Balcke v The Queen - [2013] VSCA 198

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0073
ROBERT JAMES BALCKE	Applicant
v
THE QUEEN	Respondent

---

JUDGES	NETTLE and COGHLAN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	30 July 2013
DATE OF JUDGMENT	30 July 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 198
JUDGMENT APPEALED FROM	DPP v Balcke (Unreported, County Court of Victoria, Judge Leckie, 12 December 2012)

---

CRIMINAL LAW – Sentencing – Armed robbery – Fresh evidence – Post-sentence medical report of applicant’s mental condition extant but not known at time of sentencing – Whether mental condition engages first principle of Verdins – Whether reduced moral culpability deserving of reduction in total effective sentence – Appeal allowed – Non-parole period reduced – R v Imadonmwonyi [2008] VSCA 135, Verdins v R (2007) 16 VR 269, R v Nguyen [2006] VSCA 184, Veen v The Queen (No 2) (1988) 164 CLR 465 referred to.

---

Appearances:	Counsel	Solicitors
For the Applicant	Mr J E McLoughlin	Victoria Legal Aid
For the Crown	Mr P Kidd SC	Mr C Hyland, Solicitor for Public Prosecutions

NETTLE JA:

This is an application for leave to appeal against a sentence of four years’ imprisonment with a non-parole period of two years and eight months imposed on the applicant on pleading guilty to one charge of armed robbery. The sole proposed ground of appeal is that there is fresh evidence that the applicant had and has a full scale intelligence quota of only 62 (which is at the extremely low end of the range and indicative of mild intellectual disability; a consequent significantly impaired capacity to process abstract material; and a moderate level of executive dysfunction marked by rigid problem solving and compromised behavioural regulation marked by violent behaviour). It is contended that the applicant’s depleted intellectual condition engages the first of the six principles considered in Verdins v R[1] and thus necessitates a reduction in the sentence.
[1](2007) 16 VR 269, 276 [32].

The Crown concedes that the evidence is admissible as fresh evidence in accordance with the principles essayed in R v Nguyen,[2] and that it establishes that the applicant suffered and continues to suffer from a cognitive deficiency within the Verdins conception of mental impairment. The Crown contends, however, that it ought not result in a particularly substantial, if any, reduction in sentence because it does not provide clear and cogent evidence of how and if the applicant’s mental condition relevantly compromised his mental functioning at the time of the offending.[3]
[2][2006] VSCA 184, [36].
[3]Romero v R (2011) 32 VR 486, 490 [13] and 491 [18].

The facts of the offending

The facts of the offending are not in dispute. As found by the sentencing judge, they were that:

1) At about 1.45 pm on 31 January 2012 the applicant rode his motorbike to a pizza shop in Percy Street, Portland. It had no rear tyre and the rim of the wheel was bare. The applicant…

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 Balcke v The Queen

Details

AGLC: Balcke v The Queen [2013] VSCA 198
Case: [2013] VSCA 198
Decision Date: 30 July 2013

CaseChat Overview and Summary

Balcke brought an appeal against his sentence following a conviction for armed robbery. The crux of the appeal was the availability of a post-sentence medical report concerning the appellant's mental health, which was not available at the time of sentencing. The report indicated that Balcke suffered from a mental condition which the appellant contended should result in a reduction of his sentence on the basis of reduced moral culpability. The Court of Appeal was required to determine whether the first principle of Verdins applied to the situation, and if so, whether the appellant's diminished moral culpability warranted a reduction in the total effective sentence.

The court considered the principle of Verdins, which states that a sentence should be proportionate to the offender’s moral culpability and should not exceed what is necessary to achieve the relevant sentencing objectives. The court noted that the appellant’s mental condition was not known at the time of sentencing and that it had a significant impact on his culpability. The court found that the mental condition did engage the first principle of Verdins, as the appellant’s moral culpability was diminished due to his mental health issues. Given the fresh evidence, the court concluded that a reduced sentence was warranted to reflect the appellant's diminished culpability.

Consequently, the Court of Appeal allowed the appeal and reduced Balcke's non-parole period. The decision underscores the importance of considering an offender's mental health at the time of sentencing and the potential for a sentence to be reviewed in light of new evidence that impacts moral culpability. The court's ruling aligns with precedents such as R v Imadonmwonyi, Verdins v R, R v Nguyen, and Veen v The Queen (No 2), which emphasize the need for proportionality and consideration of individual circumstances in sentencing.

Orders