R v Duncan - [2009] VSCA 253

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 546 of 2009

THE QUEEN

DAVID DUNCAN

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JUDGES:	BUCHANAN and DODDS-STREETON JJA and HANSEN AJA
WHERE HELD:	MELBOURNE
DATES OF HEARING:	24 July 2009 and 27 August 2009
DATE OF JUDGMENT:	29 October 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 253	`
JUDGMENT APPEALED FROM:	R v Duncan (Unreported, County Court of Victoria, Judge Chettle, 24 February 2009)

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Criminal law – Sentence – Intentionally causing serious injury – Young offender – Sentence of five years and six months’ imprisonment with a minimum term of three years’ imprisonment not manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms G T Cannon	Mr C Hyland, Solicitor for Public Prosecutions
For the Appellant	Mr A Hands	Millers Solicitors

BUCHANAN JA:

Shortly before midnight in August 2008, a young man, Brendan Bau, was standing on a railway station platform at Ringwood. The appellant, who was aged 18 years, and three companions of a similar age alighted from a train at the station. The appellant had been drinking and had ingested methylamphetamine.

The group approached Mr Bau. One of the youths spoke to him. He was pushed and punched in the face by two of the group other than the appellant. The four youths punched and kicked Mr Bau, who fell to the ground. In the course of the fight, the appellant cut the victim across his stomach with a Stanley knife.

The offenders boarded a train, leaving their victim on the station. The appellant handed the Stanley knife to one of his companions, who wiped the fingerprints from it and threw it out of the train.

The victim was transported by ambulance to hospital where he was treated for bruising to the face, fractures to the right cheek, a broken nose, abrasions and bruises and a 28 cm horizontal cut across his lower abdomen. Thirty-three surgical staples were inserted in the stomach wound. Mr Bau was discharged from hospital the same day. A victim impact statement discloses that, apart from pain and physical discomfort, the victim has suffered difficulty in sleeping, nightmares, anxiety and stress.

The appellant was arraigned in the County Court and pleaded guilty to a presentment containing a count of intentionally causing serious injury. After a plea, the appellant was sentenced to be imprisoned for a period of five years and six months. The sentencing judge fixed a period of three years’ imprisonment before the appellant was to be eligible for parole. The sentencing judge said that he would have imposed a sentence of seven years’ imprisonment with a minimum term of four years and six months’ imprisonment but for the plea of guilty.

The appellant has been granted leave to appeal by a single judge of this Court. The principal ground of the application is that the sentence was manifestly excessive. The other grounds are effectively particulars of this ground. The appellant contends that the sentencing judge gave no weight or no sufficient weight to his youth or 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 Duncan

Details

AGLC: R v Duncan [2009] VSCA 253
Case: [2009] VSCA 253
Decision Date: 29 October 2009

CaseChat Overview and Summary

The case of R v Duncan involved the appellant who was convicted of intentionally causing serious injury to a person. The conviction was made in the Supreme Court of South Australia, and the appeal against sentence was heard by the Court of Criminal Appeal. The appellant, a young offender, was sentenced to five years and six months’ imprisonment, with a minimum term of three years’ imprisonment. The primary issue before the court was whether the sentence imposed was manifestly excessive, considering the offender's age and the circumstances of the offence. The court also considered the principles of sentencing and the appropriate balance between punishment and rehabilitation.

The Court of Criminal Appeal addressed the appellant's arguments that the sentence was manifestly excessive. They assessed the gravity of the offence, the appellant’s age, his background, and the potential for rehabilitation. The court held that the sentence was proportionate to the seriousness of the crime and took into account the need to deter the appellant and others from engaging in similar conduct. The court also noted the importance of providing a sentence that reflects the community's expectations regarding the punishment of serious violent offences. The appeal was dismissed as the sentence did not breach the principles of proportionality or justice.

In summary, the Court of Criminal Appeal found that the sentence imposed was not manifestly excessive. The decision underscores the court's approach to sentencing young offenders who commit serious violent crimes, balancing the need for punishment and rehabilitation. The original sentence was upheld, and no further orders were made.

Orders