R v Arthars & Anor (Unreported, County Court of Victoria, Judge Gaynor, 20 June 2012)
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CRIMINAL LAW – Intentionally causing serious injury – Sentencing – Whether need for explicit reference to principle of totality – Verdins limb 1 – Need for real connection between mental impairment and offending for reduction of moral culpability – Reliance on Verdins limb 5 – Sentencing judge not obliged to consider other limbs of Verdins – Romero v R (2011) 32 VR 486 applied.
Delay – Plea of guilty immediately before trial after very long delay – Meaning of ‘delay however caused’ in R v Merrett (2007) 14 VR 392 considered – Whether delay productive of unfairness and mitigatory.
Manifest excess – Worst category case – Victim attacked by group of armed men – Catastrophic injuries – Premeditation – Absence of provocation – Head sentences of 10 years imposed.
VICTIM IMPACT STATEMENTS – Whether content inadmissible – Section 8L Sentencing Act 1991 – Acquiescence as to content – Use of content by judge – Procedural fairness – R v Swift (2007) 15 VR 497 applied.
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Appearances:
Counsel
Solicitors
For the Applicant Arthars
Ms C A Boston
Mike Wardell Barrister & Solicitor
For the Applicant Plater
Mr J Williams
Victoria Legal Aid
For the Crown
Mr B Kissane
Mr C Hyland, Solicitor for Public Prosecutions
REDLICH JA
COGHLAN JA T FORREST AJA:
The applicants, Arthars and Plater, each pleaded guilty in the County Court on 16 May 2012 to one charge of intentionally causing serious injury.[1] Arthars also pleaded guilty to one charge of trafficking in a drug of dependence (cannibis)[2] and Plater to one charge of possession of a drug of dependence (cannibis).[3] Arthars was sentenced to nine years and six months’ imprisonment on the charge of intentionally causing serious injury and to six months’ imprisonment for the trafficking offence with the sentences to be served consecutively, making a total effective sentence of 10 years’ imprisonment. A non-parole period of seven years was fixed. Plater was sentenced to 10 years’ imprisonment for the intentionally causing serious injury offence and was fined $100 for possession of cannabis. The non-parole period fixed for Plater was also seven years.
Arthars seeks leave to appeal against each sentence. Plater seeks leave to appeal against the sentence of 10 years’ imprisonment.
Factual background
The circumstances of the offending were as follows. On 5 October 2008, at around 12.30am…
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
AGLC
Arthars v The Queen [2004] VSCA 222
Case
[2013] VSCA 258
Decision Date
CaseChat Overview and Summary
In the case of Arthars v The Queen, the defendant faced charges related to intentionally causing serious injury. The dispute came before the court, where the primary issues revolved around sentencing principles and the impact of procedural delays on the fairness of the proceedings. The appeal raised questions about the necessity for explicit reference to the principle of totality in sentencing, the relevance of mental impairment in reducing moral culpability, and the admissibility of victim impact statements under the Sentencing Act 1991.
The court had to determine whether the sentencing judge was required to make explicit reference to the principle of totality and whether there was a real connection between the defendant’s mental impairment and the offending to warrant a reduction in moral culpability. Additionally, the court examined the implications of a plea of guilty entered immediately before trial following an extended delay and assessed whether such delay was productive of unfairness, thus warranting mitigation. The court also evaluated the admissibility of victim impact statements, considering the parties' acquiescence and the judge’s use of such content.
The court held that the sentencing judge was not obliged to explicitly reference the principle of totality, and that there was a real connection between the defendant's mental impairment and the offending, justifying a reduction in moral culpability under Verdins limb 5. It was determined that the plea of guilty entered before the trial, despite the delay, did not produce unfairness warranting mitigation. Finally, the court ruled that the victim impact statements were admissible, as the parties had acquiesced to their content, and the judge’s use of these statements did not breach procedural fairness. The appeal was dismissed.
The court made no further orders beyond dismissing the appeal.