Paul Flood v The Queen - [2016] VSCA 37

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0219

PAUL FLOOD	Applicant
v
THE QUEEN	Respondent

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JUDGES:	BONGIORNO and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 March 2016
DATE OF JUDGMENT:	15 March 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 37
JUDGMENT APPEALED FROM:	DPP v Flood (County Court of Victoria, Judge Maidment, 16 October 2015)

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CRIMINAL LAW – Sentencing – Verdins principles – Causal link between mental condition and offending – Alleged failure to afford procedural fairness – Alleged manifest excess – Leave to appeal refused – Verdins v R (2007) 16 VR 269.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms S Keating	Galbally Rolfe
For the Crown	Ms F L Dalziel	Mr J Cain, Solicitor for Public Prosecutions

BONGIORNO JA
BEACH JA:

On 8 October 2015 the applicant (now aged 42), pleaded guilty in the County Court to aggravated burglary, intentionally cause injury, theft and two charges of possess drug of dependence. Following a plea on 8 October 2015, the appellant was sentenced on 16 October 2015 as follows:

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1	Aggravated Burglary – person present [Crimes Act 1958 s 77(1)(b)]	25 years [Crimes Act 1958 s 77(2)]	4y	Base
2	Intentionally Cause Injury [Crimes Act 1958 s 18]	10 years [Crimes Act 1958 s 18]	2y	1y
3	Theft [Crimes Act 1958 s 74(1)]	10 years [Crimes Act 1958 s 74(1)]	4m	N/A
4	Possess Drug of dependence – Oxycodone [Drugs, Poisons and Controlled Substances Act 1981 s 73(1)]	1 year and/or fine of not more than 30 penalty units [Drugs, Poisons and Controlled Substances Act 1981 s 73(1)(b)]	Convicted and discharged	N/A
5	Possess Drug of Dependence - Oxazepam	1 year and/or fine of not more than 30 penalty units	Convicted and discharged	N/A
Total Effective Sentence:		5y
Non-Parole Period:		3y and 4m
Pre-sentence Detention Declared:		211 days
6AAA Statement:		6y and 9m imprisonment with non-parole period of 4y and 10m
Other orders: Destruction Order.

Grounds of Appeal

The applicant seeks leave to appeal on the following grounds:

1. The learned sentencing judge erred by failing to find that all six principles of R v Verdins[1] were engaged.
[1]Verdins v R (2007) 16 VR 269 (‘Verdins’).

2. The learned sentencing judge erred by failing to accord the applicant procedural fairness when rejecting the applicability of all but the fifth principle in R v Verdins.

3. The learned sentencing judge erred by failing to reduce the applicant’s moral culpability in view of his intellectual disability, mental ill health and substance abuse issues, which impaired his capacity to make rational decisions at the time of the offending.

4. The total effective sentence, non-parole period and order for cumulation on Charge 2 are manifestly excessive and offend the principle of totality in regard to:

(a) The objective seriousness of Charge 1;

(b) Failure to take account of principles in R v Verdins;

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 Paul Flood v The Queen

Details

AGLC: Paul Flood v The Queen [2016] VSCA 37
Case: [2016] VSCA 37
Decision Date: 15 March 2016

CaseChat Overview and Summary

In the case of Paul Flood against The Queen, the High Court was tasked with reviewing the sentencing and subsequent application for leave to appeal against a decision made by a lower court. The central dispute involved the sentence handed to the appellant, Mr Flood, for his criminal activities and the process by which this sentence was determined. The appellant argued that his sentence was excessive and that the trial judge failed to adequately consider his mental health condition, which he claimed had a causal link to his offending behaviour.

The primary legal issues before the Court were whether the trial judge erred in not establishing a causal link between the appellant’s mental condition and his criminal conduct, and if the sentence imposed was manifestly excessive. Furthermore, the Court needed to determine if the appellant was denied procedural fairness due to the trial judge’s handling of the sentencing process. The appellant also argued that the sentence was a manifest excess of the judge’s discretion, and thus should be quashed.

The Court, after a thorough review of the evidence and applicable law, found that the trial judge had properly considered the appellant's mental health and its impact on his offending. The Court emphasised that a causal link between mental health and criminal behaviour must be clearly established before it can be a mitigating factor in sentencing. The Court also found that the sentence was within the bounds of judicial discretion and did not represent a manifest excess. Additionally, the Court held that procedural fairness was not compromised as the trial judge had given appropriate weight to all relevant factors, including the appellant’s mental health. Consequently, the application for leave to appeal was refused.

Orders