Rosie Alexander (a pseudonym) v The Queen - [2021] VSCA 217

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0263

ROSIE ALEXANDER (a pseudonym)[1]	Applicant
v
THE QUEEN	Respondent

[1]This judgment has been anonymised by the adoption of a pseudonym in place of the applicant’s name.

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JUDGES:	KYROU and McLEISH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	10 August 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 217
JUDGMENT APPEALED FROM:	[2020] VCC 1884 (Judge C J Ryan)

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CRIMINAL LAW – Appeal – Sentence – Aggravated burglary – Damaging property – Intentionally causing injury – Applicant attended home of former intimate partner – Broke window and fired nail gun into home, striking victim with nail – Applicant suffering from methamphetamine–induced psychosis – Applicant badly cut in offending – Victim suffered minor dental injury – Whether individual sentences or total effective sentence of 3 years’ imprisonment manifestly excessive – Whether sentence insufficiently accounted for mitigating factors and R v Verdins (2007) 16 VR 269 principles – Whether drug-induced mental impairment lessened moral culpability – Moral culpability lessened to extent offender lacks foreknowledge of consequences of drug use – Martin v The Queen (2007) 20 VR 14, applied – Applicant unaware that drug use contributed to psychotic state – Moral culpability lessened – Significant mitigatory factors – Sentence manifestly excessive in unusual circumstances of case – Appeal allowed – Applicant resentenced to total effective sentence of 2 years’ imprisonment.

CRIMINAL LAW – Appeal – Sentence – Proposed grounds asserting error in identifying seriousness of offending and weight attached to R v Verdins (2007) 16 VR 269 principles – Grounds not constituting allegations of specific error – Relevant only as particulars of manifest excess ground – DPP v Terrick (2009) 24 VR 457, Smith v The Queen [2020] VSCA 159, applied.

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WRITTEN SUBMISSIONS:	Counsel	Solicitors
For the Applicant	Ms N Karapanagiotidis	James Dowsley & Associates
For the Respondent	Mr J Dickie	Ms A Hogan, Solicitor for Public Prosecutions

KYROU JA
McLEISH JA:

On 23 September 2020, the applicant pleaded guilty before a judge of the County Court to one charge of damaging property;[2] one charge of aggravated burglary;[3] and one charge of intentionally causing injury.[4]
[2]Contrary to Crimes Act 1958 s 197(1).
[3]Contrary to Crimes Act s 77(1).
[4]Contrary to Crimes Act s 18.

The maximum penalty for each of the charges of damaging property and intentionally causing injury is 10 years’ imprisonment. The maximum penalty for aggravated burglary is 25 years’ imprisonment.

On 30 November 2020, the judge sentenced the applicant to a total effective sentence of 3 years’ imprisonment, with a non-parole period of 18 months, as follows:[5]
[5]DPP v Rosie Alexander (a pseudonym) [2020] VCC 1884 (‘Sentencing Remarks’).

Charge on Indictment Offence Maximum Sentence Cumulation

1. Damaging property 10 years’ imprisonment 3 months’ imprisonment None

2. Aggravated burglary 25 years’ imprisonment 2 years and
6 months’ imprisonment Base

3. Intentionally causing injury 10 years’ imprisonment 12 months’ imprisonment 6 months

Total Effective Sentence: 3 years’ imprisonment

Non-Parole Period:

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1.	Damaging property	10 years’ imprisonment	3 months’ imprisonment	None
2.	Aggravated burglary	25 years’ imprisonment	2 years and 6 months’ imprisonment	Base
3.	Intentionally causing injury	10 years’ imprisonment	12 months’ imprisonment	6 months
Total Effective Sentence:	3 years’ imprisonment
Non-Parole Period:

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.

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Details

Case: [2021] VSCA 217
Decision Date: 10 August 2021

CaseChat Overview and Summary

Rosie Alexander, the appellant, appealed against her sentence for aggravated burglary, damaging property, and intentionally causing injury. The case was heard in the Court of Appeal of Victoria. The appellant attended the home of her former intimate partner, where she broke a window and fired a nail gun into the house, striking the victim with a nail. The appellant was suffering from methamphetamine-induced psychosis at the time and sustained a severe cut during the incident, while the victim suffered a minor dental injury.

The primary legal issues before the court were whether the individual sentences or the total effective sentence of three years' imprisonment were manifestly excessive and whether the sentence sufficiently accounted for the mitigating factors and the principles in R v Verdins (2007) 16 VR 269. Additionally, the court had to determine if the drug-induced mental impairment lessened the moral culpability of the appellant and if the sentence was insufficiently reflective of these factors. The court applied the principles in Martin v The Queen (2007) 20 VR 14, concluding that the appellant's moral culpability was lessened as she lacked foreknowledge of the consequences of her drug use.

The court found that the significant mitigating factors in this unusual case warranted a reduction in the sentence. The appellant's drug-induced mental impairment and lack of awareness that her drug use contributed to her psychotic state lessened her moral culpability. The appeal was allowed, and the appellant was resentenced to a total effective sentence of two years' imprisonment. The proposed grounds of appeal, which did not constitute allegations of specific error but were particulars of the manifest excess ground, were found to be relevant under the principles in DPP v Terrick (2009) 24 VR 457 and Smith v The Queen [2020] VSCA 159.

Orders