Brent Gilbert v The Queen - [2018] VSCA 49

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0073

BRENT GILBERT	Applicant
v
THE QUEEN	Respondent

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JUDGES:	WHELAN, BEACH and KYROU JJA
WHERE HELD:	MELBOURNE
DATES OF HEARING:	22 and 23 February 2017
DATE OF JUDGMENT:	5 March 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 49
JUDGMENT APPEALED FROM:	[2016] VCC 1815 (Judge Lawson)

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CRIMINAL LAW – Appeal – Conviction – Application for leave to appeal against conviction notwithstanding plea of guilty – Whether permitting applicant’s plea of guilty to stand would result in a miscarriage of justice – Whether applicant’s instructions traversed plea of guilty – Whether applicant’s instructions were inconsistent with plea of guilty – Applicant’s instructions did not traverse plea and were not inconsistent with plea of guilty – No grounds for impugning applicant’s plea – No miscarriage of justice – Application for leave to appeal against conviction refused.

CRIMINAL LAW – Appeal – Sentence – Intentionally causing serious injury – Applicant sentenced to term of imprisonment of 10 years with non-parole period of 7 years – Crown concession of vitiating error – Crown concession properly made – Judge relying on aggravating circumstances not established beyond reasonable doubt – Disputed facts – Need for conclusion adverse to applicant to be established beyond reasonable doubt – Need for contested plea hearing – Need for parties to call evidence on the plea – Application for leave to appeal granted – Appeal allowed – Matter remitted for rehearing before different judge.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr R F Edney	Doogue & George
For the Respondent	Ms D I Piekusis	Mr J Cain, Solicitor for Public Prosecutions

WHELAN JA

BEACH JA
KYROU JA:

On 12 August 2016, the applicant pleaded guilty in the County Court to one charge of intentionally causing serious injury. The maximum penalty for intentionally causing serious injury is 20 years’ imprisonment.[1]
[1]Crimes Act 1958, s 16.

On 9 December 2016, following a plea hearing conducted on 24 November 2016, the applicant was sentenced to a term of imprisonment of 10 years with a non-parole period of seven years.[2] Pursuant to s 6AAA of the Sentencing Act 1991, the judge declared that, but for the applicant’s plea of guilty, she would have sentenced him to a period of 13 years’ imprisonment with a non-parole period of nine years.
[2]DPP v Gilbert [2016] VCC 1815 (‘Reasons’).

Notwithstanding his plea of guilty, the applicant now seeks leave to appeal against his conviction and sentence. His proposed grounds of appeal against his conviction are:

1.A miscarriage of justice has occurred because the applicant’s plea of guilty to the charge of intentionally causing injury was made in circumstances where he did not intend to admit that he was guilty of that offence and the plea of guilty was not accompanied by a genuine consciousness of guilt.
2.A miscarriage of justice has occurred because the sentencing judge accepted, and proceeded to act upon, the applicant’s plea of guilty in circumstances where the instructions…

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 Brent Gilbert v The Queen

Details

AGLC: Brent Gilbert v The Queen [2018] VSCA 49
Case: [2018] VSCA 49
Decision Date: 5 March 2018

CaseChat Overview and Summary

The appeal was brought by Brent Gilbert, the appellant, against The Queen, the respondent. Gilbert was convicted of intentionally causing serious injury and sentenced to a term of imprisonment of 10 years with a non-parole period of 7 years. The dispute involved the validity of Gilbert's plea of guilty and the sentence imposed. The High Court of Australia was the court that dealt with the matter.

The primary legal issue the court had to address was whether the appellant's plea of guilty could stand, given the contention that permitting it to stand would result in a miscarriage of justice. The court also had to consider whether the appellant's instructions were inconsistent with his plea of guilty. The secondary issue was whether the sentence was appropriate in light of the circumstances of the case, including the Crown's concession of a vitiating error.

The court found that the appellant's instructions did not traverse his plea of guilty and were not inconsistent with it, thus there were no grounds for impugning the plea. The court determined that allowing the plea to stand would not result in a miscarriage of justice. Regarding the sentence, the court accepted that the Crown's concession of a vitiating error was properly made. The judge had relied on aggravating circumstances that were not established beyond reasonable doubt, which required a conclusion adverse to the appellant to be established beyond reasonable doubt. The court concluded that a contested plea hearing was necessary, and the parties should call evidence on the plea. Therefore, the application for leave to appeal against the conviction was refused, but the application for leave to appeal against the sentence was granted, and the appeal was allowed. The matter was remitted for rehearing before a different judge.

Orders