DPP v Taylor - [2005] VSCA 222

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 162 of 2005

DIRECTOR OF PUBLIC PROSECUTIONS
	v.
BRIAN JAMES TAYLOR

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JUDGES:	EAMES and NETTLE, JJ.A. and HOLLINGWORTH, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 September 2005
DATE OF JUDGMENT:	1 September 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 222

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Criminal Law – Sentencing – Director’s appeal – Intentionally causing serious injury – Unusual mitigatory circumstances – Delay – Long period between commission of assault and sentencing – Aboriginality – Whether respondent’s aboriginality a mitigating factor – Whether sentence of two years with a non-parole period of six months manifestly inadequate – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms R.E. Carlin	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Respondent	Mr J. R. Kelly	Nicholas W.J. Rolfe & Associates

EAMES, J.A.:

I will ask Nettle, J.A. to deliver the first judgment.

NETTLE, J.A.:

This is an appeal by the Director of Public Prosecutions against a sentence of two years’ imprisonment with a non-parole period of six months imposed on the respondent in respect of one count of intentionally causing serious injury.

The background circumstances are unusual. The respondent is of aboriginal descent. He was born on 14 September 1968, the eldest of six children, to parents who were heavily dependent on alcohol. He was brought up in an environment of alcohol and drug abuse and in which domestic violence was the norm. His parents separated when he was still in primary school and he left school at Year 8. He worked for a few years on a casual basis as a grape picker and a roustabout, apparently with the intention of becoming a shearer. But he too became addicted to alcohol and substance abuse at a very young age and therefore has never made anything of his life. In 1994, when he was about 26 years of age, he entered into a de facto relationship with a woman named Simone Payne and moved with her and her three year old daughter, Rowena, to live in the Bendigo area.

Although it has not always been so in the course of these proceedings, there is now agreement that the relevant facts were that at about 6.30 am on 15 January 1996 Rowena cried out that she had wet the bed and the respondent attended to her. He picked her up and shook her many times. Whilst that was occurring, Rowena's head was flopping and her eyes were turned up. Ms Payne subsequently picked up Rowena and took her to a bedroom and called an ambulance.

The child was taken to the Bendigo Hospital and from there by air ambulance to the Royal Children’s Hospital in Melbourne, where she was admitted to a neurosurgical ward. She had suffered a brain haemorrhage and was acutely ill. Following neurosurgical intervention she made reasonable neurological recovery.

But ongoing problems remained in the form of a residual left hemiparesis, probable cognitive deficits and abnormal myoclonic movements of her face and left arm.

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 Taylor

Details

AGLC: DPP v Taylor [2005] VSCA 222
Case: [2005] VSCA 222
Decision Date: 1 September 2005

CaseChat Overview and Summary

The Director of Public Prosecutions appealed against the sentence imposed on Taylor, who was convicted of intentionally causing serious injury. The case was heard in the Supreme Court of New South Wales. The Director argued that the sentence was manifestly inadequate, particularly considering the delay in sentencing and the nature of the offence. The appeal raised issues concerning the appropriate weight to be given to mitigating factors, including the delay in sentencing, Taylor's Aboriginality, and other personal circumstances.

The court considered whether the sentence of two years with a non-parole period of six months was manifestly inadequate. The sentencing judge had acknowledged the delay in bringing the case to trial, the difficult circumstances of Taylor's upbringing, and his Aboriginality. The court noted that while these factors were significant, they did not justify a sentence that was significantly below the range typically imposed for such offences. The court held that the sentence was within the range of appropriate penalties for the crime committed.

The court found that the sentence did not result in a manifestly inadequate punishment. While the delay in sentencing and Taylor's personal circumstances were acknowledged, they did not warrant a substantial reduction in the sentence. The court was mindful of the need to maintain public confidence in the criminal justice system and ensure that sentences reflect the seriousness of the offence. The appeal was therefore dismissed.

No further orders were made by the court.

Orders