Kane v The Queen - [2010] VSCA 213

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0573

JEFFREY KANE
JEFFREY KANE	Appellant
v
THE QUEEN	Respondent

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JUDGES:	NETTLE, HARPER and HANSEN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 August 2010
DATE OF JUDGMENT:	23 August 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 213
JUDGMENT APPEALED FROM:	R v Kane (Unreported, County Court of Victoria, Judge Douglas, 3 April 2009)

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CRIMINAL LAW – Intentionally causing serious injury – Intentionally causing injury – Assault – Criminal Damage – Breach of intervention order – Domestic context – Breach of intervention order – Total effective sentence 10 years – Non-parole period 7 years – Manifest excess – Crown concession – Outside range of current sentencing practices – Appeal allowed – Re-sentenced with total effective sentence 8 years – Non-parole period 6 years.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr S R Johns	Balmers
For the Crown	Mr G J C Silbert SC	Mr C Hyland, Solicitor for Public Prosecutions

NETTLE JA:

This is an appeal against a total effective sentence of 10 years' imprisonment with a non-parole period of seven years imposed on the applicant on pleading guilty to one count of intentionally causing serious injury (Count 1), one count of common assault (Count 2), one count of criminal damage (Count 3) and, on a separate presentment, one count of intentionally causing injury (Count 1) and a summary charge of breaching an intervention order. It is contended that the individual sentence of eight years' imprisonment imposed on the count of causing serious injury, and thus the total effective sentence, are manifestly excessive.

The facts

The appellant was born on 3 October 1973. In March 2005, he began to live in a de facto marital relationship with Rachel Delaney. She was married to, but separated from, Daniel Smyth. She and Smyth had two small children and shared their custody under arrangements sanctioned by the Family Court. During the appellant's relationship with Ms Delaney, there were repeated incidents of tension and conflict between him and Smyth.

In December 2007, Ms Delaney told the appellant that she was ending their relationship. He did not want it to end and sent text messages and made telephone calls to Ms Delaney attempting to persuade her to change her mind. At one point they met and he took her for a drive in the country. He was upset and behaved irrationally. He begged her to return to him and he made threats against her. Eventually, she persuaded him to take her home.

Once home, she called Smyth. She and the children along with Smyth returned to the house in which she had lived with the appellant. She asked Smyth to stay there with her until she felt comfortable. At 6.00 pm that evening, the appellant's father arrived at the house and asked to speak to Ms Delaney about her relationship with the appellant. She told him that it was over and that she did not want any more to do with the appellant. At 8.30…

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 Kane v The Queen

Details

AGLC: Kane v The Queen [2010] VSCA 213
Case: [2010] VSCA 213
Decision Date: 23 August 2010

CaseChat Overview and Summary

The appellant was convicted of several offences, including intentionally causing serious injury to his de facto wife, intentionally causing injury to her, assault, and criminal damage, all in a domestic context. The appellant also breached an intervention order. The appeal was against his sentence, which was a total effective sentence of 10 years, with a non-parole period of 7 years. The appellant argued that the sentence was manifestly excessive. The Crown conceded that the sentence was outside the range of current sentencing practices.

The court considered whether the sentence was manifestly excessive. The court considered the nature and circumstances of the offending, the appellant's culpability, and the need for deterrence and denunciation. The court also considered the need for rehabilitation and the need to protect the community. The court found that the sentence was manifestly excessive and outside the range of current sentencing practices.

The appeal was allowed, and the appellant was re-sentenced with a total effective sentence of 8 years, with a non-parole period of 6 years. The court considered the appellant's culpability, the need for deterrence and denunciation, the need for rehabilitation, and the need to protect the community. The court also considered the impact of the offending on the victim and the need to provide her with some measure of protection. The court found that the new sentence was appropriate and within the range of current sentencing practices.

Orders