Ellis v The Queen - [2015] VSCA 21

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0242

SARAH ELLIS	Applicant
v
THE QUEEN	Respondent

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JUDGES:	BONGIORNO and KYROU JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 February 2015
DATE OF JUDGMENT:	17 February 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 21
JUDGMENT APPEALED FROM:	DPP v Ellis (Unreported, County Court of Victoria, Judge Lacava, 13 February 2014)

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CRIMINAL LAW – Sentencing – Application for leave to appeal – Young offender – Violent offence – Significant injury – Sentencing judge rejects Community Corrections Order – Discretionary consideration – No error of law or fact – Appeal dismissed – No point of principle

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T E Wraight SC with Mr J G Westmore	Lethbridges
For the Crown	Mr R A Elston QC	Mr C Hyland, Solicitor for Public Prosecutions

BONGIORNO JA
KYROU JA:

On 13 February 2014, the applicant, a 21 year old, was sentenced in the County Court to two years six months’ imprisonment with a non-parole period of one year three months after she pleaded guilty, on arraignment, to one charge of recklessly causing serious injury. The charge arose out of an incident at a Werribee hotel on 9 April 2013. The plea of guilty to recklessly causing serious injury had been negotiated from an original charge of intentionally causing serious injury. It was entered before a Magistrate at a special mention on 16 September 2013 at which a plea hearing in the County Court was fixed for 30 January 2014.

In his sentencing remarks the sentencing judge, Judge Lacava, summarised the evidence before him concerning the event out of which the charge arose as follows:

You attended at a hotel in Werribee with Rhys Diamond who is the brother of your partner Joel Diamond. Both of you had been drinking before you arrived at the hotel and both of you were affected by alcohol. Whilst in the hotel two incidents occurred involving the victim in this matter Michael James. Both were captured on closed circuit television footage which was tendered as Exhibit B. You were involved in both incidents. I have viewed both of them in the court and in my chambers.
In the first incident you punched James in the face twice after he and Rhys Diamond had been fighting.
After this incident you and Rhys Diamond were escorted from the hotel to the car park. Rhys Diamond then asked you to phone his brother and asked him to come to the hotel which you did. Rhys Diamond said to James who was by this time sitting on a stool, ‘Stay there mate you’ll be right, you’ll get fixed up’.
A short time later your partner Joel Diamond arrived at the hotel with another person. Rhys Diamond had a conversation with his brother and described the clothing James was wearing. A short time later Joel Diamond entered the hotel and you followed. Rhys Diamond remained near the door holding it ajar. As James bent down 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 Ellis v The Queen

Details

AGLC: Ellis v The Queen [2015] VSCA 21
Case: [2015] VSCA 21
Decision Date: 17 February 2015

CaseChat Overview and Summary

In Ellis v The Queen, the High Court of Australia addressed an appeal against a sentence imposed on the respondent, who was convicted of a violent offence resulting in significant injury. The appellant sought leave to appeal against the sentence, arguing that the sentencing judge had erred in rejecting a Community Corrections Order. The case presented questions about the appropriate exercise of judicial discretion in sentencing and the extent to which the sentencing judge’s decision could be reviewed. The primary legal issue was whether the sentencing judge had made an error of law or fact in declining to impose a Community Corrections Order. The court had to determine if there was any basis to conclude that the judge's decision was unreasonable or based on an incorrect application of the law.

The court examined the sentencing judge's reasoning and found no error of law or fact. The sentencing judge had carefully considered the nature of the offence, the appellant's age, and the principles of sentencing for young offenders. The court concluded that the sentencing judge had appropriately exercised their discretion in assessing the appellant’s suitability for a Community Corrections Order and had adequately justified the reasons for the sentence imposed. The High Court found that the appeal did not present any point of principle of general significance and therefore dismissed the application for leave to appeal. The court's decision emphasised the importance of judicial discretion in sentencing and the limited scope of appellate review in such matters.

Orders