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Saxon v The Queen

Saxon v The Queen

Case [2014] VSCA 296 25 November 2014

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0140

ADAM PAUL SAXON

Appellant

THE QUEEN

Respondent

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JUDGES:	WEINBERG and SANTAMARIA JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 October 2014
DATE OF JUDGMENT:	25 November 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 296
JUDGMENT APPEALED FROM:	DPP v Saxon (Unreported, County Court of Victoria, Judge Mullaly, 4 June 2014)

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CRIMINAL LAW – Aggregate Sentence – Multiple charges – Whether necessary to explain contribution of each charge to aggregate sentence – Whether failure adequately to address totality principle and rule against double punishment – Whether error in calculation of aggregate sentence – Aggregate sentence adequately explained and calculated – Appeal dismissed – Sentencing Act 1991 s 9(4).

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr C T Carr	James Dowsley & Associates
For the Crown	Mr J B B Lewis	Mr C Hyland, Solicitor for Public Prosecutions

WEINBERG JA:

The appellant pleaded guilty, in the County Court at Melbourne, to one count of aggravated burglary, one count of common assault, and one contravention of a family violence intervention order. He was sentenced on 4 June 2014 as follows:

Charge Offence Maximum Sentence

1 Aggravated Burglary [Crimes Act 1958 s 77(1)] 25 years 20 months, aggregate

2 Assault [contrary to common law] 5 years 20 months, aggregate

3 Contravene Family Violence Intervention Order – Intending to cause harm or fear [Family Violence Protection Act 2008 s 123A] 5 years 20 months, aggregate

Total Effective Sentence: 20 months’ imprisonment

Non-Parole Period: 12 months

Pre-sentence Detention Declared: 91 days

6AAA Statement: 3 years’ imprisonment with a non-parole period of 20 months.
Grounds of appeal.

By notice dated 1 July 2014, the appellant sought leave to appeal against his sentence on the following grounds:

1.The learned sentence judge erred in imposing an aggregate sentence on all charges without examining and explaining how the principle of totality and the rule against double punishment impacted upon that sentence, or explaining the contribution of each charge to that aggregate sentence.
2.The sentencing process in respect of the breach of the intervention order miscarried, as the charged act was not identified.
3.The learned sentencing judge erred by reaching the aggregate sentence by imposing a non-parole period and then adding a term of parole.
4.The learned sentencing judge erred in finding that the applicant had behaved badly to the complainant in a way that gave rise to the intervention order

On 16 September 2014, the appellant was granted leave to appeal on grounds 1, 2 and 3. The question of leave to appeal on ground 4 was referred to this Court. However, both that ground and ground 2 were abandoned by the appellant prior to the hearing of this appeal. Accordingly, only grounds 1 and 3 are required to be determined.

Circumstances of offending.

The appellant and the complainant had been in a relationship. The relationship ended in May 2013, and the complainant subsequently moved into a new house with her two children (aged…

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 Saxon v The Queen

Details

AGLC: Saxon v The Queen [2014] VSCA 296
Case: [2014] VSCA 296
Decision Date: 25 November 2014

CaseChat Overview and Summary

The appellant, Saxon, was convicted of multiple criminal charges and sentenced by the Supreme Court of the state. The appeal before the High Court of Australia was against his aggregate sentence. The legal issues before the court were whether the trial judge was required to explain the contribution of each charge to the aggregate sentence, whether the judge failed to adequately address the totality principle and the rule against double punishment, and whether there was an error in the calculation of the aggregate sentence. The court held that the trial judge was not required to explain the contribution of each charge to the aggregate sentence. The court further held that the trial judge had adequately addressed the totality principle and the rule against double punishment. The court also held that there was no error in the calculation of the aggregate sentence, which was adequately explained. The appeal was dismissed in its entirety.

The court emphasised that the trial judge was not required to explain the contribution of each charge to the aggregate sentence, as long as the sentence was within the statutory maximum and was proportionate to the seriousness of the offending. The court held that the trial judge had adequately addressed the totality principle and the rule against double punishment by considering the totality of the offending and ensuring that the sentence was not excessive. The court further held that the calculation of the aggregate sentence was within the discretion of the trial judge, and that there was no error in the calculation. The court held that the trial judge had adequately explained the reasons for the sentence, which was proportionate to the seriousness of the offending and did not constitute double punishment. The appeal was dismissed, and the original sentence was upheld.

Orders