Jorgensen v the Queen - [2010] VSCA 171

SUPREME COURT OF VICTORIA

COURT OF APPEAL

BENJAMIN JORGENSEN	S APCR 2008 0529
	Appellant
v
THE QUEEN	Respondent

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JUDGES	BUCHANAN and BONGIORNO JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	1 July 2010
DATE OF JUDGMENT	1 July 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 171
JUDGMENT APPEALED FROM	R v Hayes & Jorgensen (Unreported, County Court of Victoria, Judge Williams, 22 January 2008)

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CRIMINAL LAW – Sentence – Armed robbery – Reliance by sentencing judge on a psychologist’s report tendered on behalf of co-offender – No opportunity for contradiction – Error – Resentencing required

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Appearances:	Counsel	Solicitors
For the Appellant	Mr C B Boyce	Dowling McGregor
For the Crown	Mr C J Ryan, SC	Mr C Hyland, Solicitor for Public Prosecutions

BONGIORNO JA:

These reasons should be read in conjunction with those given by Buchanan JA in Hayes v The Queen.[1]
[1][2010] VSCA 170.

On 21 January 2008 Benjamin Jorgensen appeared with Dona Hayes before the County Court at Melbourne where he pleaded guilty to two offences; armed robbery and negligently causing serious injury. Dona Hayes was his accomplice in respect of the first count and the victim of the second.

In one sense the events of 1 April 2007 which gave rise to these counts were bizarre. Late that evening Jorgensen and Hayes held up a restaurant in the Dandenongs, expecting a plastic garbage bag which they took from an employee to contain a large amount of money; perhaps as much as $30,000.00. In fact, it contained bread rolls. In the course of the robbery a sawn-off shot gun which Jorgensen carried was unintentionally discharged, severely injuring Hayes in the buttocks and leg area. At the time of the robbery Jorgensen and Hayes were disguised by a balaclava and a very large hat respectively.

In fact, those events were seriously criminal. The robbery must have been terrifying for the restaurant staff who were confronted by the sawn-off shot gun and even more so when it discharged, and they realised it had been loaded. That terror would not have been diminished by seeing Jorgensen reload the weapon after it discharged, with ammunition he had brought with him should it be required.

Jorgensen and Hayes have known each other for a long time. They were in a de facto marriage for some time about ten years before the robbery and had two children. They were not in that relationship at the time of the robbery and had not been for some years, but they remained friends, if not close friends. The robbery was not committed on the spur of the moment. Jorgensen had cut down the barrel of the gun two days before. He obtained a balaclava and they both had a belief, or at least a hope, of substantial financial gain. Hayes had some knowledge of the restaurant’s procedures in respect of its takings. In the immediate aftermath of the robbery Jorgensen threatened to 'blow the head off' one of the restaurant employees 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 Jorgensen v the Queen

Details

AGLC: Jorgensen v the Queen [2010] VSCA 171
Case: [2010] VSCA 171
Decision Date: 1 July 2010

CaseChat Overview and Summary

The case of Jorgensen v the Queen involved the appellant, Jorgensen, who had been convicted of armed robbery. Jorgensen’s appeal focused on the sentencing process, particularly the reliance by the sentencing judge on a psychologist’s report concerning Jorgensen’s co-offender. The High Court of Australia was tasked with determining whether the error in the sentencing procedure warranted a new sentencing hearing. The central issue was whether the sentencing judge’s reliance on the psychologist’s report, which was not subject to cross-examination or contradiction, constituted a significant procedural error that undermined the fairness and accuracy of the sentence imposed.

The court considered whether the failure to allow the accused a fair opportunity to challenge the evidence presented in the psychologist’s report amounted to a miscarriage of justice. The court noted that the psychologist’s report played a significant role in the sentencing decision, yet Jorgensen was not given the chance to question the report’s content or methodology. This omission was held to be a substantial procedural defect that could have affected the sentencing outcome. The court further examined the principle that every person charged with an offence has the right to a fair trial, which includes the right to challenge adverse evidence. The absence of an opportunity to contradict the psychologist’s report was deemed to breach this fundamental right.

Ultimately, the court concluded that the procedural error was significant enough to warrant a new sentencing hearing. The reliance on an unchallenged psychologist’s report without providing the accused an opportunity to contest it constituted a serious procedural flaw. The court ordered a resentencing of Jorgensen, ensuring that all parties have the right to challenge any evidence that may impact their sentence. The final orders mandated that Jorgensen be given a new sentencing hearing, allowing for full opportunity to contest any evidence presented.

Orders