CRIMINAL LAW – Appeal – Sentence – Intentionally causing serious injury – Offender kicked kneeling victim in the face – Serious permanent disability caused – Driving whilst disqualified – Guilty plea – Sentenced to 7 years on first count and 1 year on second – Total effective sentence 7 years and 6 months, non-parole period 5 years and 3 months – Whether judge erred in characterising guilty plea as late – Whether judge reduced utilitarian benefit of plea because of strength of prosecution case – Mitigating effect of impaired mental functioning – Failure to take necessary medication – Intoxication with alcohol and drugs – Whether different sentence should be imposed – Whether sentence manifestly excessive – Consideration of current sentencing practices for intentionally causing serious injury – Appeal dismissed – Phillips v The Queen [2012] VSCA 140 applied – Criminal Procedure Act 2009 (Vic) s 281(1)(b).
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Appearances:
Counsel
Solicitors
For the Appellant
Mr D D Gurvich
Melinda Walker
For the Respondent
Mr P Kidd SC
Mr C Hyland, Solicitor for Public Prosecutions
MAXWELL P:
I have had the advantage of reading in draft the reasons for judgment of Priest JA. I, too, would dismiss the appeal against sentence and, subject to what follows, I would do so for the reasons which his Honour gives.
This Court has very recently reaffirmed the importance of current sentencing practices in the identification of the sentencing range applicable to the case at hand. In Anderson v The Queen,[1] the Court (Redlich, Weinberg and Harper JJA) endorsed the statement by Redlich JA in Ashdown v The Queen that:
it is current sentencing practices, as revealed by those comparable cases concerned with the relevant category of seriousness of the offence, that will generally inform the range of sentences that are reasonably open to the sentencing judge.[2]
The Court also endorsed the following further passage from the judgment of Redlich JA in Ashdown:
Consistency in sentencing, fundamental to the administration of criminal justice, requires adherence to current sentencing practice unless a specific circumstance exists which warrants departure from that practice. The law requires that a discretionary decision must be made in conformity with the well settled principles as must appellate review of such decisions. By this judicial method the law promotes consistency in decision making and diminishes the risk of arbitrary and capricious adjudication.[3]
[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.
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AGLC
Nash v The Queen [2013] VSCA 172
Case
[2013] VSCA 172
Decision Date
CaseChat Overview and Summary
The appellant, Nash, appealed against his sentence following a guilty plea to charges of intentionally causing serious injury to a kneeling victim by kicking them in the face, and driving whilst disqualified. The case was heard in the Victorian Court of Appeal. Nash was sentenced to a total effective term of 7 years and 6 months imprisonment, with a non-parole period of 5 years and 3 months. The primary legal issue before the court was whether the trial judge erred in characterising the guilty plea as late and whether the judge reduced the utilitarian benefit of the plea because of the strength of the prosecution case. Additionally, the court had to consider the mitigating effect of Nash’s impaired mental functioning, his failure to take necessary medication, and his intoxication with alcohol and drugs at the time of the offence. The appellant argued that a different sentence should be imposed, contending that the sentence was manifestly excessive.
The court examined the principles of sentencing, particularly the factors that warranted a discount for a guilty plea and the extent to which the trial judge had erred in assessing these factors. It was established that the trial judge had considered the lateness of the plea and the strength of the prosecution case, but also took into account the mitigating factors presented by Nash. The court found that the judge had appropriately balanced these factors and had not manifestly erred in imposing the sentence. The court applied the principles set out in Phillips v The Queen, confirming that the trial judge’s assessment of the mitigating factors was within the permissible range. Accordingly, the appeal was dismissed, and the original sentence was upheld under the Criminal Procedure Act 2009 (Vic) s 281(1)(b).