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Jackson v The Queen

Jackson v The Queen

Case [2013] VSCA 14 13 February 2013

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0146

ROBERT JOHN JACKSON	Appellant
	v
THE QUEEN	Respondent

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JUDGES	MAXWELL P, WEINBERG and PRIEST JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	30 January 2013
DATE OF JUDGMENT	13 February 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 14
JUDGMENT APPEALED FROM	R v Jackson (Unreported County Court of Victoria, Judge Cotterell, 29 February 2012)

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CRIMINAL LAW — Appeal against sentence — Appellant pleaded guilty to one charge of intentionally causing serious injury —Victim punched and kicked a number of times to head and body — Long lasting and serious effect on victim — Appellant not sentenced until approximately three years after offence committed — Sentence of four years and six months’ imprisonment with non-parole period of two years — Whether sentence manifestly excessive —Whether sentencing judge failed to take into account stress likely to have been suffered by appellant by reason of matter being unresolved for lengthy period — Whether sentencing judge impermissibly had regard to contents of victim impact statement containing hearsay and opinion — No objection made to contents of victim impact statement on plea — Sentence indicative of delay having been appropriately taken into account — Very late plea — Appeal dismissed.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr D A Glynn	Victoria Legal Aid
For the Crown	Ms F L Dalziel	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P:

I agree with Weinberg JA.

WEINBERG JA:

I have had the considerable advantage of having read, in draft, the reasons for judgment prepared by Priest JA. His Honour has concluded that the appeal should be allowed. He considers that the appellant’s sentence should be reduced from four years and six months’ imprisonment with a non-parole period of two years, to one of three years and six months’ imprisonment with a non-parole period of one year and nine months. His Honour’s analysis is compelling. I agree with much of his reasoning.

Nonetheless, having given this matter anxious consideration, I find myself unable to agree that the appeal should be allowed. I have instead concluded that irrespective of whether the sentencing judge failed to deal with the question of delay correctly, as Priest JA has found, no different sentence should be imposed.[1] For that reason, I would dismiss the appeal.
[1]Criminal Procedure Act 2009 s 281.

The facts surrounding the commission of this offence are set out in detail in his Honour’s reasons for judgment. That saves me the task of having to repeat them. It is sufficient for present purposes to observe that, on the day in question, the appellant launched a vicious and unprovoked attack upon his victim. He punched him to the head, causing him to fall to the ground where he lay motionless. He then delivered anything up to four kicks to the head and body, all of them directed at a man who was entirely helpless. The victim was hospitalised and suffered very serious injury, some of it having residual…

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 v The Queen

Details

AGLC: Jackson v The Queen [2013] VSCA 14
Case: [2013] VSCA 14
Decision Date: 13 February 2013

CaseChat Overview and Summary

The appellant, Jackson, appealed against his sentence for intentionally causing serious injury to another person. Jackson pleaded guilty to the offence, which involved punching and kicking the victim multiple times to the head and body, resulting in long-lasting and serious effects on the victim. Jackson was not sentenced until approximately three years after the offence was committed, at which time he was sentenced to four years and six months’ imprisonment, with a non-parole period of two years. Jackson argued that the sentence was manifestly excessive, and that the sentencing judge failed to consider the stress he likely suffered due to the unresolved matter for a lengthy period. Jackson also contended that the sentencing judge improperly considered the contents of a victim impact statement, which contained hearsay and opinion, and to which Jackson did not object when he entered his plea.

The court considered Jackson's arguments, noting that the delay in sentencing was due to Jackson's very late plea. The court held that the sentence was not manifestly excessive and that the delay had been appropriately taken into account. The court found that the sentencing judge did not fail to consider the stress Jackson may have suffered due to the delay, as the sentence reflected the time that had elapsed since the offence was committed. The court also held that the sentencing judge did not improperly consider the victim impact statement, as Jackson did not object to it when he entered his plea. The court found no error in the sentencing judge's approach and dismissed the appeal.

The appeal was dismissed, and the original sentence of four years and six months’ imprisonment, with a non-parole period of two years, was upheld. The court found that the sentence was appropriate and that the sentencing judge had considered all relevant factors in determining the sentence. The delay in sentencing was appropriately taken into account, and there was no error in the sentencing judge's consideration of the victim impact statement. The sentence was not manifestly excessive and reflected the seriousness of the offence and the impact on the victim.

Orders