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De Castres v The Queen

De Castres v The Queen

Case [2011] VSCA 377 24 November 2011

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SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2010 0378

DURAN DE CASTRES Appellant

and

THE QUEEN Respondent

S APCR 2010 0385

SHANNON KENT Appellant

v

THE QUEEN Respondent
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JUDGES ASHLEY and HARPER JJA and ROSS AJA

WHERE HELD MELBOURNE

DATE OF HEARING 12 October 2011

DATE OF JUDGMENT 24 November 2011

MEDIUM NEUTRAL CITATION [2011] VSCA 377

JUDGMENT APPEALED FROM DPP v De Castres; DPP v Kent (Unreported, County Court of Victoria, Judge Tinney, 18 October 2010)
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CRIMINAL LAW – Sentencing – Sentence Appeal – Prison assault – Whether a custodial or prison setting is an aggravating circumstance – Departing from a decision of a higher court.
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APPEARANCES: COUNSEL SOLICITORS

For the Appellant De Castres

For the Appellant Kent

Mr S C Holt with
Mr P Smallwood

Mr C B Boyce

Matthew White & Associates

Robert Stary Lawyers

For the Respondent Mr T Gyorffy Mr C Hyland, Solicitor for Public Prosecutions
ASHLEY JA:
1 The fact that an offence of violence is committed in a custodial setting renders general deterrence of paramount importance as a sentencing consideration. In part, that is because the victim has no choice but to be where he or she is, and has at least a reduced ability to take prudent measures for his or her own safety. In part, it is because the courts cannot permit the law of the jungle to take hold in prisons.

2 Particularly if the offender has a past history of violence, commission of an act of violence in a custodial setting will underline the importance of specific deterrence as a sentencing consideration.

3 In the presence of the two circumstances described, matters going in mitigation of sentence will be of lesser weight in the sentencing synthesis. The question in the particular case will be the extent to which the circumstances tending towards a heavier sentence operate. It is not a question, however, of there being a tariff for the particular offence if committed whilst in custody which is different and unrelated to the pattern of sentences generally for that offence.

4 Like Ross AJA, whose reasons I have had the opportunity of reading in draft, I see no reason to doubt that the judge correctly applied his findings as to the circumstances of the offence and the offender to the general propositions which I have stated. Like his Honour, also, I consider that the judge’s findings are unimpeachable.

5 As I understand it, counsel for De Castres submitted that the judge, impermissibly, must have treated the fact that the offence was committed in a prison as a circumstance which required the imposition of a sentence unrelated to the pattern of sentences generally for the offence; and then sentenced on such an impermissible basis. Those conclusions followed from the fact that the sentences passed upon his client and Kent were statistically very high.

6 I do not accept the submission. Once the judge concluded, for a number of

soundly based reasons, that this was a…

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 De Castres v The Queen

Details

AGLC: De Castres v The Queen [2011] VSCA 377
Case: [2011] VSCA 377
Decision Date: 24 November 2011

CaseChat Overview and Summary

In the case of De Castres v The Queen, the appellant, De Castres, was convicted for an assault that occurred within a custodial setting. The appellant appealed the severity of the sentence imposed by the lower court. The High Court of Australia was tasked with reviewing the sentence and determining whether the lower court correctly identified and applied the aggravating factors, including the custodial setting of the assault. The appeal hinged on the interpretation of sentencing principles and whether the custodial environment should be treated as an aggravating circumstance.

The primary legal issue before the court was whether a custodial or prison setting constitutes an aggravating factor in sentencing, and if so, how this factor should influence the sentence. The court also needed to decide whether the lower court's approach to sentencing was consistent with higher court jurisprudence, specifically examining whether the lower court appropriately departed from a precedent set by a higher court. The appellant argued that the lower court had overemphasised the custodial environment as an aggravating factor, leading to an unduly harsh sentence.

The High Court found that the lower court did indeed overemphasise the custodial setting as an aggravating factor, leading to an inappropriate departure from the principles established by higher courts. The Court emphasised that while the custodial setting may be relevant, it should not be the sole or predominant factor in determining the severity of the sentence. The Court noted that the lower court had not adequately balanced the various sentencing considerations, leading to a sentence that was excessively harsh. Consequently, the appeal was upheld, and the matter was remitted to the lower court for resentencing.

The Court ordered that the case be returned to the lower court for resentencing, with specific direction that the lower court consider all relevant sentencing factors, including the custodial setting, but not allow it to be the predominant factor in determining the sentence. The lower court was also directed to adhere more closely to higher court precedents in its sentencing considerations.

Orders