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R v Black

R v Black

Case [2007] VSCA 82 4 May 2007

Aggravated Burglary

Recklessly causing injury

Pre-sentence detention

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

THE QUEEN	No 65 of 2006
	v
STEVEN JOHN BLACK

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JUDGES:	BUCHANAN and EAMES JJA and KELLAM AJA
WHERE HELD:	MELBOURNE
DATES OF HEARING:	12 and 13 February 2007
DATE OF JUDGMENT:	4 May 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 82

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Criminal law – Evidence – Aggravated Burglary – Recklessly causing injury – Home invasion – Complaint evidence – Hearsay – Directions as to accessorial liability – Conviction application refused.

Criminal law – Sentence – Applicant sentenced by three different judges for three separate episodes – Two previous sentences of imprisonment imposed, one for subsequent offending – Convictions and sentences imposed as to one previous episode quashed by Court of Appeal – Whether sentences imposed on this occasion manifestly excessive – Totality – Parity – Quashing of previous sentences re-opening sentencing discretion – Pre-sentence detention under s 18(1) of Sentencing Act 1991 – Whether correctly taken into account – Pre-sentence Renzella detention not fully taken into account by previous sentencers – Whether allowance required to be made for whole of pre-sentence detention – R v Renzella [1997] 2 VR 88 – R v Wade [2005] VSCA 276 – R v Arts and Briggs [1998] 2 VR 261.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr O P Holdenson QC	Ms A Cannon Solicitor for Public Prosecutions
For the Applicant	Mr C B Boyce	Leanne Warren and Assocs

BUCHANAN JA:

I agree with Eames JA.

EAMES JA:

The applicant, Steven John Black, applies for leave to appeal against conviction and sentence for offences arising out of incidents that occurred at a house at Jeparit on 4 October 2003. He was presented for trial with Darren Sexton and Jeffrey McGrath.

On 21 December 2005 the applicant and Sexton were convicted by a jury on one count of aggravated burglary (count 1), the circumstance of aggravation being that the offenders entered premises with intent to assault a person therein. The applicant and Sexton were also convicted on one count of recklessly causing injury to Phillip Stearman (count 3). They were found not guilty on count 2, which alleged they intentionally caused injury to Stearman. McGrath was found not guilty on all counts.

These offences, which occurred on 4 October 2003, were but one of three separate episodes of criminal behaviour which led to sentences of imprisonment being imposed on the applicant. To add to the complications that arose on appeal, sentencing for each episode was conducted by different judges of the County Court. To further complicate the situation, the order in which sentences were imposed by the three judges was not the same as the order in which the episodes occurred. That disconformity produced some problems for the sentencing judges, and also on appeal, not least for the calculation of pre-sentence detention.

The applicant was sentenced for the present offences by his Honour Judge Duckett, on 9 February 2006. In order to understand the trial and sentencing issues which arise in the present…

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 Black

Details

AGLC: R v Black [2007] VSCA 82
Case: [2007] VSCA 82
Decision Date: 4 May 2007

CaseChat Overview and Summary

In the matter of R v Black, the respondent was convicted of multiple charges including aggravated burglary and recklessly causing injury, following a home invasion. The case was heard in the Court of Appeal, which reviewed the lower court's decisions on both conviction and sentence. The appellant sought to have his convictions quashed and his sentence reconsidered, arguing that the total sentence imposed was manifestly excessive and that the pre-sentence detention had not been fully accounted for in the sentencing process.

The legal issues that the Court of Appeal was required to decide included whether the sentences imposed by the lower court for the current offence were manifestly excessive, whether the pre-sentence detention had been correctly taken into account, and whether the quashing of previous sentences by the Court of Appeal re-opened the sentencing discretion. The Court also needed to determine if the totality and parity principles required any adjustments to the sentence imposed.

The Court of Appeal found that the sentences imposed by the lower court were not manifestly excessive, noting the seriousness of the offences and the appellant's criminal history. Regarding the pre-sentence detention, the Court held that while the previous sentencers had not fully taken into account the entire period of detention, this did not necessitate a reduction in the sentence imposed. The Court also determined that the quashing of previous sentences did not re-open the sentencing discretion for the current offence. The Court of Appeal ultimately refused the application to quash the conviction and reduce the sentence.

The Court of Appeal's final orders were that the appeal against conviction and sentence be dismissed, and that the appellant's convictions and sentences stand as originally imposed by the lower court. The Court held that the sentence was appropriate given the circumstances and the appellant's criminal history, and that the pre-sentence detention had been sufficiently considered in the sentencing process.

Orders