JUDGES:	MAXWELL P, REDLICH JA and ROBSON AJA
WHERE HELD:	SHEPPARTON
DATE OF HEARING:	21 October 2008
DATE OF JUDGMENT:	2 October 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 220
JUDGMENT APPEALED FROM:	R v Norman Terrick, Brian Marks and John Stewart (Unreported, County Court of Victoria, Judge Leckie, 14 March 2008)

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CRIMINAL LAW – Sentencing – Crown appeal – Causing serious injury intentionally – Causing serious injury recklessly – Affray – Savage assault by kicking and punching – Assault in company – Catastrophic injuries suffered by victim – Whether full extent of injuries foreseen or intended – Whether distinction between recklessly and intentionally causing serious injury where offenders acting in concert – Relevance of Aboriginality – Relevance of disadvantaged background – Whether recidivism affects mitigating effect of disadvantage – Chronic alcoholism – Alcohol-fuelled violence – Importance of community protection against random violence – Sentences manifestly inadequate.

CRIMINAL LAW – Appeal – Sentencing – Crown appeal – Duty of prosecutor to assist court – Sentencing judge requested prosecutor’s assistance on sentencing range – Request refused – Whether lack of assistance contributed to sentencing error – Whether Crown appeal should be dismissed in exercise of discretion – Appeal allowed – R v MacNeil-Brown [2008] VSCA 190 considered.

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APPEARANCES:

Counsel

Solicitors

For the Crown

Mr J D McArdle QC with
Dr S McNicol

Mr C Hyland, Solicitor for Public Prosecutions

For the Respondent Terrick

For the Respondent Marks

For the Respondent Stewart

Mr T E Wraight

Mr P F Tehan QC with
Mr C B Boyce

Mr O P Holdenson QC with
Mr T Kassimatis

Cynthia A Toose & Associates

Ronald V Tait

Theo Magazis & Associates

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MAXWELL P
REDLICH JA
ROBSON AJA:

This is a Director’s appeal against the sentences imposed upon the three respondents, who were convicted in the County Court at Shepparton. The first respondent, John Stewart, was found guilty following a jury trial of one count of recklessly causing serious injury and one count of affray. The second and third respondents, Brian Marks and Norman Terrick, each pleaded guilty to one count of intentionally causing serious injury. They were sentenced as set out in Table A.

Table A: Sentences imposed; Crown range[1]
[1]See [68] below.

OFFENDER	OFFENCE	MAXIMUM	PLEA	SENTENCE	TES[2]	NPP[3]	CROWN RANGE
OFFENDER	OFFENCE	MAXIMUM	PLEA	SENTENCE	TES[2]	NPP[3]	TES	NPP
Stewart	Recklessly cause serious injury Affray	15y 5y	NG NG	8y 1	8y	6y	11-13y	7-9y
Marks	Intentionally cause serious injury	20y	G	9y	9y	7y	13-15y	8-10y
Terrick	Intentionally cause serious injury	20y	G	9y	9y	7y	13-15y	8-10y

[2]‘Total effective sentence’.

[3]‘Non-parole period’.

The Director has appealed against all of the individual sentences, the total effective sentences and the minimum terms imposed on each respondent on the basis of manifest inadequacy. The Director contended…

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 Terrick

Details

AGLC: DPP v Terrick [2009] VSCA 220
Case: [2009] VSCA 220
Decision Date: 2 October 2009

CaseChat Overview and Summary

In the case of DPP v Terrick, the respondent was convicted for his involvement in a violent assault that left the victim with catastrophic injuries. The appeal by the Director of Public Prosecutions (DPP) focused on the sentencing, arguing that the sentences imposed were manifestly inadequate. The case was heard in the Court of Appeal, which was tasked with determining whether the original sentences should be altered due to the severity of the crime and the failure of the prosecutor to provide requested assistance to the sentencing judge. The court had to consider whether the Crown's refusal to assist on the sentencing range contributed to an error in sentencing and whether the appeal should be dismissed due to this failure.

The legal issues that the Court of Appeal needed to address included whether the original sentences reflected the gravity of the offence, given the extent of the victim's injuries and the nature of the assault. The court also needed to determine the relevance of the respondent's background, including his Aboriginality and disadvantaged status, in the sentencing process. Additionally, the court considered the role of recidivism and chronic alcoholism in mitigating the sentence, as well as the importance of community protection against random acts of violence. The court was required to decide whether the failure of the prosecutor to provide assistance to the sentencing judge on the appropriate sentencing range constituted a significant error that warranted allowing the appeal.

The Court of Appeal concluded that the sentences were manifestly inadequate and allowed the appeal. The court found that the severity of the attack, the catastrophic injuries suffered by the victim, and the lack of foresight or intent to cause such harm did not sufficiently influence the original sentencing. The court held that the prosecutor's refusal to provide assistance on the sentencing range did not contribute to the sentencing error but noted that the Crown's duty to assist the court was significant. The court considered the case of R v MacNeil-Brown, where it was held that a Crown appeal should not be dismissed merely because the Crown failed to assist the sentencing judge. In light of the overwhelming evidence of the crime's severity and the inadequacy of the original sentences, the appeal was allowed, and the matter was remitted to the sentencing court for reconsideration of the sentences.

The court did not specify the final orders but indicated that the sentences should be reconsidered to ensure they adequately reflect the seriousness of the offence and the need for community protection against such random acts of violence.

Orders