CRIMINAL LAW – Application for leave to appeal sentence – Whether sentence was manifestly excessive – Whether the sentencing judge erred by failing to properly take into account the applicant’s mental condition – Discussion of the principles in R v Tsiaris and R v Verdins – Whether the sentencing judge erred by failing to properly take into account the sentencing principle of totality – Whether the sentencing judge erred by doubly punishing the applicant – Application for leave to appeal against sentence refused.
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APPEARANCES:
Counsel
Solicitors
For the Applicant
Mr C B Boyce
Ronald V Tait
For the Crown
Mr D A Trapnell
Mr C Hyland, Solicitor for Public Prosecutions
REDLICH JA:
I agree for the reasons Robson AJA has given that leave to appeal should be refused.
HARPER JA:
I agree with Robson AJA.
ROBSON AJA:
The applicant, Mr Parrish Charles, pleaded guilty in the Supreme Court of Victoria to two counts. Count 1, that he intentionally caused serious injury. Count 2, theft. On 13 November 2009, he was sentenced as follows:
Orders: Pursuant to s 28(1)(B) of the Road Safety Act 1986, the applicant’s driver’s licence be cancelled and the applicant disqualified from obtaining a licence for five years.
Section 6AAA: Total effective sentence of 11 years and 6 months; non-parole period of 8 years and 6 months.
On 25 November 2009, the applicant gave notice of application for leave to appeal against sentence on the sole ground that the sentence was manifestly
excessive. On 24 September 2010, Buchanan JA refused leave to appeal.[1] He held it had not been demonstrated that the ground of the application was reasonably arguable. On 25 October 2010, the applicant applied to the have the application for leave to appeal against sentence determined by three judges of the Court of Appeal.[2]
[1]Criminal Procedure Act 2009 s 315(1) gives a single judge of appeal power to give leave to appeal.
[2]Under s 315(2) of the Criminal Procedure Act 2009 if a Judge of Appeal refuses an application for leave to appeal in relation to any ground of appeal, the applicant is entitled to have the application determined by the Court of Appeal.
For the reasons given below, I am not persuaded that leave to appeal should be granted.
Circumstances of the offences
The description of the circumstances is taken from…
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.
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Details
AGLC
Charles v The Queen [2011] VSCA 399
Case
[2011] VSCA 399
Decision Date
CaseChat Overview and Summary
The applicant, Charles, sought leave to appeal against the sentence imposed by the court. The dispute centred around the severity of the sentence and the way it was determined, particularly in relation to the applicant's mental condition and the principle of totality. The case was heard in the High Court of Australia.
The court was tasked with determining whether the sentence imposed was manifestly excessive, whether the sentencing judge failed to adequately consider the applicant's mental condition, and whether the sentencing judge erred by not properly applying the principle of totality. Additionally, the court needed to assess if the sentencing judge erred by effectively punishing the applicant twice.
The court found that the sentence imposed was not manifestly excessive and that the sentencing judge had appropriately considered the applicant's mental condition. The court also found that the sentencing judge had correctly applied the principle of totality and had not doubly punished the applicant. As a result, the application for leave to appeal against the sentence was refused. The court held that the sentence was within the range of appropriate penalties for the offence committed and that there were no grounds for an appeal on the basis of the arguments presented by the applicant.