R v Buckle - [2005] VSCA 98

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 197 of 2004

THE QUEEN

HARRY WILLIAM BUCKLE

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JUDGES:	ORMISTON and VINCENT, JJ.A. and CUMMINS, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 March 2005
DATE OF JUDGMENT:	10 March 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 98

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Criminal law – Sentence – Possessing an explosive substance with intent to cause serious injury to property – Manifest excess – Whether appellant’s sentence within range set out in s. 317(3) of the Crimes Act 1958 – Whether findings of sentencing judge as to potential damage was fully supportable on the material before him – Whether adequate weight given to matters in mitigation of penalty – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mrs C.M. Quin	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Appellant	Mr P.F. Tehan, Q.C. Mr D.A. Dann	BM Legal

ORMISTON, J.A.:

I will ask Vincent, J.A. to deliver the first judgment.

VINCENT, J.A.:

The appellant pleaded guilty in the County Court, sitting at Horsham, on 4 May 2004, to one count of possessing an explosive substance with intent to cause serious injury to property. This offence arises under s. 317(3)(b) of the Crimes Act 1958 and carries a maximum applicable penalty of 10 years imprisonment.[1]
[1]Section 317
(3) Any person who unlawfully and maliciously –
…
(b) makes or has in his possession or under his control any explosive substance with intent by means thereof to endanger life or cause serious injury to property or to enable any other person by means thereof to endanger life or cause serious injury to property –
shall, whether any explosion does or does not take place and whether any injury to person or property has been actually caused or not, be guilty of an indictable offence, and shall be liable to level 5 imprisonment (10 years maximum).

After hearing a plea in mitigation of penalty, the learned sentencing judge, on 11 August 2004, imposed upon him a sentence of imprisonment for six years, in respect of which he fixed a non-parole period of three years and six months.

Having been granted leave to do so by a judge of this Court, the appellant seeks to overturn that sentence. The full statement of the grounds upon which reliance has been placed by him reads:

“1.That the sentence imposed was, in all the circumstances manifestly excessive.
2.That the learned sentencing judge erred in his classification of the [appellant's] offence within the range set out in s.317(3) of the Crimes Act.
3.That the learned sentencing judge erred in his findings as to the damage that would have been caused by the [appellant's] conduct.

4.That the learned sentencing judge failed to give adequate weight to the matters in mitigation, including -
(a)       the plea of guilty;
(b)      genuine remorse;
(c)       previous good character;
(d)      mental illness;
(e)       the prospects of rehabilitation.

The Background

The following description of the circumstances surrounding the appellant's offending has been prepared from the summary of…

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 Buckle

Details

AGLC: R v Buckle [2005] VSCA 98
Case: [2005] VSCA 98
Decision Date: 10 March 2005

CaseChat Overview and Summary

In the case of R v Buckle, the appellant, a resident of Victoria, appealed against his sentence for possessing an explosive substance with intent to cause serious injury to property. The trial judge sentenced the appellant to a term of imprisonment, which he contested as being manifestly excessive. The appeal was heard by the Court of Appeal of the Supreme Court of Victoria.

The legal issues central to this appeal were whether the sentence imposed by the trial judge was within the range set out in section 317(3) of the Crimes Act 1958, and whether the findings made by the sentencing judge regarding the potential damage of the explosive were fully supportable on the material presented. Additionally, the appeal questioned whether adequate weight was given to the matters in mitigation of penalty. The Court of Appeal was tasked with determining these issues based on the evidence and submissions made during the trial and appeal.

The Court of Appeal found that the trial judge had carefully considered the relevant statutory provisions and the circumstances of the case. The court held that the sentence imposed was not manifestly excessive and that the trial judge's findings about the potential damage were fully supportable on the evidence. Furthermore, the Court of Appeal concluded that the sentencing judge had given proper consideration to the matters in mitigation presented. Consequently, the appeal was dismissed, and the original sentence was upheld.

The final orders of the court were that the appeal against sentence be dismissed and that the sentence imposed by the trial judge be upheld. The court confirmed that the sentence was within the appropriate range under the statutory guidelines and that the trial judge had appropriately balanced the various factors in reaching the sentence.

Orders