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Ralph v The Queen

Ralph v The Queen

Case [2022] VSCA 131 6 July 2022

Appeal

Sentencing

Manifestly Excessive Sentence

Perceptible Amelioration

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0172

TYSON RALPH	Applicant
v
THE QUEEN	Respondent

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JUDGE:	WALKER JA
WHERE HELD:	Melbourne
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	6 July 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 131
JUDGMENT APPEALED FROM:	[2021] VCC 1962 (Judge Cannon)

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CRIMINAL LAW – Appeal – Sentence – Applicant pleaded guilty to burglary, various thefts and handling stolen goods – Total effective sentence of 3 years’ imprisonment – Non-parole period of 18 months – Whether manifestly excessive – Whether sentence reflected perceptible amelioration from guilty plea as required during pandemic – Sentence well within range – Worboyes v The Queen [2021] VSCA 169 – Leave to appeal refused.

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Counsel
No appearances
Solicitors
Applicant:	Gallant Law
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

WALKER JA:

In October 2021 the applicant pleaded guilty 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. He was sentenced as follows:

Charge Offence Maximum Sentence Cumulation

1 Burglary[1] 10 years’ imprisonment 2 years’ imprisonment Base

2 Theft[2] 10 years’ imprisonment 2 years’ imprisonment None

3 Theft of Motor Vehicle[3] 10 years’ imprisonment 12 months’ imprisonment 6 months

4 Theft of Firearm[4] 15 years’ imprisonment or 1800 penalty units 18 months’ imprisonment 6 months

5 Burglary[5] 10 years’ imprisonment 10 months’ imprisonment None

6 Handling Stolen Goods[6] 15 years’ imprisonment 12 months’ imprisonment None

Total Effective Sentence: 3 years’ imprisonment

Non-Parole Period: 18 months

Section 6AAA Statement: 5 years’ imprisonment with a non-parole period of 3 years

Other relevant orders: Forfeiture and disposal orders pursuant to ss 33(1) and 78(1) of the Confiscation Act 1997, respectively.
[1]Contrary to s 76 of the Crimes Act 1958.
[2]Contrary to s 74 of the Crimes Act 1958.
[3]Contrary to s 74 of the Crimes Act 1958.
[4]Contrary to s 74AA of the Crimes Act 1958.
[5]Contrary to s 76 of the Crimes Act 1958.
[6]Contrary to s 88 of the Crimes Act 1958.

The applicant seeks leave to appeal against sentence on a single proposed ground of appeal, namely that the total effective sentence, individual sentences imposed and non-parole period are manifestly excessive.[7] The particulars to the proposed ground of appeal are as follows:
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.
[7]The applicant also sought an extension of time within which to file his application for leave to appeal, which was granted by the Registrar on 4 April 2022.
I would refuse leave to appeal.…

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 131
Case: [2022] VSCA 131
Decision Date: 6 July 2022

CaseChat Overview and Summary

In the case of Ralph v The Queen, the applicant appealed against his sentence for various criminal offences including burglary, theft, and handling stolen goods. The applicant had pleaded guilty and the trial judge sentenced him to a total effective period of imprisonment of three years with a non-parole period of 18 months. The applicant argued that the sentence was manifestly excessive and did not reflect a perceptible amelioration from his guilty plea. The appeal was heard by the Victorian Court of Appeal.

The central legal issue was whether the sentence imposed was manifestly excessive and whether it adequately reflected a perceptible amelioration in the sentence due to the applicant's guilty plea, especially given the extraordinary circumstances of the COVID-19 pandemic. The applicant contended that the sentence was too severe and did not take into account the benefit of his early guilty plea, which should have resulted in a lesser penalty. The Crown, on the other hand, argued that the sentence was well within the appropriate range for the offences committed.

The Court of Appeal considered the relevant legal principles and determined that the sentence imposed was not manifestly excessive. The court found that the sentence was within the appropriate range for the crimes committed and that there was no need to reduce the sentence further to reflect the applicant's guilty plea. The court noted that the applicant had received credit for his early guilty plea, and that the overall sentence was fair and reasonable. The court was also mindful of the need to maintain public confidence in the criminal justice system and to ensure that sentences reflect the seriousness of the offences. Ultimately, the appeal was dismissed, and leave to appeal was refused.

The final orders of the Court of Appeal were that the appeal against sentence was dismissed, and the sentence imposed by the trial judge was upheld. The non-parole period of 18 months remained unchanged. The applicant was required to serve the full term of his sentence, less any time already served. The court's decision emphasised the importance of considering the totality of the circumstances in each case, including the nature and circumstances of the offence, the culpability of the offender, and any relevant mitigating or aggravating factors.

Orders