CRIMINAL LAW — Appeal — Sentence — Co-offenders — Shooting at occupied police vehicle at close range — Charge of recklessly causing injury with respect to one police officer and reckless conduct endangering serious injury with respect to another — Both charges based on single gunshot — Whether double punishment in circumstances where cumulation of two years ordered between the sentences of imprisonment on each charge — No error — Further charges of criminal damage, being prohibited person in possession of firearm, attempted arson, arson and theft of motor car — Whether sentences manifestly excessive — Objective seriousness of offending high — Extensive criminal histories — Poor prospects of rehabilitation — Sentence of 12 months’ imprisonment for possession of firearm inadequate — Leave to appeal refused — Pearce v The Queen (1998) 194 CLR 610; Lecornu v The Queen (2012) 36 VR 382 applied.
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APPEARANCES:
Counsel
Solicitors
For the Applicant Phillips
Mr S Bayles
Pica Criminal Lawyers
For the Applicant Liszczak
Mr J Hannebery with Ms E Clark
Paul Vale Criminal Law
For the Respondent
Mr B F Kissane QC with Ms E H Ruddle
Mr John Cain, Solicitor for Public Prosecutions
WEINBERG JA:
I have had the advantage of reading in draft the reasons for judgment prepared by Osborn and Priest JJA. I agree with those reasons, and with the orders proposed.
I would add only this. Even making due allowance for the negotiations that often take place between the Crown and an accused, which will sometimes result in charges being reduced to a level significantly below what the objective facts seem to warrant, the decision in this case to allow these applicants to plead guilty merely to recklessly causing injury, rather than causing serious injury, is a complete mystery.
I would have thought that, on any view, the firing of a shotgun in the direction of Constable Ashmole, resulting in his being struck by 14 shotgun pellets to the head, and leading to the ongoing consequences identified by Osborn and Priest JJA, could not be described as anything other than the infliction of ‘serious injury’, even within the narrow meaning of that expression now contained in s 15 of the Crimes Act 1958. An injury of that gravity is obviously ‘substantial and protracted’. It would be extraordinary if a jury were to find otherwise.
OSBORN JA
PRIEST JA:
Introduction
Carl Williams, a notorious murderer and drug trafficker, was murdered in Barwon Prison by another inmate, Matthew Johnson, on 19 April 2010. The applicant Sam Liszczak[1] (for convenience, ‘Liszczak’) was a friend of Carl Williams’…
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.
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Details
AGLC
Phillips v The Queen [2017] VSCA 313
Case
[2017] VSCA 313
Decision Date
CaseChat Overview and Summary
In the case of Phillips v The Queen, the appellant was convicted and sentenced for multiple criminal offences, including recklessly causing injury and reckless conduct endangering serious injury by shooting at a police vehicle, criminal damage, possession of a firearm as a prohibited person, attempted arson, arson, and theft of a motor vehicle. The appeal focused on the sentences imposed, particularly whether the sentences for multiple charges stemming from a single act constituted double punishment and whether the overall sentence was manifestly excessive.
The central legal issue in the appeal was whether the imposition of separate sentences for multiple charges, which were based on the same act, amounted to double punishment. Additionally, the court had to consider if the cumulative sentence was manifestly excessive given the objective seriousness of the offending, the extensive criminal history of the offender, and the poor prospects for rehabilitation.
The court found no error in the trial judge’s decision to impose separate sentences for the charges, rejecting the argument of double punishment. It was held that each charge had distinct elements and that the trial judge had properly considered the principles of cumulative sentencing. Regarding the overall sentence, the court concluded that the objective seriousness of the offending, the appellant's extensive criminal history, and the poor prospects for rehabilitation justified the cumulative sentence. The court deemed the 12-month imprisonment sentence for possession of a firearm inadequate, and thus the appeal was dismissed.
The final orders of the court were that the appeal against sentence was dismissed, and the original sentence imposed by the trial judge was upheld. The court found that the trial judge had exercised his discretion appropriately in considering all relevant factors, and the sentence was neither manifestly excessive nor an error of law.