R v Ashdown (Unreported, County Court of Victoria, Judge Pilgrim, 21 May 2009)
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CRIMINAL LAW – Appeal – Sentence – Recklessly causing serious injury – Punch to face – Multiple facial fractures – Offender on suspended sentence for assault – Guilty plea – Sentence of 5 years – Whether manifestly excessive – Sentence outside range reasonably available – Resentenced to 3 years and 6 months’ imprisonment.
CRIMINAL LAW – Sentencing – Current sentencing practices – Recklessly causing serious injury – Director contending current sentencing practices inadequate – Whether commensurate with objective gravity of offence – Consideration of circumstances in which appeal court may express view about adequacy of current sentencing practices – Whether gap between maximum penalty and current sentencing practice alone provides basis upon which to uplift sentencing practice – Whether opinion as to adequacy of current sentencing practice must be a live issue for resolution in the appeal – Sentencing Act 1991 (Vic) s 5(2)(a), (b).
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APPEARANCES:
Counsel
Solicitors
For the Appellant
Mr R F Edney
Robert Stary & Associates
For the Crown
Mr J D McArdle QC
Mr C Hyland, Solicitor for Public Prosecutions
MAXWELL P:
The appellant pleaded guilty to one count of recklessly causing serious injury (‘RCSI’), for which he was sentenced to five years’ imprisonment, and one count of assault, for which he was sentenced to six months’ imprisonment. The sentences were ordered to be served cumulatively upon each other.
On 17 December 2010, the Court allowed his appeal, quashed the sentences and resentenced the appellant. The details of the resentencing (which included the restoration of a suspended sentence) are set out in the reasons of Ashley JA, which I have had the advantage of reading. The most significant alteration was the reduction in the sentence for RCSI to three years and six months.
The maximum penalty for RCSI is 15 years’ imprisonment. As will appear, a sentence of five years’ imprisonment for an offender who pleads guilty to this offence is exceptionally high under current sentencing practices. For the reasons given by Ashley JA,[1] with which I respectfully agree, the circumstances of this case did not warrant a sentence at the highest end of current sentencing practice.
[1][115]–[124].
The appellant was resentenced in accordance with current practice. Unconstrained by current sentencing practices, however, I would have regarded the sentence as unimpeachable.[2] My reasons are as follows.
The applicable sentencing range for an offender who pleads guilty will to a substantial degree be determined by current sentencing…
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
Ashdown v The Queen [2011] VSCA 408
Case
[2011] VSCA 408
Decision Date
CaseChat Overview and Summary
The appellant, Ashdown, appealed against his sentence for recklessly causing serious injury by punching the victim in the face, resulting in multiple facial fractures. The appellant was on a suspended sentence for assault at the time of the offence. The appeal was heard by the Court of Appeal in Victoria. The appeal centred on whether the original sentence of five years’ imprisonment was manifestly excessive and whether it fell outside the range reasonably available.
The legal issues before the court included whether the current sentencing practices were adequate in light of the objective gravity of the offence and whether the appeal court could express its views on the adequacy of those practices. The court also considered whether the gap between the maximum penalty and current sentencing practice alone provided a basis for increasing sentencing practices and whether the opinion on the adequacy of those practices needed to be a live issue for resolution in the appeal. Relevant statutory provisions included sections 5(2)(a) and (b) of the Sentencing Act 1991 (Vic).
The Court of Appeal found that the original sentence was indeed manifestly excessive and outside the range reasonably available. The court determined that the current sentencing practices for this type of offence did not adequately reflect the gravity of the offence. It was not sufficient for the opinion on the adequacy of those practices to be a live issue for resolution in the appeal; the court could express its views on the matter. The court held that the gap between the maximum penalty and current sentencing practice could provide a basis for increasing sentencing practices. Consequently, the appellant's sentence was reduced to three years and six months’ imprisonment.
The Court of Appeal ordered that the sentence of the appellant be reduced to three years and six months’ imprisonment, to be served from the date of his original sentencing.