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Wright v The King

Wright v The King

Case [2023] VSCA 243 12 October 2023

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0061

BRENDAN WRIGHT	Applicant
v
THE KING	Respondent

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JUDGES:	WALKER and MACAULAY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	3 October 2023
DATE OF JUDGMENT:	12 October 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 243
JUDGMENT APPEALED FROM:	[2023] VCC 375 (Judge Rozen)

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CRIMINAL LAW – Sentence – Application for leave to appeal – Applicant guilty of home invasion, common assault, damaging property, theft and related summary offences – Total effective sentence of 2 years 6 months, non-parole period of 1 year 3 months – Whether error in misapplication of Sentencing Act 1991, ss 5(2H), 38, 44 – Whether considerations of double jeopardy and parity require imposition of lesser sentence – Sentence within range open to trial judge – Leave to appeal sentence granted – Decision affirmed.

Sentencing Act 1991, ss 5(2H), 38 and 44 considered.

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Counsel
Applicant:	Dr J R Murphy
Respondent:	Mr J Dickie
Solicitors
Applicant:	Stary Norton Halphen
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

WALKER JA
MACAULAY JA:

Introduction

On 23 January 2023, the applicant was convicted by plea of guilty before a judge in the County Court of four indictable offences and two related summary offences. His co‑offender, Ms Brooke Evans, also pleaded guilty to a lesser number of charges. Following a plea on 23 January 2023 and 8 February 2023, the judge proceeded to sentence the applicant and Ms Evans on 1 March 2023. Immediately after he did so, the parties raised an issue about the legality of the sentence that had been pronounced in respect of the applicant, so the judge adjourned the sentencing of both offenders until 17 March 2023.
On 17 March 2023, the applicant was sentenced as follows:

Charge

Offence

Maximum

Sentence

Cumulation

1

Home invasion[1]

25 years

30 months

Base

2

Common Assault[2]

5 years

1 year

-

3

Damaging Property[3]

10 years

1 year

-

4

Theft[4]

10 years

1 year

-

Related Summary Offences

9

Commit indictable offence whilst on bail[5]

30 penalty units or 3 months

Fined $150

-

10

Failing to answer bail[6]

240 penalty units or 2 years

Fined $200

-

Total Effective Sentence:

30 months

Non-Parole Period:

15 months

Section 6AAA Statement:

Total Effective Sentence 3 years 4 months

Non-Parole Period 22 months

[1]Contrary to Crimes Act 1958, s 77A.
[2]Contrary to Common Law.
[3]Contrary to Crimes Act 1958, s 197(1).
[4]Contrary to Crimes Act 1958, s 74(1).
[5]Contrary to Bail Act 1977, s 30B.
[6]Contrary to Bail Act 1977, s 30(1).

Ms Evans was sentenced to a two-year community correction order (‘CCO’) on one charge of home invasion and one charge of damaging property, together with fines of $150 and $200 respectively for the summary offences of committing an indictable offence while on bail and failing to answer bail.
At the earlier hearing on 1 March 2023, the sentencing judge had announced that he would impose a sentence on the applicant of 15…

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 Wright v The King

Details

AGLC: Wright v The King [2023] VSCA 243
Case: [2023] VSCA 243
Decision Date: 12 October 2023

CaseChat Overview and Summary

The applicant, Wright, was found guilty of home invasion, common assault, damaging property, theft and related summary offences. He was sentenced to a total effective sentence of 2 years and 6 months, with a non-parole period of 1 year and 3 months. The applicant sought leave to appeal against the sentence, arguing that the trial judge had misapplied the Sentencing Act 1991, sections 5(2H), 38 and 44, and that considerations of double jeopardy and parity required the imposition of a lesser sentence. The Court was required to determine whether the trial judge had erred in the application of the relevant sections of the Act and whether the sentence was within the range open to the trial judge.

The Court considered the principles governing the application of the Sentencing Act 1991 and the principles of double jeopardy and parity. The Court found that the trial judge had erred in the application of section 5(2H) of the Act, which requires the court to consider the principle of parity when sentencing an offender. The Court found that the sentence imposed was within the range open to the trial judge, but that the trial judge had not adequately considered the principle of parity when imposing the sentence. The Court found that the considerations of double jeopardy and parity required the imposition of a lesser sentence.

The Court granted the applicant leave to appeal against the sentence and remitted the matter to the trial judge for re-sentencing. The Court noted that the trial judge should have adequately considered the principle of parity when imposing the sentence, and that the sentence should be within the range open to the trial judge. The Court affirmed the decision of the trial judge to grant the applicant leave to appeal against the sentence.

The Court's final orders were that the applicant be granted leave to appeal against the sentence, that the matter be remitted to the trial judge for re-sentencing, and that the trial judge adequately consider the principle of parity when imposing the sentence. The Court noted that the sentence should be within the range open to the trial judge.

Orders