Ashworth v The Queen - [2011] VSCA 326

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0429

MALCOLM ASHWORTH	Appellant
	v
THE QUEEN	Respondent

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JUDGES	NEAVE and HANSEN JJA, BEACH AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	21 October 2011
DATE OF JUDGMENT	28 October 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 326
JUDGMENT APPEALED FROM	DPP v Ashworth (Unreported, County Court of Victoria, Judge Hampel, 18 November 2010)

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CRIMINAL LAW – Sentence – Intentionally cause serious injury – Sentenced to 9 years’ imprisonment, with non-parole period of 6 years – Verdins (principle 5) – Appeal allowed – Appellant resentenced to 6 years’ imprisonment, with non-parole period of 4 years – No point of principle.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr LC Carter	Robert Stary Lawyers
For the Crown	Mr BF Kissane	Mr C Hyland, Solicitor for Public Prosecutions

NEAVE JA:
HANSEN JA:
BEACH AJA:

Introduction

On 4 August 2010, the appellant pleaded guilty to two charges: one of intentionally causing serious injury and one of criminal damage. A plea was heard on 16 November 2010. On 18 November 2010, her Honour Judge Hampel sentenced the appellant to nine years’ imprisonment on the charge of intentionally causing serious injury and two years’ imprisonment on the charge of criminal damage. Her Honour ordered the sentences to be served concurrently, making a total effective sentence of nine years, and directed that the appellant serve a non-parole period of six years.

The appellant appeals[1] against the sentence he received. The grounds on which he was granted leave to appeal were:

(1)The learned judge erred in failing to treat evidence that prison would weigh more heavily on the appellant than a person of normal health as a matter in mitigation.
(2)The individual sentences, the total effective sentence and the non‑parole period are manifestly excessive.
[1]Pursuant to leave granted on 15 June 2011.

Circumstances of the offending

On 13 September 2009 the appellant had been separated from his partner of 14 years for some two weeks. The appellant’s partner remained in the family home together with their four children. On 31 August 2009, a Family Violence Safety Notice was issued by police to the appellant and as a result he left the family home and took up residence with a friend.

The appellant’s partner was granted a full and final intervention order against him on 2 September 2009, and between the end of August 2009 and 13 September 2009 informed the appellant that she was permanently ending their relationship.

On 12 September 2009 the appellant collected the children pursuant to a prior arrangement. He returned the children later that evening, with the exception of their eight year old son, who was to stay the night with the appellant.

At about 10.00am on 13 September 2009, the appellant asked his son to ring his mother. He did and spoke briefly to her before the appellant took the phone. The appellant asked if he could return to live in the family home. He was told again that the relationship had…

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 Ashworth v The Queen

Details

AGLC: Ashworth v The Queen [2011] VSCA 326
Case: [2011] VSCA 326
Decision Date: 28 October 2011

CaseChat Overview and Summary

The matter in question involved an appeal by the appellant, Ashworth, against the sentence imposed on him by the Supreme Court of Victoria. The appellant had been found guilty of intentionally causing serious injury to another individual, and he was sentenced to nine years in prison with a non-parole period of six years. The appellant argued that the sentence was excessive and that the court had failed to consider the appropriate principles and factors in determining the sentence. The appeal was heard by the Court of Appeal of the Supreme Court of Victoria.
The central legal issue before the court was whether the sentence imposed on the appellant was manifestly inadequate or excessive. The court considered the principles set out in Verdins and the relevant factors to be taken into account in determining the appropriate sentence. The court also considered the nature and circumstances of the offence, the appellant's culpability, and the need for deterrence and rehabilitation. The court found that the sentence imposed on the appellant was excessive and that the court had failed to properly consider the appropriate principles and factors in determining the sentence.
The court found that the sentence imposed on the appellant was manifestly excessive and that the court had failed to properly consider the appropriate principles and factors in determining the sentence. The court considered the principles set out in Verdins and found that the sentence imposed on the appellant did not reflect the principles of proportionality and parity. The court also found that the sentence did not adequately reflect the need for deterrence and rehabilitation. The court considered the nature and circumstances of the offence, the appellant's culpability, and the need for deterrence and rehabilitation, and concluded that a sentence of six years' imprisonment with a non-parole period of four years was appropriate. The court did not find that there was a point of principle involved in this case.
The appeal was allowed, and the appellant was resentenced to six years' imprisonment, with a non-parole period of four years. The court did not find that there was a point of principle involved in this case.

Orders

Orders of the court

Appeal allowed and appellant resentenced

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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