R v Danh - [2009] VSCA 251

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 544 of 2009

THE QUEEN
	v
PETER DANH

---

JUDGES:	MAXWELL P and COGHLAN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 October 2009
DATE OF JUDGMENT:	12 October 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 251
JUDGMENT APPEALED FROM:	R v Danh (Unreported, Melbourne County Court, Judge Gaynor, 19 February 2009)

---

CRIMINAL LAW – Appeal – Sentence – Recklessly causing serious injury – Sentence three years six months, non-parole period two years – Whether adequate weight accorded to plea of guilty, remorse – Whether adequate weight accorded to effects of appellant’s acquired brain injury – Whether manifestly excessive – Utility of sentencing statistics – Prosecutor’s assistance on sentencing range – DPP v Maynard [2009] VSCA 129 – R v Verdins (2007) 16 VR 269 – Appeal dismissed.

---

Appearances:	Counsel	Solicitors
For the Crown	Mr D Trapnell SC	Mr C Hyland, Solicitor for Public Prosecutor
For the Appellant	Mr G Hughan	Victoria Legal Aid

MAXWELL P:

I will ask Coghlan AJA to deliver the first judgment.

COGHLAN AJA:

On 19 February 2009, the appellant, Peter Danh, pleaded guilty in the County Court at Melbourne to causing serious injury recklessly, theft, and possession of a drug of dependence (amphetamine).

He was sentenced to be imprisoned for three years and six months on the first count, and for one month on each of the other two counts. The sentences on those counts were ordered to be served concurrently. A non-parole period of two years was fixed.

The appellant sought leave to appeal against the sentence on count 1, causing serious injury recklessly. Leave was granted on 30 April 2009.

The grounds of appeal are:

1. In all the circumstances, the sentence imposed on count 1, the total effective sentence and the non-parole period are manifestly excessive.

2. The sentencing judge erred in her Honour’s treatment of the appellant’s pleas of guilty.

The circumstances of the offending are that at about 8.30 pm on the night of 29 March 2008, the appellant went to Mehjit India Restaurant in Corrigan Road, Keysborough. He asked to use the phone and the proprietor gave him 40 cents to use the pay phone. The appellant left the restaurant and used the mobile phone of a customer who was outside the restaurant. The appellant left, but returned at about 9.00 pm; he attempted to steal some money from a dish which had been provided for tips. The proprietor checked the till, then let him have that money and told him to leave. On the way out, he stole a collection tin from the counter. This act was seen by Mr Bruce Hooper, the victim of count 1, who followed the appellant out of

the restaurant, but was unable to stop him.

At about 10.00 pm, the appellant returned to the car-park outside the restaurant where Mr Hooper was having a cigarette. Mr Hooper tried to apprehend him and said ‘You can hang around and wait for the cops because…

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 Danh

Details

AGLC: R v Danh [2009] VSCA 251
Case: [2009] VSCA 251
Decision Date: 12 October 2009

CaseChat Overview and Summary

The appellant in this case was convicted of recklessly causing serious injury, with the trial judge imposing a sentence of three years and six months imprisonment, with a non-parole period of two years. The appellant appealed against the sentence on the grounds that the trial judge did not adequately consider the plea of guilty, the appellant’s remorse, and the effects of an acquired brain injury. The respondent, the Director of Public Prosecutions, argued that the sentence was appropriate and that the appeal should be dismissed.

The central legal issues before the court were whether the trial judge appropriately weighed the plea of guilty, the remorse shown by the appellant, and the effects of the appellant’s acquired brain injury. Additionally, the court needed to determine whether the sentence was manifestly excessive and whether the utility of sentencing statistics and the prosecutor’s assistance on the sentencing range were relevant considerations. The court examined the principles set out in DPP v Maynard and R v Verdins to assess the adequacy of the sentence.

The court found that the trial judge had adequately considered the plea of guilty, the remorse shown by the appellant, and the effects of the acquired brain injury. The court emphasised that while the sentence was at the higher end of the range, it was not so excessive as to be unjust. The court also noted that the sentencing statistics and the prosecutor’s assistance were not determinative of the appropriate sentence but could be relevant considerations. The court ultimately concluded that the sentence was appropriate and dismissed the appeal.

The final orders of the court were to dismiss the appeal against sentence. The sentence of three years and six months imprisonment, with a non-parole period of two years, was upheld as appropriate. The court's decision underscored the importance of considering various factors, including the plea of guilty, remorse, and any mitigating circumstances, in determining an appropriate sentence.

Orders