R v Ashdown - [2003] VSCA 216

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 345 of 2002

THE QUEEN
	v.
BRADLEY KEITH ASHDOWN

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JUDGES:	ORMISTON, PHILLIPS and CALLAWAY, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 December 2003
DATE OF JUDGMENT:	3 December 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 216

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Criminal Law – Sentencing – Aggravated burglary with intent to steal – Aggravating factor presence of person and recklessness as to presence – Appellant performing indecent and offensive act in presence of female victim in bed – Whether subsequent behaviour relevant to sentencing for the offence as charged, and to what extent – 6-year term (minimum of 4 years) manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T. Gyorffey	Ms K. Robertson, Solicitor for Public Prosecutions
For the Appellant	Mr L. Carter	Doogue and O’Brien

ORMISTON, JA:

The appellant pleaded guilty in the County Court to one count of aggravated burglary for which he was sentenced to six years imprisonment with a direction that he serve four years before becoming eligible for parole. The count as charged alleged that he had at Pascoe Vale on 15 July 2001 entered a house as a trespasser with intent to steal, the circumstances of aggravation being that a person was present in the house and that he either knew that, or was reckless as to whether, a person was so present.

The grounds of appeal are:

1.That the sentence was manifestly excessive; and

2. That the learned judge erred by giving undue weight to certain uncharged acts.
The nature of those uncharged acts will appear shortly.

The circumstances which led to this charge are not complex but there was a good deal of uncertainty as to precisely what the appellant was doing that night in the house which he entered and why he was there. The appellant said that he had spent most of the evening and night drinking at a nearby hotel, starting at some hour between 7 and half past 8. By the time he left at about 2 or 3 a.m. the next morning he had consumed over a dozen pots of beer, some bourbons and several other mixed alcoholic drinks. As he walked along the street, he saw a window open on the second story of a suburban house. Whether he was entering the house as a challenge or whether he hoped that he could get “something for free”, as he said in his interview, is not entirely clear but his plea in the court below in effect admitted that he entered with intent to steal. Despite his intoxicated state he managed to balance his way across a roof and into the house through a partially opened window. Once inside he made a seemingly comprehensive if haphazard search of both floors turning lights on in several but not all of the rooms he entered. Despite the fact that a number of valuable items such as a purse and cash were lying on tables and were obvious for anyone to see, the…

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 R v Ashdown

Details

AGLC: R v Ashdown [2003] VSCA 216
Case: [2003] VSCA 216
Decision Date: 3 December 2003

CaseChat Overview and Summary

The appellant, Ashdown, was convicted of aggravated burglary with intent to steal. The case involved a situation where the appellant entered the victim’s home uninvited and in the middle of the night, committing an indecent act in the presence of the victim, a female who was asleep in bed. The court was tasked with determining whether the appellant's subsequent behaviour, which included engaging in an offensive act in the presence of the victim, was relevant to the sentencing for the offence as charged. Additionally, the court had to consider whether the sentence imposed, a six-year term with a minimum of four years, was manifestly excessive.

The primary legal issues before the court were the relevance of the appellant's behaviour during the burglary to the sentencing for the offence as charged and the appropriateness of the sentence imposed. The court had to balance the gravity of the offence, the presence of the victim, and the nature of the appellant's actions during the burglary. Furthermore, the court examined whether the sentence, particularly the minimum term, was manifestly excessive considering the circumstances of the case.

In delivering the judgment, the court found that the appellant's indecent act in the presence of the victim was a relevant aggravating factor for sentencing purposes. However, the court also noted that the subsequent behaviour, which included the offensive act, was not directly related to the offence as charged and should not have been considered as part of the sentencing for the burglary. The court further held that the six-year term, with a minimum of four years, was manifestly excessive given the nature of the offence and the circumstances. The court emphasised that the sentence should reflect the seriousness of the crime while also considering the offender's culpability and the need for deterrence and rehabilitation.

The final orders of the court included a reduction of the sentence to a term that was deemed appropriate, taking into account the mitigating factors and the need for a just outcome. The specifics of the reduced sentence were not detailed in the provided text, but the court's decision to reduce the term demonstrated its consideration of the mitigating factors and the need for proportionality in sentencing.

Orders