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Bradshaw v The Queen

Bradshaw v The Queen

Case [2017] VSCA 273 26 September 2017

Appeal

Aggravated & Exemplary Damages

Sentencing

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0080

JOEL BRADSHAW	Appellant
v
THE QUEEN	Respondent

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JUDGES:	WARREN CJ, KYROU and REDLICH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	28 July 2017
DATE OF ORDERS	28 July 2017
DATE OF PUBLICATION OF REASONS:	26 September 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 273	1^st revision: 27 September 2017; paragraph 1
JUDGMENT APPEALED FROM:	[2017] VCC 392 (Judge Hicks)

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CRIMINAL LAW – Appeal – Sentence – Aggravated burglary – Common assault – Total effective sentence of two years and six months’ detention in a Youth Justice Centre – Whether judge erred in assessment of offence gravity – Whether judge erred in considering objective gravity of confrontational aggravated burglary precluded community correction order (‘CCO’) – Role of consistency in sentencing and individualised justice in instinctive synthesis – Youth and excellent prospects of rehabilitation required consideration of non-custodial sentence – Specific error – Appeal allowed – Appellant resentenced to time served in Youth Justice Centre and a CCO – Boulton v The Queen (2014) 46 VR 308; Hogarth v The Queen (2012) 37 VR 658 discussed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr C Mylonas	Brown McComish
For the Respondent	Mr B L Sonnet	Mr J Cain, Solicitor for Public Prosecutions

WARREN CJ:

I have had the considerable benefit of reading in draft the joint judgment of Kyrou and Redlich JJA. Substantially for the reasons of their Honours, I would allow the appeal on ground 2 and not allow the appeal on grounds 1 and 3.

For my part, I would not consider it necessary in this case to analyse the subject of consistency in sentencing other than to note that the view of counsel for the Director was out of kilter with well-established High Court authority on the point.

KYROU JA
REDLICH JA:

The appellant pleaded guilty in the County Court of Victoria to one charge of aggravated burglary and one charge of common assault. He was sentenced on 6 April 2017 as follows:[1]

[1]DPP v Bradshaw [2017] VCC 392 (‘Reasons’).

Charge

Offence

Maximum term of imprisonment

Sentence

1 Aggravated burglary [Crimes Act 1958 s 77(1)] 25 years 2 years and 6 months’ detention in a Youth Justice Centre (aggregate)

2 Common assault [common law] 5 years

Total effective sentence 2 years and 6 months’ detention in a Youth Justice Centre

Non-parole period N/A

Pre-sentence detention declared Nil

6AAA statement 3 years and 6 months’ imprisonment with a non-parole period of 2 years and 4 months

Other orders Forfeiture and forensic sample orders
The grounds of appeal against sentence

The appellant applied for leave to appeal against sentence on the following three grounds:

1) The learned sentencing judge erred at law in concluding this was ‘a serious example of confrontational aggravated burglary’;

2) The learned sentencing judge erred at law by determining that the offending was too serious for a community correction order (‘CCO’) to be within range;

3) The sentence imposed in respect…

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 Bradshaw v The Queen

Details

AGLC: Bradshaw v The Queen [2017] VSCA 273
Case: [2017] VSCA 273
Decision Date: 26 September 2017

CaseChat Overview and Summary

Bradshaw appealed against his sentence for aggravated burglary and common assault, arguing that the primary judge had erred in the assessment of the gravity of the offences, the consideration of a community correction order (CCO), and the role of consistency in sentencing. The appeal was heard in the Court of Appeal. The appellant contended that the primary judge had not adequately considered the objective gravity of the confrontational aggravated burglary, had incorrectly precluded a CCO, and had not sufficiently balanced the need for consistency in sentencing against the individualised justice required for a young offender with good prospects of rehabilitation.

The Court of Appeal considered the role of the primary judge in assessing the gravity of the offences, the objective gravity of the confrontational nature of the aggravated burglary, and the appropriateness of a CCO. The court held that the primary judge had not adequately assessed the objective gravity of the confrontational aggravated burglary and had incorrectly precluded a CCO. The court noted that the appellant was young and had excellent prospects of rehabilitation, which required consideration of a non-custodial sentence. The court further held that the primary judge had failed to appropriately balance the need for consistency in sentencing against the individualised justice required in this case.

The appeal was allowed, and the appellant was resentenced to time served in a Youth Justice Centre and a CCO. The Court of Appeal referred to Boulton v The Queen and Hogarth v The Queen in its reasoning, emphasising the importance of considering the individual circumstances of the offender and the objective gravity of the offence when determining an appropriate sentence. The court also highlighted the importance of balancing the need for consistency in sentencing with the need for individualised justice. The final orders of the court included the resentencing of the appellant to time served in a Youth Justice Centre and a CCO, with specific conditions to be determined by the sentencing court.

Orders