Giles v The Queen

[2014] VSCA 183

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2014 0101

GARRETH GILES

v

THE QUEEN

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE (DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009)

JUDGE	ASHLEY JA
WHERE HELD	MELBOURNE
DATE OF JUDGMENT	22 August 2014
MEDIUM NEUTRAL CITATION	[2014] VSCA 183
JUDGMENT APPEALED FROM	R v Giles [2014] VSC 210 (King J)

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DETERMINED ON THE PAPERS

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Appearances:	Counsel	Solicitors
No Appearances

ASHLEY JA:

1. On 8 October 2013, Garreth Giles was convicted, after trial in the Supreme Court, of murder, two counts of theft, and arson.  On 30 April 2014, he was sentenced as follows:

Charge 1–         Murder         –         26 years’ imprisonment

Charge 2–         Theft              –         1 year’s imprisonment

Charge 3–         Theft              –         1 year’s imprisonment

Charge 4–         Arson            –         18 months’ imprisonment

The judge made no orders for cumulation.  The total effective sentence was thus 26 years’ imprisonment.  The judge fixed a non-parole period of 21 years’ imprisonment.

Grounds

1. Giles now applies for leave to appeal against sentence, relying upon these grounds:

GROUND 1:The Applicant was denied procedural fairness in that the learned sentencing Judge stated in her reasons for sentence that Coulter was ‘assessed as functioning within the intellectual disability range, with an overall performance better than only 0.2% of his same aged peers’, - a finding that was not the subject of evidence on the Applicant’s trial or plea.

GROUND 2:The learned sentencing Judge erred in her characterization of the Applicant’s role, criminality and moral culpability, in that she erred by:

i)Relying upon the alleged IQ of Coulter in assessing the Applicant’s criminality when this was not evidence led on either his trial or his plea;

ii)Making an assessment of the Applicant’s role vis a vis Coulter in circumstances where the Judge was not fully aware of the case against Coulter;

iii)Allowing the fact that she ‘strongly believed’ the Applicant strangled the deceased, in circumstances where the admissible facts at trial or on the plea did not support such a belief, to infect her assessment of the Applicant’s role and criminality;

iv)Adhering to a view as to the Applicant’s lack of empathy without sufficient support in the evidence;

v)Finding that the Applicant killed the deceased to see what ‘it felt like’, when the evidence was insufficient to identify a motive for the crime.

GROUND 3:The learned sentencing judge erred by having regard to the orders made by Hollingworth J in respect of co-offender Coulter’s disposition, in determining the Applicant’s sentence.

GROUND 4:The learned sentencing Judge erred by

a)imposing a sentence on charge 1;  and

b)imposing a non-parole period

which was, in all the circumstances, manifestly excessive.

PARTICULARS

i)     Insufficient weight given to the Applicant’s psychiatric disorder/illness in assessing his criminality, moral culpability

j)    Insufficient weight given to the assessment of his risk of reoffending

k)    Insufficient weight given to the Applicant’s hardship in custody

l)     Insufficient weight given to his previous good character and youth

m)   Imposing a sentence well above…