R v Casley - [2021] VSC 503

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2021 0127

Between:
THE QUEEN
-and-
LIAM CASLEY	Accused

JUDGE:	Croucher J
WHERE HELD:	Melbourne
DATE OF HEARING:	2 August 2021
DATE OF SENTENCE:	17 August 2021
CASE MAY BE CITED AS:	R v Casley
MEDIUM NEUTRAL CITATION:	[2021] VSC 503	First revision: 19 August 2021

CRIMINAL LAW — Sentence of LC for affray and two breaches of bail conditions — LC, ST and XY involved in affray with CS — CS outnumbered — Punches exchanged — CS had LC by feet when latter on his back — ST smashed bottle on ground — Spontaneously, JL struck CS in chest with sharp implement — CS ultimately collapsed onto footpath, bleeding profusely— LC and XY each kicked CS once to head while he lay defenceless on path, and then fled with ST and JL — CS died from stab wound — LC’s affray in breach of bail condition prohibiting offending on bail — LC’s flight to shopping centre in breach of bail condition prohibiting attendance thereat — LC, ST and XY not criminally responsible for death of CS — Gravity of affray increased by kicking CS — Relevance of victim impact statements confined to impact of affray — Partial admissions — Pleas of guilty — Some remorse — Prior convictions for assault, dishonesty and drug offences — Youth (aged 18 then; 19 now) — Precarious mental health — Deprived early life but promising steps taken whilst on remand — Guarded to reasonable prospects of rehabilitation — COVID-19 restrictions — Limited application of parity: XY (aged 17 then) sentenced in Children’s Court to youth supervision order; plea of ST (21) adjourned to later date; JL (19) awaiting trial on murder — On affray, LC sentenced to eight months’ gaol combined with community correction order (“CCO”) for eight months — Criminality of breaches of bail largely reflected in aggravation of affray; double punishment to be avoided — On bail breaches, LC convicted and discharged — But for plea of guilty to affray, 12 months’ gaol and 12-month CCO — Crimes Act 1958 (Vic), s 195H; Bail Act 1977 (Vic), ss 30A & 30B; Sentencing Act 1991 (Vic), ss 5 & 6AAA.

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr G Hayward	Ms A Hogan, Solicitor for Public Prosecutions
For the Accused	Mr S Norton	Stary Norton Halphen

HIS HONOUR:

A YOUNG MAN IS KILLED IN AN AFFRAY

Still only spring, on 25 November last year, the temperature had reached a balmy 31 degrees during the day in Seaford. And, despite the sea breeze, it hadn’t cooled much by early evening. But a feeling of relief was in the air, as it had been nearly a month since any new COVID-19 infections had been recorded in Victoria. As if ready to wash away the pandemic, plenty were out and about near the beach in togs and other skimpy outfits, ready for a swim. Sadly, however, any thoughts…

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 Casley

Details

AGLC: R v Casley [2021] VSC 503
Case: [2021] VSC 503
Decision Date: 17 August 2021

CaseChat Overview and Summary

The defendants LC, ST, XY and JL were involved in an affray with CS, who was outnumbered. CS was ultimately fatally stabbed by JL. LC and XY kicked CS while he lay defenceless on the footpath. The defendants fled the scene. LC, ST and XY pleaded guilty to the affray and LC also pleaded guilty to breaching two bail conditions. The court had to decide on the appropriate sentence for LC for the affray and the breaches of bail, as well as the appropriate sentence for ST and XY for their involvement in the affray.

The court considered the gravity of the affray, which was increased by the kicking of CS while he lay defenceless. It also considered the relevance of victim impact statements, which were confined to the impact of the affray. The court took into account the defendants' admissions, pleas of guilty, some remorse, prior convictions, precarious mental health, deprived early life, promising steps taken whilst on remand, guarded to reasonable prospects of rehabilitation, and COVID-19 restrictions. The court also considered the limited application of parity, as XY was sentenced in the Children's Court to a youth supervision order, ST's plea was adjourned to a later date, and JL was awaiting trial on murder.

The court sentenced LC to eight months’ gaol combined with a community correction order for eight months for the affray. The criminality of the breaches of bail was largely reflected in the aggravation of the affray and the court avoided double punishment. The court convicted LC on the bail breaches but discharged him but for his plea of guilty to the affray. The court held that, but for the plea of guilty to the affray, LC should have been sentenced to 12 months’ gaol and a 12-month community correction order. The court considered the relevant statutory provisions, including the Crimes Act 1958 (Vic), s 195H; Bail Act 1977 (Vic), ss 30A & 30B; and Sentencing Act 1991 (Vic), ss 5 & 6AAA.

The final orders of the court were that LC be sentenced to eight months’ gaol combined with a community correction order for eight months for the affray, and that he be convicted and discharged on the bail breaches but for his plea of guilty to the affray. ST and XY were sentenced to a youth supervision order and a community correction order, respectively.

Orders