and Travis Raymond Bowling v The Queen - [2013] VSCA 248

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0276
TRAVIS RAYMOND BOWLING	Appellant
v
THE QUEEN	Respondent

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JUDGE	REDLICH and COGHLAN JJA and DIXON AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	15 August 2013
DATE OF JUDGMENT	12 September 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 248
JUDGMENT APPEALED FROM	Director of Public Prosecutions v Bowling (Unreported, County Court of Victoria, Judge Hogan, 16 December 2011)

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CRIMINAL LAW – Intentionally cause serious injury – Judge impermissibly enlarging Crown case as to the nature of the serious injuries – Evidence insufficient to establish ‘serious’ injury – Conviction quashed – Conviction for lesser offence of intentionally causing injury entered – Section 277 of the Criminal Procedure Act 2009.

CRIMINAL LAW – Sentence for intentionally causing injury – Victim who came to aid of another kicked to the head whilst on the ground – Sentence of 18 months’ imprisonment – Total effective sentence of four years and four months – Non-parole period of two years and three months.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr D A Dann	Victoria Legal Aid
For the Respondent	Ms F L Dalziel	Mr C Hyland, Solicitor for Public Prosecutions

REDLICH JA:

Following a trial the appellant was convicted on 29 November 2011 on two charges of intentionally causing serious injury. On each charge he was sentenced to three years and six months’ imprisonment, an order for cumulation of two years and six months being made on the second charge. The appellant was therefore required to serve a total effective sentence of six years’ imprisonment. A non‑parole period of four years’ imprisonment was ordered.[1]
[1]DPP v Bowling (Unreported, County Court of Victoria, Judge Hogan, 16 December 2011).

On 19 March 2013 I granted the appellant an extension of time within which to file notices of appeal against his conviction and sentence on the second charge. I granted leave to appeal against his conviction on the following ground:

The learned trial judge erred in directing the jury that they could take into account Ron Barassi's problems with memory when considering whether he had suffered a ‘serious injury’.

I also granted the appellant leave to appeal against his sentence on two grounds:

(1)The learned sentencing judge erred in the application of the totality principle.

(2) The sentence imposed was manifestly excessive.

I refused the appellant leave to appeal against his conviction on the following further ground:

The guilty verdict of the jury on charge 3[2] is unsafe and unsatisfactory in that a jury acting reasonably could not exclude the possibility that persons other than the appellant were responsible for some or all of the injuries that were said in combination to amount to it a 'serious injury'.

[2]Charge 3 is for present purposes the second charge. The jury were not required to return verdicts on charges 2 and 4.

The appellant filed a Notice of Election in relation to this ground but at the commencement of the appeal, abandoned that application.

On the day…

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.

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Details

Case: [2013] VSCA 248
Decision Date: 12 September 2013

CaseChat Overview and Summary

In the case of Travis Raymond Bowling against The Queen, the High Court of Australia addressed the conviction of the appellant for intentionally causing serious injury and the subsequent sentence imposed. The case arose from an incident where the appellant, after being involved in a physical altercation, kicked a person who was on the ground and attempting to aid another. The primary legal issue before the court was whether the judge had improperly expanded the scope of the Crown's case concerning the nature of the serious injury sustained by the victim. The court further considered the appropriateness of the sentence imposed on the appellant.

The court found that the trial judge had indeed broadened the Crown's case by incorporating a more extensive interpretation of the term 'serious injury' than was warranted by the evidence. The court determined that the evidence did not sufficiently establish that the injury was 'serious' as defined by the statute. Consequently, the appellant's conviction for the offence of intentionally causing serious injury was quashed. The court proceeded to enter a conviction for the lesser offence of intentionally causing injury. In making this determination, the court relied on section 277 of the Criminal Procedure Act 2009, which allows the court to substitute a conviction for a lesser included offence when the evidence does not support the original conviction.

Following the conviction for the lesser offence, the court considered the appropriate sentence for the appellant. The appellant was sentenced to 18 months' imprisonment for the offence of intentionally causing injury. The court calculated the total effective sentence, including the sentence for the original offence of affray, to be four years and four months, with a non-parole period of two years and three months. The court concluded that the sentence was commensurate with the appellant's culpability and the circumstances of the case.

Orders