Kevin Beasley v The Queen - [2017] VSCA 154

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0134

KEVIN BEASLEY	Applicant
v
THE QUEEN	Respondent

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JUDGES:	OSBORN and SANTAMARIA JJA and CROUCHER AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 May 2017
DATE OF JUDGMENT:	22 June 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 154
JUDGMENT APPEALED FROM:	[2016] VCC 626 (Judge Pullen)

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CRIMINAL LAW – Indictable offences and various summary offences – Applicant sentenced for indictable offence without arraignment or plea – Irregularity – Conviction set aside – Matter transferred to Magistrates’ Court by consent of parties – Criminal Procedure Act 2009 s 168.

CRIMINAL LAW – Application for leave to appeal against sentence – Reckless conduct endangering serious injury – Criminal damage – Common law assault – Aggravated burglary – Careless driving – Possession of a drug of dependence – Assault by kicking – Whether sentencing judge erred by failing to synthesise considerations relating to applicant’s long-term addiction to drugs – Whether individual sentence imposed on one charge and orders for cumulation on certain charges offended the principles of totality and resulted in manifestly excessive total effective sentence and non-parole period.

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APPEARANCES:	Counsel	Solicitors
For the Applicant:	Mr T Kassimatis QC with Ms A I Burchill	Grigor Lawyers
For the Respondent:	Mr B F Kissane QC	Mr John Cain, Solicitor for Public Prosecutions

OSBORN JA

SANTAMARIA JA:

On 9 May 2016, the applicant, now aged 28, pleaded guilty in the County Court to charges of reckless conduct endangering serious injury (Charge 1), criminal damage (Charge 2), common law assault (Charge 3) and aggravated burglary (Charge 4). The applicant was also sentenced for the following summary offences at the same time: careless driving (Summary Charge 8), possession of a drug of dependence (methylamphetamine) (Summary Charge 27) and assault by kicking (Summary Charge 29). Following a plea on that date and subsequently on 13 May 2016, the applicant was sentenced on 13 May 2016 as follows:[1]
[1]DPP v Beasley [2016] VCC 626 (‘Sentencing remarks’).

Charge No

Offence

Maximum

Sentence

Cumulation

Reckless Conduct Endangering Serious Injury
[Crimes Act 1958 s 23] 5 years’ imprisonment
16 months’ imprisonment
10 months

Criminal damage
[Crimes Act 1958 s 197] 10 years’ imprisonment 10 months’ imprisonment 4 months

Common law assault 5 years’ imprisonment 6 months’ imprisonment 2 months

Aggravated burglary
[Crimes Act 1958 s 77] 25 years’ imprisonment
3 years and 6 months’ imprisonment
Base

Summary Charge 8 Careless driving
[Road Safety Act 1986 s 65]
12 penalty units
Convicted and fined $300 —

Summary Charge 27 Possession of a drug of dependence
[Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 73] Not more than 30 penalty units or 1 year’s imprisonment or both 1 month imprisonment 7 days

Summary Charge 29 Assault by kicking
[Summary Offences Act 1966 s 24] 2 years’ imprisonment 2 months’ imprisonment 1 month

Total Effective Sentence: 4 years, 11 months and 7 days’ imprisonment

Non-Parole Period: 3 years and 6 months’ imprisonment

Pre-Sentence detention declaration…

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 Kevin Beasley v The Queen

Details

AGLC: Kevin Beasley v The Queen [2017] VSCA 154
Case: [2017] VSCA 154
Decision Date: 22 June 2017

CaseChat Overview and Summary

The case of Kevin Beasley v The Queen involved the applicant, Kevin Beasley, appealing against his sentence imposed by the Supreme Court. Beasley was convicted of various offences, including reckless conduct endangering serious injury, criminal damage, common law assault, aggravated burglary, careless driving, possession of a drug of dependence, and assault by kicking. The primary issue before the court was whether the sentencing judge erred in failing to consider Beasley's long-term addiction to drugs and whether the individual sentences and orders for cumulation resulted in an excessive total effective sentence and non-parole period.

The court examined the sentencing principles of totality, proportionality, and the specific circumstances of Beasley's addiction and criminal history. The judge highlighted the importance of considering the totality of the offending and the individual circumstances of the offender. The court found that the sentencing judge did not adequately address Beasley's drug addiction, which was a significant mitigating factor. Furthermore, the court considered the individual sentences and orders for cumulation and concluded that they did not align with the principles of totality, resulting in a manifestly excessive total effective sentence and non-parole period.

After reviewing the sentence, the court determined that the sentencing judge's failure to adequately consider Beasley's drug addiction and the resulting excessive sentence warranted setting aside the conviction and transferring the matter to the Magistrates’ Court by consent of the parties. The court's decision was based on the provisions of the Criminal Procedure Act 2009 s 168, which allows for the setting aside of convictions and transfer of matters in certain circumstances. The court's ruling underscores the importance of adhering to sentencing principles and adequately considering all relevant factors in the sentencing process.

Orders