R v Fox

Case [2003] VSCA 138 12 September 2003

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 242 of 2002

THE QUEEN
	v.
MARTIN GEOFFREY FOX

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JUDGES:	CHARLES and CHERNOV, JJ.A. and ASHLEY, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 September 2003
DATE OF JUDGMENT:	12 September 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 138

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CRIMINAL LAW – Sentencing – Kidnapping – Intentionally causing serious injury – Whether sentencing discretion vitiated by factual error in sentencing remarks – Whether error material – Whether addiction to prescribed medication and personal circumstances reduced moral culpability – Whether undue weight given to principles of specific and general deterrence – Whether head sentence of 9 years manifestly excessive – Whether non-parole period of 7 years manifestly excessive – Considerations applicable to non-parole period.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms S.E. Pullen	Ms K. Robertson, Solicitor for Public Prosecutions
For the Appellant	Mr O.P. Holdenson Q.C.	Clarebrough Pica

CHARLES, J.A.:

I have had the advantage of reading the reasons for judgment of Chernov, J.A. Subject only to the following, I agree with his Honour that the appeal should be dismissed, and for the reasons he gives.

The appellant’s life, as Chernov, J.A. has explained, has been a very tragic one. His early life was marred by the failed relationship between his parents. He was neglected and put aside, and forced to live, as the sentencing judge put it, as a “street kid”. It seems that for a considerable time he lived by sleeping on couches at various homes with people he knew. Then, at the age of 15, he received appalling injuries when he was engulfed in a ball of fire when a gas bottle ignited. He suffered burns to 95% of his body and was grossly disfigured. He must have suffered the most acute and prolonged physical pain and discomfort, and very severe psychological scarring. It has reflected on his subsequent life in many ways, and has, without question, made it very difficult for him to cope with life’s demands and his response to perceptions of people’s attitudes to his disfigurement. It was in these circumstances that the judge in sentencing reasons recorded that it was in 1997 that the appellant found that his stepfather had committed suicide by hanging himself when he discovered the body hanging from a tree in the back garden of a house. The judge continued “This is a matter that has certainly not assisted you in your earlier years.”

The appellant’s case under ground 8 was that this was a material error which vitiated the sentencing discretion, because the fact was that the stepfather hanged himself not in 1997 but late in the year 2000. Chernov, J.A. has taken the view that it is unlikely that the judge would have forgotten the correct position which he had been told during the plea some twelve days beforehand, as Ms Pullen for the Crown submitted in this Court. I have some difficulty with this view, for there was no obvious reason for the year 1997 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.

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Details

AGLC: R v Fox [2003] VSCA 138
Case: [2003] VSCA 138
Decision Date: 12 September 2003

CaseChat Overview and Summary

In the case of R v Fox, the appellant was convicted of kidnapping and intentionally causing serious injury, and the matter was brought before the court for sentencing. The appeal was against both the length of the sentence and the non-parole period imposed by the sentencing judge. The court was tasked with determining whether the sentencing discretion was vitiated by a factual error in the sentencing remarks, whether such an error was material, and whether the sentencing judge had appropriately considered the appellant's addiction to prescribed medication and personal circumstances in assessing moral culpability. Additionally, the court examined whether the sentencing judge had unduly emphasised the principles of specific and general deterrence and if the head sentence of 9 years and the non-parole period of 7 years were manifestly excessive.

The court found that the sentencing judge had made a factual error in his remarks, which was not material to the overall sentencing decision. The judge had appropriately weighed the appellant's addiction to prescribed medication and personal circumstances in assessing moral culpability, and the principles of specific and general deterrence were not unduly emphasised. The court held that the head sentence of 9 years and the non-parole period of 7 years were not manifestly excessive, taking into account the gravity of the offences and the need to protect the community. The court also considered the principles applicable to the determination of the non-parole period, including the seriousness of the offence, the need for denunciation, and the appellant's prospects of rehabilitation.

The appeal was dismissed, and the original sentence and non-parole period were upheld. The court found that the sentencing judge had exercised his discretion appropriately and had not made any error that would vitiate the sentence. The court acknowledged the gravity of the offences committed by the appellant but considered that the sentence and non-parole period imposed were proportionate to the crimes and appropriate in the circumstances. The appellant's conviction and sentence were therefore affirmed, and the appeal was dismissed in its entirety.

Orders