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Buddle v The Queen

Buddle v The Queen

Case [2014] VSCA 232 26 September 2014

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0119

MARK BUDDLE	Appellant
v
THE QUEEN	Respondent

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JUDGES:	NEAVE and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 September 2014
DATE OF JUDGMENT:	26 September 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 232
JUDGMENT APPEALED FROM:	R v Buddle (Unreported, County Court of Victoria, Judge Lewitan, 16 May 2014)

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CRIMINAL LAW – Sentence – Application for leave to appeal – Sentence of 15 months’ imprisonment with nine month non-parole for affray, common assault and intentionally causing injury – Orders for partial cumulation – Whether double punishment – Presentence detention interstate on unrelated matters – Whether Renzella discretion applies – Whether totality principle applies – Application refused

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr O P Holdenson QC	Zahr and Zahr Lawyers
For the Crown	Mr J B B Lewis	Mr C Hyland, Solicitor for Public Prosecutions

NEAVE JA
PRIEST JA:

Introduction

On 6 November 2013, the applicant pleaded guilty in the County Court to one charge of affray (charge 1), two charges of common assault[1] (charges 2 and 3), and one charge of intentionally causing injury (charge 6).[2]
[1]Affray and common assault are both offences at common. The maximum penalty for each is five years’ imprisonment: Crimes Act 1958, s 320.
[2]Crimes Act 1958, s 18. The maximum penalty is 10 years’ imprisonment.

A little over six months later, on 16 May 2014, he was sentenced to be imprisoned for nine months on the charge of affray, for eight months on each charge of common assault, and for 12 months on the charge of intentionally causing injury. One month of the sentences on charges 1, 2 and 3 were ordered to be served cumulatively with each other and with the sentence on charge 6, thereby producing a total effective sentence of 15 months’ imprisonment, upon which a non-parole period of nine months was fixed.

Leave to appeal against sentence is sought on two grounds:

1. The learned sentencing judge erred in ordering that there be accumulation of part of the sentences for the two common law assaults and the sentence for affray upon the sentence for intentionally cause injury.
2. The learned sentencing judge erred in failing to take into account two periods of pre-sentence detention which should have been taken into account pursuant to the inherent jurisdiction of the court at common law.

For the reasons that follow, we would refuse leave.

The offending

In the early hours of Sunday 18 December 2011, a group of workmates — Jeremy Dawson, Lewis Ake, Nore Elgammal and Harry Stamatiadis — were, following a work Christmas function, socialising at licensed premises, the Spearmint Rhino Gentleman’s Club, located in King Street, Melbourne.

The applicant and several companions — Ali Bazzi, David Gavelan, Justin Clark and Samson Bazi — were also at the venue.

At about 2:45am, the applicant, in the company of Clark, had an argument with Stamatiadis in the vicinity of one of the bars.…

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 Buddle v The Queen

Details

AGLC: Mark Buddle v The Queen [2014] VSCA 232
Case: [2014] VSCA 232
Decision Date: 26 September 2014

CaseChat Overview and Summary

In the case of Buddle v The Queen, the applicant sought leave to appeal his sentence of 15 months imprisonment, with a nine-month non-parole period, for offences of affray, common assault, and intentionally causing injury. The sentence also included orders for partial cumulation. The applicant argued that the sentence constituted double punishment and that the totality principle should have been applied in the sentencing process. Additionally, the applicant contended that the discretion provided by the High Court in the case of Renzella should have been exercised in his favour, given that he had already served a significant period of presentence detention in another jurisdiction. The High Court was tasked with determining whether the applicant's sentence involved double punishment, whether the totality principle was applicable, and whether the Renzella discretion should have been exercised.

The court began by examining the nature of the applicant's sentence, which involved both concurrent and cumulative elements. The court noted that the applicant's sentence was not a straightforward case of double punishment, as the cumulative aspect was only applicable to the non-parole period. The court found that the sentencing judge had properly considered the totality principle and had exercised appropriate discretion in imposing the sentence. Furthermore, the court held that the discretion in Renzella did not apply to the applicant's situation, as the presentence detention was served in another jurisdiction for unrelated matters, and therefore did not constitute an appropriate basis for reducing the sentence.

The High Court ultimately refused the applicant's application for leave to appeal. The court found that the sentencing judge had correctly applied the relevant principles and had not erred in imposing the sentence. The court also determined that the totality principle was properly considered, and that the discretion in Renzella did not apply to the applicant's circumstances. The applicant's sentence of 15 months imprisonment, with a nine-month non-parole period, for the offences of affray, common assault, and intentionally causing injury, was upheld.

Orders