Simon Walsh and v The Queen and - [2015] VSCA 41

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0279

SIMON WALSH

Applicant

THE QUEEN

Respondent

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JUDGES:	WEINBERG and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 March 2015
DATE OF JUDGMENT:	16 March 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 41
JUDGMENT APPEALED FROM:	DPP v Walsh & Ors [2014] VCC 1581 (Judge Dean)

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CRIMINAL LAW – Sentence – Applicant pleaded guilty to burglary, theft and possession of a drug of dependence – TES 3 years with NPP 2 years – Substantial criminal history including prior convictions for theft and burglary – Whether sentence manifestly excessive – Whether one-third reduction on basis of guilty plea inadequate in circumstances where sentencing judge had foreshadowed that ‘substantial discount’ for guilty plea would be allowed – Sentence not manifestly excessive – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr R F Edney	Robert Stary Lawyers
For the Crown	Mr R A Elston QC	Ms V Anscombe, Acting Solicitor for Public Prosecutions

WEINBERG JA
BEACH JA:

On 29 August 2014, the applicant pleaded guilty, in the County Court at Bendigo, to one charge of burglary, one charge of theft, and one charge of possession of a drug of dependence. He was sentenced on 19 September 2014 as follows:

Charge on Indictment Offence Maximum Sentence Cumulation

1 Theft [s 74 Crimes Act 1958] 10 years 15 months 6 months

2 Burglary [s 76 Crimes Act 1958] 10 years 2 years 6 months Base

6 Possess drug of dependence [s 73(1)(b) Drugs Poisons Controlled Substances Act 1981] 30 penalty units or imprisonment for one year, or both 14 days Nil

Total Effective Sentence: 3 years

Non-Parole Period: 2 years

Pre-sentence Detention Declared: 436 days

6AAA Statement: TES 4 years 6 months; NPP 3 years

Other orders: Forfeiture order. Destruction order.

Two co-offenders, Anthony Edwards and Adam Simmons, were also sentenced at the same time. Edwards had pleaded guilty to attempted burglary, theft and two charges of possession of a drug of dependence. He received the following sentence:

Charge on Indictment Offence Maximum Sentence Cumulation

1 Theft [s 74 Crimes Act 1958] 10 years 6 months 3 months

3 Attempted Burglary [s 321M Crimes Act 1958] 5 years s321P Crimes Act 1958 (Vic) 12 months Base

4 Possess drug of dependence [s 73(1) Drugs Poisons Controlled Substances Act 1981] Fine of 30 penalty units or imprisonment for 1 year or both Fine $500 Nil

5 Possess drug of dependence [s 73(1)(b) Drugs Poisons Controlled Substances Act 1981] Fine of 30 penalty units or imprisonment for 1 year or both Fine $1000 Nil

Total Effective Sentence: 15 months, wholly suspended for two years

6AAA Statement: TES 18 months; NPP 9 months

Other orders: Stay of three months in order to pay fines.

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1	Theft [s 74 Crimes Act 1958]	10 years	6 months	3 months
3	Attempted Burglary [s 321M Crimes Act 1958]	5 years s321P Crimes Act 1958 (Vic)	12 months	Base
4	Possess drug of dependence [s 73(1) Drugs Poisons Controlled Substances Act 1981]	Fine of 30 penalty units or imprisonment for 1 year or both	Fine $500	Nil
5	Possess drug of dependence [s 73(1)(b) Drugs Poisons Controlled Substances Act 1981]	Fine of 30 penalty units or imprisonment for 1 year or both	Fine $1000	Nil
Total Effective Sentence:	15 months, wholly suspended for two years
6AAA Statement:	TES 18 months; NPP 9 months
Other orders: Stay of three months in order to pay fines.

Simmons, who pleaded guilty to one charge of theft, was sentenced to a good behaviour bond of 2 years.

Grounds of appeal

The applicant seeks leave to appeal against sentence…

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.

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Details

Case: [2015] VSCA 41
Decision Date: 16 March 2015

CaseChat Overview and Summary

The applicant, Simon Walsh, was convicted for burglary, theft and possession of a drug of dependence, and was sentenced to a term of imprisonment of three years with a non-parole period of two years. Walsh appealed against his sentence, arguing that it was manifestly excessive and that the discount for his guilty plea was inadequate. The appeal centred on whether the sentence was manifestly excessive and whether the discount for the guilty plea was inadequate. The court had to determine whether the sentence imposed by the sentencing judge was manifestly excessive and whether the reduction for the guilty plea was inadequate.

The court considered the severity of the crimes committed, Walsh's criminal history and the sentencing judge's reasons for the sentence. The court noted that the sentencing judge had foreshadowed a substantial discount for the guilty plea and had taken into account Walsh's criminal history. The court held that the sentence was not manifestly excessive and that the discount for the guilty plea was adequate in the circumstances. The court found that the sentencing judge had appropriately balanced the need for punishment and deterrence with the mitigating factors, including the guilty plea. The court held that the sentence was proportionate to the seriousness of the crimes committed.

The court refused Walsh's application for leave to appeal against his sentence. The court held that the sentence was not manifestly excessive and that the discount for the guilty plea was adequate. The court found that the sentencing judge had appropriately balanced the need for punishment and deterrence with the mitigating factors, including the guilty plea. The sentence of imprisonment of three years with a non-parole period of two years was upheld.

Orders