Ralph v The Queen - [2022] VSCA 185

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0172

TYSON RALPH	Applicant
v
THE QUEEN	Respondent

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JUDGES:	NIALL and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	29 August 2022
DATE OF JUDGMENT:	1 September 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 185
JUDGMENT APPEALED FROM:	[2021] VCC 1962 (Judge Cannon)

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CRIMINAL LAW – Appeal – Sentence – Election – Two charges of burglary, one charge of theft, one charge of theft of motor vehicle, one charge of theft of firearm and one charge of handling stolen goods – Plea of guilty – Applicant sentenced to 3 years’ imprisonment with non-parole period of 18 months – Whether individual sentences, total effective sentence or non-parole period manifestly excessive – Appeal allowed – Applicant resentenced to total effective sentence of 2 years and 2 months.

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Counsel
Applicant:		Mr P Smallwood
Respondent:		Ms A Roodenburg
Solicitors
Applicant:	Victorian Bar Duty Barristers’ Scheme
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

NIALL JA
KAYE JA:

On 4 October 2021, the applicant pleaded guilty before a judge of the County Court to two charges of burglary, one charge of theft, one charge of theft of a motor vehicle, one charge of theft of a firearm and one charge of handling stolen goods.
On 8 October, the judge sentenced the applicant to a total effective sentence of three years’ imprisonment, with a non-parole period of 18 months, as follows:

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Burglary	10 years	2 years	Base
2	Theft	10 years	2 years	None
3	Theft of motor vehicle	10 years	12 months	6 months
4	Theft of firearm	15 years or 1800 penalty units	18 months	6 months
5	Burglary	10 years	10 months	None
6	Handling stolen goods	15 years	12 months	None
Total Effective Sentence:		3 years’ imprisonment
Non-Parole Period:		18 months’ imprisonment
Pre-sentence Detention Declared:		227 days
Section 6AAA Statement:		Total Effective Sentence 5 years’ imprisonment with a non-parole of 3 years
Other Relevant Orders: 1. Forfeiture and disposal orders pursuant to ss 33(1) and 78(1) of the Confiscation Act 1997, respectively.

The applicant seeks leave to appeal sentence on a single proposed ground of appeal, namely:
The total effective sentence, individual sentences imposed and non-parole period are manifestly excessive;
a.The learned sentencing judge failed to give sufficient weight to the applicant’s plea of guilty at an early opportunity during the COVID-19 pandemic;
b.The individual sentence[s] imposed failed to reflect a perceptible amelioration of sentence as required given that the matter resolved as a plea during the COVID-19 crisis;
c.The sentences imposed on charges 2, 3 and 4 failed to properly reflect the principle of totality.
On 6 July 2022, a judge of this Court refused the applicant leave to appeal against sentence.[1] By notice dated 8 August 2022, the applicant elected to renew his application for leave to appeal against sentence to be determined by this Court.
[1]Ralph v The Queen [2022] VSCA 131 (‘Leave Reasons’).
For the…

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 Ralph v The Queen

Details

AGLC: Ralph v The Queen [2022] VSCA 185
Case: [2022] VSCA 185
Decision Date: 1 September 2022

CaseChat Overview and Summary

Ralph appealed against his sentence following a guilty plea to multiple charges, including burglary, theft, theft of a motor vehicle, theft of a firearm, and handling stolen goods. The High Court of Australia was tasked with reviewing the sentence imposed by the lower court. The appeal focused on whether the individual sentences, the total effective sentence, or the non-parole period were manifestly excessive. The applicant argued that the sentence was disproportionate given the circumstances of the case and his background.

The court considered the principles of sentencing, including the need for proportionality and deterrence, and examined the cumulative impact of the sentences. It also took into account the applicant’s guilty plea, which was an important factor in the sentencing process. The court concluded that the total effective sentence and the non-parole period were indeed excessive, leading to a manifestly excessive punishment in relation to the crimes committed.

As a result of the appeal, the High Court allowed the appeal and resentenced the applicant. The court determined that a total effective sentence of 2 years and 2 months was appropriate. This decision reflected a more balanced approach to the sentencing, taking into account all relevant factors, including the applicant’s guilty plea and the need for a proportionate sentence. The court's re-sentencing aimed to ensure that the punishment was commensurate with the severity of the crimes and the circumstances of the case.

Orders