Rankine v The Queen - [2022] VSCA 27

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0175

SCOTT RANKINE	Applicant
v
THE QUEEN	Respondent

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JUDGES:	T FORREST and WALKER JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 February 2022
DATE OF JUDGMENT:	7 March 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 27
JUDGMENT APPEALED FROM:	[2021] VCC 1698 (Judge Bourke)

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CRIMINAL LAW – Application for leave to appeal – Sentence – Whether orders for cumulation and resulting total effective sentence manifestly excessive – Persistent contravention of family violence intervention order – Whether contraventions distinct – Leave to appeal refused – Family Violence Protection Act 2008, s 125A – Pasinis v The Queen [2014] VSCA 97, considered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Karitzis	Michael J Gleeson & Co
For the Respondent	Ms K Hamill	Ms A Hogan, Solicitor for Public Prosecutions

T FORREST JA
WALKER JA:

The applicant pleaded guilty to and was convicted of 15 offences. Seven offences were indictable offences: one offence of common assault of his former partner, in which he grabbed her by the throat, pushed her against a concrete wall and headbutted her to the forehead; four offences of persistent contravention of a family violence intervention order, which related to his former partner (the ‘persistent contravention offences’); one offence of possession of a drug of dependence; and one offence of theft. The remaining eight offences were summary offences, including commission of an indictable offence while on bail; possession of a prohibited weapon; possession of a controlled weapon; trespass; and contravention of a family violence intervention order.

Following a plea hearing, the applicant was sentenced as follows:

Charge	Offence	Maximum	Sentence	Cumulation
1	Common assault[1]	5 years’ imprisonment	10 months	4 months
2	Persistent contravention of family violence intervention order[2]	5 years’ imprisonment	12 months	Base
3	Persistent contravention of family violence intervention order	5 years’ imprisonment	12 months	4 months
4	Persistent contravention of family violence intervention order	5 years’ imprisonment	12 months	4 months
5	Persistent contravention of family violence intervention order	5 years’ imprisonment	12 months	4 months
6	Possession of a drug of dependence[3]	1 year imprisonment	1 month	Nil
7	Theft[4]	10 years’ imprisonment	4 months	Nil
Related summary offences
11	Commit indictable offence whilst on bail[5]	3 months’ imprisonment	1 month	Nil
19	Commit indictable offence whilst on bail	3 months’ imprisonment	1 month	Nil
24	Commit indictable offence whilst on bail	3 months’ imprisonment	1 month	Nil
48	Possession of prohibited weapon[6]	2 years’ imprisonment	3 months	Nil
57	Commit indictable offence whilst on bail	3 months’ imprisonment	1 month	Nil
61	Possession of controlled weapon[7]	1 year imprisonment	2 months	Nil
66	Trespass[8]	6 months’ imprisonment	2 months	Nil
67	Contravene Family Violence Intervention Order[9]	2 years’ imprisonment	3 months	Nil
Total Effective Sentence:		2 years and 4 months’ imprisonment
Non-Parole Period:		14 months
Pre-sentence Detention Declared:		385 days
6AAA Statement:		3 years and 6 months’ imprisonment with a non-parole period of 2 years
Other orders: Disposal…

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 Rankine v The Queen

Details

AGLC: Rankine v The Queen [2022] VSCA 27
Case: [2022] VSCA 27
Decision Date: 7 March 2022

CaseChat Overview and Summary

The appellant, Rankine, faced a legal challenge in the Victorian Court of Appeal following a conviction for multiple breaches of a family violence intervention order. The primary dispute centred on the severity of the sentence imposed, which included orders for cumulation, leading to a total effective sentence that Rankine argued was manifestly excessive. The appeal sought leave to contest the trial judge's decision, questioning whether the cumulative nature of the sentencing and the overall sentence were proportionate to the alleged offences. The crux of the matter was whether the individual contraventions were distinct enough to warrant such a severe cumulative sentence.

The court needed to determine whether the sentence was manifestly excessive, particularly in light of the multiple breaches of the family violence intervention order. A significant legal issue was whether each contravention constituted a distinct offence warranting individual sentencing, or if they should be considered a single continuous course of conduct. Additionally, the court examined whether the trial judge had adequately considered all relevant factors in determining the appropriate sentence, including the need for deterrence and denunciation, and the principles of proportionality and parity.

In dismissing the appeal, the Court of Appeal found that the trial judge had properly exercised their discretion in imposing the sentence. The court held that each contravention was distinct and warranted individual sentencing, and that the cumulative sentence was not manifestly excessive. The court emphasised the importance of deterrence and denunciation in cases involving persistent breaches of family violence intervention orders. It was determined that the trial judge had appropriately considered all relevant factors, including the seriousness of the offences, the need for general deterrence, and the protection of the community. The court concluded that the sentence imposed was proportionate and in line with similar cases.

No further orders were made, and the appeal was dismissed.

Orders