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Talbot v The Queen

Talbot v The Queen

Case [2012] VSCA 118 8 June 2012

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2011 0256

LUKE TALBOT	Appellant
LUKE TALBOT	v
THE QUEEN	Respondent

S APCR 2011 0257

STEPHEN ANTHONY DUX	Appellant
STEPHEN ANTHONY DUX	v
THE QUEEN	Respondent

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JUDGES	MAXWELL ACJ and NEAVE JA
WHERE HELD	MELBOURNE
DATE OF HEARING	22 May 2012
DATE OF JUDGMENT	8 June 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 118
JUDGMENT APPEALED FROM	DPP v Dux & Talbot (Unreported, County Court of Victoria, Judge Hampel, 20 September 2011)

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CRIMINAL LAW – Sentencing – Range – Submission on range by Crown prosecutor – Submission questioned by sentencing judge – Prosecutor unable to explain or justify submission – Judge requested revised submission – After reconsideration, Crown submitted significantly higher range – Initial submission clearly wrong – Whether change of position created unfairness – Whether plea agreement departed from – Whether sentence discount warranted – R v MacNeil-Brown (2008) 20 VR 677 discussed.

CRIMINAL LAW – Appeal – Sentence – Aggravated burglary, kidnapping, recklessly cause serious injury – Sustained offending – Vulnerable victim – Victim suffered very serious injury – TES 7 y, NPP 4 y 6 m – Not manifestly excessive – Appeals dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant Talbot	Mr S Holt with Mr C Watson	Victoria Legal Aid
For the Appellant Dux	Ms K Churchill	Pica Criminal Lawyers
For the Crown	Mr T Gyorffy SC	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL ACJ
NEAVE JA:

Summary

Since the 2008 decision of this Court in R v MacNeil-Brown[1] reaffirmed the utility of Crown submissions on sentencing range, such submissions have again become a routine part of plea hearings. As the Court made clear in MacNeil-Brown, the purpose of a Crown submission on range is to assist the sentencing judge in determining the appropriate sentence for the case at hand. It is designed to promote consistency of sentencing and to reduce the risk of appellable error.[2]
[1](2008) 20 VR 677 (‘MacNeil-Brown’).
[2]Ibid 679 [4].

These appeals, which concern the effect of a change in the Crown range in the course of a plea hearing, provide an opportunity to restate the nature and purpose of such submissions and to emphasise that, if they are to be of real assistance to judges, submissions on range must be well-founded.[3] The obligation of the prosecutor is not discharged by the mere identification of a numerical range for the total effective sentence and for the non-parole period. The submission must be supported by ‘a clearly-articulated view of the gravity of the offence, the relevant sentencing principles and practices, and relevant aggravating or mitigating factors.’[4]
[3]See W C B v The Queen [2010] VSCA 230, [52]; Sarvak v The Queen [2011] VSCA 300, [24]; Azzopardi v The Queen [2011] VSCA 372, [70]–[73].
[4]MacNeil-Brown (2008) 20 VR 677, 681 [12].

A sentencing judge is, of course, free to disregard a Crown submission on range. It has the same status as any other submission of law, and will…

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 Talbot v The Queen

Details

AGLC: Talbot v The Queen [2012] VSCA 118
Case: [2012] VSCA 118
Decision Date: 8 June 2012

CaseChat Overview and Summary

The case of Talbot v The Queen involved a defendant who had been convicted of aggravated burglary, kidnapping, and recklessly causing serious injury. The sentencing process raised several legal issues pertaining to the appropriate range of sentence and the fairness of the Crown prosecutor's submissions. The Court of Appeal was tasked with determining whether the Crown's change of position during sentencing created any unfairness and whether it had departed from the plea agreement.

The legal issues before the court centred on the Crown prosecutor's submissions regarding the appropriate sentencing range. Initially, the prosecutor suggested a lower range, which was questioned by the sentencing judge. After reconsideration, the Crown submitted a significantly higher range. The court had to consider whether this change of position by the Crown created unfairness or if it warranted a discount to the sentence. The court also had to determine whether the change of position had departed from the plea agreement and if a sentence discount was warranted. The case of R v MacNeil-Brown was cited as relevant authority.

The Court of Appeal found that the initial submission by the Crown was clearly wrong and that the change of position did not create unfairness. The court considered that the change of position did not amount to a departure from the plea agreement and did not warrant a sentence discount. The court concluded that the sentence imposed was not manifestly excessive, given the nature of the offences and the circumstances of the case. The appeals were dismissed, and the defendant's sentence was upheld.

Orders