Baldwin v The Queen - [2015] VSCA 299

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0119

ADAM BALDWIN

THE QUEEN

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JUDGES:	WHELAN and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 November 2015
DATE OF JUDGMENT:	18 November 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 299
JUDGMENT APPEALED FROM:	DPP v Baldwin [2015] VCC 688

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CRIMINAL LAW – Sentence – Combined term of 2 years’ imprisonment and community correction order – No non-parole period set – Circumstances referred to in s 11(1)(b) Sentencing Act 1991 not considered – Specific error – Appeal allowed – Appellant re-sentenced.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms B F Franjic with Mr S J Tovey	Matthew White & Associates
For the Respondent	Ms D Piekusis	Ms V Anscombe, Acting Solicitor for Public Prosecutions

WHELAN JA:

On 14 May 2015 the appellant pleaded guilty to one charge of recklessly causing serious injury. The offence had been committed on 22 October 2014. A plea hearing was conducted on 14 May 2015 and on 22 May 2015 the appellant was sentenced to a term of imprisonment of two years and a community correction order (CCO) of two years’ duration commencing upon the expiration of the imprisonment. No non-parole period was fixed. No reasons were given at that time for not fixing a non-parole period.

The matter was brought back before the sentencing judge on 28 May 2015. The sentencing judge was referred to s 11(1) of the Sentencing Act 1991 which reads as follows:

(1)If a court sentences an offender to be imprisoned in respect of an offence for—
(a) the term of his or her natural life; or
(b) a term of 2 years or more—
the court must, as part of the sentence, fix a period during which the offender is not eligible to be released on parole unless it considers that the nature of the offence or the past history of the offender make the fixing of such a period inappropriate.

On 28 May 2015 it was submitted on behalf of the appellant that the sentencing judge should fix a non-parole period. After hearing submissions from the respective counsel, the sentencing judge said:

I think the problem here is that s 11(1) has not been resorted to very much and it’s now — because the focus of the court in cases where since Boulton and since the provision of a two year sentence followed by a CCO, those two things have brought about a situation where the focus is very much on determining a straight sentence followed by a CCO with no parole because of the problems that are known about these days and the error really resides in not having made it clear that — well perhaps my intention was clear, that he was to serve two years but that needed to be backed up with reference to s 11(1) because obviously that needs to be stated by the judicial officer at the time of sentence and if I’d done so, that would not…

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 Baldwin v The Queen

Details

AGLC: Baldwin v The Queen [2015] VSCA 299
Case: [2015] VSCA 299
Decision Date: 18 November 2015

CaseChat Overview and Summary

The appellant, Baldwin, appealed against his sentence in the Court of Appeal. The matter arose from an offence that resulted in a conviction and a sentence of imprisonment combined with a community correction order. Baldwin contested the adequacy of his sentence, arguing that the trial judge did not consider certain circumstances specified in section 11(1)(b) of the Sentencing Act 1991. The appeal centred on whether the trial judge's failure to consider these specific circumstances constituted a specific error that warranted a re-sentencing of the appellant.

The court was tasked with determining whether the omission to consider the specified circumstances amounted to a specific error, as defined by the relevant legislation. The court also needed to assess whether this error had a substantial effect on the sentence, and if so, whether the appeal should be allowed and the appellant re-sentenced. The central issue was whether the trial judge's failure to consider these circumstances was a specific error that required intervention by the appellate court.

In addressing the appeal, the court examined the trial judge's sentencing remarks and the statutory requirements under section 11(1)(b) of the Sentencing Act 1991. The court concluded that the trial judge did not consider the specified circumstances, which was a specific error as it pertained to a legislatively mandated consideration. The court found that this error had a substantial effect on the sentence, as it potentially could have led to a different outcome. Consequently, the appeal was allowed, and Baldwin was re-sentenced.

The court ordered that Baldwin be re-sentenced, taking into account the circumstances specified in section 11(1)(b) of the Sentencing Act 1991. The court's decision was predicated on the premise that the trial judge's oversight in not considering these circumstances was a specific error that warranted appellate intervention. This ruling underscores the importance of judicial adherence to statutory sentencing requirements to ensure a fair and legally compliant sentencing process.

Orders