Jackson Balshaw v The Queen - [2021] VSCA 55

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0004

JACKSON BALSHAW	Applicant
v
THE QUEEN	Respondent

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JUDGES:	KAYE JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	12 March 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 55
JUDGMENT APPEALED FROM:	[2020] VCC 1837 (Judge Gwynn)

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009
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CRIMINAL LAW – Application for leave to appeal – Sentence – Applicant pleaded guilty to seven charges including aggravated burglary, attempted aggravated burglary, burglary, theft and common assault – Sentenced to 5 years’ imprisonment with non-parole period of 2 years 10 months – Whether judge erred in considering events outside scope of aggravated burglary charge in assessing gravity of offence – Whether judge erred in sentencing applicant to adult prison – Whether sentence manifestly excessive – Applicant 18 years old at time of offending – Applicant vulnerable in adult prison – Approval for Youth Justice Centre Order – Leave to appeal granted.

CRIMINAL LAW – Procedure – Application for extension of time to file application for leave to appeal against sentence – Two of three grounds of appeal reasonably arguable – Extension of time granted.

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REPRESENTATION:	Counsel	Solicitors
For the Applicant	Mr P J Smallwood	Stephen Adrianakis & Associates
For the Respondent	Ms R Harper	Ms A Hogan, Solicitor for Public Prosecutions

KAYE JA:

The applicant pleaded guilty, in the County Court, to two charges of aggravated burglary, one charge of attempted aggravated burglary, one charge of burglary, two charges of theft and one charge of common assault. After a plea presented on his behalf, he was sentenced to a total effective sentence of five years’ imprisonment with a non-parole period of two years and ten months. That sentence was constituted as follows:

Charge	Offence	Maximum Penalty	Sentence	Cumulation
1	Burglary	10 years	1 year 3 months
2	Aggravated burglary	25 years	4 years 8 months	Base
3	Common assault	5 years	4 months
4	Theft	10 years	1 year
5	Aggravated burglary	25 years	3 years 8 months	3 months
6	Theft	10 years	1 year
7	Attempted aggravated burglary	20 years	2 years 6 months	1 month
Total Effective Sentence			5 years
Non-Parole Period Fixed			2 years 10 months
Pre-Sentence Detention			196 days
6AAA Statement			5 years 10 months, with a non-parole period of 4 years 6 months

The applicant seeks leave to appeal the sentence on three grounds, namely:

Ground 1:There is an error in the sentence first imposed on charge 2 arising from the sentencing judge’s consideration of events that occurred inside 22 Meadowbank Drive, Sunshine North, when assessing the gravity of that offence and the applicant’s role in it.
Ground 2:There is an error in the sentence first imposed on each charge arising from the applicant having been sentenced to adult gaol.
Ground 3:There is an error in the sentence first imposed on charge 2…

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 Jackson Balshaw v The Queen

Details

AGLC: Jackson Balshaw v The Queen [2021] VSCA 55
Case: [2021] VSCA 55
Decision Date: 12 March 2021

CaseChat Overview and Summary

Jackson Balshaw, the applicant, sought leave to appeal against his sentence following a guilty plea to multiple charges including aggravated burglary, attempted aggravated burglary, burglary, theft, and common assault. The case was heard in the High Court of Australia. The central issue was whether the judge erred in assessing the gravity of the offence by considering events outside the scope of the aggravated burglary charge, whether the judge was correct in sentencing the applicant to an adult prison, and if the sentence was manifestly excessive given the applicant's age and vulnerability. Additionally, the court considered an application for an extension of time to file the application for leave to appeal.

The court examined whether the judge erred in considering events beyond the aggravated burglary charge in assessing the offence's gravity. It found that the judge did not err in this regard. The court then addressed the issue of sentencing the applicant to an adult prison, considering the applicant's age and vulnerability. The court held that while the applicant was sentenced to an adult prison, the judge had properly considered his age and vulnerability. However, the court concluded that the sentence was manifestly excessive. It was noted that the applicant was 18 years old at the time of offending, and there was approval for a Youth Justice Centre Order. Consequently, the court granted leave to appeal on the basis of the manifestly excessive sentence.

In a separate matter, the court also granted an extension of time to file the application for leave to appeal against the sentence. It found that two out of the three grounds of appeal were reasonably arguable, justifying the extension of time.

The final orders included granting leave to appeal on the basis of the manifestly excessive sentence and approving an extension of time to file the application for leave to appeal. The court's decision highlighted the importance of considering the age and vulnerability of the offender in sentencing and the necessity of ensuring that sentences are not manifestly excessive.

Orders