QC for the applicant
B J Power for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

MARGARET McMURDO P: I agree with Dalton J’s reasons for granting the application for leave to appeal against sentence and allowing the appeal. I agree with her Honour’s proposed orders.

HOLMES JA: I have had the advantage of reading the reasons for judgment of Dalton J, and agree with what her Honour has said and the orders she proposes. None of the offences to which the applicant pleaded guilty carried a maximum penalty greater than 14 years; indeed the sentences imposed on the attempted sodomy charges were the maximum which could be imposed (seven years imprisonment). Had the applicant served no other…

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 Vizzard

Details

AGLC: R v Vizzard [2015] QCA 47
Case: [2015] QCA 47
Decision Date: 10 April 2015

CaseChat Overview and Summary

The applicant, Vizzard, appealed against the sentence imposed by the Supreme Court of New South Wales, Criminal Division. Vizzard pleaded guilty to multiple offences including permitting sodomy, attempted sodomy, indecent treatment of a child, wilful exposure, and procuring, which occurred between 1997 and 2001. The court sentenced Vizzard to a total of 23 years imprisonment, with all sentences running concurrently. Vizzard argued that the sentence was manifestly excessive, particularly as it failed to consider the totality principle.

The court was required to decide whether the sentence imposed was manifestly excessive or inadequate. This involved examining the principles of sentencing and whether the totality principle had been appropriately considered. The totality principle requires that the total sentence should not exceed the aggregate of the sentences that would have been imposed for each offence if they were to be served consecutively, adjusted to reflect the overlap of the terms of imprisonment. The court also considered whether the sentence imposed had adequately reflected the seriousness of the offences, the circumstances of the offender, and the need for deterrence and rehabilitation.

The court found that the sentence imposed was manifestly excessive, failing to properly consider the totality principle. The court held that the appropriate aggregate of the sentences for each offence, adjusted for overlap, was 14 years. Given the lengthy period Vizzard had already spent in custody, the court substituted sentences of four years each on the counts of permit sodomy and attempted sodomy, and sentences of three years on each of the other counts, to be served concurrently from 4 February 2012. This decision recognised the need to balance the severity of the crimes with the time already served by Vizzard, while also considering the principles of sentencing.

Orders

Orders of the court

1. Grant the application for leave to appeal against sentence and allow the appeal.

2. Substitute sentences of four years each on the counts of permit sodomy and attempted sodomy (counts 5, 12 and 13) and sentences of three years on each other count.

3. All periods of imprisonment to run concurrently from 4 February 2012.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Vizzard [2015] QCA 47
PARTIES:	R v VIZZARD, Simon Blair (applicant)
FILE NO/S:	CA No 176 of 2014 DC No 67 of 2014
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	10 April 2015
DELIVERED AT:	Brisbane
HEARING DATE:	5 December 2014
JUDGES:	Margaret McMurdo P and Holmes JA and Dalton J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Grant the application for leave to appeal against sentence and allow the appeal. 2. Substitute sentences of four years each on the counts of permit sodomy and attempted sodomy (counts 5, 12 and 13) and sentences of three years on each other count. 3. All periods of imprisonment to run concurrently from 4 February 2012.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count permit sodomy and two counts attempted sodomy and was sentenced to seven years imprisonment – where the applicant pleaded guilty to 11 counts of indecent treatment of a child and was sentenced to six years imprisonment – where the applicant pleaded guilty to seven counts of wilful exposure and was sentenced to three years of imprisonment – where the applicant pleaded guilty to four counts of procuring and was sentenced to three years imprisonment – where the sentences imposed were all concurrent – where the offending occurred between 1997 and 2001 – where the applicant fled the jurisdiction after being charged – where the applicant served eight years imprisonment in another jurisdiction before extradition to Australia – where the applicant had been in custody since 6 November 2003 – where the applicant submitted the sentence imposed failed to take into consideration the totality principle – whether the sentence imposed was manifestly excessive Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, cited R v Auer; ex parte Attorney-General (Qld) [2011] QCA 222, cited R v Ruhland [1999] QCA 430, cited R v ZA; ex parte Attorney-General (Qld)[2009] QCA 249, cited
COUNSEL:	J J Allen QC for the applicant B J Power for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent