Sweeney v The King - [2023] VSCA 9

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0162

JOSHUA SWEENEY	Applicant
v
THE KING	Respondent

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JUDGES:	KYROU and KENNEDY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	25 January 2023
DATE OF JUDGMENT:	9 February 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 9
JUDGMENT APPEALED FROM:	[2022] VCC 1747 (Judge Lauritsen)

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CRIMINAL LAW – Appeal – Sentence – Four charges of burglary, three charges of theft and one charge of committing an indictable offence while on bail – Total effective sentence 2 years, 6 months’ imprisonment – Whether judge erred in not applying fifth limb of R v Verdins (2007) 16 VR 269 – Applicant diagnosed with post-traumatic stress disorder, borderline personality disorder, major depressive disorder and generalised anxiety disorder – Psychological evidence did not establish that prison would weigh more heavily on the applicant than person in normal health – No error established – Application for leave to appeal refused.

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Counsel
Applicant:		Mr PJ Smallwood
Respondent:		Ms RL Harper
Solicitors
Applicant:	Tyler Tipping & Woods
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

KYROU JA
KENNEDY JA:

Introduction and summary

On 29 September 2022, the applicant pleaded guilty to the charges set out in the table below and, on 7 October 2022, he was sentenced by a County Court judge as set out in that table:[1]
[1]DPP v Sweeney [2022] VCC 1747 (‘Sentencing remarks’).

Charge on Indictment

Offence

Max Penalty

Sentence

Cumulation

1 Burglary [Crimes Act 1958, s 76] 10 years 18 months Base

2 Theft [Crimes Act, s 74] 10 years 3 months —

3 Burglary 10 years 18 months 4 months

4 Theft 10 years 12 months —

5 Burglary 10 years 18 months 4 months

6 Burglary 10 years 12 months 4 months

7 Theft 10 years 12 months —

Related Summary Offence

13 Commit indictable offence while on bail [Bail Act 1977, s 30B] 3 months 1 month —

Total Effective Sentence: 2 years, 6 months

Non-Parole Period: 18 months

Section 6AAA Statement: Total effective sentence 3 years, 9 months

Other Relevant Orders:

1 Driver’s licence cancelled; disqualified from obtaining a further licence for 18 months.

The applicant has sought leave to appeal against his sentence on the following grounds:[2]
[1]There was an error in the sentence imposed in that the sentencing judge did not consider all relevant circumstances when determining whether R v Verdins limb 5 applied to the sentencing exercise.
[2]The sentencing judge erred by not applying Verdins limb 5.
[2]In these reasons, proposed grounds of appeal are referred to as grounds of appeal.
As the fifth limb of R v Verdins is the focus of both grounds, it is set out below:
The existence of [a mental] condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health. [3]
[3](2007) 16 VR 269, 276 [32] (‘Verdins’).

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 Sweeney v The King

Details

AGLC: Sweeney v The King [2023] VSCA 9
Case: [2023] VSCA 9
Decision Date: 9 February 2023

CaseChat Overview and Summary

Sweeney, the appellant, was convicted of multiple offences, including burglary, theft, and committing an indictable offence while on bail. He was sentenced to a total effective term of imprisonment of 2 years and 6 months. Sweeney appealed against his sentence, arguing that the trial judge should have applied the fifth limb of R v Verdins (2007) 16 VR 269 when considering his mental health conditions. Sweeney contended that his diagnosis of post-traumatic stress disorder, borderline personality disorder, major depressive disorder, and generalised anxiety disorder warranted a lesser sentence because he would be disproportionately affected by imprisonment. The court was required to determine whether the trial judge erred in not applying the fifth limb of R v Verdins and, if so, whether such an error warranted a departure from the general rule against allowing appeals against sentence.

The Court found that while Sweeney's mental health conditions were significant, the psychological evidence did not establish that he would be disproportionately affected by imprisonment compared to a person in normal health. The Court held that the trial judge had appropriately considered Sweeney's mental health in the sentencing process, but did not err in not applying the fifth limb of R v Verdins. The Court concluded that the sentence was not manifestly excessive and that there was no established error that warranted allowing the appeal against sentence. Consequently, the application for leave to appeal was refused.

The Court's decision was grounded in the principle that the fifth limb of R v Verdins applies when a defendant's mental health condition significantly impacts their capacity to endure imprisonment. In Sweeney's case, although his mental health conditions were severe, the evidence did not demonstrate that they would render imprisonment disproportionately burdensome for him. The Court was satisfied that the trial judge had taken Sweeney's mental health into account and that the sentence imposed was appropriate given the circumstances. The Court did not find any grounds to interfere with the sentence, and therefore, the appeal was dismissed.

Orders