1. Forfeiture and destruction of items in Schedule.

1. The applicant now seeks leave to appeal her conviction on charge 8 (common assault) on a single proposed ground of appeal. She requires an extension of time to do so, her application having been filed almost 4 months out of time.
2. The proposed ground of appeal is as follows:

The learned sentencing judge erred by convicting the applicant of the charge of common law assault (victim: Anthony Prieto) and by doing so subjected the applicant to double punishment.

1. The essence of the applicant's submissions in support of the proposed ground of appeal is that the factual basis for the convictions on charge 6 (threat to inflict serious injury to Mr Prieto) and charge 8 (common assault against Mr Prieto) was identical. Both charges were said to have arisen from the applicant's statement to Mr Ashweirth, in relation to Mr Prieto, 'Give me the knife I'll stab him'. The applicant submitted that, although the elements of the two offences were not identical, she had been doubly punished because the conduct to which each charge was directed was entirely the same. Neither the summary of prosecution opening nor the sentencing remarks had identified the specific criminal conduct that gave rise to each charge. However, the outline of submissions filed by the defence on the plea clearly indicated that defence counsel had proceeded on the basis that the conduct was the same and the plea in mitigation had been conducted accordingly.
2. In written submissions, the respondent accepted that there was 'perhaps some collective imprecision in the attribution of conduct referable to each charge'. However, the respondent contended that on a proper analysis of all the plea materials, it could be concluded that the conduct that was the subject of charges 6 and 8 was different. The applicant's statement to Mr Ashweirth, 'Give me the knife I'll stab him', was the subject of charge 6 (threat to inflict serious injury to Mr Prieto). However, the conduct comprising the common assault on Mr Prieto (charge 8) was the applicant's complicity in Mr Ashweirth's punches to Mr Prieto. This conclusion was said to flow from the totality of the plea materials, including the fact that the applicant and Mr Ashweirth were charged jointly, and that charge 8 was the only assault charge to which Mr Ashweirth pleaded guilty that related to him punching Mr Prieto. The respondent accepted, however, that the applicant's written outline of submissions on the plea, which referred to the common assault as involving the making of a threat while holding a weapon, appeared to indicate a contrary understanding.
3. Immediately prior to the hearing in this Court, the applicant provided the Court with a copy of email correspondence exchanged between the solicitor for the respondent and her counsel in the lead up to the plea hearing. In these emails, the applicant's counsel sought clarification of whether the prosecution position was that the applicant was guilty on the jointly charged matters on a complicity basis, or whether it was alleged that she was a principal. The solicitor for the respondent indicated in response that '[w]e submit that Ms Griffiths should be sentenced as a Principal offender'.
4. At the hearing in this Court, the respondent initially maintained the submission that the judge had sentenced the applicant on charge 8 on a complicity basis, so that the conduct that was the subject of charges 6 and 8 was different. However, counsel for the respondent ultimately accepted that the basis on which the judge had sentenced the applicant on charges 6 and 8 was unclear. Further, the basis on which the Crown had asked the judge to sentence the applicant on those charges was unclear. The respondent accepted that it would not have been appropriate for the applicant to have been charged, and sentenced, for two separate offences constituted by the same conduct.
5. In circumstances where it was unclear whether this has occurred, the respondent conceded that the application for an extension of time should be granted, the application for leave to appeal against conviction should be granted and the appeal against conviction should be allowed. In the unusual circumstances of this case, we consider those concessions were appropriately made. In light of those concessions, we consider that there has been a substantial miscarriage of justice in relation to charge 8 and that the conviction on that charge should be quashed and a verdict of acquittal entered, despite the applicant's plea of guilty to that charge.[8]
6. Although the applicant had also filed an application for an extension of time within which to seek leave to appeal her sentence, as well as a proposed application for leave to appeal her sentence, the applicant abandoned this application at the hearing.
7. The respondent accepted that if the applicant's conviction, and therefore the sentence, on charge 8 is set aside, the non-parole period would also require reconsideration.
8. We will grant the applicant an extension of time within which to appeal the conviction on charge 8, grant leave to appeal the conviction on that charge and allow the appeal against conviction on that charge. We will quash the appellant's conviction on charge 8 and enter an acquittal on that charge. The total effective sentence will therefore be 2 years and 1 month imprisonment. We will fix a new non-parole period of 1 year and 2 months.

[1] Contrary to s 77 of the Crimes Act 1958.

[2] Contrary to s 21 of the Crimes Act 1958.

[4] Contrary to s 88 of the Crimes Act 1958.

[5] Contrary to s 73 of the Drugs, Poisons and Controlled Substances Act 1981.

[6] Contrary to s 30B of the Bail Act 1977. The applicant was sentenced to 7 days' imprisonment for this offence, with no cumulation ordered.

[7] Contrary to s 8 of the Firearms Act 1996. The applicant was fined $400 for this offence.

[8] Mongan v The King [2024] VSCA 126, [35] (Beach, Kennedy and Taylor JJA).