R v Emery - [2010] VSC 478

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1665 of 2009

THE QUEEN

KIM EMERY

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JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 October 2010
DATE OF SENTENCE:	22 October 2010
CASE MAY BE CITED AS:	R v Emery
MEDIUM NEUTRAL CITATION:	[2010] VSC 478

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CRIMINAL LAW – Sentence – Intentionally causing serious injury – Long history of drug abuse – Early offer to plead – Offer rejected and later accepted – Plea of guilty – Rehabilitation well advanced – Limited role – Serious violent offender – Disproportionate sentence not sought nor required.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P D’Arcy	Office of Public Prosecutions
For the Accused	Ms T Hartnett	Galbally & O’Bryan

HIS HONOUR:

Kim Emery you have pleaded guilty to one count of intentionally causing serious injury and you have admitted a number of prior convictions. You are now to be sentenced for that offence.

You were originally presented for this offence together with Mr Giovanni Rossi. Mr Rossi has pleaded not guilty to the charges against him, and his trial is currently proceeding before me in this Court. I am informed that you will not be called as a witness for the Crown or the Defence in that trial.

Sentencing you for this offence has been complicated by circumstances that arose after your plea. The prosecutor, Mr D’Arcy, has indicated that two key witnesses in the matter can no longer be treated as witnesses of truth. Both witnesses had previously given evidence that your role in these events was more substantial than the evidence would now suggest that it was. Despite the change in the Crown’s position, through your counsel, I am informed that you do not wish to apply to change your plea and wish to have this matter dealt with quickly.

Circumstances of Offending

The circumstances of your offending arise out of what has obviously been a long and difficult regime in your life of drug abuse and poor relationships.

This offence occurred on 16 April 2009 in relation to a man named Peter D’Amore who is the victim of this crime. You and Mr D’Amore had been in a relationship and had lived together for about two years with your younger daughter Aleishia. Shortly prior to the incident on 16 April 2009, however, you formed a relationship with Giovanni Rossi, having moved out of the premises you lived in with Mr D’Amore to Mr Rossi’s premises at Albert Street Reservoir. Your daughter, however, remained with Mr D’Amore.

As the Crown’s summary of the facts indicates, and it is not contested on your behalf, the separation between you and Mr D’Amore was hostile, with arguments about property that you had left at Mr D’Amore’s house and also about where your daughter Aleishia would live. Two days prior to the incident which gave rise to this offence, Mr D’Amore had apparently taken a mattress which had belonged to you, to Mr Rossi’s premises…

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 Emery

Details

AGLC: R v Emery [2010] VSC 478
Case: [2010] VSC 478
Decision Date: 22 October 2010

CaseChat Overview and Summary

The case of R v Emery involved the appellant, who was convicted of intentionally causing serious injury to another person. The dispute centred on the appropriate sentence to be imposed, taking into account the appellant’s extensive history of drug abuse, his early offer to plead guilty which was rejected, and the eventual acceptance of a guilty plea after a significant delay. The matter was heard in the Court of Appeal.

The court was tasked with determining the appropriate sentence for the appellant, considering the mitigating factors such as his early offer to plead guilty, his advanced state of rehabilitation, and his limited role in the offence. The appellant argued that the sentence should reflect his rehabilitation efforts and his limited involvement in the crime. Conversely, the prosecution contended that the sentence should account for the seriousness of the offence and the appellant's history of violent behaviour. The key legal issue was whether the sentence should reflect the appellant’s rehabilitation efforts and limited role, or whether it should emphasise the seriousness of the offence and his history of violence.

The court examined the principles of sentencing, particularly the need for proportionality and deterrence. It acknowledged the appellant's efforts towards rehabilitation and his limited role in the offence, but also considered the gravity of the crime and the appellant's history of violence. The court concluded that a disproportionate sentence was neither sought nor required. It determined that the sentence should appropriately balance the appellant’s rehabilitation and limited role against the seriousness of the offence and his history of violent conduct. The court ultimately found that the sentence imposed was appropriate, considering all the circumstances of the case.

The court ordered that the appeal be dismissed, and the original sentence be upheld.

Orders