R v Bowen - [2002] VSCA 199

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 187 of 2002

THE QUEEN
	v.
LEON MATTHEW BOWEN

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JUDGES:	CHERNOV and EAMES, JJ.A. and O'BRYAN, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	28 November 2002
DATE OF JUDGMENT:	28 November 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 199

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Criminal Law – Sentencing – Unlawfully and maliciously causing an explosion – destroying a motor vehicle – Possession of explosive substances – Handling stolen goods – Total effective sentence of 3 years’ imprisonment partly suspended as to 27 months not manifestly excessive – Sentence not manifestly disparate with sentence imposed on a co-accused who pleaded guilty and assisted police – Appellant entitled to sensible moderation of his sentence on account of a mental disorder.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C.G. Hillman, S.C.	K. Robertson, Solicitor for Public Prosecutions
For the Appellant	Mr C.B. Boyce	Grubissa White

CHERNOV, J.A.:

I will ask O'Bryan, A.J.A. to deliver the first judgment.

O'BRYAN, A.J.A.:

On 17 July 2002 the appellant, now aged 21, pleaded guilty in the County Court to four counts in a presentment and admitted having appeared in a Magistrates' Court on two charges of burglary and one charge of theft and, the charges having been proved, was sentenced to be released on a community-based order. The first count presented that on 23 November 2001 the appellant unlawfully and maliciously caused by an explosive substance an explosion of a nature likely to cause serious injury to property. The maximum penalty for causing an explosion is 15 years' imprisonment. The second count presented that on the same date and at the same place the appellant intentionally without lawful excuse destroyed a motor vehicle. The maximum penalty for damaging property is 10 years' imprisonment. The third count presented that on 27 November 2001 the appellant knowingly had in his possession or under his control explosive substances, namely powergel and detonators. The maximum penalty for possessing explosive substances is 5 years' imprisonment. The fourth count presented that on the same date the appellant handled stolen goods. The maximum penalty for handling stolen goods is 15 years' imprisonment.

Following the plea the judge sentenced the appellant as follows. On count 1 to be convicted and imprisoned for three years. On count 2 no conviction was recorded. The judge was of the opinion that s.51(1) of the Interpretation of Legislation Act 1984, as explained in R. v. Sessions[1], meant that the appellant was not liable to be punished more than once for an offence arising out of the same act as the offence of causing an explosion created by s.317(2) of the Crimes Act 1958. On count 3 to be convicted and sentenced to four months' imprisonment. On count 4 to be convicted and sentenced to four months' imprisonment. No order for cumulation was made.

The term of three years' imprisonment was partly suspended as to 27 months for 18 months following release. The immediate custodial term was nine months effective on 25 July 2002…

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 Bowen

Details

AGLC: R v Bowen [2002] VSCA 199
Case: [2002] VSCA 199
Decision Date: 28 November 2002

CaseChat Overview and Summary

The appeal before the court involved the respondent, Bowen, who was convicted for causing an explosion that destroyed a motor vehicle, possessing explosive substances, and handling stolen goods. Bowen appealed his sentence of three years' imprisonment, with 27 months suspended, arguing it was manifestly excessive and disparate compared to a co-accused who pleaded guilty and assisted the police. Bowen also claimed he was entitled to a reduction in his sentence due to a mental disorder.

The court was required to determine whether the sentence imposed on Bowen was manifestly excessive and disparate, and if it should be reduced due to his mental disorder. The appeal hinged on the sentencing principles of totality, proportionality, and the impact of mental health on sentencing. The court needed to weigh the severity of Bowen's crimes against his cooperation and the mental health considerations.

The court found that the total effective sentence of three years was not manifestly excessive, considering the cumulative effect of Bowen's crimes. The court also held that the sentence was not manifestly disparate when compared to the co-accused who had pleaded guilty and assisted the police. Regarding Bowen's mental disorder, the court recognised that it warranted a sensible moderation of the sentence. After considering all factors, the court determined that the sentence was appropriate and did not require alteration.

The court dismissed the appeal, confirming the sentence as appropriate given the circumstances. Bowen's sentence of three years' imprisonment, with 27 months suspended, was upheld as just and proportionate to the crimes committed. The court emphasised the importance of mental health considerations in sentencing, but found that in this case, they did not necessitate a significant change to the imposed sentence.

Orders