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Wyka v The Queen

Wyka v The Queen

Case [2020] VSCA 104 1 May 2020

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0062

LISA WYKA	Applicant
v
THE QUEEN	Respondent

S APCR 2019 0121

DEAN GARDINER	Applicant
v
THE QUEEN	Respondent

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JUDGES:	NIALL JA and CROUCHER AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 March 2020
DATE OF JUDGMENT:	1 May 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 104
JUDGMENT APPEALED FROM:	[2019] VCC 222 (Judge Lawson)

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CRIMINAL LAW — Applications for leave to appeal against sentence — Pleas of guilty to home invasion, reckless conduct endangering life and lesser offences — Applicants entered through doorway to alcove of home of another with intent to assault and carrying loaded shotguns — Applicants fired total of seven shots (two from one gun, five from the other) into second door, endangering others — Total effective sentence of seven years’ imprisonment with non-parole period of five years imposed on each applicant — Whether judge sentenced on basis that each applicant fired seven shots instead of seven shots between them — Whether sentences manifestly excessive — Whether sentences manifestly disparate — Whether evidence of increased hardship of imprisonment resulting from COVID-19 pandemic founds independent ground of appeal — Both applications refused.

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Appearances:	Counsel	Solicitors
For the Applicant (Ms Wyka)	Mr P J Smallwood	Galbally Rolfe
For the Applicant (Mr Gardiner)	Mr C K Wareham	Valos Black & Associates
For the Respondent	Mr J C J McWilliams	Ms A Hogan, Solicitor for Public Prosecutions

NIALL JA:

I have had the advantage of reading, in draft, the reasons for judgment of Croucher AJA. I agree, generally for the reasons given by his Honour, that each application for leave to appeal against sentence must be refused.

I wish only to add the following. The evidence demonstrated that XY was violent, manipulative and erratic towards Lisa Wyka over an extended period of time and that he continued to try and torment her from his prison cell. No doubt that lamentable history clouded her judgment and represented a significant aspect of her thinking. However, her reliance on those facts as reducing her culpability in the offending, although not entirely misplaced, was substantially outweighed by a number of factors.

First, the law cannot condone revenge, particularly at the barrel of a gun.

Secondly, the law does not recognise a victim getting his just deserts.

Thirdly, although XY was the target of the conduct, the extreme violence involved in discharging seven rounds from two shotguns also endangered two other persons — one who was entitled to the protection of his home and the other was going about his work as a delivery driver. They were each confronted by disguised offenders armed with shotguns who discharged seven rounds.

Fourthly, Wyka was by the time of the offending in another relationship with Gardiner and had been able to move away from XY. No doubt XY was a continuing malign influence but her ability to avoid him and protect herself, including by involving the authorities, was greater given that separation. The offending could not…

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 Wyka v The Queen

Details

AGLC: Wyka v The Queen [2020] VSCA 104
Case: [2020] VSCA 104
Decision Date: 1 May 2020

CaseChat Overview and Summary

The applicants, Wyka and another, sought leave to appeal against their sentences imposed following pleas of guilty to home invasion, reckless conduct endangering life, and other related offences. They entered the home of another with intent to assault and carrying loaded shotguns, firing a total of seven shots into the second door of the home, endangering the lives of others inside. The applicants were each sentenced to a total effective term of seven years' imprisonment, with a non-parole period of five years for each. The primary legal issues before the court were whether the sentencing judge had based the sentence on the incorrect premise that each applicant fired seven shots, whether the sentences were manifestly excessive, whether the sentences were manifestly disparate, and whether the evidence of increased hardship of imprisonment due to the COVID-19 pandemic provided an independent ground for appeal.

The court considered the nature of the offences and the circumstances in which they were committed. The applicants had entered the home with intent to assault and carried loaded shotguns, firing multiple shots into the home. The court found that the sentencing judge had not erred in the way the sentences were calculated. The court also considered the totality of the offending, the seriousness of the offences, and the need for general deterrence. The court held that the sentences were not manifestly excessive and were not manifestly disparate. The court further found that the evidence of increased hardship of imprisonment due to the COVID-19 pandemic did not provide an independent ground for appeal.

The applications for leave to appeal against the sentences were refused. The court found that the sentences imposed were appropriate in all the circumstances and did not amount to a manifest excess or disparity. The court did not find that the evidence of increased hardship of imprisonment due to the COVID-19 pandemic provided an independent ground for appeal. The applicants' sentences of seven years’ imprisonment with a non-parole period of five years each were upheld.

Orders