Legal Research
Cases
Balshaw v The Queen

Balshaw v The Queen

Case [2021] VSCA 78 29 March 2021

Appeal

Sentencing

Criminal Law

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0004

JACKSON BALSHAW	Appellant
v
THE QUEEN	Respondent

---

JUDGES:	KAYE and T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 March 2021
DATE OF ORDERS:	26 March 2021
DATE OF REASONS:	29 March 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 78
JUDGMENT APPEALED FROM:	[2020] VCC 1837 (Judge Gwynn)

---

CRIMINAL LAW – Appeal – Sentence – Appellant pleaded guilty to seven charges including burglary, aggravated burglary, common assault and theft – Sentenced to 5 years’ imprisonment with 2 years and 10 months non-parole – Leave to appeal granted on the papers – Whether judge erred in sentencing appellant to adult jail – Whether sentence manifestly excessive – Appeal allowed – Resentenced to 3 years and 10 months’ detention in a Youth Justice Centre.

---

APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr P J Smallwood	Stephen Adrianakis & Associates
For the Respondent	Mr P L Bourke QC	Ms A Hogan, Solicitor for Public Prosecutions

KAYE JA
T FORREST JA:

The appellant pleaded guilty, in the County Court, to two charges of aggravated burglary, one charge of attempted aggravated burglary, one charge of burglary, two charges of theft and one charge of common assault. Following a plea presented on his behalf, he was sentenced to a total effective sentence of 5 years’ imprisonment with a non-parole period of 2 years and 10 months.

That sentence was constituted as follows:

Charge Offence Maximum Penalty Sentence Cumulation

1 Burglary 10 years 1 year 3 months

2

Aggravated burglary

25 years

4 years 8 months

Base

3

Common assault

5 years

4 months

4

Theft

10 years

1 year

5

Aggravated burglary

25 years

3 years 8 months

3 months

6

Theft

10 years

1 year

7

Attempted aggravated burglary

20 years

2 years 6 months

1 month

Total Effective Sentence 5 years

Non-Parole Period Fixed 2 years 10 months

Pre-Sentence Detention 196 days

6AAA statement 5 years 10 months, with a non-parole period of 4 years 6 months.

The appellant sought leave to appeal the sentence on three grounds. He was granted leave on grounds 2 and 3, but not on ground 1. Grounds 2 and 3 are as follows:

Ground 2: There is an error in the sentence first imposed on each charge arising from the applicant having been sentenced to adult gaol.
Ground 3: There is an error in the sentence first imposed on charge 2 arising from the imposition of a sentence that was manifestly too long.

At the conclusion of oral submissions, we determined that the appeal should be allowed on both grounds, and that the appellant should be re-sentenced to a total effective term of 3 years and 10 months’ detention in a Youth Justice Centre. The following are our reasons for that conclusion.

Before doing so, we should acknowledge that the task of sentencing the appellant was by no means straightforward. The judge was required to consider a number of fairly complex issues, 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 Balshaw v The Queen

Details

AGLC: Jackson Balshaw v The Queen [2021] VSCA 78
Case: [2021] VSCA 78
Decision Date: 29 March 2021

CaseChat Overview and Summary

Balshaw appealed against his sentence for multiple criminal offences including burglary, aggravated burglary, common assault and theft. He was sentenced to 5 years imprisonment with a non-parole period of 2 years and 10 months. Balshaw argued that the judge erred in sentencing him to adult jail instead of a youth justice centre and that the sentence was manifestly excessive. The appeal was allowed and Balshaw was resentenced to 3 years and 10 months detention in a Youth Justice Centre.

The legal issues before the court were whether the sentencing judge erred in sentencing Balshaw to adult jail instead of a youth justice centre and whether the sentence was manifestly excessive. Balshaw contended that he should have been sentenced as a young offender and that the sentence was excessively harsh. The court examined the sentencing principles and the relevant legislation to determine whether the judge made an error in sentencing.

The court held that the sentencing judge erred in sentencing Balshaw to adult jail rather than a youth justice centre. The court found that the judge did not adequately consider the sentencing principles applicable to young offenders and that Balshaw's youth was a significant mitigating factor that warranted a youth justice sentence. The court also found that the sentence was manifestly excessive having regard to the nature and circumstances of the offences and Balshaw's age. The appeal was allowed and Balshaw was resentenced to 3 years and 10 months detention in a Youth Justice Centre.

Orders