CRIMINAL LAW – Sentencing – Assault and false imprisonment – Victim impact statement – Offending occurred in ‘domestic’ circumstances – Weight to be given to victim impact statement favourable to offender in those circumstances – Manifest excess – Appeal dismissed.
---
APPEARANCES:
Counsel
Solicitors
For the Crown
Mr D A Trapnell
Ms A Cannon, Solicitor for Public Prosecutions
For the Appellant
Mr C B Boyce
Victoria Legal Aid
CHERNOV JA:
On 27 October 2006 the appellant, Jason Jeffrey Hester, who is now aged 33 years, was sentenced in the County Court at Melbourne on a presentment containing one count of intentionally causing injury (count 1), one count of intentionally causing serious injury (count 2) and one count of false imprisonment (count 3). The appellant pleaded guilty to those offences and admitted 54 prior convictions from 20 court appearances between 12 August 1991 and 10 November 2003 many of which involved violence. The maximum custodial sentence prescribed for the second offence – intentionally causing serious injury – is 20 years and for each of the other two offences, ten years. In the result the appellant was sentenced in respect of the three offences to a total effective sentence of four years’ imprisonment, with a non-parole period of three years. On 7 September 2007, this Court gave the appellant leave to appeal against the sentence pursuant to s 582 of the Crimes Act1958.
The grounds on which the appellant appeals are that her Honour impermissibly ignored the victim impact statement for sentencing purposes and that the sentence is manifestly excessive. Before dealing with those matters, it is necessary to summarise the circumstances of the offending which are set out with some particularity in the sentencing remarks of the sentencing judge.
The offence which is the subject of count 1 was committed on 6 February 2006 and the other two offences on 9 February 2006. It seems that the appellant and the complainant had known each other since about December 2004. They became friends and their friendship developed into what her Honour called 'an intimate relationship which commenced about New Year's Eve 2005'. As to the offending, in general terms, on both occasions the appellant, whilst intoxicated, viciously assaulted the complainant. On the first occasion, at his house in Camperdown, a dispute arose between them, apparently about money. The appellant was drunk and became enraged. He threatened to burn the house down, punched the complainant on the nose, knocked her on to the bed and, notwithstanding that she told him that her nose was broken, began strangling her with some force, before abruptly letting her go. The complainant then left, but the appellant visited her on the next day and apologised for his conduct. According 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 Hester
Sign in free to access the full text
Details
AGLC
R v Hester [2007] VSCA 298
Case
[2007] VSCA 298
Decision Date
CaseChat Overview and Summary
The appeal before the court involved the respondent, Hester, who was appealing his sentence for assault and false imprisonment. The original sentencing took place in a lower court, and the matter has now been brought before the appellate court. Hester was found guilty of assaulting and falsely imprisoning his partner, and the original sentencing judge imposed a custodial sentence. Hester's appeal is focused on the weight given to the victim impact statement, which was favourable towards Hester, and whether the sentence imposed was manifestly excessive.
The primary legal issue before the court was whether the sentencing judge erred in the weight given to the victim impact statement in circumstances where the offending occurred in a domestic context. Hester argued that the judge did not properly consider the victim's favourable view of him, which should have led to a lesser sentence. The court needed to determine the appropriate approach to sentencing in cases involving domestic violence, particularly when the victim expresses a favourable view of the offender. Additionally, the court needed to assess whether the sentence imposed was manifestly excessive, taking into account all relevant factors.
The court found that the sentencing judge did not err in the weight given to the victim impact statement. The court emphasised that while the views of the victim are important, they are not determinative in sentencing decisions, particularly in cases of domestic violence. The court held that the sentencing judge correctly exercised their discretion by considering the gravity of the offending and the need for deterrence and protection of the community. The court also found that the sentence imposed was not manifestly excessive, as it was within the range of sentences that could be considered appropriate for the offences committed. The appeal was dismissed, and the original sentence was upheld.