Cole v The King - [2023] VSCA 172

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0039

DEON COLE	Applicant
v
THE KING	Respondent

---

JUDGE:	BEACH JA
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	2 August 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 172
JUDGMENT APPEALED FROM:	[2023] VCC 200 (Judge Wraight)

---

CRIMINAL LAW – Sentence – Application for leave to appeal against sentence – Recklessly causing serious injury – Multiple serious facial fractures – Sentence of 3 years, with non-parole period of 18 months – Manifest excess – Whether reasonably arguable that sentence manifestly excessive – Not reasonably arguable that sentence manifestly excessive – Application for leave to appeal refused.

---

Counsel
Applicant:		Mr N Goodfellow
Respondent:		Ms K Hamill
Solicitors
Applicant:	Tyler Tipping & Woods
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA:

On 10 February 2023, the applicant pleaded guilty in the County Court to one charge of recklessly causing serious injury, contrary to s 17 of the Crimes Act 1958. The maximum term of imprisonment for this offence is 15 years. On 21 February 2023, the applicant was sentenced to a term of imprisonment of 3 years, with a non-parole period of 18 months.[1]
[1]DPP v Cole [2023] VCC 200 (‘Reasons’).
The applicant now seeks leave to appeal against his sentence on the single ground of appeal that the sentence and non-parole period fixed by the judge are each manifestly excessive.

Circumstances of the offending

On 22 February 2022, in response to an advertisement seeking a sexual encounter, which was on a free classifieds application called ‘Locanto’, the applicant made contact with his victim. The two of them then discussed personal details, and exchanged photos and details of what each of them wanted from the encounter. The victim provided the applicant with his mobile number. After further discussions via text message, they made arrangements to meet that night. The victim booked an Uber for the applicant to attend his house.
The Uber picked the applicant up at 6:15 pm, dropping him off at the victim’s address at 6:30 pm. The two of them remained at this address, with the victim showing the applicant his pets, including a two meter long python. The victim took photographs of the applicant holding the python.
The victim remembers sitting at the dinner table and then does not recall anything until being with hospital staff and police the next day.
At 11:55 pm, the applicant attended the Geelong Police Station and spoke to First Constable Luke Searle. He told police that:
(a)he had badly hurt somebody at an address in a particular suburb;
(b)he had been sent to the victim’s address by a friend of a friend called Ryan to acquire methamphetamine;
(c)when he arrived at the address, he stayed for a short period and chatted with the male occupant, before asking the male to book him an Uber to go home;
(d)the male did not book an Uber and said, ‘I didn’t order you an Uber…

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 Cole v The King

Details

AGLC: Cole v The King [2023] VSCA 172
Case: [2023] VSCA 172
Decision Date: 2 August 2023

CaseChat Overview and Summary

In the case of Cole v The King, the appellant sought leave to appeal against a sentence imposed by the Supreme Court of Victoria for recklessly causing serious injury to another person, resulting in multiple serious facial fractures. The appellant, who pleaded guilty to the offence, was sentenced to three years imprisonment with a non-parole period of 18 months. The central issue before the court was whether the sentence imposed was manifestly excessive, warranting the grant of leave to appeal. The court was required to consider whether the sentence fell outside the range of sentences that might be regarded as appropriate and whether there was a reasonable arguability that the sentence was manifestly excessive.

The court examined the nature and circumstances of the offence, the appellant's culpability, and the principles of sentencing relevant to the case. It noted that the offence involved a significant degree of recklessness and resulted in serious physical injury to the victim. However, the court found that the sentence imposed was within the range of sentences that might be regarded as appropriate for the offence. The court also concluded that it was not reasonably arguable that the sentence was manifestly excessive, as it took into account the appellant's culpability, the need for deterrence and denunciation, and the importance of maintaining public confidence in the criminal justice system. Accordingly, the court refused the application for leave to appeal.

The court held that the sentence imposed was not manifestly excessive and that there was no reasonable arguability that the sentence fell outside the range of sentences that might be regarded as appropriate. The application for leave to appeal was therefore refused, and the original sentence stands. The court emphasised the importance of respecting the primary decision-maker's assessment of the appropriate sentence and the need to avoid unnecessary interference with the sentencing process.

Orders