DPP v Giffen - [2006] VSCA 219

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 120 of 2006

DIRECTOR OF PUBLIC PROSECUTIONS
	v.
ALAN JAMES GIFFEN

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JUDGES:	BUCHANAN and EAMES, JJ.A. and COLDREY, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 September 2006
DATE OF JUDGMENT:	16 October 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 219

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Criminal Law – Crown Appeal – Intentionally Causing Serious Injury – Sentence of 30 months with a non-parole period of 16 months manifestly inadequate – Vicious and unprovoked attack – Permanent physical and mental impairment sustained by victim – Re-sentenced to 4 ½ years imprisonment with 2 ½ years non-parole period.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P.A. Coghlan, QC, DPP with Mr K.G. Gilligan	Ms A. Cannon, Solicitor for Public Prosecutions
For the Respondent	Mr P.G. Priest, QC with Mr T.J. Sowden	Ken Smith & Associates

BUCHANAN, J.A.:

I agree with Coldrey, A.J.A.

EAMES, J.A.:

I agree with Coldrey, A.J.A.

COLDREY, A.J.A.:

On 25 August 2005, Alan Giffen (the respondent) pleaded guilty in the County Court at Melbourne to one count of intentionally causing serious injury. Earlier, on 16 May 2005 at the Magistrates' Court at Melbourne, at the time he was committed for trial by way of a straight hand-up brief, he had also pleaded guilty. Following his plea in August 2005, delays were occasioned while the respondent obtained legal representation and a psychological report. Eventually, on 20 March 2006 (following a plea on 9 March 2006) the respondent was sentenced to 30 months' imprisonment. A non-parole period of 16 months was fixed, and pre-sentence detention, calculated pursuant to s.18 of the Sentencing Act 1991 (the Act), was reckoned at 28 days.

The maximum penalty for the offence of intentionally causing serious injury is 20 years' imprisonment.

At the time of the commission of this offence, the respondent was aged 31 and is currently 33 years of age.

The respondent admitted five previous court appearances in Scottish courts between June 1992 and October 1994. Insofar as such previous convictions may be regarded as relevant, four were for Breach of the Peace and one (September 1992) was for assault. All of the offences attracted monetary penalties.

The Director of Public Prosecutions has appealed against the sentence imposed on the ground that it is manifestly inadequate. The particulars of this ground are as follows:

"In imposing a head sentence of 30 months' imprisonment and fixing a non-parole period of 16 months' imprisonment, the learned sentencing judge:
(a)failed to adequately reflect the gravity of this offence generally and in this case in particular;
(b)failed to take or sufficiently to take into account the aspect of general deterrence;
(c)failed to take or sufficiently to take into account the aspect of specific deterrence;
(d)gave too much weight to factors going to mitigation;
(e)gave insufficient weight to the Respondent's relevant prior criminal history;
(f)gave insufficient weight to the applicable maximum penalty for this offence; and
(g)gave insufficient weight to the effect of the offending upon the victim in particular, the permanent and…

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 DPP v Giffen

Details

AGLC: DPP v Giffen [2006] VSCA 219
Case: [2006] VSCA 219
Decision Date: 16 October 2006

CaseChat Overview and Summary

In the matter of the Director of Public Prosecutions v Giffen, the Court of Appeal addressed an appeal by the Crown against a sentence imposed on the respondent, Giffen, for intentionally causing serious injury. The dispute centred on whether the original sentence of 30 months imprisonment with a non-parole period of 16 months was manifestly inadequate given the nature and circumstances of the offence. The respondent had pleaded guilty to a vicious and unprovoked attack on the victim, which resulted in the victim sustaining permanent physical and mental impairments. The Crown argued that the original sentence did not adequately reflect the seriousness of the crime and its impact on the victim.

The legal issue before the Court was whether the original sentence was manifestly inadequate, requiring the Court to consider the principles of sentencing and the relevant case law. The Crown contended that the original sentence failed to appropriately account for the gravity of the offence, the degree of premeditation, and the lasting harm inflicted upon the victim. The Court had to determine if the sentence imposed was sufficiently severe to fulfil the purposes of punishment, deterrence, and denunciation.

In its judgment, the Court of Appeal found that the original sentence was indeed manifestly inadequate. The Court emphasised the severity of the attack, which was not only violent but also unprovoked, causing significant and lasting harm to the victim. The Court noted that the sentence did not adequately reflect the seriousness of the crime or provide sufficient punishment and deterrence. Consequently, the Court re-sentenced the respondent to 4 ½ years imprisonment with a non-parole period of 2 ½ years. The Court's decision underscored the importance of sentencing that appropriately balances the needs of punishment, deterrence, and rehabilitation, while also considering the impact of the crime on the victim.

Orders