R v Danaher - [2003] VSCA 119

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 265 of 2001

THE QUEEN
	v.
RICHARD ANTHONY DANAHER

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JUDGES:	VINCENT, EAMES, JJ.A. and ASHLEY, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 August 2003
DATE OF JUDGMENT:	6 August 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 119

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Criminal law – Intentionally causing serious injury – 8 years head sentence with 6½ year non-parole period – Fresh evidence showing true significance of facts which existed at the time of sentence – Diagnosis of serious mental disorder – Serious example of offence – No explanation for unusually high non-parole period – Head sentence not outside available range – Non-parole period manifestly excessive in light of matters including those revealed by fresh evidence – Applicant re-sentenced to non-parole period of 5 years.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mrs S.E. Pullen	K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr G.J. Thomas	Victoria Legal Aid

VINCENT, J.A.:

I invite Ashley, A.J.A. to deliver the first judgment in this matter.

ASHLEY, A.J.A.:

The applicant, Richard Danaher, pleaded guilty in the County Court to one count of intentionally causing serious injury and one count of being a prescribed person in possession of a prohibited weapon. The offences to which he pleaded guilty were committed on 15 June 2001. On 18 October that year he was sentenced, after a plea hearing, to eight years' imprisonment on count 1 and twelve months' imprisonment on count 2. There was no cumulation. The judge fixed a non-parole period of six-and-a-half years. The maximum penalty on count 1 was 20 years; and on count 2, seven years.

The Crown asked the sentencing judge to act on a version of events concerning count 1 which sought to interweave accounts given by those present at the pertinent time. Those persons were the applicant, Mr Glenn Hassall and Mrs Nola Whiteford. Mr Hassall was the victim and Mrs Whiteford his mother and the de facto partner of the applicant. The judge, having heard viva voce evidence from Mrs Whiteford, was confirmed in his prima facie view that he should act on her account of events. That account, together with some other and uncontroversial material, was generally as follows:

In August or early September 2000, the applicant met Mrs Whiteford. They began a relationship. In February 2001 the applicant moved into Mrs Whiteford’s home in Ringwood. I interpolate that the applicant was then unemployed. He had been a truck driver and his work record had been good, but some years earlier he had gone onto a disability pension. To return to the narrative, in May 2001 Mr Hassall returned from overseas. He moved into the house. Over the period until 15 June, antipathy developed between the two men. There were confrontations.

On 15 June Mrs Whiteford and the two men were home at a little after midday. Mrs Whiteford and the applicant were watching the television. Mr Hassall began fiddling with the remote control during breaks for advertising. Apparently he wanted to…

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 Danaher

Details

AGLC: R v Danaher [2003] VSCA 119
Case: [2003] VSCA 119
Decision Date: 6 August 2003

CaseChat Overview and Summary

In the case of R v Danaher, the applicant sought to be re-sentenced by the Court of Appeal. The applicant had been convicted of intentionally causing serious injury to another person and was sentenced to an eight-year head sentence with a six-and-a-half-year non-parole period. The applicant argued that fresh evidence, which showed the true significance of facts that existed at the time of sentencing, warranted a reduction in his non-parole period. This evidence included a diagnosis of a serious mental disorder, which the applicant claimed should have been considered at the time of the original sentencing.

The primary legal issue before the court was whether the non-parole period was manifestly excessive in light of the fresh evidence. The court also considered whether the head sentence was outside the available range and whether the original sentence was a serious example of the offence, given the applicant’s mental health condition at the time of sentencing. The court had to balance the need for consistency in sentencing with the requirement to consider all relevant evidence when determining the appropriate punishment.

The court found that, although the head sentence was within the available range, the non-parole period was manifestly excessive. The fresh evidence, including the diagnosis of a serious mental disorder, was significant and should have been considered at the original sentencing. The court noted that there was no explanation for the unusually high non-parole period, and the original sentence did not adequately account for the applicant’s mental health issues. The court re-sentenced the applicant to a non-parole period of five years, reflecting the fresh evidence and the need for a more proportionate sentence.

The court’s decision emphasised the importance of considering all relevant evidence when determining a sentence, particularly where fresh evidence becomes available that significantly impacts the understanding of the circumstances at the time of the original sentencing. The re-sentencing demonstrates the court's commitment to ensuring that sentences are fair and proportionate, taking into account the true circumstances of each case.

Orders