R v Caldwell - [2005] VSCA 15

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 9 of 2004

THE QUEEN
	v.
JASON WILLIAM CALDWELL

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JUDGES:	WINNEKE, P., CHARLES and BUCHANAN, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 February 2005
DATE OF JUDGMENT:	7 February 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 15

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CRIMINAL LAW - Sentencing - Burglary with intent to assault - Disparity alleged between co-offenders' sentences - Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P.A. Coghlan, Q.C., D.P.P., with Mrs C.M. Quin	Ms K. Robertson, Solicitor for Public Prosecutions
For the Appellant	Mr C.B. Boyce	Littleton Hackford & D'Alessandro

WINNEKE, P.:

I will invite Charles, J.A. to give the first judgment in this matter.

CHARLES, J.A.:

On 4 December 2003 the appellant pleaded guilty in the County Court at Melbourne to a presentment alleging one count of burglary with intent to assault, two counts of intentionally causing serious injury and one count of possession of cannabis L. The appellant admitted 56 previous convictions from eleven court appearances between 15 March 1990 and 30 January 2001. These offences included sixteen involving assault and nine counts of burglary. In particular, on 20 February 1996 the appellant was convicted in the County Court at Morwell of causing serious injury intentionally, burglary, and causing injury intentionally or recklessly, and was given a total effective sentence of four years and six months, and ordered to serve a minimum period of three years and nine months.

After a plea, the judge on 17 December 2003 sentenced the appellant to be imprisoned on the count of burglary (count 1) to two years', on the first count of intentionally causing serious injury (count 2) to four years', and on the second count of intentionally causing serious injury (count 3) to 18 months' imprisonment, and on the count of possessing cannabis the appellant was convicted and discharged. With cumulation the total effective sentence was four years and ten months' imprisonment. Her Honour fixed a non-parole period of three years and six months.

Arraigned with the appellant was a co-offender, Kevin George Wilkinson, who on 15 December 2003 pleaded guilty before the same judge to count 1 on the same presentment, namely burglary with intent to assault. Wilkinson admitted 53 previous findings of guilt from appearances in the Magistrates' Court in 1991. He was sentenced on the count of burglary to be imprisoned for six months wholly suspended for two years.

The appellant originally sought to appeal on the ground that the sentence is manifestly excessive, but today the Court on the appellant's application substituted a new ground, that the sentence is manifestly and unjustifiably disparate from the sentence imposed upon Wilkinson. The appellant had been granted leave to appeal under s.582 of the Crimes Act 1958 on 20 August 2004.

The circumstances giving rise to these offences were as follows. The appellant, who is now aged 32, was on 10 June 2001 owed a sum of somewhere between $200 to $250 by the victim, Brett Collins, who lived at…

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 Caldwell

Details

AGLC: R v Caldwell [2005] VSCA 15
Case: [2005] VSCA 15
Decision Date: 7 February 2005

CaseChat Overview and Summary

In the matter of R v Caldwell, the case arose from an incident involving burglary and intent to assault. The appellant, one of several offenders, was involved in an incident where a group entered a residence with the intent to commit assault. The court was required to determine the appropriate sentence for the appellant, taking into consideration the disparity between the sentences of the co-offenders. The primary legal issue before the court was whether the disparity in sentencing between the appellant and his co-offenders was unjust and warranted an appeal.

The court examined the principles of sentencing in relation to the appellant’s involvement in the crime. It considered the severity of the offence, the appellant’s role, and the sentences imposed on the co-offenders. The court noted that while there was a disparity in the sentences, it was not so disproportionate as to render the appellant's sentence unjust. The court found that the sentencing judge had adequately considered the relevant factors and had exercised their discretion appropriately. The appeal was subsequently dismissed, affirming the sentence imposed on the appellant.

The reasoning provided by the court emphasised the importance of individual culpability and the discretion of the sentencing judge. The court highlighted that while disparities in sentencing can occur, they do not necessarily indicate an error in the judicial process. The court's decision underscored the principle that each case must be assessed on its unique circumstances, and the appellant's role and culpability were adequately reflected in the sentence imposed. This decision reinforces the importance of judicial discretion in sentencing matters and the need to consider each case holistically.

Orders