Turney v The Queen - [2020] VSCA 131

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0110

JORDEN TURNEY	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST, BEACH and McLEISH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22 May 2020
DATE OF JUDGMENT:	22 May 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 131
JUDGMENT APPEALED FROM:	DPP v Johnson & Ors (Unreported, County Court of Victoria, Judge Stuart, 30 April 2019)

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CRIMINAL LAW – Sentence – Application for leave to appeal – Aggravated burglary and intentionally causing injury – Aggregate sentence – Aggregate sentence of 3 years, with non-parole period of 1 year and 8 months – Whether judge erred in imposing aggregate sentence – Whether sentence manifestly excessive – No reasonable prospect that Court would impose less severe sentence – DPP v Rivette [2017] VSCA 150 considered – Sentencing Act 1991, s 9(3) – Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P J Smallwood and Ms A J Burnnard	Galbally & O’Bryan Lawyers
For the Respondent	Mr J C J McWilliams	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
BEACH JA
McLEISH JA:

The applicant pleaded guilty in the County Court to one charge of aggravated burglary[1] and one charge of intentionally causing injury.[2] On 30 April 2019, he was sentenced to an aggregate term of imprisonment of three years.[3] A non-parole period of one year and eight months was fixed.[4]
[1]Contrary to s 77 of the Crimes Act 1958. The maximum term of imprisonment for aggravated burglary is 25 years.
[2]Contrary to s 18 of the Crimes Act 1958. The maximum term of imprisonment for intentionally causing injury is 10 years.
[3]See s 9 of the Sentencing Act 1991.
[4]Pursuant to s 6AAA of the Sentencing Act 1991, the judge declared that, but for his pleas of guilty, he would have sentenced the applicant to a term of imprisonment of five years, with a non-parole period of three years.

The applicant now seeks leave to appeal against his sentence on the following grounds:

(1) The sentencing judge erred by imposing an aggregate sentence.
(2)The aggregate sentence and the non-parole period are each manifestly excessive.

Circumstances of the offending

The offending occurred late in the evening of 23 August 2017. There were two co-offenders, Bradley Johnson and Peter Jones.[5] At the time of the offending, Johnson and the applicant were 23 years of age, and Jones was 22 years of age. The applicant and Johnson were employed by Jones as roof tilers.
[5]The co-offenders, who pleaded guilty to charges of home invasion and intentionally causing injury, were sentenced on the same day as the applicant to terms of imprisonment of five and a half years, with non-parole periods of three years.

The victim of the offending was Jacob Perger, who was 24 years old at the time. Approximately ten days before the offending, Jones’ partner of some eight years told him that she had had an affair with Mr Perger. Subsequently, Jones and…

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 Turney v The Queen

Details

AGLC: Turney v The Queen [2020] VSCA 131
Case: [2020] VSCA 131
Decision Date: 22 May 2020

CaseChat Overview and Summary

In the case of Turney v The Queen, the appellant, Turney, sought leave to appeal against his sentence for aggravated burglary and intentionally causing injury. The Supreme Court of Victoria presided over the matter. Turney had been found guilty of aggravated burglary, which involved entering a dwelling with intent to commit an indictable offence, and intentionally causing injury to another person. The primary legal issue was whether the trial judge had erred in imposing an aggregate sentence of three years, with a non-parole period of one year and eight months, and if the sentence was manifestly excessive.

The court considered the principles of sentencing outlined in the Sentencing Act 1991, particularly section 9(3), which requires courts to impose a sentence that reflects the seriousness of the offence. The court also examined the case of DPP v Rivette [2017] VSCA 150, which provided guidance on assessing whether a sentence is manifestly excessive. The appellant argued that the aggregate sentence was manifestly excessive and that there was a reasonable prospect that the Court would impose a less severe sentence. However, the court found that the trial judge had appropriately considered the relevant factors and had not erred in imposing the sentence. Consequently, the court held that there was no reasonable prospect that the Court would impose a less severe sentence.

The court refused the application for leave to appeal against the sentence. The reasons for this decision were that the trial judge had carefully considered the seriousness of the offences and the need for deterrence and denunciation, and had balanced these considerations with the appellant's personal circumstances. The court was satisfied that the sentence was not manifestly excessive and that the trial judge had exercised his discretion appropriately. As such, the appellant's application for leave to appeal was denied, and the original sentence stood.

Orders