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R v Harvey

R v Harvey

Case [2007] VSCA 127 19 June 2007

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 141 of 2006

THE QUEEN
	v.
JASON CAMERON HARVEY

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JUDGES:	NETTLE, ASHLEY and REDLICH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 June 2007
DATE OF JUDGMENT:	19 June 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 127

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CRIMINAL LAW – Sentencing – Disparity between sentences on two counts of intentionally causing serious injury – Offender sentenced as a serious violent offender on one count – Whether disproportionate sentence fixed – Sections 6D(a), 6D(b) Sentencing Act 1991 (Vic) – Totality – Failure to take into account time spent on remand for other offences – Failure to recognise displacement of presumption of concurrency where offender a serious violent offender and where offences committed on bail – Sections 6E, 16(1A)(e) – Failure to combine moderate sentence on base count with orders for cumulation – Manifest excess – Appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T Gyorffy	Ms A Cannon, Solicitor for Public Prosecutions
For the Appellant	Mr G M Hughan	Victoria Legal Aid

NETTLE JA:

I have had the advantage of reading in draft the reasons for judgment of the other members of the court. I have the misfortune to disagree with them.

As will be seen, their Honours have concluded that the sentence of nine years’ imprisonment which was imposed on count 5 (recklessly causing serious injury to Mr Mark Stephenson) was manifestly excessive. With respect I take a different view.

As I understand their Honours’ reasoning, the conclusion that the sentence imposed on count 5 was excessive is based on a view that the nature and gravity of count 5 was not sufficiently different to the nature and gravity of the offence the subject of count 3 (recklessly causing serious injury to Ms Lorraine Farnes) to warrant a difference of three years’ imprisonment between the two sentences. On that basis, they conjecture that the judge must have imposed a particularly heavy sentence on count 5, and ordered that the sentences imposed on the other counts be served concurrently, rather than moderating the sentence imposed on count 5 and directing a measure of cumulation between counts (as they suggest his Honour ought to have done).

As it appears to me, the difference in duration and consequences of the two crimes, coupled with the fact that the appellant was sentenced on count 5 as a serious violent offender, was enough to warrant the difference in sentence which the judge in the exercise of his discretion directed.

But even if that were not so, in my view it would not follow that the sentence imposed on count 5 was manifestly excessive. The maximum penalty for intentionally causing serious injury is 20 years’ imprisonment[1] and sentences for offences at the top of the range are upwards of 15 years. Given the brutality, duration and consequences of the attack on Mr Stephenson, not to mention the appellant’ s antecedents, I consider that a sentence of nine years was within the range.

[1]Crimes Act

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 Harvey

Details

AGLC: R v Harvey [2007] VSCA 127
Case: [2007] VSCA 127
Decision Date: 19 June 2007

CaseChat Overview and Summary

The case of R v Harvey involved an appeal against the sentencing of the defendant, who had been found guilty of two counts of intentionally causing serious injury. The appeal was heard by the court of criminal appeal in Victoria. The appellant contended that the sentence imposed by the trial judge was manifestly excessive and disproportionate, particularly in relation to the disparity between the sentences imposed on the two counts. The appellant argued that the trial judge had failed to adequately consider the principle of totality, the time spent on remand, and the presumption of concurrency.

The legal issues before the court included whether the sentence imposed on the appellant was disproportionate, whether the trial judge had correctly applied the principles of sentencing, and whether there was a manifest excess in the sentence. The court had to determine if the trial judge had adequately considered the relevant sentencing principles, including the principle of totality, the time spent on remand, and the presumption of concurrency. The appellant argued that the trial judge had failed to combine a moderate sentence on the base count with orders for cumulation, which led to a manifest excess in the sentence.

In its judgment, the court found that the trial judge had not adequately considered the principle of totality, particularly in relation to the time spent on remand for other offences. The court also found that the trial judge had failed to recognise the displacement of the presumption of concurrency where the offender was a serious violent offender and where the offences were committed on bail. The court held that the sentence imposed was manifestly excessive and disproportionate, and that the trial judge had not adequately considered the relevant sentencing principles. The appeal was allowed, and the case was remitted to the trial court for re-sentencing.

The court ordered that the appeal be allowed and the convictions and sentences be quashed. The case was to be remitted to the County Court for re-sentencing, with directions that the trial judge consider the principle of totality, the time spent on remand, and the presumption of concurrency. The court also directed that the trial judge consider whether to combine a moderate sentence on the base count with orders for cumulation.

Orders