R v Barcham - [2001] VSCA 215

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 409 of 2000

THE QUEEN
	v.
PIERRO BARCHAM

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JUDGES:	BROOKING, PHILLIPS and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 November 2001
DATE OF JUDGMENT:	14 November 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 215

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CRIMINAL LAW - Sentence - Intentionally causing serious injury - Altercation between two groups near nightclub car park - Victim struck with softball bat twice - Serious brain injury - Assailant drunk - Sentence not excessive but inadequate.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr G. Horgan, S.C.	K. Robertson, Solicitor for Public Prosecutions
For the Appellant	Mr M.J. Croucher	Cole & Magazis

BROOKING, J.A.:

This appeal, brought by leave granted under s.582 of the Crimes Act, is against a sentence imposed in the County Court on 13 December last as a result of two offences against the person committed by a drunken man in a car park outside a night club in the small hours of 24 May 1998. The appellant pleaded guilty to one count of intentionally causing serious injury to Ross Bradshaw and one count of recklessly causing injury to Simon Gorton. The maximum available penalties were 20 and 5 years' imprisonment respectively. The judge passed a sentence of 3½ years' imprisonment on the first count and three months on the second, made one month of the second sentence cumulative upon the first, giving a total effective sentence of 3 years 7 months, and fixed a non-parole period of 21 months. In view of the severity of the injuries inflicted on Bradshaw and the other circumstances of the case, I confess to an initial surprise that the appellant was complaining of a sentence which, I must say, seemed to me to be very moderate. Nothing I have since read or heard has caused me to modify my initial view.

The proceedings taken against the appellant and his companion Abdullah Israili, who pleaded guilty to one count of affray, are the subject of a written summary which is before us, accompanied by a written summary of evidence, and, nothing in these documents having been challenged by the appellant, I will treat them as relieving me of the need to deal in detail either with the proceedings or with the evidence. On the plea it was accepted by counsel for Israili, and not disputed by counsel for the appellant, that the Crown, in summarising the facts to the judge for sentencing purposes, had acted very fairly and conservatively, not asserting additional adverse facts which might have been attempted to be supported by reference to depositional material but instead extracting what might be regarded as the irreducible minimum of adverse facts as regards each offender.

The appellant, who was 26 at the time of the offences, had, by his own admission, arrived at the Metro Nightclub car park after spending time first at the Rainbow Hotel and then at Beach's Nightclub. He had had, he said, about 15 drinks of various kinds and…

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 Barcham

Details

AGLC: R v Barcham [2001] VSCA 215
Case: [2001] VSCA 215
Decision Date: 14 November 2001

CaseChat Overview and Summary

The defendant, Barcham, was involved in an altercation between two groups near a nightclub car park. The victim was struck with a softball bat twice by Barcham, resulting in a serious brain injury. Barcham was convicted of intentionally causing serious injury and sentenced to a term of imprisonment. The Crown appealed the sentence as inadequate, and Barcham appealed the conviction as excessive. The case was heard in the Court of Criminal Appeal.

The primary legal issues were whether the sentence was inadequate and whether the conviction was excessive. The Crown argued that the sentence did not reflect the gravity of the offence and the severity of the victim's injuries. Barcham argued that the sentence was excessive and that the evidence did not support a conviction for intentionally causing serious injury. The court was required to consider the principles of sentencing and the applicable statutory provisions.

The court held that the sentence was inadequate but not excessive. The court found that the sentence did not adequately reflect the gravity of the offence and the severity of the victim's injuries. The court also found that the evidence supported a conviction for intentionally causing serious injury. The court noted that Barcham was drunk at the time of the offence, but this did not mitigate the seriousness of the offence. The court ordered that the case be remitted to the sentencing court for re-sentencing.

The final orders were that the appeal against sentence was allowed, and the conviction was affirmed. The case was remitted to the sentencing court for re-sentencing, with directions that the sentence should adequately reflect the gravity of the offence and the severity of the victim's injuries. The appeal against conviction was dismissed.

Orders