Bleakley v The King - [2024] VSCA 88

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0247

JAMIE DEAN BLEAKLEY	Applicant
V
THE KING	Respondent

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JUDGES:	NIALL and TAYLOR JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	23 April 2024
DATE OF JUDGMENT:	8 May 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 88
JUDGMENT APPEALED FROM:	DPP v Bleakley (County Court of Victoria, Judge Dyer, 23 November 2022)

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CRIMINAL LAW – Leave to appeal – Sentence – Application for extension of time – Whether judge failed to take into account enhanced utilitarian value of guilty plea during COVID-19 pandemic – No material error where markedly different sentence would not have followed – Whether judge erred by conflating offending in relation to motor vehicles and power boats – No error in having regard to motor vehicle cases – Whether judge erred by inflating gravity of offending – No error established – Proposed grounds meritless – Application for extension of time refused.

R v Koumis (2008) 18 VR 434; Worboyes v The Queen (2021) 96 MVR 344, considered.

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Counsel
Applicant:		Ms J McColl
Respondent:		Ms DI Piekusis KC
Solicitors
Applicant:	Victoria Legal Aid
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

NIALL JA
TAYLOR JA:

On 15 November 2021, the applicant, now aged 39 years, pleaded guilty in the County Court to two charges of negligently causing serious injury.[1]
[1]Contrary to s 24 of the Crimes Act 1958.
Following a plea hearing on 14 November 2022, the applicant was sentenced on 23 November 2022 as follows:

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Negligently cause serious injury	10 years	3 years	Base
2	Negligently cause serious injury	10 years	2 years and 9 months	3 months
Total Effective Sentence:		3 years and 3 months’ imprisonment
Non-Parole Period:		2 years
Pre-sentence Detention Declared:		N/A
Section 6AAA Statement:		4 years and 3 months’ imprisonment
Other Relevant Orders: 1. Cancellation of any licence held by the applicant under the Marine Safety Act 2010 for a period of three years pursuant to s 171(2) of that Act. 2. Forfeiture order in relation to seized items (tow rope and biscuit).

The applicant seeks an extension of time to apply for leave to appeal against sentence on the following proposed grounds:
1.The sentencing judge erred by failing to take into account the enhanced utilitarian value of a plea of guilty entered during the COVID-19 pandemic.
2.The sentencing judge erred in determining that there was no reason to distinguish between sentences imposed for negligently causing serious injury arising out of irresponsible use of a motor vehicle and a power boat.
3.The objective seriousness of the offending was wrongly inflated by both counsel for the applicant and the sentencing judge.
For the reasons that follow, we would not have upheld any of the proposed grounds and would therefore refuse to grant an extension of time to apply for leave to appeal.

The facts

On 1 March 2020, the applicant attended Ludlow’s Reserve on the banks of Lake Hume, Ebden with various…

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 Bleakley v The King

Details

AGLC: Bleakley v The King [2024] VSCA 88
Case: [2024] VSCA 88
Decision Date: 8 May 2024

CaseChat Overview and Summary

In the case of Bleakley v The King, the respondent, Bleakley, applied for leave to appeal against his sentence, contending that the trial judge failed to take into account the enhanced utilitarian value of his guilty plea during the COVID-19 pandemic. The case was heard by the Supreme Court of Victoria. Bleakley argued that the trial judge had conflated his offending in relation to motor vehicles and power boats, and that the judge had inflated the gravity of his offending.

The legal issues the court was required to decide included whether the trial judge erred in failing to consider the enhanced utilitarian value of the guilty plea, whether the trial judge conflated the offending, and whether the trial judge inflated the gravity of the offending. The court considered relevant authorities, including R v Koumis (2008) 18 VR 434 and Worboyes v The Queen (2021) 96 MVR 344.

The court found that the trial judge had not made a material error in failing to consider the enhanced utilitarian value of the guilty plea during the COVID-19 pandemic, as a markedly different sentence would not have followed. The court also found that there was no error in the trial judge having regard to motor vehicle cases, and that the trial judge did not conflate the offending or inflate the gravity of the offending. The proposed grounds of appeal were found to be meritless. The application for extension of time was refused.

The court's decision was that the application for leave to appeal was dismissed, and the application for an extension of time was refused.

Orders