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…
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- AGLC
- Ashton v The Queen [2010] VSCA 329
- Case
- [2010] VSCA 329
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
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Decision
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Ratio Decidendi
Legal Principle Established
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