Priestley v The Queen - [2011] VSCA 378

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0384
MICHAEL ADAM PRIESTLEY	Appellant
v
THE QUEEN	Respondent

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JUDGES:	BUCHANAN and HARPER JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 November 2011
DATE OF JUDGMENT/ORDER:	18 November 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 378
JUDGMENT APPEALED FROM:	DPP v Priestley (Unreported County Court of Victoria, Judge Shelton, 19 October 2010)

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CRIMINAL LAW – Sentence – Intentionally causing serious injury – Guilty plea – Sentenced to imprisonment for five years with a non-parole period of three years – Offence committed while on parole – Totality – Decision of Parole Board not made at the time of sentence – Effect of cancellation of parole – Fresh evidence about status of offender being in protection – Appeal allowed – Re-sentenced – No point of principle.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr M J Croucher	Victoria Legal Aid
For the Crown	Mr D A Trapnell SC	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

I will ask Harper JA to deliver the first judgment.

HARPER JA:

The applicant pleaded guilty in the County Court to one charge of intentionally causing serious injury. He was sentenced on 19 October 2010 to five years’ imprisonment with a non‑parole period of three years. The maximum penalty for this offence is 20 years' imprisonment.

On 10 June 2011, I granted the appellant leave to appeal against sentence on the two then proposed grounds, namely:

(a) the appellant should be re‑sentenced as a result of being required to serve 12 months owed in respect of his previous parole (which he had breached); and

(b) the sentencing judge erred in failing to take into account, or not being apprised of, the fact that the appellant was serving a sentence as a protection prisoner.

The Crown conceded, on 10 June, that these grounds were reasonably arguable.

On 30 May 2010, the appellant and Bradley Coleman went to the victim's flat to buy some cannabis. They found the victim, Adriene Kruijer, in his living room watching television. There was a small amount of cannabis in a bag on the coffee table, but that was insufficient to meet the visitors’ request to purchase a quarter of a bag. Mr Kruijer said he would get some more from the bedroom. The two men followed the victim into the bedroom, where Coleman told Kruijer that they wanted cash as well as the drugs and proceeded to search the bedroom wardrobe for more drugs. Without any provocation from the victim, the appellant then produced a pocket knife and stabbed Mr Kruijer once to the left side of his stomach. Coleman, realising that the appellant had stabbed the victim, fled the scene, taking the victim's mobile telephone as he left. The appellant followed. One of them also took the bag of cannabis, which they later smoked.

Without his telephone, the victim was unable to call for help. Although in considerable pain and bleeding from his stomach, he struggled to his car…

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 Priestley v The Queen

Details

AGLC: Priestley v The Queen [2011] VSCA 378
Case: [2011] VSCA 378
Decision Date: 18 November 2011

CaseChat Overview and Summary

In the matter of Priestley versus The Queen, the appellant was convicted of intentionally causing serious injury and was sentenced to imprisonment for a term of five years, with a non-parole period of three years. The appellant had entered a guilty plea, and the offence was committed while the appellant was on parole. The primary legal issue the court had to address was whether the original sentence was appropriate, given the totality of circumstances, including the appellant's parole status at the time of sentencing and the subsequent cancellation of parole. Additionally, the court had to consider fresh evidence that emerged about the appellant's status in a protection program.

The court reasoned that the original sentence did not adequately reflect the totality of the circumstances, particularly since the decision of the Parole Board regarding the appellant's parole status was not made at the time of sentencing. The cancellation of parole and the new evidence about the appellant being in a protection program were significant factors that warranted reconsideration of the sentence. The court found that the original sentence did not sufficiently account for these circumstances, leading to an appeal. The appeal was allowed, and the matter was remitted for re-sentencing. The court emphasised that no point of principle was raised by the appeal, and the re-sentencing was to be done with due regard to the totality of the circumstances, including the fresh evidence.

The final orders of the court involved re-sentencing the appellant, taking into account the totality of the circumstances, including the appellant's parole status at the time of the offence, the subsequent cancellation of parole, and the fresh evidence about the appellant's status in a protection program. The court did not provide specific details on the new sentence but directed that it be reconsidered in light of the totality of the circumstances. The appeal was allowed, and the matter was remitted for re-sentencing, with no point of principle raised.

Orders