Ellis v The Queen - [2011] VSCA 36

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0866

PETER JOHN ELLIS
	v
THE QUEEN

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JUDGES:	ASHLEY and BONGIORNO JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 February 2011
DATE OF JUDGMENT:	9 February 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 36
JUDGMENT APPEALED FROM:	R v Ellis (Unreported, County Court of Victoria, Judge Murphy, 14 October 2009

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CRIMINAL LAW – Sentence – Recklessly causing serious injury – Whether sentencing judge acted upon erroneous presentation of facts by prosecutor and applicant’s counsel – Crown Opening read in Court in applicant’s presence, and not controverted – Whether applicant sentenced on incorrect basis – Whether sentence manifestly excessive - Application for leave to appeal against sentence refused – No point of principle.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D P Sheales (on application to adjourn only)
For the Crown	Mr S M Cooper	Mr C. Hyland, Solicitor for Public Prosecutions

ASHLEY JA:

Peter Ellis, a man born 2 February 1959 and so now aged 52, pleaded guilty at a Directions Hearing in the County Court on 29 April 2009 to recklessly causing serious injury. There was a plea hearing on 8 September 2009, and on 14 October of that year he was sentenced to two years and nine months' imprisonment with a non‑parole period of one year and nine months.

He sought leave to appeal against sentence on the ground that the sentence was manifestly excessive. Neave JA refused leave on 30 April 2010.

The applicant elected to have his application determined by the Court of Appeal. The President has determined that the Court as now constituted should constitute the Court of Appeal.

The circumstance of the offence

On the evening of 2 July 2006 the complainant, a man whom it is said the applicant did not know, was drinking with friends at a hotel in the outer east of Melbourne. The applicant, his partner and son, had dinner at the hotel that night. The applicant was described, though he had been drinking, as not being intoxicated at the critical time.

Late in the evening there was a verbal altercation involving the complainant. During that altercation the applicant pushed the complainant and kicked him in the shins. Following this the complainant and the applicant’s son went outside and a fight ensued. After the fight was broken up outside the hotel, the complainant returned to the bar. It was then that the applicant struck him to the head with a glass beer jug.

Injuries

The injuries sustained by the complainant were described this way by the sentencing judge:

11… He sustained a 14 centimetre laceration to the left side of his face, commencing on his forehead, in front of the hairline, and extending down in the front of and below his left ear and two other lacerations on the scalp of three centimetres each. The lacerations required 17, 3 and 2 stitches respectively.
12A medical report indicates that the wounds healed well, leaving an obvious scar in 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.

Continue reading Ellis v The Queen

Details

AGLC: Ellis v The Queen [2011] VSCA 36
Case: [2011] VSCA 36
Decision Date: 9 February 2011

CaseChat Overview and Summary

In the case of Ellis v The Queen, the applicant, Ellis, sought to appeal against the sentence imposed by the Supreme Court of Queensland, which had found him guilty of recklessly causing serious injury. The applicant contended that the sentencing judge had based the sentence on an incorrect understanding of the facts due to erroneous presentations by both the prosecutor and the applicant’s counsel. A key point of contention was the Crown Opening, which was read in court in the applicant’s presence and not contested. The applicant argued that this led to the sentencing judge imposing a sentence based on a mistaken premise, rendering it manifestly excessive. The primary issue before the court was whether the applicant's sentence was founded on an erroneous presentation of facts and whether the sentence was manifestly excessive.

The court examined whether the applicant's sentence was influenced by the erroneous facts presented during the trial. It considered whether the Crown Opening, read in the applicant’s presence without contradiction, should be treated as an accepted factual basis for sentencing. The court further assessed if the sentence imposed was manifestly excessive, taking into account the nature of the offence and the principles of sentencing. The court noted the importance of ensuring that sentences are proportionate and based on accurate factual premises. However, the court concluded that despite the potential for error in the factual presentations, the sentence did not reach a level of manifest excessiveness that would warrant an appeal. The reasoning hinged on the balance of aggravating and mitigating factors considered by the sentencing judge, and the overall proportionality of the sentence in light of the crime committed.

Ellis’s application for leave to appeal against the sentence was refused by the court, which found that no point of principle of general legal significance arose from the case. The court held that the sentencing judge’s decision, while potentially influenced by erroneous facts, did not result in a sentence that was manifestly excessive. The sentence was deemed to be within the bounds of what was appropriate for the offence of recklessly causing serious injury. Consequently, the court found no basis for an appeal on the grounds presented by the applicant.

Orders