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…
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- AGLC
- Wyka v The Queen [2020] VSCA 104
- Case
- [2020] VSCA 104
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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