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Whiteford v The Queen

Whiteford v The Queen

Case [2016] VSCA 26 4 March 2016

Appeal

Aggravated & Exemplary Damages

Sentencing

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0153

BENN ARTHUR WHITEFORD	Appellant
v
THE QUEEN	Respondent

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JUDGES:	BONGIORNO and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 March 2016
DATE OF JUDGMENT:	4 March 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 26
JUDGMENT APPEALED FROM:	DPP v Whiteford (Unreported, County Court of Victoria, Judge Montgomery, 17 July 2015)

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CRIMINAL LAW – Appeal – Sentence – Aggravated burglary – Theft – Common assault – Breach of Family Violence Intervention Order – Aggregate sentence of 5 years’ imprisonment with non-parole period of 3 years – Totality – Manifest excess – Totality principle not infringed – Sentence not manifestly excessive – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms S J Keating	Revill & Papa Lawyers
For the Crown	Mr B F Kissane QC	Mr J Cain, Solicitor for Public Prosecutions

BONGIORNO JA
BEACH JA:

Introduction

On 17 July 2015, the appellant pleaded guilty in the County Court to one charge of aggravated burglary (charge 1), one charge of theft (charge 2), one charge of common assault (charge 3) and two summary charges of contravening a Family Violence Intervention Order (summary charge 4 and summary charge 5). The maximum term of imprisonment for aggravated burglary is 25 years.[1] The maximum term of imprisonment for theft is 10 years.[2] The maximum term of imprisonment for common assault is five years.[3] The maximum term of imprisonment for contravening a Family Violence Intervention Order is two years.[4] Following a plea hearing the judge imposed an aggregate sentence of five years’ imprisonment,[5] and fixed a non-parole period of three years.
[1]Crimes Act 1958, s 77(2).
[2]Crimes Act 1958, s 74(1).
[3]Crimes Act 1958, s 320.
[4]Family Violence Protection Act 2008, s 123(2).
[5]See s 9 of the Sentencing Act 1991.

On 12 August 2015, the appellant filed a notice of application for leave to appeal against sentence. The appellant’s notice set out his proposed grounds of appeal as follows:

1.The learned sentencing judge erred by treating text messages sent by the [appellant] to the victim, prior to the instant offending, as evidence of premeditation in relation to charges 1–3.
2.The total effective sentence and non-parole period imposed were manifestly excessive and offend the principal of totality in view of:
(a) the objective seriousness of the offending; and
(b) remorse reflected in the plea of guilty.

On 7 October 2015, Priest JA granted the appellant leave to appeal on ground 2 but refused leave to appeal on ground 1. Pursuant to s 315(2) of the Criminal Procedure Act 2009, the appellant elected to renew his application for leave to appeal on ground 1, in addition to pursuing his appeal on ground 2. However, at the commencement of her oral submissions, counsel for the appellant abandoned ground 1.

The offending

The appellant was 38 years of age at the time of the offending. He had previously been in a relationship with…

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 Whiteford v The Queen

Details

AGLC: Benn Arthur Whiteford v The Queen [2016] VSCA 26
Case: [2016] VSCA 26
Decision Date: 4 March 2016

CaseChat Overview and Summary

The appellant, Whiteford, appealed against his conviction and sentence for a series of criminal activities, including aggravated burglary, theft, common assault, and breach of a Family Violence Intervention Order. The case was heard by the High Court of Australia. Whiteford contended that the aggregate sentence of five years’ imprisonment, with a non-parole period of three years, was manifestly excessive and violated the totality principle.

The legal issues before the court involved the assessment of the sentence's proportionality and whether it breached the principle of totality. The court was required to determine whether the aggregate sentence imposed was appropriate in light of the totality principle, which mandates that the cumulative penalty for multiple offences should not be excessively punitive. The court also had to consider whether the sentence imposed was manifestly excessive.

The court found that the sentence did not breach the totality principle. It held that while the sentence was severe, it was not manifestly excessive when considering the totality of the offending and the need for general and specific deterrence. The court emphasised that the sentence reflected the seriousness of the crimes committed and the need to protect the community. Consequently, the appeal was dismissed, and the original sentence was upheld.

No additional orders were made by the court beyond dismissing the appeal. The decision affirmed the trial judge's assessment of the appropriate sentence and upheld the principle that a severe sentence can be justified for serious and multiple criminal offences.

Orders