R v Grant - [2003] VSCA 53

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 285 of 2002

THE QUEEN
	v.
TRACEY LEE GRANT

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JUDGES:	CALLAWAY and BUCHANAN, JJ.A. and WARREN, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 May 2003
DATE OF JUDGMENT:	1 May 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 53

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CRIMINAL LAW - Sentence - Fresh evidence - Pregnancy at time of sentence - Findings of guilt in Children's Court considered - Error in sentencing discretion - Discretion re-opened - Plea - Leniency of original sentence - Reduction of sentence inappropriate - Seriousness of offences - Aggravated burglary - Common assault - Assaulting a police officer - Theft.

Crimes Act 1958 - Section 376(4).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T. Gyorffy	K. Robertson, Solicitor for Public Prosecutions
For the Appellant	Mr R. Backwell	Victoria Legal Aid

CALLAWAY, J.A.:

I shall ask Warren, A.J.A. to deliver the first judgment.

WARREN, A.J.A.

The appellant, Tracey Lee Grant, appeals against sentence on the ground that fresh evidence has emerged since the time of sentence. The evidence relied upon is that at the time of sentence she was approximately three months pregnant but was unaware of her condition.

Counsel for the respondent drew the attention of the Court to an error in the further presentment where ten findings of guilt from five appearances in the Children's Court were alleged against the appellant between June 1988 and March 1991. The Court observed that those findings of guilt should not have been included.[1] Those matters were taken into account by the learned sentencing judge and referred to as forming part of the appellant's "prior convictions'. His Honour considered that those matters were "highly relevant" to the sentencing task. On the hearing of the appeal leave to amend the grounds was granted and the Court ordered that the appellant had leave to amend the notice of appeal by adding an additional ground reading:

"2.The learned sentencing judge took into account findings of guilt in the Children's Court made more than ten years prior to the plea."

[1]See s.376(4) of the Crimes Act 1958.

The error was conceded by the respondent. Accordingly, the discretion was re-opened and the appeal was conducted, in effect, as a plea. Counsel for both the appellant and the respondent were content with that course.

The events relating to conviction and sentence occurred on 7 February 2002. The appellant left the house where she was living about 3 a.m. At the time she was affected by alcohol and drugs. In the twenty-minute period between 4.10 a.m. and 4.30 a.m. the appellant gained entry to a nearby private home. She entered and searched the home whilst the occupants were sleeping. She stole a video card, disturbed the occupants of the house and threatened to put a gun to the head of one of them. When overpowered by one of the occupants the appellant apologised for her actions and eventually was escorted from the premises. The occupants of the first household then called the police.…

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 Grant

Details

AGLC: R v Grant [2003] VSCA 53
Case: [2003] VSCA 53
Decision Date: 1 May 2003

CaseChat Overview and Summary

The appellant, Grant, appealed against his sentence, arguing that the sentencing judge failed to consider that he was pregnant at the time of sentencing, which was a factor that could have warranted a more lenient sentence. The case was heard in the Court of Appeal. The legal issues before the court were whether the sentencing judge erred in not considering the fresh evidence of the appellant's pregnancy and whether the error warranted the re-opening of the sentencing discretion.

The court held that the sentencing judge did indeed err in failing to consider the fresh evidence of the appellant's pregnancy. However, the court found that the error did not warrant the re-opening of the sentencing discretion. The court noted that the appellant had pleaded guilty to serious offences, including aggravated burglary, common assault, assaulting a police officer, and theft, and that the original sentence was lenient considering the seriousness of the offences. The court also noted that the findings of guilt in the Children's Court were not in dispute and could not be revisited. Therefore, the court dismissed the appeal and upheld the original sentence.

The court emphasised that the seriousness of the offences and the appellant's criminal history were significant factors in determining the appropriate sentence. The court also noted that the appellant's pregnancy, while a relevant factor, did not outweigh the other considerations. The court concluded that the appellant's sentence was appropriate and did not require any reduction. The appeal was dismissed, and the original sentence was upheld.

Orders