R v Shannon Ashe (Unreported, County Court of Victoria, Judge Kelly, 15 October 2007)
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CRIMINAL LAW – Sentencing – Recklessly causing serious injury – Sentence of 10 years’ imprisonment with non-parole period of eight years – Catastrophic injuries suffered by victim – Foresight that maximum harm would be caused – Worst category of offending –DPP v Terrick [2009] VSCA 220 applied – Whether evidence of offender’s intellectual disability enlivened principles in R v Verdins (2007) 16 VR 269 – Total effective sentence not manifestly excessive – Absence of reasons for longer than usual non-parole period – Re-sentenced to new non-parole period of seven years.
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APPEARANCES:
Counsel
Solicitors
For the Applicant
Mr M J Croucher
Galbally & O’Bryan
For the Crown
Mr B L Sonnet
Mr C Hyland, Solicitor for Public Prosecutions
NEAVE JA:
REDLICH JA: COGHLAN AJA: (The judgment of the Court was delivered by Redlich JA)
In October 2007 the applicant pleaded guilty in the County Court at Melbourne to one count of causing serious injury recklessly. The applicant had confronted the victim on a suburban street, punched him to the ground and then continued to assault him. As a result the victim suffered permanent and near total incapacity. The applicant was sentenced to a term of ten years’ imprisonment with a non-parole period of eight years.
The applicant sought leave to appeal against this sentence pursuant to s 582 of the Crimes Act 1958 (Vic). Leave was refused, on the basis that none of the proposed grounds of appeal were ‘reasonably arguable’. The Applicant has appealed against that refusal and if successful, seeks to have the appeal heard instanter.
The details of the offending conduct were agreed between the parties on the plea and are as set out in the reasons of the learned sentencing judge:
On 14 May 2006 both the prisoner and Frendo went to Leggies Hotel in Moe. They met each other on the road outside the hotel and the prisoner punched Frendo’s head, causing him to fall backwards, striking his head on the road. The prisoner then punched Frendo’s face three times. When told that he should not leave him on the road to be run over, the prisoner dragged Frendo to the site of the road and threw him down, causing his head to hit the road again. The prisoner walked into the hotel saying, ‘You’d better ring an ambulance for that cunt I think I just killed’.
While a man named Mark De Mario was attempting to give succour to the unconscious Frendo, whose face was covered in blood and who had suffered a fit, the prisoner emerged…
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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AGLC
Ashe v The Queen [2010] VSCA 119
Case
[2010] VSCA 119
Decision Date
CaseChat Overview and Summary
The appellant was convicted of recklessly causing serious injury to a pedestrian while driving. The case reached the court of appeal following the appellant’s conviction in the lower court and subsequent sentencing. The central issue for the court was whether the sentence imposed was manifestly excessive given the evidence of the appellant's intellectual disability, and whether the non-parole period was justified. The court also considered whether the evidence of the appellant's disability should have invoked principles that might reduce the severity of the sentence.
The court examined the principles in DPP v Terrick, which outline the factors to be considered in sentencing for recklessly causing serious injury. It noted the appellant's foresight that maximum harm would result from his actions and categorised his offending as the worst kind. The court then considered the impact of the appellant's intellectual disability, referencing R v Verdins, but concluded that it did not warrant a significant reduction in sentence. The court held that the total effective sentence was not manifestly excessive, but the absence of reasons for the longer than usual non-parole period necessitated reconsideration. As a result, the sentence was re-assessed, and the non-parole period was reduced to seven years.
In conclusion, the appeal was partially allowed. The sentence of 10 years' imprisonment was affirmed, but the non-parole period was adjusted to seven years, aligning with the court's reassessment of the appropriate custodial term. The court's decision underscores the importance of thoroughly considering both the nature of the offending and the individual circumstances of the offender, including intellectual disability, in sentencing.