Stowers v The King; Phillips v The King - [2022] VSCA 203

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0143

HENRY STOWERS	Appellant
v
THE KING	Respondent

S EAPCR 2021 0151

JOSHUA PHILLIPS	Appellant
v
THE KING	Respondent

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JUDGES:	KYROU, McLEISH and KENNEDY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	5 September 2022
DATE OF JUDGMENT:	20 September 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 203
JUDGMENT APPEALED FROM:	[2021] VCC 1393 (Judge Hampel)

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CRIMINAL LAW – Appeal – Sentence – Co-accused – Aggravated burglary – Intentionally causing injury – Destroying property – Theft – Extortion with threat to kill – Firearms offences – Total effective sentence 9 years and 6 months with non-parole period 7 years and 6 months (Stowers) – Total effective sentence 7 years and 6 months with non-parole period 6 years (Phillips) – Whether sentences manifestly excessive – 5 year sentence on extortion with threat to kill outside range – Appeals allowed – Appellants resentenced.

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Counsel
Appellant Stowers:	Ms P J Marcou with Mr D I Mence
Appellant Phillips:	Mr C K Wareham
Respondent:	Ms E Ruddle KC
Solicitors
Appellant Stowers:	Markotich Lawyers
Appellant Phillips:	Slades & Parsons Solicitors
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

KYROU JA
MCLEISH JA
KENNEDY JA:

On 16 July 2021, Henry Stowers (‘Stowers’) and Joshua Phillips (‘Phillips’) each pleaded guilty to the offence of aggravated burglary, as well as a number of other charges.
On 17 September 2021, a judge of the County Court sentenced each of them as follows:

Stowers
Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Aggravated burglary	25 years	5 years	Base
2	Intentionally causing injury	10 years	1 year	6 months
3	Destroying property	10 years	1 year	3 months
4	Theft	10 years	1 year	3 months
7	Extortion with threat to kill	15 years	5 years	3 years
Related summary offence
13	Carry a prohibited weapon	2 years	1 year	6 months
Total Effective Sentence:		9 years and 6 months’ imprisonment
Non-Parole Period:		7 years and 6 months
Section 6AAA Statement:		12 years and 3 months, with 10 years non-parole
Other relevant orders: 1. Licence/s cancelled and disqualified for 12 months

Phillips
Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Aggravated burglary	25 years	5 years	Base
2	Intentionally causing injury	10 years	1 year	6 months
3	Destroying property	10 years	1 year	3 months
4	Theft	10 years	1 year	3 months
5	Theft	10 years	6 months	2 months
6	Prohibited person possess a firearm	10 years	2 years	12 months
Related summary offences
5	Commit an indictable offence on bail	3 months or 30 penalty units	1 month	1 month
8	Prohibited person possess cartridge ammunition	40 penalty units	$5000 fine	-
12	Drive without a licence	6 months or 60 penalty units	3 months	3 months
13	Drive without a licence	6 months or 60 penalty units	3 months	-
Total Effective Sentence:		7 years and 6 months’ imprisonment
Non-Parole Period:		6 years
Section 6AAA Statement:		10 years with 8 years non-parole

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: [2022] VSCA 203
Decision Date: 20 September 2022

CaseChat Overview and Summary

The case before the court involved two appellants, Stowers and Phillips, who were appealing their sentences imposed by a lower court. The nature of the dispute was the severity of their sentences, which they argued were manifestly excessive. The case was heard in a higher appellate court. The appellants were convicted of multiple offences including aggravated burglary, intentionally causing injury, destroying property, theft, extortion with a threat to kill, and firearms offences. Stowers received a total effective sentence of 9 years and 6 months with a non-parole period of 7 years and 6 months, while Phillips was sentenced to 7 years and 6 months with a non-parole period of 6 years.

The primary legal issue the court had to decide was whether these sentences were manifestly excessive. The appellants argued that the sentences imposed on them were outside the range of appropriate penalties for their respective crimes. They particularly focused on the 5-year sentence imposed for the extortion with threat to kill offence, asserting that it was disproportionately high. The court had to consider the totality of the appellants' offending and the seriousness of their crimes in determining the appropriate punishment.

In its reasoning, the court examined the sentences in light of the crimes committed. It considered the appellants' criminal histories, the severity of the offences, and the need to deter similar crimes in the future. The court found that the sentences were indeed outside the range of appropriate penalties. The court noted that the sentence for the extortion with threat to kill offence was particularly disproportionate, as it was significantly longer than sentences typically imposed for such offences. Consequently, the appeals were allowed, and the appellants were resentenced to terms that the court deemed more appropriate.

The final orders of the court involved resentencing the appellants. Stowers and Phillips were each resentenced to reflect a more proportionate punishment, taking into account the totality of their offending and the principles of sentencing. The specifics of their new sentences were not detailed in the summary provided, but it was clear that the court had adjusted the sentences to better align with the range of penalties appropriate for their crimes.

Orders