Ashton v The Queen - [2010] VSCA 329

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0782
CAMPBELL PHILLIP ASHTON	Appellant
v
THE QUEEN	Respondent

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JUDGES:	REDLICH and HANSEN JJA and VICKERY AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 November 2010
DATE OF JUDGMENT:	7 December 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 329
JUDGMENT APPEALED FROM:	R v Ashton (Unreported, County Court of Victoria, Judge Campbell, 21 August 2009)

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CRIMINAL LAW – Sentence – Armed robbery – Two counts of attempted armed robbery – Recklessly causing serious injury – Intentionally destroying property – Guilty plea - Young offender – Paranoid schizophrenia – Sentenced to four years and six months’ imprisonment with non-parole period of three years – Judge erred in sentencing on basis of disputed fact adverse to appellant without requiring Crown to call victims to substantiate facts and be cross-examined by appellant’s counsel – Judge erred by giving inadequate weight to appellant’s youth and reduced moral culpability by reason of serious psychiatric abnormality – Errors led to excessive sentences – Appeal allowed – Appellant re-sentenced to four years’ imprisonment with non-parole period of two years and two months.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms D I Piekusis	Mr C Hyland, Solicitor for Public Prosecutions
For the Appellant	Mr T Kassimatis	Victoria Legal Aid

REDLICH JA:

For the reasons given by Hansen JA I agree that the appeal should be allowed and the appellant re-sentenced in the manner proposed by his Honour.

HANSEN JA:

Campbell Phillip Ashton (‘the appellant’) pleaded guilty in the County Court to one count of armed robbery (count 1), two counts of attempted armed robbery (counts 2 and 3), one count of recklessly causing serious injury (count 4), and one count of intentionally destroying property (count 5). The maximum penalties for these offences were 25, 20, 15 and 10 years’ imprisonment respectively.

The appellant was aged 18 at the time of the offending and 19 at the time of sentence. The presentment alleged, and the appellant admitted, one prior appearance at the Children’s Court resulting in a good behaviour bond, following findings of guilt (without conviction) for damaging property, burglary and theft. Counsel on the plea also stated that the appellant had committed further offences dealt with in the Children’s Court, including driving offences, theft of a motor vehicle, being unlawfully on premises and recklessly causing injury. As to these latter offences, the judge noted that ‘there are more offences about which I know little. It probably does not matter at this point’. In any event, no complaint is made about the judge’s treatment of the appellant’s criminal history.

Following a plea in mitigation, on 21 August 2009 the judge sentenced the appellant as follows:

Count 1:        12 months’ imprisonment
Count 2:        24 months’ imprisonment
Count 3:        24 months’ imprisonment
Count 4:        36 months’ imprisonment
Count 5:        three months’ imprisonment

The judge stated that even though the offence the subject of count 4 carried a lesser

maximum penalty than counts 1, 2 and 3, he took the…

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.

Continue reading Ashton v The Queen

Details

AGLC: Ashton v The Queen [2010] VSCA 329
Case: [2010] VSCA 329
Decision Date: 7 December 2010

CaseChat Overview and Summary

In Ashton v The Queen, the appellant, who had pleaded guilty to two counts of attempted armed robbery, recklessly causing serious injury and intentionally destroying property, appealed against the sentence imposed by the trial judge. The appellant, a young offender suffering from paranoid schizophrenia, was sentenced to four years and six months’ imprisonment with a non-parole period of three years. The central issue before the court was whether the trial judge erred in sentencing by relying on a disputed fact adverse to the appellant, without requiring the Crown to call the victims to substantiate the facts and be cross-examined by the appellant's counsel. Additionally, the court had to determine whether the judge gave inadequate weight to the appellant's youth and reduced moral culpability due to his serious psychiatric condition.

The court found that the trial judge erred in basing the sentence on a disputed fact without requiring the Crown to substantiate it. The judge did not call the victims to testify and allow for cross-examination by the appellant's counsel. This error was compounded by the judge giving inadequate weight to the appellant's youth and the impact of his serious psychiatric condition on his moral culpability. These errors led to excessive sentences. Consequently, the appeal was allowed, and the appellant was re-sentenced to four years’ imprisonment with a non-parole period of two years and two months.

In light of the errors identified, the court re-evaluated the appropriate sentence for the appellant, taking into account his age, psychiatric condition, and the nature of the offences. The court recognised the need to balance the seriousness of the crimes with the appellant's diminished capacity and youth. The final orders of the court reflect a re-sentence that appropriately considers these factors, resulting in a more lenient penalty than the original sentence imposed by the trial judge.

Orders