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Rout v The Queen

Rout v The Queen

Case [2016] VSCA 126 30 May 2016

Criminal Liability

Sentencing

Limitation Periods

Aggravated & Exemplary Damages

Criminal Law

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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…

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 Rout v The Queen

Details

AGLC: Rout v The Queen [2016] VSCA 126
Case: [2016] VSCA 126
Decision Date: 30 May 2016

CaseChat Overview and Summary

The case of Rout v The Queen involved an appeal against the sentence imposed on the applicant, who was convicted of aggravated burglary and other offences following an armed home invasion in 2006. The offences were not charged until 2010, and the applicant was convicted at trial in 2014. The trial judge sentenced the applicant to a total effective sentence of six years’ imprisonment, with a non-parole period of three years and eight months. The applicant had previously been sentenced in 2007 for similar offences committed in 2006. The applicant sought leave to appeal against the sentence, arguing that it was manifestly excessive and should be reviewed under the principle of totality.

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