Timothy Woods v The Queen - [2017] VSCA 34

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0163

TIMOTHY WOODS	Appellant
v
THE QUEEN	Respondent

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JUDGES:	WEINBERG and FERGUSON JJA
WHERE HELD:	MORWELL
DATE OF HEARING:	22 February 2017
DATE OF JUDGMENT:	3 March 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 34
JUDGMENT APPEALED FROM:	DPP v Woods (Unreported, County Court of Victoria, Judge Murphy, 20 July 2016)

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CRIMINAL LAW – Sentence – Appellant convicted of aggravated burglary, common law assault, making threats to kill and contravening Family Violence Intervention Order (‘FVIO’) – Sentenced to five years’ imprisonment with non-parole period of three years – Whether judge erred in ‘doubly punishing’ appellant – Judge considered breach of FVIO as aggravating factor re aggravated burglary but separately sentenced appellant to cumulative term of three months for breach of FVIO – Cumulative sentence was double punishment – Appeal allowed – Sentence reduced to four years and nine months’ imprisonment with non-parole period of two years and nine months.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Gullaci	Balmer & Associates
For the Crown	Ms D Piekusis	Mr J Cain, Solicitor for Public Prosecutions

WEINBERG JA
FERGUSON JA:

Following a trial in the County Court, the appellant was found guilty on 10 May 2016 of one charge of aggravated burglary, two charges of common law assault, two charges of making threats to kill and two charges of contravening a Family Violence Intervention Order (‘FVIO’). Prior to the commencement of the trial, he pleaded guilty, on a separate indictment, to one charge of attempting to pervert the course of justice.

On 20 July 2016, the appellant was sentenced as follows:

Charge	Offence	Maximum	Sentence	Cumulation
Trial Indictment F10491221
1	Aggravated burglary (Crimes Act 1958, s 77(1))	25 years	3 years’ 9 months	Base
2	Common law assault	5 years	6 months	2 months
3	Making threats to kill (Crimes Act 1958, s 20)	10 years	8 months
4	Making threats to kill (Crimes Act 1958, s 20)	10 years	8 months	4 months
5	Common law assault	5 years	6 months
Alt. 9A	Contravention of a family violence intervention order (Family Violence Protection Act 2008, s 123(2))	2 years or 240 penalty unit fine	2 months
Alt. 9B	Contravention of a family violence intervention order (Family Violence Protection Act 2008, s 123(2))	2 years or 240 penalty unit fine	6 months	3 months
Plea Indictment F10491221.1
1	Attempt to pervert the course of justice (Common Law)	25 years	10 months	6 months
Total Effective Sentence:		5 years’ imprisonment
Non-Parole Period:		3 years
Pre-sentence Detention Declared:		184 days
Other orders:		Sentenced as a serious violent offender on Count 4.

The appellant originally sought leave to appeal against sentence on four grounds. On 25 November 2016, Whelan JA granted leave to appeal on proposed ground 4, but otherwise refused leave.

The ground upon which leave was granted was in the following terms:

The sentencing Judge failed to avoid double punishment between…

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 Timothy Woods v The Queen

Details

AGLC: Timothy Woods v The Queen [2017] VSCA 34
Case: [2017] VSCA 34
Decision Date: 3 March 2017

CaseChat Overview and Summary

The appellant, Timothy Woods, was convicted of several offences including aggravated burglary, common law assault, making threats to kill, and contravening a Family Violence Intervention Order. The appeal against his sentence was heard in the Court of Appeal. The central issue before the court was whether the trial judge erred in imposing a sentence that amounted to double punishment by separately sentencing the appellant for the breach of the Family Violence Intervention Order, despite considering it as an aggravating factor in the aggravated burglary charge.

The court examined the principle of double punishment in sentencing, which prohibits a court from punishing the same act twice. In this case, the trial judge had acknowledged the breach of the FVIO as an aggravating factor in the aggravated burglary charge but also imposed a separate sentence for the breach of the FVIO. The court found that this constituted double punishment, as the same act was punished twice, once as an aggravating factor in the primary offence and again in the separate sentence for the breach of the FVIO. Consequently, the appeal was allowed on the ground that the trial judge had erred in his sentencing.

In light of the error identified, the Court of Appeal reduced the appellant's sentence. The new sentence was set at four years and nine months’ imprisonment with a non-parole period of two years and nine months. This reflects the court's adjustment to avoid the double punishment and ensure that the appellant was sentenced fairly and lawfully.

Orders