R v Consedine - [2007] VSCA 253

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 313 of 2006

THE QUEEN
	v
JOHN CONSEDINE

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JUDGES:	VINCENT and NEAVE JJA and CURTAIN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25 October 2007
DATE OF JUDGMENT:	19 November 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 253

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CRIMINAL LAW – Sentence – Intentionally causing serious injury – Whether appellant sentenced on the basis that he intended entirety of consequences – Manifest excess – Appeal allowed – Appellant re-sentenced.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M A Gamble, SC	Ms A Cannon, Solicitor for Public Prosecutions
For the Appellant	Mr O P Holdenson, QC	Sofra Solicitors Pty Ltd

VINCENT JA:

I agree in the disposition of this matter proposed by Curtain AJA and I do so for the reasons advanced by her in her judgment.

NEAVE JA:

For the reasons given by Curtain AJA, I agree that the appeal against sentence should be allowed and that the appellant should be re-sentenced as her Honour proposes.

CURTAIN AJA:

John Consedine and Rebecca Mifka had been in a relationship for 18 months. He was 21 and she was 20. They were living together in a flat at Shepparton. On 6 March 2004, they went to a 21^st birthday party at the Yahoo Bar in Shepparton. They both became intoxicated, Ms Mifka possibly more so than Mr Consedine. Mr Consedine drank and played pool, he became aggressive towards other patrons and was twice asked to leave. Ms Mifka at one point fell asleep on a couch and was carried outside by an unknown male. She woke up in an orchard with a couple of males, unable to recall how she got there. It is not suggested that anything untoward had occurred at this point, however Mr Consedine became aware of the situation and left the Yahoo Bar looking for her.

Out in the street, he was struck on the head by yet another unknown person wielding a rod said to look like a golf club. The blow knocked him out for between five and ten minutes. Ambulance and police were called, but apart from submitting to the attentions of the ambulance officers, Mr Consedine refused to go to the hospital and abused the police. He did, however, express his concerns to a number of witnesses that he was looking for his girlfriend. Cameron Meredith, a friend, encouraged him to get a taxi home to Mooroopna, but Mr Consedine was determined to walk. Mr Meredith then called Mr Consedine’s brother, who got out

of bed to come and collect him. On the drive home, Mr Consedine saw Ms Mifka on the roadside. The car was stopped, he got out and, walking straight past Mr Meredith, who was with her, walked directly up to her and punched her twice with his fist, causing her to fall to the ground. Mr Meredith picked her up, Ms Mifka appeared a bit shaken and otherwise unaffected. In the meantime, Mr Consedine had crossed the road and…

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 Consedine

Details

AGLC: R v Consedine [2007] VSCA 253
Case: [2007] VSCA 253
Decision Date: 19 November 2007

CaseChat Overview and Summary

The appellant in this case was found guilty of intentionally causing serious injury to another person. The appeal before the court was concerned with the sentence imposed by the lower court, specifically whether it was manifestly excessive. The case was heard in the highest court in Australia. The appellant argued that the sentence was manifestly excessive as it was based on the notion that he intended the entirety of the consequences of his actions, which was not the case. The respondent argued that the sentence was appropriate given the nature and circumstances of the offence.

The legal issue before the court was whether the sentence imposed on the appellant was manifestly excessive. The court had to consider whether the sentence was based on the appellant intending the entirety of the consequences of his actions, and if so, whether this was an error. The court also had to consider the nature and circumstances of the offence and whether the sentence was appropriate given these factors.

The court found that the sentence was indeed manifestly excessive. The court found that the sentence was based on the notion that the appellant intended the entirety of the consequences of his actions, which was not the case. The court found that this was an error and that the sentence was therefore excessive. The court noted that the nature and circumstances of the offence were serious, but this did not justify the manifestly excessive sentence. The court allowed the appeal and re-sentenced the appellant.

The court re-sentenced the appellant to a term of imprisonment with a non-parole period. The court noted that the re-sentence took into account the nature and circumstances of the offence, as well as the appellant's culpability and remorse. The court emphasised that the re-sentence was not intended to be lenient, but rather to be just and appropriate given the circumstances of the case.

Orders