Graeske v The Queen - [2015] VSCA 229

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0048

JOSHUA GRAESKE

THE QUEEN

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JUDGES:	MAXWELL P and WHELAN JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 July 2015
DATE OF ORDERS:	20 August 2015
DATE OF REASONS:	28 August 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 229
JUDGMENT APPEALED FROM:	DPP v Graeske (Unreported, County Court of Victoria, Judge Wischusen, 7 November 2014)

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CRIMINAL LAW – Appeal – Sentence – Recklessly causing serious injury – Assault on sports field – Sentence of 3 years’ imprisonment with non-parole period of 2 years – Combination of imprisonment and community correction order available – Whether judge overlooked option of combination sentence – Importance of treatment to address causes of offending – Appeal allowed – Re-sentenced to 1 year’s imprisonment with a 3 year community correction order – Boulton v The Queen [2014] VSCA 342 applied – Sentencing Act 1991 s 44(1).

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms C A Boston with Mr A Imrie	Melasecca Kelly & Zayler
For the Respondent	Ms D Piekusis	Ms V Anscombe, Acting Solicitor for Public Prosecutions

MAXWELL P

WHELAN JA:

On 28 February 2014 the applicant pleaded guilty to one count of recklessly causing serious injury before a judge in the County Court. The plea hearing began on 14 August 2014 and was adjourned until 31 October 2014 so that further psychiatric and medical evidence could be obtained. On 7 November 2014 the applicant was sentenced to a term of imprisonment of three years. A non-parole period of two years was fixed. The judge indicated that but for the plea of guilty the applicant would have been sentenced to four years six months’ imprisonment with a non-parole period of three years six months. Pre-sentence detention of seven days was declared. The applicant sought leave to appeal that sentence.

The application was heard on 23 July 2015. A pre-sentence report under s 8A of the Sentencing Act 1991 was ordered and the hearing resumed on 20 August 2015. On that day, orders were made granting leave to appeal, allowing the appeal and substituting for the sentence imposed below a sentence of imprisonment for one year with a community correction order of three years commencing upon the expiry of the term of imprisonment. The Court indicated reasons would be published subsequently. These are those reasons.

Circumstances of the offence

At the time of sentence the applicant was 23 years of age. The offence was committed on 14 July 2012 when the applicant was 21 years of age.

The offence itself was committed during the course of an amateur AFL football match. The applicant and the victim were playing against each other. Disputes of a kind which are not unusual in the course of AFL football occurred, culminating in an incident where the applicant and the victim were wrestling. What then occurred was described as follows in the prosecution summary which was tendered on the plea and which was accepted as being accurate:

[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 Graeske v The Queen

Details

AGLC: Graeske v The Queen [2015] VSCA 229
Case: [2015] VSCA 229
Decision Date: 28 August 2015

CaseChat Overview and Summary

In Graeske v The Queen, the appellant, Mr Graeske, sought to appeal his sentence after being convicted of recklessly causing serious injury in an assault that occurred on a sports field. The appeal was heard by the Victorian Court of Appeal, which had to consider whether the trial judge erred in imposing a sentence without adequately considering a combination of imprisonment and a community correction order. The appellant argued that the trial judge overlooked the possibility of a combination sentence, which might have been more appropriate given the need for treatment to address the causes of his offending behaviour.

The legal issues before the court centred on whether the trial judge failed to consider the full range of sentencing options available under the Sentencing Act 1991, particularly the combination of imprisonment and community correction orders as permitted by section 44(1). The appellant’s legal team contended that the trial judge did not sufficiently weigh the benefits of a combination sentence, which could include more effective rehabilitation opportunities. The Court of Appeal was tasked with determining if this omission constituted a significant error that warranted an appeal and subsequent re-sentencing.

In its judgment, the Court of Appeal found that the trial judge had indeed overlooked the possibility of a combination sentence. The court held that such a sentence would have allowed for more comprehensive treatment to address the underlying causes of the appellant’s offending. The court cited Boulton v The Queen [2014] VSCA 342 as precedent for the need to consider all available sentencing options, including the potential for combining imprisonment with a community correction order. Consequently, the appeal was allowed, and the appellant was re-sentenced to 1 year’s imprisonment with a 3-year community correction order. This new sentence aimed to balance the need for punishment with the opportunity for rehabilitation.

Orders