SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2014 0216
| BENJAMIN ROUT | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | WHELAN, PRIEST and BEACH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 24 May 2016 |
| DATE OF JUDGMENT: | 30 May 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 126 |
| JUDGMENT APPEALED FROM: | [2014] VCC 1499 (Judge Maidment) |
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CRIMINAL LAW – Sentence – Election to renew application for leave to appeal against sentence – Aggravated burglary and other offences – Armed home invasion to steal money and drugs – Serious injury to an occupant and injury to others – Offences in 2006 not charged until 2010 – Applicant convicted at trial in 2014 – Total effective sentence 6 years’ imprisonment with non-parole period of 3 years and 8 months – Applicant sentenced in 2007 for similar offences committed in 2006 – Totality – Delay – Manifest excess – Application for leave to appeal against sentence refused.
CRIMINAL LAW – Sentence – Application for leave to appeal – Application to add ground – Fresh or new evidence – Evidence relating to gunshot wound and childhood sexual abuse – Evidence not fresh or new – Application refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J McLoughlin | Victoria Legal Aid |
| For the Respondent | Ms D Piekusis | Mr J Cain, Solicitor for Public Prosecutions |
THE COURT:
Introduction
A jury empanelled in the County Court found the applicant guilty on 14 April 2014 of aggravated burglary[1] (charge 1), recklessly causing serious injury[2] (charge 3), intentionally causing injury[3] (two charges — charges 4 and 6), false imprisonment[4] (three charges — charges 8, 9 and 10) and obtaining property by deception[5] (charge 12).
[1]Crimes Act 1958, s 77(1). The maximum penalty is 25 years’ imprisonment.
[2]Crimes Act 1958, s 17. The maximum penalty is 15 years’ imprisonment.
[3]Crimes Act 1958, s 18. The maximum penalty is 10 years’ imprisonment.
[4]False imprisonment is a common law offence. By Crimes Act 1958, s 320, the maximum penalty is 10 years’ imprisonment.
[5]Crimes Act 1958, s 81(1). The maximum penalty is 10 years’ imprisonment.
On 27 August 2014, the trial judge sentenced the applicant to be imprisoned according to the following table:
Charge Offence Sentence Cumulation 1 Aggravated burglary 4 years and 6 months Base 3 Recklessly causing serious injury 2 years and 9 months 12 months 4 Intentionally causing injury 15 months 3 months 6 Intentionally causing injury 15 months 3 months 8 False imprisonment 9 months — 9 False imprisonment 9 months — 10 False imprisonment 9 months — 12 Obtaining property by deception 1 month — Total effective sentence Six years’ imprisonment Non-parole period Three years and eight months’ imprisonment
By a notice dated 31 October 2014, the applicant sought leave to appeal against his sentence on three grounds.[6] Ashley JA refused leave to appeal on 23 February 2015.
[6]See fn 8 below.
Pursuant to s 315(2) of the Criminal Procedure Act 2009, the applicant elected to renew his…
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- AGLC
- Rout v The Queen [2016] VSCA 126
- Case
- [2016] VSCA 126
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the sentence was manifestly excessive and whether the delay between the commission of the offence and the imposition of sentence warranted a review. The court was also required to determine whether the application to add a ground to the appeal, which included fresh or new evidence, should be allowed. The fresh or new evidence included details about a gunshot wound and childhood sexual abuse. The applicant argued that this evidence demonstrated that the sentence was manifestly excessive.
The court found that the sentence was not manifestly excessive, and the delay between the commission of the offence and the imposition of sentence did not warrant a review. The court held that the totality principle did not apply in this case, as the applicant had been sentenced for similar offences in 2007. Regarding the application to add a ground to the appeal, the court found that the evidence was not fresh or new, as it was available at the time of the original appeal. The application to add a ground was refused. Consequently, the application for leave to appeal against sentence was refused.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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