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Suckling v The Queen

Suckling v The Queen

Case [2013] VSCA 278 3 October 2013

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0119

KRISTY SUCKLING (SHORTIS)	Applicant
	v
THE QUEEN	Respondent

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JUDGES	NEAVE and COGHLAN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	23 September 2013
DATE OF JUDGMENT	3 October 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 278
JUDGMENT APPEALED FROM	DPP v Suckling (Unreported, County Court of Victoria, Judge Pilgrim, 31 May 2013)

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CRIMINAL LAW – Appeal against sentence – Applicant pleaded guilty to one charge of criminal damage, one charge of aggravated burglary and one charge of making a threat to inflict serious injury – Total effective sentence of three years and three months imprisonment imposed below – Trial judge erred in the application of Hogarth v The Queen [2012] VSCA 302 – Double punishment in the sentences imposed for aggravated burglary and criminal damage – Moral culpability reduced by depression, anxiety and other mental health problems – Sentence manifestly excessive – Leave to appeal granted – Appeal allowed – Resentenced to a total effective sentence of 15 months’ imprisonment with a non parole period of 9 months.

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Appearances:	Counsel	Solicitors
The Applicant	Ms W Duncan	Jeremy Harper & Associates
The Respondent	Mr B F Kissane	Mr C Hyland, Solicitor for Public Prosecutions

NEAVE JA:

After pleading guilty to one charge of criminal damage, one charge of aggravated burglary and one charge of making a threat to inflict serious injury, the applicant, Kristy Shortis,[1] was sentenced as follows:
[1]Also known as Suckling.

charge on indictment offence maximum sentence cumulation

1 Criminal damage 10 years 6 months 3 months

2 Aggravated burglary 25 years 3 years Base sentence

3 Making a threat to inflict serious injury 5 years 3 months -

charge on indictment	offence	maximum	sentence	cumulation
1	Criminal damage	10 years	6 months	3 months
2	Aggravated burglary	25 years	3 years	Base sentence
3	Making a threat to inflict serious injury	5 years	3 months	-

The learned sentencing judge ordered that the sentence of imprisonment imposed on charge 3 should be served concurrently with the sentence imposed on charge 1. This amounted to a total effective sentence of three years and three months imprisonment. The judge ordered that the applicant serve a non‑parole period of 15 months. The applicant now seeks leave to appeal against the individual sentences and the total effective sentence.

The circumstances of the offending and the offender

About two years before the offences occurred the applicant’s daughter, C, then aged about three, told her mother that Mr Y, the uncle of the applicant’s former partner, had sexually assaulted her and her younger brother. The applicant reported the matter to the police the next morning and they recorded an interview with the child.

Over the next two years the applicant contacted the police regularly to find out what was happening. About a month before she committed the offences she was informed that Mr Y would not be charged. Mr Y lived relatively close to the applicant’s state provided accommodation. After her daughter told her about the assaults, the applicant was concerned that they would see Mr Y around the neighbourhood and asked the housing authority to move the family to different accommodation. The family was not provided with alternative housing.…

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 Suckling v The Queen

Details

AGLC: Suckling v The Queen [2013] VSCA 278
Case: [2013] VSCA 278
Decision Date: 3 October 2013

CaseChat Overview and Summary

The applicant, Suckling, appealed against his sentence in the Court of Appeal of the Supreme Court of Victoria. Suckling had pleaded guilty to one count of criminal damage, one count of aggravated burglary, and one count of making a threat to inflict serious injury. The trial judge had imposed a total effective sentence of three years and three months imprisonment, which Suckling argued was manifestly excessive. The central legal issue in this appeal was whether the trial judge erred in applying the principles set out in Hogarth v The Queen [2012] VSCA 302. Specifically, Suckling's counsel argued that the judge had imposed double punishment for the aggravated burglary and the criminal damage, leading to an excessively harsh sentence. Additionally, the court considered the mitigating factors of Suckling's depression, anxiety, and other mental health problems, which had not been adequately taken into account.

The Court of Appeal found that the trial judge had indeed erred in applying the Hogarth principles, resulting in a double punishment for the same offences. The court also determined that the total effective sentence of three years and three months was manifestly excessive when considering Suckling's mental health issues. The appeal was allowed, and the sentence was reduced to a total effective sentence of 15 months' imprisonment with a non-parole period of 9 months. The court highlighted the importance of considering the principles of proportionality and individual circumstances when imposing a sentence.

Orders