Tripp (a pseudonym) v The King - [2024] VSCA 178

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0047

BRAYDEN TRIPP (A PSEUDONYM)	Applicant
v
THE KING	Respondent

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JUDGES:	BOYCE JA
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	12 August 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 178
JUDGMENT APPEALED FROM:	DPP v [Brayden Tripp (a pseudonym)], Judge Trapnell, 16 February 2024

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CRIMINAL LAW – Application for leave to appeal – Sentence – Aggravated burglary – Combination gaol/community correction order (‘CCO’) imposed – Rape – Imprisonment imposed – Rape breaches CCO – Resentence to imprisonment on aggravated burglary – Whether judge presumed cumulation on resentence – Whether resentence on aggravated burglary manifestly excessive – Whether imprisonment on aggravated burglary and rape manifestly excessive and/or in breach of totality principle – Reasonably arguable that totality principle breached – Leave to appeal granted.

Sentencing Act 1991 ss 6E, 16(1), 83A(d)(1) & s 83AS(1)(c); Criminal Procedure Act 2009 s 280(1)(b).

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Counsel
Applicant:		Mr M D Stanton
Respondent:		Mr J O’Connor
Solicitors
Applicant:	Stary Norton Halphen
Respondent:	Office of Public Prosecutions

BOYCE JA:

Background

On 2 November 2018, the applicant was sentenced by Judge Trapnell in respect of offences of damaging property[1] (charge 1), aggravated burglary[2] (charge 2) and four related summary offences. The related summary offences were three charges of unlawful assault[3] (charges 4, 5 and 9) and one charge of failing to answer bail[4] (charge 11). This offending occurred in 2017 and — hereafter — will be referred to as ‘the 2017 offending’. On all offences, apart from the offence of aggravated burglary, the applicant was sentenced to relatively brief individual terms of imprisonment which amounted, in total, to 32 days’ imprisonment. On the aggravated burglary offence the applicant was sentenced to 12 months’ imprisonment combined with a three–year Community Correction Order (‘CCO’). The applicant was ordered to perform 600 hours of community work in respect of the CCO. The total effective sentence imposed for the 2017 offending amounted, thus, to one year and 32 days’ imprisonment combined with a three–year CCO with 600 hours of community work to be performed.
[1]Contrary to s 197(1) of the Crimes Act 1958.
[2]Contrary to s 77 of the Crimes Act 1958.
[3]Contrary to s 23 of the Summary Offences Act 1996.
[4]Contrary to s 30(1) of the Bail Act 1977.
The applicant was released on 31 December 2019 after having served the custodial part of that sentence. He had also served a sentence of eight months’ imprisonment, subsequently imposed in the County Court on 2 April 2019 (on appeal from the Magistrates’ Court), two months of which was ordered to be served cumulatively upon the sentence imposed by Judge Trapnell on 2 November 2018. The CCO ordered by Judge Trapnell commenced on 31 December 2019.
On 26 October 2020, the applicant was sentenced in the Magistrates’ Court to a fine for the offence of possessing a drug of dependence.[5] The applicant had been charged with this offence in January of 2020.

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 Tripp (a pseudonym) v The King

Details

AGLC: Tripp (a pseudonym) v The King [2024] VSCA 178
Case: [2024] VSCA 178
Decision Date: 12 August 2024

CaseChat Overview and Summary

In this case, the appellant, identified as Tripp, was convicted of multiple offences, including aggravated burglary and rape. The matter came before the court on an application for leave to appeal against the sentence imposed. The court was tasked with determining whether the sentence was manifestly excessive or breached the principle of totality. The Crown, represented by the King, argued against the appeal.

The legal issues before the court were whether the judge presumed cumulation on the resentence for the aggravated burglary, whether the resentence for the aggravated burglary was manifestly excessive, and whether the combination of imprisonment on the aggravated burglary and rape was manifestly excessive or breached the principle of totality. The court needed to assess the proportionality of the sentence and whether the totality principle was adhered to.

The court found that there was a reasonably arguable basis that the principle of totality was breached. The combination of the imprisonment for the aggravated burglary and the rape resulted in a sentence that was manifestly excessive. The court concluded that the appellant had demonstrated a reasonably arguable case for leave to appeal, and granted the application accordingly.

The court's decision focused on the principle of totality, which requires that the cumulative effect of multiple sentences be taken into account to avoid excessive punishment. The combination of imprisonment for both the aggravated burglary and the rape led to a sentence that was considered manifestly excessive. The court granted leave to appeal, allowing the appellant to challenge the sentence on the grounds that it breached the principle of totality.

Orders