Savage v The King - [2024] VSCA 249

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0104

JOSHUA SAVAGE	Applicant
v
THE KING	Respondent

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JUDGES:	KENNY JA
WHERE HELD:	Melbourne
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	23 October 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 249
JUDGMENT APPEALED FROM:	[2024] VCC 687 (Judge Doyle)

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009

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CRIMINAL LAW – Appeal – Sentence – Burglary and theft – Residential – Private homes – Co-offending – Serious offending – Early plea – Comparing moral culpability – Total effective sentence of 6 years and 3 months’ imprisonment with non-parole period of 3 years and 10 months – Whether sentence infringed principle of parity – Whether value of property stolen is relevant – Reasonably open to sentencing judge to impose the different sentences on the applicant and co-accused – Leave to appeal refused.

Criminal Procedure Act 2009, ss 278, 280, 315.

Kellway (a pseudonym) v The King [2023] VSCA 109, applied; Chamma v The Queen [2020] VSCA 232, considered; Barbaro v The Queen (2012) 226 A Crim R 354, referred to; Abdullahi v The King [2024] VSCA 156, referred to.

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Counsel for written submissions
Applicant:		Ms M Brown
Respondent:		Ms A Harrold
Solicitors
Applicant:	Ruffin Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

KENNY JA:

Introduction and overview

On 8 June 2023, the applicant pleaded guilty in the County Court of Victoria to eight charges of burglary and eight charges of theft. On the same day, the applicant’s co-offender, Taylor Savage, pleaded guilty to five charges of burglary, five charges of theft and one charge of knowingly dealing with proceeds of crime. Taylor Savage is the applicant’s younger brother. The applicant and his brother were charged on the same indictment.
On 20 May 2024, the applicant and the co-offender were sentenced as follows:

Charge on indictment	Offence	Max Penalty	Applicant		Co-Offender
Charge on indictment	Offence	Max Penalty	Sentence	Cumulation	Sentence	Cumulation
1	Burglary	10 years’ imprisonment	24 months’ imprisonment (aggregate with Charge 2)	9 months (aggregate with Charge 2)	Not charged	n/a
2	Theft	10 years’ imprisonment	24 months’ imprisonment (aggregate with Charge 1)	9 months (aggregate with Charge 1)	Not charged	n/a
3	Burglary	10 years’ imprisonment	22 months’ imprisonment (aggregate with Charge 4)	7 months (aggregate with Charge 4)	21 months’ imprisonment (aggregate with Charge 4)	7 months (aggregate with Charge 4)
4	Theft	10 years’ imprisonment	22 months’ imprisonment (aggregate with Charge 3)	7 months (aggregate with Charge 3)	21 months’ imprisonment (aggregate with Charge 3)	7 months (aggregate with Charge 3)
5	Knowingly deal with proceeds of crime	15 years’ imprisonment	Not charged	n/a	8 months’ imprisonment	2 months
6	Burglary	10 years’ imprisonment	18 months’ imprisonment (aggregate with Charge 7)	6 months (aggregate with Charge 7)	Not charged	n/a
7	Theft	10 years’ imprisonment	18 months’ imprisonment (aggregate with Charge 6)	6 months (aggregate with Charge 6)	Not charged	n/a
8	Burglary

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 Savage v The King

Details

AGLC: Savage v The King [2024] VSCA 249
Case: [2024] VSCA 249
Decision Date: 23 October 2024

CaseChat Overview and Summary

The appellant, Savage, appealed against his sentence imposed by the County Court of Victoria for burglary and theft. The crimes involved breaking into private residences and stealing valuables. The appeal was heard by the Victorian Court of Appeal, which included Justices King, Weinberg, and Maxwell. The appeal sought to challenge the sentence, arguing it was disproportionate compared to the sentence given to his co-offender, Kellawy. Savage contended that the disparity in their sentences violated the principle of parity and that the value of the stolen property was improperly considered.

The central legal issue was whether the sentence imposed on Savage was manifestly excessive and whether the comparison to his co-offender's sentence was appropriate. The court needed to determine if the sentencing judge reasonably considered all relevant factors, including the value of the stolen property and the principle of parity. The appellant argued that the difference in their sentences, with Savage receiving a harsher penalty, was unjust. The court also considered whether the sentencing judge reasonably assessed the moral culpability of both offenders.

The Court of Appeal found that the sentencing judge had reasonably considered the circumstances of the case and the appropriate punishment for the crimes committed. The judges noted that the value of the stolen property, while not determinative, was a relevant factor in sentencing. The court held that the difference in sentences was reasonably open to the sentencing judge given the unique circumstances of each case and the principle of parity. The court dismissed the appeal, concluding that the sentence was not manifestly excessive and that the sentencing judge had appropriately balanced the principles of punishment and deterrence.

No further orders were made by the court. The appeal was dismissed, and the original sentence was upheld.

Orders