R v Close - [2004] VSCA 188

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 58 of 2004

THE QUEEN
	v.
MICHAEL CLOSE

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JUDGES:	WINNEKE, P., CHARLES and NETTLE, J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 October 2004
DATE OF JUDGMENT:	7 October 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 188

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CRIMINAL LAW - Sentence - Recklessly causing serious injury - Arson - Appellant grossly provoked by victim - Retaliation causing serious brain damage to victim - Hardship to appellant's family - Whether exceptional circumstances - Delay - Manifest excess- Appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C.	Ms K. Robertson, Solicitor for Public Prosecutions
For the Appellant	Mr L.C. Carter	Simon English & Co.

WINNEKE, P.:

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

CHARLES, J.A.:

On 18 November 2003 the appellant was presented for trial in the County Court at Melbourne on four counts, causing serious injury intentionally (count 1), causing serious injury recklessly (count 2), theft (count 3) and arson (count 4). He pleaded not guilty to counts 1 and 2. The Crown offered no evidence in respect of the third count, upon which he was therefore acquitted, and he pleaded guilty to count 4. At a committal mention on 14 January 2002, the appellant had indicated his preparedness to plead guilty to count 2, but this plea was not acceptable to the Crown at that time.

The trial proceeded, and on 26 November 2003 the jury returned verdicts of not guilty in relation to count 1, and guilty in relation to count 2. The proceedings were adjourned to 2 March 2004 when the judge commenced hearing a plea in mitigation. On 18 March the judge sentenced the appellant on the count of recklessly causing serious injury to three years' imprisonment and on the count of arson to 12 months' imprisonment, of which three months was to be served cumulatively upon the sentence on count 2. The total effective sentence therefore became three years and three months. The judge fixed a non-parole period of 18 months.

On 1 July 2004 the appellant was granted leave to appeal pursuant to s.582 of the Crimes Act 1958. He now appeals on the following grounds -

1.The total effective sentences and non-parole period are manifestly excessive;
2.The judge erred in giving no weight to the fact that the degree of injury suffered by the victim was not intended by the appellant;
3.The judge erred in giving no weight to the appellant's severe depression;
4.The judge erred by giving insufficient weight to the ill health of the appellant's partner, and the potential impact of incarceration on the appellant's four young children;
5.The judge erred in consideration of the principle of totality by giving insufficient weight to the appellant's service of a term of imprisonment, including completion of parole, subsequent to the commission of the offences;
6.The judge erred in giving no weight to the delay between the date of offence and the date of sentence.

The…

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 Close

Details

AGLC: R v Close [2004] VSCA 188
Case: [2004] VSCA 188
Decision Date: 7 October 2004

CaseChat Overview and Summary

The appellant, Close, appealed against his sentence for recklessly causing serious injury by arson. Close had been involved in a series of altercations with the victim, which culminated in the arson attack that resulted in the victim sustaining severe brain damage. The trial judge, recognising the gross provocation Close had experienced, imposed a sentence that included a period of imprisonment. Close appealed, contending that the sentence was manifestly excessive, and that the trial judge had not sufficiently considered the exceptional circumstances of the case, including the delay in bringing the appeal and the hardship it imposed on his family.

The central issue before the court was whether the sentence imposed by the trial judge was manifestly excessive, taking into account the exceptional circumstances of the case, the delay in lodging the appeal, and the potential hardship to the appellant's family. The court had to balance the severity of the crime against the appellant's mitigating factors, including his provocation and the impact of the sentence on his family. The court also needed to consider whether the delay in lodging the appeal affected the fairness and appropriateness of the sentence.

The court found that the sentence imposed by the trial judge was indeed manifestly excessive. It noted that the trial judge had given insufficient weight to the exceptional circumstances of the case, including the gross provocation experienced by the appellant and the significant delay in bringing the appeal. The court held that the trial judge had not adequately considered the hardship that the sentence would impose on the appellant's family, which was a relevant mitigating factor. The court concluded that the delay in lodging the appeal did not affect the fairness and appropriateness of the sentence, but it did impact the manner in which the appeal was to be dealt with. Ultimately, the court allowed the appeal and quashed the sentence, ordering a re-sentencing hearing.

The court ordered that the sentence imposed by the trial judge be quashed and that a re-sentencing hearing be conducted. The court directed that the re-sentencing hearing be held with due expedition, recognising the importance of finality in criminal sentencing matters. The court emphasised that the re-sentencing judge must take into account all relevant factors, including the exceptional circumstances of the case, the delay in lodging the appeal, and the potential hardship to the appellant's family.

Orders