Bayley v The Queen - [2013] VSCA 295

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0134

ADRIAN ERNEST BAYLEY	Applicant
	v
THE QUEEN	Respondent

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JUDGES	WARREN CJ, NEAVE and COGHLAN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	26 September 2013
DATE OF JUDGMENT	21 October 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 295
JUDGMENT APPEALED FROM	R v Bayley [2013] VSC 313

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CRIMINAL LAW – Leave to appeal against sentence – Murder – Rape – Total effective sentence of life imprisonment with non-parole period of 35 years – Whether sentencing judge erred in finding the applicant intended to kill the deceased – Whether the sentencing judge placed excessive weight on the need to protect the community when fixing the non-parole period – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S Holt SC with Mr P Smallwood	Victorian Legal Aid
For the Respondent	Mr G J C Silbert SC with Mr B L Sonnett	Mr C Hyland, Solicitor for Public Prosecutions

WARREN CJ
NEAVE JA
COGHLAN JA:

The applicant seeks leave to appeal against his sentence to life imprisonment with a non-parole period of thirty five years on conviction of one count of murder and one count of rape.

After the hearing of the application the court adjourned at the end of argument for a short period. We then announced our decision, namely refusal of the application and that we would publish our reasons at a later time. This was not an unusual course in criminal appeals, especially since the introduction of the criminal appeal reforms.[1] The court was in a position to dispose of the application expeditiously because of the materials filed and the prior preparation and discussion of the court members during the days beforehand. After hearing argument from counsel on both sides over some time[2] the court was in a position to determine the matter. This was a case where the applicant was sentenced to one of the sternest sentences for this type of offending. There were also questions raised by the applicant as to the construction of the Sentencing Act 1991. We were assisted by submissions from counsel on both sides. We refused leave to appeal for the reasons set out below.
[1]Criminal Procedure Act 2009 (Vic); Supreme Court of Victoria, Practice Direction No 2 of 2011 – Court of Appeals: Criminal Appeals, May 2011.
[2]One and a half hours approximately.

Circumstances of the offending

The victim, Gillian Meagher, was a young woman of 29 years of age who was employed by the Australian Broadcasting Corporation (‘ABC’). On the evening of Friday 21 September 2012, she and other employees of the ABC attended a birthday party for one of their co-employees at Fad Gallery in the City. Ms Meagher left the party at about 9.00 pm in company with three of her co-employees and they travelled by taxi to the Brunswick Green Hotel in Sydney Road, Brunswick. When the bar there closed at about 1.00 am the next morning, Ms Meagher and one of her…

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 Bayley v The Queen

Details

AGLC: Bayley v The Queen [2013] VSCA 295
Case: [2013] VSCA 295
Decision Date: 21 October 2013

CaseChat Overview and Summary

The applicant, Bayley, appealed against his conviction and sentence for the murder and rape of the deceased. The case was heard in the High Court of Australia. The central dispute was whether the sentencing judge had erred in concluding that the applicant intended to kill the deceased and in assessing the appropriate non-parole period for his life sentence. The applicant argued that the sentencing judge misapplied the principles of sentencing, particularly regarding the intention to kill and the necessity for community protection.

The court was tasked with determining whether the sentencing judge correctly identified the applicant's intention to kill the deceased and if the judge appropriately balanced the need for retribution, deterrence, and community protection in setting the non-parole period. The applicant contended that the evidence did not support a finding of intent to kill, and that the sentencing judge had given disproportionate weight to the need for community protection, resulting in an excessively long non-parole period. The court examined the sentencing judge's reasoning, the principles of sentencing for murder, and the evidence presented at trial.

The High Court found that the sentencing judge's conclusion regarding the applicant's intent to kill was supported by the evidence, and that the judge had correctly applied the principles of sentencing. The court held that the sentencing judge had appropriately balanced the various considerations, including the need for community protection, in determining the non-parole period. The applicant's argument that the non-parole period was excessively long was rejected. Consequently, the court dismissed the application for leave to appeal.

No orders were made as the application for leave to appeal was refused.

Orders