DPP v Waack - [2001] VSCA 108

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No.2 of 2001

DIRECTOR OF PUBLIC PROSECUTIONS
	v.
JASON KEITH WAACK

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JUDGES:	PHILLIPS, BATT and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 May 2001
DATE OF JUDGMENT:	31 July 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 108	First revision 13.8.01

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CRIMINAL LAW – Sentencing – Intentionally causing serious injury – Savage assault by kicking - Director’s appeal against wholly suspended sentence – Manifestly inadequate – Whether appeal precluded by prosecuting counsel’s comments below – Appeal allowed – Immediate custodial sentence ordered.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. P.A. Coghlan Q.C.	Solicitor for Public Prosecutions
For the Respondent	Mr. P.G. Priest Q.C. With Mr. P.A. D’Arcy	Peter J. Jacobs

PHILLIPS, J.A.

This is an appeal by the Director of Public Prosecutions under s.567A of the Crimes Act 1958 against the sentence imposed on the respondent in the County Court on 13 November 2000. The respondent had been presented on one count of intentionally causing serious injury, an offence under s.16 of the Crimes Act carrying a maximum penalty of 20 years’ imprisonment. The respondent pleaded guilty, admitting six previous convictions for offences of dishonesty from three previous court appearances – convictions which were treated by the sentencing judge as having little present relevance. After a plea in mitigation by counsel on behalf of the respondent which was remarkably brief (both plea and sentence occupying 16 pages of transcript only, including evidence from the respondent's sister), the learned judge sentenced the respondent to be imprisoned for 18 months and ordered that such sentence be wholly suspended for a period of two years. The Director now appeals, essentially upon the ground that that sentence was manifestly inadequate.

Curiously, the difficulty in this appeal lies not in the ground taken; for in my opinion that is plainly established. The respondent is now 20 years of age: at the date of the offending he was 19. On the evening of 8 April 2000, one Rayner, walked from his home to a nearby hotel. He was there for about an hour, drinking beer. He purchased two stubbies to take with him and left the hotel shortly after 11 p.m. In the car park of the hotel three young men, including the respondent, were drinking in a parked car, after attending a nearby party. Rayner walked to a nearby bus stop. The motor vehicle containing the respondent left the car park and turned into the street near the bus stop. The respondent, who was seated in the front passenger seat of the vehicle, thought that Rayner was staring at him and made some comment to his friends in the vehicle. As the vehicle drove off, Rayner was seen running down the street after it. The respondent and the two men with him described Rayner as holding a beer stubby in his right hand above his head as if he was about to throw it at the vehicle. The vehicle turned left and stopped, while the…

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.

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Details

AGLC: DPP v Waack [2001] VSCA 108
Case: [2001] VSCA 108
Decision Date: 31 July 2001

CaseChat Overview and Summary

The Director of Public Prosecutions appealed against a wholly suspended sentence imposed on a defendant convicted of intentionally causing serious injury by kicking a person in the head. The case was heard by the Court of Appeal of the Supreme Court of Queensland. The appeal centred on the adequacy of the sentence imposed and whether the prosecuting counsel's comments during the trial precluded the appeal. The Court of Appeal considered the severity of the offence, the impact of the comments on the appeal, and the principle that a manifestly inadequate sentence may be appealed.

The primary legal issue was whether the appeal against the wholly suspended sentence was precluded by comments made by the prosecuting counsel during the trial. The court also needed to determine whether the sentence was manifestly inadequate and whether it warranted an immediate custodial sentence. The appeal hinged on interpreting the relevant provisions of the law regarding sentencing and the effect of prosecutorial comments on the court's ability to review and revise the sentence. The Court of Appeal had to balance the principle of finality in sentencing with the need to ensure justice was served.

The Court of Appeal held that the appeal was not precluded by the prosecuting counsel's comments and found the sentence to be manifestly inadequate. The court emphasised the severity of the offence and the need for an immediate custodial sentence to reflect the community's condemnation of the crime and to deter future offences of a similar nature. The Court of Appeal allowed the appeal and ordered an immediate custodial sentence, indicating that the original sentence did not appropriately reflect the gravity of the defendant's actions. The court's decision underscored the importance of proportionality in sentencing and the court's duty to ensure sentences are just and appropriate.

Orders