Shortall v The King - [2024] VSCA 252

SUPREME COURT OF VICTORIA COURT OF APPEAL
S EAPCR 2024 0123
PATRICK SHORTALL	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:	28 October 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 252
JUDGMENT APPEALED FROM:	[2024] VCC 152 (Judge Cahill)

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 – Failing to render assistance after a motor vehicle accident – Burglary and theft – Damage property – Whether sentence manifestly excessive – Distinguishable from key cases – No benefit of an early plea – No remorse – Motor vehicle accident occurred in an isolated area – Base sentence and order for cumulation within range reasonably open to sentencing judge – Total effective sentence within range reasonably open to sentencing judge – Leave to appeal refused.

Crimes Act 1958, ss 74(1), 197(1), 76; Road Safety Act 1986, ss 61(1)(b), s 61(3).

Bankal v The Queen [2019] VSCA 171; Neskovski v The Queen (2022) 100 MVR 12; [2022] VSCA 86; Vasilevski v The Queen (2018) 83 MVR 351; [2018] VSCA 7; Varghese v The King (2024) 107 MVR 110; [2024] VSCA 115; Sarikaya v The Queen (2015) 73 MVR 1; [2015] VSCA 236; Simpson v The Queen (2015) 72 MVR 147; [2015] VSCA 210, considered.

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Counsel
Applicants:		Ms M Brown
Respondent/s:		Mr Z Menon
Solicitors
Applicants:	Balmer & Associates
Respondent/s:	Ms A Hogan, Solicitor for Public Prosecutions

KENNY JA:

Introduction and overview

On 21 February 2024, the applicant was found guilty at trial in the County Court of Victoria of one count of theft, two counts of damaging property, one count of burglary, and one count of failing to render assistance after a motor vehicle accident.
On 14 May 2024, the applicant was sentenced as follows:

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Theft (contrary to s 74(1) of the Crimes Act 1958)	10 years’ imprisonment	6 months’ imprisonment	1 month
2	Damaging property (contrary to s 197(1) of the Crimes Act 1958)	10 years’ imprisonment	6 months’ imprisonment	1 month
3	Damaging property (contrary to s 197(1) of the Crimes Act 1958)	10 years’ imprisonment	6 months’ imprisonment	1 month
4	Burglary (contrary to s 76 of the Crimes Act 1958)	10 years’ imprisonment	12 months’ imprisonment	6 months
5	Failing to render assistance after a motor vehicle accident (contrary to s 61(1)(b) and s 61(3) of the Road Safety Act 1986)	10 years’ imprisonment	3 years 9 months’ imprisonment	Base
Total Effective Sentence:		4 years 6 months’ imprisonment
Non-Parole Period:		3 years
Pre-sentence Detention Declared:		83 days
Section 6AAA Statement:		N/A
Other Relevant Orders: 1. Charge 5: Licence cancelled and disqualified from obtaining a licence or permit for 4 years from 14 May 2024. 2. Forfeiture and disposal orders.

The applicant seeks leave…

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 Shortall v The King

Details

AGLC: Shortall v The King [2024] VSCA 252
Case: [2024] VSCA 252
Decision Date: 28 October 2024

CaseChat Overview and Summary

The appellant, Shortall, was found guilty of multiple offences, including failing to render assistance after a motor vehicle accident, burglary, and theft. He appealed against his sentence, arguing that it was manifestly excessive. The case was heard in the Supreme Court of Victoria. The appellant contended that his sentence was disproportionately harsh compared to sentences in similar cases, and that he had not received any benefit from an early guilty plea or demonstrated remorse. The appeal was centred on whether the sentence imposed by the trial judge was outside the range reasonably open to the court.

The court examined the appellant's sentence in light of precedents such as Bankal v The Queen, Neskovski v The Queen, Vasilevski v The Queen, Varghese v The King, Sarikaya v The Queen, and Simpson v The Queen. The court considered the appellant's failure to render assistance after a motor vehicle accident, which occurred in an isolated area, as well as the nature and circumstances of the other offences. The court determined that the base sentence and the order for cumulation were within the range reasonably open to the sentencing judge. The total effective sentence also fell within this range. Consequently, the court found that the sentence was not manifestly excessive.

The court's reasoning was based on the particular circumstances of the case and the range of sentencing options available. The court found that the sentence imposed was proportionate to the appellant's offending and that it was not outside the range reasonably open to the sentencing judge. The appeal was dismissed, and the orders of the trial judge were upheld.

The court refused the appellant leave to appeal to the Court of Appeal. The decision underscores the importance of considering the specific circumstances of each case when assessing the proportionality of a sentence. The court's decision was grounded in a detailed analysis of the relevant case law and the unique facts of the appellant's offending.

Orders