Repac v The King - [2023] VSCA 313

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0065

ALEX REPAC	Applicant
v
THE KING	Respondent

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JUDGES:	MACAULAY and WHELAN JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	10 November 2023
DATE OF JUDGMENT:	11 December 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 313
JUDGMENT APPEALED FROM:	[2023] VCC 390 (Judge Maidment)

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CRIMINAL LAW – Sentence – Application for leave to appeal – Applicant guilty of multiple counts of burglary and theft – Total effective sentence of 5 years, non-parole period of 3 years 4 months – Judge erred in taking account of property damage as aggravating feature of burglary – Despite error no reasonable prospect Court would reduce total effective sentence – Sentences not manifestly excessive – Leave to appeal sentence refused.

Criminal Procedure Act 2009, s 280(1)(b).

R v Newman [1997] 1 VR 146; Salapura v The Queen [2018] VSCA 255; Bava v The Queen [2021] VSCA 34, considered.

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Counsel
Applicant:		Mr J O’Connor
Respondent:		Ms MA Mahady
Solicitors
Applicant:	Chester Metcalfe & Co.
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

MACAULAY JA
WHELAN JA:

After pleading guilty to two counts of burglary,[1] two counts of theft,[2] and one count of negligently dealing with the proceeds of crime,[3] the applicant’s plea in mitigation was heard in the County Court over two days (11 November 2022 and 28 February 2023). Judge Maidment sentenced the applicant on 8 March 2023 to a total effective sentence of 5 years’ imprisonment with a non-parole period of 3 years and 4 months, as follows:
[1]Contrary to s 76 of the Crimes Act 1958.
[2]Contrary to s 74 of the Crimes Act 1958.
[3]Contrary to s 194(4) of the Crimes Act 1958.

Charge

Offence

Maximum

Sentence

Cumulation

1 Burglary 10 years 10 months 3 months

2 Burglary 10 years 4 years Base

3 Theft 10 years 4 years 8 months

4 Theft 10 years 4 months 1 month

5 Negligently deal with proceeds of crime 5 years 2 months -

Total Effective Sentence: 5 years’ imprisonment

Non-Parole Period: 3 years and 4 months

Pre-sentence detention declared: 310 days

Section 6AAA Statement: 7 years and 6 months’ imprisonment with a non-parole period of 5 years and 2 months.

Other relevant orders: Forfeiture order

The applicant seeks leave to appeal against his sentence on two proposed grounds:
(a)The learned sentencing judge erred in taking into account as an aggravating feature of the burglary the subject of charge 2 the damage caused to the premises.
(b)The sentences imposed on each of charges 1–4, the orders for cumulation, the total effective sentence and the non-parole period are manifestly excessive.
The respondent conceded that criminal damage caused during the burglary the subject of charge 2 constituted separate and serious criminality for which the applicant had not been charged. Applying the principle stated in Bava v The Queen (‘Bava’),[4] the respondent conceded that the sentencing judge had erred by finding that the damage aggravated the relevant…

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 Repac v The King

Details

AGLC: Repac v The King [2023] VSCA 313
Case: [2023] VSCA 313
Decision Date: 11 December 2023

CaseChat Overview and Summary

The defendant, Repac, applied for leave to appeal against his sentence following his conviction for multiple counts of burglary and theft. The Supreme Court of Victoria was tasked with determining whether the judge had erred in considering property damage as an aggravating factor in the burglary charges and whether the total effective sentence of 5 years, with a non-parole period of 3 years and 4 months, was manifestly excessive. The court was also required to decide if there was a reasonable prospect that the Court of Appeal would reduce the total effective sentence if the alleged error were to be corrected.

The court found that while the trial judge had indeed erred in taking property damage into account as an aggravating factor, this error did not provide a reasonable prospect of the Court of Appeal reducing the total effective sentence. The court reasoned that the sentences imposed were not manifestly excessive and that the trial judge had appropriately considered the totality of Repac's offending and the need for general deterrence. The court also noted that Repac had a history of offending and that the sentences reflected the seriousness of his crimes.

The court held that despite the error in considering property damage as an aggravating factor, the total effective sentence was not manifestly excessive. The court concluded that there was no reasonable prospect that the Court of Appeal would reduce the total effective sentence if the alleged error were to be corrected. Consequently, the court refused Repac leave to appeal against his sentence.

Orders